The Social Security Administration (“SSA”) seems to be giving greater emphasis recently to that part of Ruling 96-8p, which concerns the use of hands. That Ruling states in relevant part, “Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity;” and “Any significant manipulative limitation of an individual's ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base.”
Lately, I noticed that vocational experts (“VE”) at hearings have been testifying that claimants who lack bilateral manual dexterity are precluded from performing full time gainful activity. Today, I learned that the SSA approved disability benefits for one of my clients, who is a 55 year old former administrative assistant with bilateral carpal tunnel syndrome, and cervical radiculopathy just a couple of months after the application was filed.
The relatively rapid approval seems consistent with the recent VE testimony concerning bilateral manual dexterity. Applicants should take care to obtain reports that detail the functional limitations and restrictions in the use of their hands.
Monday, October 26, 2015
Saturday, October 17, 2015
SSD Waiting Times
For the last couple of decades, I would advise new social security disability clients to expect it to take about six to seven months to receive the initial decision in the application process. However, waiting times at all stages of the application process have been steadily increasing.
I represent a 56 year old former cafeteria worker with orthopedic and emotional problems whose SSD benefits were approved today. It took almost nine months, a nearly 50% increase in time, to get the decision, even though there were no novel or unusual medical or vocational issues.
There is no indication that the number of people processing SSD claims has been reduced, or that the number of applications has recently increased. To the contrary, the number of claim filed has been decreasing since the middle of 2010. The question is why is it taking longer to get decisions?
It appears that the delays are intentional. The government’s own statistics, show that approval rates have decreased from 63% to 45%. There have been Congressional hearings to investigate fraudulent disability applicants. How about Congressional hearings to investigate the delays.
I represent a 56 year old former cafeteria worker with orthopedic and emotional problems whose SSD benefits were approved today. It took almost nine months, a nearly 50% increase in time, to get the decision, even though there were no novel or unusual medical or vocational issues.
There is no indication that the number of people processing SSD claims has been reduced, or that the number of applications has recently increased. To the contrary, the number of claim filed has been decreasing since the middle of 2010. The question is why is it taking longer to get decisions?
It appears that the delays are intentional. The government’s own statistics, show that approval rates have decreased from 63% to 45%. There have been Congressional hearings to investigate fraudulent disability applicants. How about Congressional hearings to investigate the delays.
Monday, October 5, 2015
Good News?
Like the Seinfeld or Superman Bizarro World, sometimes good news is bad news and vice versa. For example, the big rise in today’s stock market was attributed to worsening economic news. Moreover, MetLife approved a disability income policy application today for one of my client’s; however, counterintuitively, the approval may not be good news.
MetLife has agreed to pay my client benefits under the policy through December 23, 2015. When a disability policy application is approved, the insurer usually pays through the date of the current monthly period. MetLife neglected to say what happens as of December 24, 2015.
Does MetLife’s ambiguous letter mean that it found the claimant is disabled, and will re-evaluate updated evidence in a couple of months? MetLife’s ambiguous letter could just as easily mean that it found the claimant will no longer be disabled as of December 24, 2015. As noted above, since insurers usually only pay benefits through the date of the approval, it appears that the more pessimistic alternative is likely.
Rather than taking the wait and see approach, I have demanded that MetLife clarify the ambiguity. Because this application was under an individual disability policy, ERISA does not apply. Therefore, the claimant does not need to waste his time appealing the December 24, 2015 decision with MetLife, and can immediately file a complaint in State court.
MetLife has agreed to pay my client benefits under the policy through December 23, 2015. When a disability policy application is approved, the insurer usually pays through the date of the current monthly period. MetLife neglected to say what happens as of December 24, 2015.
Does MetLife’s ambiguous letter mean that it found the claimant is disabled, and will re-evaluate updated evidence in a couple of months? MetLife’s ambiguous letter could just as easily mean that it found the claimant will no longer be disabled as of December 24, 2015. As noted above, since insurers usually only pay benefits through the date of the approval, it appears that the more pessimistic alternative is likely.
Rather than taking the wait and see approach, I have demanded that MetLife clarify the ambiguity. Because this application was under an individual disability policy, ERISA does not apply. Therefore, the claimant does not need to waste his time appealing the December 24, 2015 decision with MetLife, and can immediately file a complaint in State court.
