According to the Mayo Clinic, Brugada syndrome is a potentially life-threatening heart rhythm disorder that is characterized by an abnormal heartbeat. Patients may develop cardiac symptoms, like loss of consciousness, abnormally rapid heart rhythm and even sudden cardiac death.Brugada syndrome is frequently an inherited condition, which can require surgical implantation of a cardioverter-defibrillator. Additional information can be found at http://www.brugada.org.
I represent a claimant with Brugada, who was seeking Social Security Disability (“SSD”) benefits. I submitted supporting medical reports from the claimant’s cardiologist. An article from the International Journal of Cardiology found that people with Brugada symptoms are at higher risk of sudden death if they have anxiety. A week before the hearing, I submitted a report detailing the claimant’s anxiety disorder.
An Administrative Law Judge (“ALJ”) issued a fully favorable decision today, approving the claimant’s SSD benefits. The ALJ determined that the claimant was disabled by virtue of his anxiety relating to his Brugada Syndrome.
Friday, February 7, 2014
Friday, January 31, 2014
Disabling Mitral Valve
According to the Mayo Clinic, mitral valve regurgitation happens when your heart's mitral valve doesn't close tightly, which allows blood to flow backward in your heart. When that happens blood can't circulate efficiently, making you feel tired or out of breath.
Surgery is needed to repair or replace the valve for severe cases. The American Heart Association says that if left untreated, severe mitral valve regurgitation can cause abnormal heartbeats that may eventually become life-threatening.
I represent a 56 year old educator whose Social Security Disability (“SSD”) application was approved today by the State agency. The claimant had previously been denied SSD benefits. He retained me after learning that I was one of the two attorneys willing to submit an affidavit in support of the plaintiffs in the Padro class action. One can only wonder what the result would be if his new application were reviewed by one of the Padro ALJs.
Surgery is needed to repair or replace the valve for severe cases. The American Heart Association says that if left untreated, severe mitral valve regurgitation can cause abnormal heartbeats that may eventually become life-threatening.
I represent a 56 year old educator whose Social Security Disability (“SSD”) application was approved today by the State agency. The claimant had previously been denied SSD benefits. He retained me after learning that I was one of the two attorneys willing to submit an affidavit in support of the plaintiffs in the Padro class action. One can only wonder what the result would be if his new application were reviewed by one of the Padro ALJs.
SSA Secret Rule
The primary evidence for establishing entitlement to Social Security Disability (“SSD”) benefits is a Medical Source Statement (“MSS”). An MSS summarizes the doctor’s medical findings and conclusions, including an opinion about the claimant’s functional abilities. Many administrative law judges (“ALJs”) used to accept an MSS to approve an SSD application.
Section 404.1512 of the Social Security (“SS”) regulations addresses the evidence that a claimant must furnish in order to establish entitlement to SSD benefits, but does not require treatment records. Similarly, the POMS list treatment notes as just one of the many types of evidence that may be submitted, but the POMS also does not provide that treatment notes are required. Nor is there any other written SS rule or regulation that requires the submission of treatment records.
About a year ago, there were discussions about how SS was implementing procedures to reduce the number of SSD applications that were being granted. Coincidentally, it was about that same time that the ALJ who had routinely accepted a MSS to approve an application stopped doing so unless treatment records were also obtained.
So although there is no written rule or regulation that requires treatment notes to establish entitlement to SSD benefits, it is pretty obvious that SS has instituted an unwritten policy to require treatment records. I represent a 50 year old librarian whose SSD application was approved today by an ALJ, but only after the ALJ insisted on receiving treatment records post hearing. Since the treatment records were silent on the issue of functional limitations, it appears that they are being required solely as a credibility test, to confirm that claimant are actually being treated.
Section 404.1512 of the Social Security (“SS”) regulations addresses the evidence that a claimant must furnish in order to establish entitlement to SSD benefits, but does not require treatment records. Similarly, the POMS list treatment notes as just one of the many types of evidence that may be submitted, but the POMS also does not provide that treatment notes are required. Nor is there any other written SS rule or regulation that requires the submission of treatment records.
About a year ago, there were discussions about how SS was implementing procedures to reduce the number of SSD applications that were being granted. Coincidentally, it was about that same time that the ALJ who had routinely accepted a MSS to approve an application stopped doing so unless treatment records were also obtained.
So although there is no written rule or regulation that requires treatment notes to establish entitlement to SSD benefits, it is pretty obvious that SS has instituted an unwritten policy to require treatment records. I represent a 50 year old librarian whose SSD application was approved today by an ALJ, but only after the ALJ insisted on receiving treatment records post hearing. Since the treatment records were silent on the issue of functional limitations, it appears that they are being required solely as a credibility test, to confirm that claimant are actually being treated.
