What happens when you apply for Social Security Disability (“SSD”) benefits, and your doctor says you cannot work, but the Social Security Administration (“SSA”) doctor says you can? If the medical records support your doctor’s opinion, then your SSD application should be approved. Unfortunately, all too often the State agency ignores that rule, which requires appealing the denial to an administrative law judge (“ALJ”).
I represent a 48 year old truck driver with back problems, whose SSD application was approved today by an ALJ. The ALJ’s decision exemplifies how medical opinions should be weighed.
The ALJ gave great weight to the opinion of the claimant’s orthopedist because “he has treated claimant on a regular basis." He is familiar with claimant's medical condition due to the regularity of treatment provided to him, and therefore in the best position to report on claimant's physical condition as well as its impact in his ability to perform work activities.”
On the other hand, the ALJ gave little weight to the opinion of the SSA doctor because, “He evaluated the claimant one time and his examination lasted a short period, as per the claimant's testimony at the hearing, and thus he is not familiar with the claimant's functioning."
The State agency knows that the opinion of a claimant’s doctor is supposed to supercede that of the SSA doctor, yet the State agency regularly does the opposite. The result is that the State agency costs the SSA millions of dollars in having to review unnecessary appeals, and delays claimant’s receipt of SSD benefits.
Tuesday, April 29, 2014
Saturday, April 19, 2014
Autoimmune Hepatitis
Autoimmune hepatitis is inflammation in your liver that occurs when your body's immune system attacks your liver, and causes it to become inflamed. The American Liver Foundation says the disease is chronic, meaning it lasts many years. According to the Mayo Clinic, while the cause of autoimmune hepatitis is unclear, some diseases, toxins and drugs may trigger autoimmune hepatitis in susceptible people, especially women.
Untreated autoimmune hepatitis can lead to scarring of the liver, known as cirrhosis, and eventually to liver failure. When diagnosed and treated early, however, autoimmune hepatitis often can be controlled with drugs that suppress the immune system. The most common symptoms are fatigue, abdominal discomfort, aching joints, itching, jaundice enlarged liver, nausea and spider angiomas on the skin.
I represent a 54 year old teacher with autoimmune hepatitis, whose application for Social Security Disability benefits was approved today, four months after it was filed. The key was getting the treating hepatologist to provide a report that detailed the objective clinical and diagnostic test findings, along with the resulting functional limitations.
I represent a 54 year old teacher with autoimmune hepatitis, whose application for Social Security Disability benefits was approved today, four months after it was filed. The key was getting the treating hepatologist to provide a report that detailed the objective clinical and diagnostic test findings, along with the resulting functional limitations.
Thursday, April 10, 2014
Unum Reapproval
Unum has an historic tendency to deny and terminate claims at the end of each financial quarter to improve its reserves. A corollary of that accounting tendency is that Unum delays approvals until after a quarter. I just received written notification that Unum reapproved one of my client’s long term disability (“LTD”) claims a couple of days after the first quarter.
As I do for each of my client’s, sent written notification to Unum in very simple and unambiguous words, “Please ensure that you communicate with me and avoid communicating with my client or her doctors without my prior approval. As it typically does, Unum initially ignored my directions, and contacted the claimant directly anyway. Unum knows that under these circumstances it is not supposed to contact claimants directly.
To prevent Unum, as well as other LTD insurers, from continuing to contact claimants directly, I found a letter reiterating my direction that they are to refrain from doing so usually fails to deter them. Consequently, I am forced to send threatening letters to ensure that the attorney client relationship is respected.
I advised Unum that the next attempt to circumvent the representation of my client will result in a complaint being filed with the New York State Department of Financial Services (the “DFS”). Advisory Opinions from the DFS’ General Counsel opine that Unum’s mailing anything to my client without my permission would constitute a wrongful communication. I add that the DFS has stated that a licensee of the DFS who engages in such conduct may be found to have committed a "determined violation" pursuant to N.Y. Ins. Law § 2402(c) (McKinney Supp. 2005) as an unfair or deceptive act or practice.