Monday, September 28, 2015
Psychotherapy Notes
More than one Social Security Administrative Law Judge (“ALJ”) has told me in recent months that they have been instructed to insist on having contemporaneous treatment records to support the opinions of claimants’ doctors. That requirement lacks a legal basis for several reasons.
ALJs seem to have no problem accepting the opinions of non-examining doctors even though they have no treatment records to support their opinions. The Social Security rules specify that treating doctors should be contacted if it is believed that their opinions lack support, and a doctor can provide a narrative report as an answer. That only makes sense because the purpose of treatment records is to provide a reminder to the doctor of something he or she may want to remember, not to serve as comprehensive medical evidence in a legal proceeding. The Social Security rules even recognize that contemporaneous records may not be available, e.g., when dealing with an onset date, and that other types of evidence, such as claimant testimony, can provide the requisite evidence.
ALJs and the State agency have been instructed to insist on more evidence to support a case in order to reduce the number of disability claims getting approved. Contemporaneous records are even being required in compassionate allowance cases. And both ALJs and State agency clerks have been insisting that claimants provide their psychotherapy notes.
Mental health notes have been privileged from disclosure to ensure that proper treatment can be obtained. Social Security has a Fact Sheet for Mental Health Care Professionals that states, “Social Security recognizes the sensitivity and extra legal protections that concern psychotherapy notes (also called “process” or “session” notes) and does not need the notes.” This proves that the demand for actual psychotherapy notes is designed to avoid approving disability benefits. According to the Fact Sheet, a letter from the mental health provider identifying the claimant’s diagnosis and prognosis, prescribed medication, session times, the modalities and frequencies of treatment, results of any clinical tests, and summary of the functional status, treatment plan, and symptoms is all that is needed.
ALJs seem to have no problem accepting the opinions of non-examining doctors even though they have no treatment records to support their opinions. The Social Security rules specify that treating doctors should be contacted if it is believed that their opinions lack support, and a doctor can provide a narrative report as an answer. That only makes sense because the purpose of treatment records is to provide a reminder to the doctor of something he or she may want to remember, not to serve as comprehensive medical evidence in a legal proceeding. The Social Security rules even recognize that contemporaneous records may not be available, e.g., when dealing with an onset date, and that other types of evidence, such as claimant testimony, can provide the requisite evidence.
ALJs and the State agency have been instructed to insist on more evidence to support a case in order to reduce the number of disability claims getting approved. Contemporaneous records are even being required in compassionate allowance cases. And both ALJs and State agency clerks have been insisting that claimants provide their psychotherapy notes.
Mental health notes have been privileged from disclosure to ensure that proper treatment can be obtained. Social Security has a Fact Sheet for Mental Health Care Professionals that states, “Social Security recognizes the sensitivity and extra legal protections that concern psychotherapy notes (also called “process” or “session” notes) and does not need the notes.” This proves that the demand for actual psychotherapy notes is designed to avoid approving disability benefits. According to the Fact Sheet, a letter from the mental health provider identifying the claimant’s diagnosis and prognosis, prescribed medication, session times, the modalities and frequencies of treatment, results of any clinical tests, and summary of the functional status, treatment plan, and symptoms is all that is needed.
SSA Continues Prejudicial Policy
A few years ago, the Social Security Administration (“SSA”) began a program using the misnomer “quality” review. This program uses an imbalanced approach that only considers decisions where Administrative Law Judges (“ALJ”) approve disability benefits, so the program’s alleged of purpose of seeking greater consistency is fallacious.
I have had several more cases pulled for quality review in just the past few weeks. Not surprisingly, all were approvals. Today, yet another fully favorable ALJ decision was approved, and immediately pulled for quality review. There was an overabundance of medical and vocational evidence supporting the ALJ’s decision, including operative reports, multiple functional assessments, an FCE, and contemporaneous clinical records.
Hypocritically, the SSA failed to conduct a quality review on the State agency decision that had previously denied the claimant’s Social Security Disability (“SSD”) application. The State agency ignored: (a) the conclusions of the treating sources in favor of her own non-medical opinion; (b) the claimant’s subjective complaints even though typical for someone with the claimant’s medical conditions; (c) the requirements for sedentary and light work. The State agency simply denied the application because the claimant properly refused to attend an unnecessary consultative examination (“CE”) that would have violated the Social Security rules and regulations.