Tuesday, January 28, 2014
The Electronic Claims Analysis Tool (eCAT)
The electronic claims analysis tool (the “eCAT”) is an internet application that the Social Security Administration (“SSA”) uses. The purpose of the eCat is to document a disability adjudicator’s analysis to ensure that all SSA policies are considered during the disability adjudication process. The goal was to foster uniformity so applicants would be treated the same regardless of where they lived. The eCAT produces a Disability Determination Explanation that documents the detailed analysis and rationale for either allowing or denying a claim. The SSA has been using the eCAT nationwide since 2009.
In July 2011, the Office of the Inspector General (the “OIG”) issued a report on “The Effects of the Electronic Claims Analysis Tool.” The OIG noted that one of the SSA policies that the eCAT is designed to consider during the disability adjudication process is whether a consultative examination (“CE”) is needed to get more information about a claimant’s impairment(s) and level of functioning. If so, then the OIG stated that “the examiner should ask the treating sources to perform the examination.” The OIG cited POMS, DI 22510.010 as authority, but there are a slew of other regulations that also require that a treating source be used as the “preferred source” for conducting a CE. The OIG did note that some exceptions to the rule apply, such as where the treating source informed the DDS he/she did not want to perform CEs or did not respond to the request for evidence or answer whether he/she would be willing to perform a CE, if needed.
On March 20, 2013, during Congressional Hearings held by the Ways & Means Committee, the SSA testified that disability adjudicators are required to use eCAT, which is designed to aid in the documenting, analyzing, and adjudicating the disability claim according to SSA regulations. Thus, it is perfectly clear that the eCAT is supposed to ensure that disability adjudicators comply with SSA policies, in particular, asking treating sources to conduct CEs.
Despite the aforementioned, in every Disability Determination Explanation that I have reviewed, the disability adjudicator has stated that a CE is needed, but has failed to ask the treating source to perform it, and no exception to the rule has applied. Is the eCAT designed poorly, or are disability adjudicators simply refusing to comply with the SSA policy and the eCAT? Since the SSA spent a lot of money on eCAT, you would think that it would be designed to ensure that a disability adjudicator complies with a simple and unambiguous policy – asking treating sources to perform CEs.
In July 2011, the Office of the Inspector General (the “OIG”) issued a report on “The Effects of the Electronic Claims Analysis Tool.” The OIG noted that one of the SSA policies that the eCAT is designed to consider during the disability adjudication process is whether a consultative examination (“CE”) is needed to get more information about a claimant’s impairment(s) and level of functioning. If so, then the OIG stated that “the examiner should ask the treating sources to perform the examination.” The OIG cited POMS, DI 22510.010 as authority, but there are a slew of other regulations that also require that a treating source be used as the “preferred source” for conducting a CE. The OIG did note that some exceptions to the rule apply, such as where the treating source informed the DDS he/she did not want to perform CEs or did not respond to the request for evidence or answer whether he/she would be willing to perform a CE, if needed.
On March 20, 2013, during Congressional Hearings held by the Ways & Means Committee, the SSA testified that disability adjudicators are required to use eCAT, which is designed to aid in the documenting, analyzing, and adjudicating the disability claim according to SSA regulations. Thus, it is perfectly clear that the eCAT is supposed to ensure that disability adjudicators comply with SSA policies, in particular, asking treating sources to conduct CEs.
Despite the aforementioned, in every Disability Determination Explanation that I have reviewed, the disability adjudicator has stated that a CE is needed, but has failed to ask the treating source to perform it, and no exception to the rule has applied. Is the eCAT designed poorly, or are disability adjudicators simply refusing to comply with the SSA policy and the eCAT? Since the SSA spent a lot of money on eCAT, you would think that it would be designed to ensure that a disability adjudicator complies with a simple and unambiguous policy – asking treating sources to perform CEs.
Monday, January 27, 2014
If You Die Before Benefits Are Approved
The process for applying and receiving Social Security Disability (“SSD”) benefits is typically a protracted one. It is not unusual for claimant to die before the State agency makes an initial decision, or before an administrative law judge (“ALJ”) can hear the case. Unfortunately, this has happened to several of our clients recently. The question arises, what happens to an SSD claim if you die before benefits are approved?
A deceased claimant's surviving family member may continue to pursue the disability claim for the benefit of the claimant's estate, and can collect the benefits if approved. The Social Security Administration will determine the amount of benefits owed, and to whom they are payable. Spouses, children, and the deceased's estate may be eligible to collect benefits.
The family member who continues an SSD claim will need to submit a copy of the claimant's death certificate with a "substitution of party" form. The surviving family members may be eligible for a continuing dependent’s benefit too. If there is no one eligible to receive the underpayment, it will be necessary to dismiss the disability claim.
A deceased claimant's surviving family member may continue to pursue the disability claim for the benefit of the claimant's estate, and can collect the benefits if approved. The Social Security Administration will determine the amount of benefits owed, and to whom they are payable. Spouses, children, and the deceased's estate may be eligible to collect benefits.
The family member who continues an SSD claim will need to submit a copy of the claimant's death certificate with a "substitution of party" form. The surviving family members may be eligible for a continuing dependent’s benefit too. If there is no one eligible to receive the underpayment, it will be necessary to dismiss the disability claim.