I also provide citations from hornbook law that such conduct violates the Statement of Principles of the National Conference of Lawyers, Insurance Companies, and Adjusters. One of the declarations in the Statement of Principles is that an insurer may not deal directly with a claimant represented by an attorney without such attorney’s consent. The word "deal" is interpreted by the committee to mean to "negotiate," "settle," "do business with," and "negotiate for a settlement or a payment."
Unlike my letters simply reiterating my request to communicate solely through me, I found that the letters advising of the consequences for continuing to ignore my directions do deter the misconduct.
As I do for each of my client’s, sent written notification to Unum in very simple and unambiguous words, “Please ensure that you communicate with me and avoid communicating with my client or her doctors without my prior approval. As it typically does, Unum initially ignored my directions, and contacted the claimant directly anyway. Unum knows that under these circumstances it is not supposed to contact claimants directly.
To prevent Unum, as well as other LTD insurers, from continuing to contact claimants directly, I found a letter reiterating my direction that they are to refrain from doing so usually fails to deter them. Consequently, I am forced to send threatening letters to ensure that the attorney client relationship is respected.
I advised Unum that the next attempt to circumvent the representation of my client will result in a complaint being filed with the New York State Department of Financial Services (the “DFS”). Advisory Opinions from the DFS’ General Counsel opine that Unum’s mailing anything to my client without my permission would constitute a wrongful communication. I add that the DFS has stated that a licensee of the DFS who engages in such conduct may be found to have committed a "determined violation" pursuant to N.Y. Ins. Law § 2402(c) (McKinney Supp. 2005) as an unfair or deceptive act or practice.
I also provide citations from hornbook law that such conduct violates the Statement of Principles of the National Conference of Lawyers, Insurance Companies, and Adjusters. One of the declarations in the Statement of Principles is that an insurer may not deal directly with a claimant represented by an attorney without such attorney’s consent. The word "deal" is interpreted by the committee to mean to "negotiate," "settle," "do business with," and "negotiate for a settlement or a payment."
Unlike my letters simply reiterating my request to communicate solely through me, I found that the letters advising of the consequences for continuing to ignore my directions do deter the misconduct.
Establishing Mental Disability
The Social Security Administration (“SSA”) uses the same process for evaluating disability regardless of whether the cause is mental or physical. In short, the SSA determines whether the limitations from mental impairments results in a functional capacity to work.
The problem establishing mental, as opposed to physical, disability is that the doctors treating the problem usually refuse to disclose their treatment records as confidential and privileged. Even though no rule or regulation specifies that treatment records are required, the SSA rarely approved disability benefits now without them. One way to avoid this predicament is to show the claimant meets a listing through a treating doctor’s narrative report.
If a claimant meets the requirements of a mental listing, then he or she is presumed entitled to disability benefits. Even if a claimant has severe mental illness symptoms, unless they preclude or make it difficult to perform cognitive tasks and get along with others, he or she will not be granted disability.
A narrative report explaining why a claimant meets the criteria of a listing should suffice to demonstrate the claimant’s presumptive disability due to the inability to perform the mental demands of work. A 48 year old teacher worker retained me to handle her application for Social Security Disability (“SSD”) benefits. I obtained a report from the claimant’s psychologist explaining why she met the criteria of the listing for affective disorders. She was awarded SSD benefits the following month without the need for a hearing.
The problem establishing mental, as opposed to physical, disability is that the doctors treating the problem usually refuse to disclose their treatment records as confidential and privileged. Even though no rule or regulation specifies that treatment records are required, the SSA rarely approved disability benefits now without them. One way to avoid this predicament is to show the claimant meets a listing through a treating doctor’s narrative report.
If a claimant meets the requirements of a mental listing, then he or she is presumed entitled to disability benefits. Even if a claimant has severe mental illness symptoms, unless they preclude or make it difficult to perform cognitive tasks and get along with others, he or she will not be granted disability.