Friday, January 24, 2014
Media Deception
The media likes publishing sensational articles about disability fraud, such as the recent incident involving New York City police officers. The New York Times op-ed published an op-ed written by D. Randall Frye railing about the “fraudsters.” The Times failed to disclose that Frye is an Administrative Law Judge (“ALJ”) with an abnormally low approval rate for Social Security Disability (“SSD”) cases. According to DisabilityJudges.com, ALJ Frye approves 29% of his cases compared to the overall 57% average of the Charlotte hearing office that includes his decisions, which is twice as high.
Frye proclaims that he is, “more familiar than most people with the system.” If that is true, then why didn’t he provide a more accurate picture of “the system.” As an ALJ, especially the one who is the President of the Association of Administrative Law Judges, you would expect him to provide a neutral opinion that presents both sides of the story. Frye’s failure to do so evidences that he is not a neutral adjudicator, but rather perceives claimants as out to beat “the system,” which is substantiated by his low approval rate.
What Frye failed to disclose is that from 2010 to 2012, statistics not only show that fewer people are applying for disability benefits, but also that fewer people are being approved. That reflects a decrease of about 7%. Presumably the final 2013 statistics will continue the trend. ALJs have commented to me and my colleagues off-the-record that they have received directions that they must have stronger grounds to approve cases, and the Appeals Council is remanding more ALJ approvals for additional evidence.
Not only are fewer cases being granted, but it is taking longer to get them approved. I have discussed that the wait for a hearing on an SSD appeal can be avoided by asking an attorney advisor to consider issuing a fully favorable decision. However, the SSA issued a bulletin that now makes it virtually impossible for them to approve an OTR. As a result, I have stopped submitting OTRs, which I used to do on almost every case.
Frye proclaims that he is, “more familiar than most people with the system.” If that is true, then why didn’t he provide a more accurate picture of “the system.” As an ALJ, especially the one who is the President of the Association of Administrative Law Judges, you would expect him to provide a neutral opinion that presents both sides of the story. Frye’s failure to do so evidences that he is not a neutral adjudicator, but rather perceives claimants as out to beat “the system,” which is substantiated by his low approval rate.
What Frye failed to disclose is that from 2010 to 2012, statistics not only show that fewer people are applying for disability benefits, but also that fewer people are being approved. That reflects a decrease of about 7%. Presumably the final 2013 statistics will continue the trend. ALJs have commented to me and my colleagues off-the-record that they have received directions that they must have stronger grounds to approve cases, and the Appeals Council is remanding more ALJ approvals for additional evidence.
Not only are fewer cases being granted, but it is taking longer to get them approved. I have discussed that the wait for a hearing on an SSD appeal can be avoided by asking an attorney advisor to consider issuing a fully favorable decision. However, the SSA issued a bulletin that now makes it virtually impossible for them to approve an OTR. As a result, I have stopped submitting OTRs, which I used to do on almost every case.
Tuesday, January 21, 2014
CIGNA Reverses STD & LTD Decisions
I represent a former Senior Director of Program Management (“SDPM”) whose microvascular ischemia forced him to stop working when he was 62 years old. I was retained after CIGNA denied applications for short and long term disability benefits. CIGNA contended that the claimant had the ability to work as a SDPM because he could perform its physical demands. CIGNA had disregarded the fact that the treating cardiologist advised the claimant to stop working to avoid the effect that work stress had on the microvascular ischemia.
The issue that CIGNA failed to recognize is that in this type of situation, risk to health trumps ability to perform work. Courts have refused to allow administrators to deny benefits for future risk when such a denial would put claimants or others at risk, unless the policy at issue expressly denies coverage of such future risks. When assessing whether a future risk of harm or relapse constitutes a disability, the question is the probability of its future occurrence.
I secured a report from the treating cardiologist specifically explaining the substantial risk that continued work as an SDPM posed, including the family history of death from heart disease. I pointed out that CIGNA’s Policy does not exclude risk of future harm. To pre-empt an attempt to limit liability under a 24 month benefit cap for mental conditions, I cited case law where courts held that the stress resulting from the microvascular ischemia constituted a cardiological problem, not a psychological one.
The issue that CIGNA failed to recognize is that in this type of situation, risk to health trumps ability to perform work. Courts have refused to allow administrators to deny benefits for future risk when such a denial would put claimants or others at risk, unless the policy at issue expressly denies coverage of such future risks. When assessing whether a future risk of harm or relapse constitutes a disability, the question is the probability of its future occurrence.
I secured a report from the treating cardiologist specifically explaining the substantial risk that continued work as an SDPM posed, including the family history of death from heart disease. I pointed out that CIGNA’s Policy does not exclude risk of future harm. To pre-empt an attempt to limit liability under a 24 month benefit cap for mental conditions, I cited case law where courts held that the stress resulting from the microvascular ischemia constituted a cardiological problem, not a psychological one.
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