A narrative report explaining why a claimant meets the criteria of a listing should suffice to demonstrate the claimant’s presumptive disability due to the inability to perform the mental demands of work. A 48 year old teacher worker retained me to handle her application for Social Security Disability (“SSD”) benefits. I obtained a report from the claimant’s psychologist explaining why she met the criteria of the listing for affective disorders. She was awarded SSD benefits the following month without the need for a hearing.
Thursday, April 3, 2014
Medicaid Disability Determinations
Some claimants applying for Social Security Disability (“SSD”) benefits also seek Medicaid. The medical reports that are completed when applying for Medicaid can also prove helpful for the SSD application.
The State agency makes the initial medical decision when applying for SSD benefits. Similarly, a State agency makes the Medicaid disability determination, and asks doctors to complete Form LDSS-1151.
The State agency routinely favors the opinions of its doctors over claimant’s doctors. However, when the findings and opinions of a treating doctor have been accepted in connection with approving Medicaid, the State agency usually gives the treating doctor’s opinion great, if not controlling, weight.
I filed an SSD application for a property manager who was also seeking Medicaid. I submitted the claimant’s LDSS-1151 form that her doctor had completed. Right after her Medicaid was approved, the claimant’s SSD application was approved.
The State agency makes the initial medical decision when applying for SSD benefits. Similarly, a State agency makes the Medicaid disability determination, and asks doctors to complete Form LDSS-1151.
The State agency routinely favors the opinions of its doctors over claimant’s doctors. However, when the findings and opinions of a treating doctor have been accepted in connection with approving Medicaid, the State agency usually gives the treating doctor’s opinion great, if not controlling, weight.
I filed an SSD application for a property manager who was also seeking Medicaid. I submitted the claimant’s LDSS-1151 form that her doctor had completed. Right after her Medicaid was approved, the claimant’s SSD application was approved.
Thursday, March 27, 2014
SSA Staff Attorneys
Just as Administrative Law Judges are now required to have more evidence supporting their decisions when approving Social Security Disability (“SSD”) benefits, so too do the staff attorneys.
I represent a claimant with severe back problems. The medical evidence included a report from the treating neurologist, who explained that the claimant’s lumbar neuropathy resulted in restrictions and limitations that precluded full time work. The neurologist had been treating the claimant well before the claimant said he became disabled. Diagnostic testing confirmed compression of both the L4 and L5 nerve roots. Up until recently, the aforementioned reports would have been sufficient to receive an approval.
Prior to a hearing, I was advised by a staff attorney that additional evidence would be needed to more clearly establish the onset of the claimant’s disability. The neurologist had no problem providing a relatively short narrative report explaining the onset of the claimant’s disability. After the narrative was submitted, the claimant did in fact receive a fully favorable decision.
It is unclear if the elevated burden of proof for SSD applications, which according to SSA employees has been in place for about two years, is intended to be permanent. If it is, a study should be done to determine if the extra work resources used to evaluate applications now is costing more than the money saved on denied applications that would have been approved. Perhaps more importantly, what are the demographics of those additional applicants who are now being denied? For example, are those new denials mostly comprised of unrepresented claimants, or claimants who cannot afford treatment?
I represent a claimant with severe back problems. The medical evidence included a report from the treating neurologist, who explained that the claimant’s lumbar neuropathy resulted in restrictions and limitations that precluded full time work. The neurologist had been treating the claimant well before the claimant said he became disabled. Diagnostic testing confirmed compression of both the L4 and L5 nerve roots. Up until recently, the aforementioned reports would have been sufficient to receive an approval.
Prior to a hearing, I was advised by a staff attorney that additional evidence would be needed to more clearly establish the onset of the claimant’s disability. The neurologist had no problem providing a relatively short narrative report explaining the onset of the claimant’s disability. After the narrative was submitted, the claimant did in fact receive a fully favorable decision.
It is unclear if the elevated burden of proof for SSD applications, which according to SSA employees has been in place for about two years, is intended to be permanent. If it is, a study should be done to determine if the extra work resources used to evaluate applications now is costing more than the money saved on denied applications that would have been approved. Perhaps more importantly, what are the demographics of those additional applicants who are now being denied? For example, are those new denials mostly comprised of unrepresented claimants, or claimants who cannot afford treatment?
Patchogue Problems Persist
Social Security’s Patchogue District Office has a history of failing to provide the same level of service compared to other offices. Although their mistakes are eventually corrected at the hearing level, the delay imposes hardship on claimants in the interim.
On October 4, 2012, I filed an application seeking Social Security Disability (“SSD”) benefits for a 56 year old landscaper, who suffers from diabetes and arthritis. The claimant’s SSA-16 form stated that the claimant stopped working for FedEx on July 7, 2012, which specified that the FedEx employment should be considered an unsuccessful work attempt (“UWA”) because it lasted less than three months. Since FedEx was irrelevant because it was an UWA, the claimant’s SSA-3368 form stated that the claimant stopped working, as a landscaper, in 2007.
In June 2012, the State agency found the claimant became disabled from his heavy work as a landscaper on July 7, 2012, by giving controlling weight to the opinion of the treating physician. The obvious question was why was the claimant found disabled as of July 7, 2012 instead of 2007. To learn the answer we tried to call Patchogue.
Despite repeated messages, nobody from the Patchogue District Office would return our calls after we learned that the State agency applied a July 7, 2012 onset date. We had to call another local office to try get information. Ms. Henpfling from the Riverhead District Office told us that Patchogue failed to follow protocol when a claimant’s application contains discrepant onset dates in the SSA 16 and SSA 3368. Without making any attempt to contact our office, and without the permission or authority of the claimant or us, Patchogue took it upon themselves to cross out the year 2007 on the claimant’s SSA 3368, and handwrote in July 7, 2012 for the onset date.
Patchogue’s error was corrected by the Jericho hearing office today, as the claimant received a fully favorable decision with the correct onset date. The end result is that the claimant will be awarded more than a year of additional benefits, but it took nearly two years to get the error corrected. Not only did the delay make it difficult for the claimant to pay his bills, but it also wasted the time of the hearing office, all of which could have been avoided if Patchogue would answer a phone.
On October 4, 2012, I filed an application seeking Social Security Disability (“SSD”) benefits for a 56 year old landscaper, who suffers from diabetes and arthritis. The claimant’s SSA-16 form stated that the claimant stopped working for FedEx on July 7, 2012, which specified that the FedEx employment should be considered an unsuccessful work attempt (“UWA”) because it lasted less than three months. Since FedEx was irrelevant because it was an UWA, the claimant’s SSA-3368 form stated that the claimant stopped working, as a landscaper, in 2007.
In June 2012, the State agency found the claimant became disabled from his heavy work as a landscaper on July 7, 2012, by giving controlling weight to the opinion of the treating physician. The obvious question was why was the claimant found disabled as of July 7, 2012 instead of 2007. To learn the answer we tried to call Patchogue.
Despite repeated messages, nobody from the Patchogue District Office would return our calls after we learned that the State agency applied a July 7, 2012 onset date. We had to call another local office to try get information. Ms. Henpfling from the Riverhead District Office told us that Patchogue failed to follow protocol when a claimant’s application contains discrepant onset dates in the SSA 16 and SSA 3368. Without making any attempt to contact our office, and without the permission or authority of the claimant or us, Patchogue took it upon themselves to cross out the year 2007 on the claimant’s SSA 3368, and handwrote in July 7, 2012 for the onset date.
Patchogue’s error was corrected by the Jericho hearing office today, as the claimant received a fully favorable decision with the correct onset date. The end result is that the claimant will be awarded more than a year of additional benefits, but it took nearly two years to get the error corrected. Not only did the delay make it difficult for the claimant to pay his bills, but it also wasted the time of the hearing office, all of which could have been avoided if Patchogue would answer a phone.
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