The State agency lied and said that it did not contact a treating doctor because there was none, which is patently belied by the medical reports in the SSA file, as well as the claimant’s application. Each treating doctor was ready, willing, and able to perform the CE. The State agency also lied by claiming that there was no indication there was opinion evidence from any source, which is also belied by the medical reports in the SSA file. To make matters even worse, the State agency expunged critical and supportive evidence from the claim file.
I advised the SSA that it was incumbent upon it to conduct an investigation into the State agency’s misconduct. Instead of investigating the State agency’s decision denying SSD benefits where evidence of improper processing was presented, the SSA investigated the ALJ’s decision approving SSD benefits where there is no evidence of improper processing. So much for caring about the consistency and quality of decision.
I have had several more cases pulled for quality review in just the past few weeks. Not surprisingly, all were approvals. Today, yet another fully favorable ALJ decision was approved, and immediately pulled for quality review. There was an overabundance of medical and vocational evidence supporting the ALJ’s decision, including operative reports, multiple functional assessments, an FCE, and contemporaneous clinical records.
Hypocritically, the SSA failed to conduct a quality review on the State agency decision that had previously denied the claimant’s Social Security Disability (“SSD”) application. The State agency ignored: (a) the conclusions of the treating sources in favor of her own non-medical opinion; (b) the claimant’s subjective complaints even though typical for someone with the claimant’s medical conditions; (c) the requirements for sedentary and light work. The State agency simply denied the application because the claimant properly refused to attend an unnecessary consultative examination (“CE”) that would have violated the Social Security rules and regulations.
The State agency lied and said that it did not contact a treating doctor because there was none, which is patently belied by the medical reports in the SSA file, as well as the claimant’s application. Each treating doctor was ready, willing, and able to perform the CE. The State agency also lied by claiming that there was no indication there was opinion evidence from any source, which is also belied by the medical reports in the SSA file. To make matters even worse, the State agency expunged critical and supportive evidence from the claim file.
I advised the SSA that it was incumbent upon it to conduct an investigation into the State agency’s misconduct. Instead of investigating the State agency’s decision denying SSD benefits where evidence of improper processing was presented, the SSA investigated the ALJ’s decision approving SSD benefits where there is no evidence of improper processing. So much for caring about the consistency and quality of decision.
Thursday, September 17, 2015
Vocational Evidence Determinative
I have discussed the important role that vocational evidence plays in a Social Security Disability (“SSD”) case many times. I represent a 57 year old with knee, back, and foot problems whose SSD application was approved today five months after it was filed.
The claimant’s medical conditions are not uncommon. Therefore, the question arises as to why his SSD application was approved without ever being denied, especially in this environment where the SSA is trying to increase the number of applications it denies. For example, in 2009, Administrative Law Judges approved 63% of their cases, whereas now they are only approving 45%, and rumor has it that their goal is to reduce that even lower to 33%.
While many claimants may have knee, back, and foot problems, very few have a work history limited to unskilled heavy work, which requires lifting up to a 100 pounds. Under the grid rules, a person who is over 55 whose past relevant work is unskilled and heavy, should be found disabled. In other words, SSD claimants with the identical medical conditions with the same level of severity, but who are younger or had a skilled or less strenuous work history, probably would not have been approved.
The claimant’s medical conditions are not uncommon. Therefore, the question arises as to why his SSD application was approved without ever being denied, especially in this environment where the SSA is trying to increase the number of applications it denies. For example, in 2009, Administrative Law Judges approved 63% of their cases, whereas now they are only approving 45%, and rumor has it that their goal is to reduce that even lower to 33%.
While many claimants may have knee, back, and foot problems, very few have a work history limited to unskilled heavy work, which requires lifting up to a 100 pounds. Under the grid rules, a person who is over 55 whose past relevant work is unskilled and heavy, should be found disabled. In other words, SSD claimants with the identical medical conditions with the same level of severity, but who are younger or had a skilled or less strenuous work history, probably would not have been approved.
Friday, September 11, 2015
IMA Notices
Claimants who apply for Social Security Disability (“SSD”) benefits in New York virtually always received letters from the Office of Temporary & Disability Assistance, Division of Disability Determinations, i.e., the State agency, telling them that they have to be examined by a doctor from IMA Disability Services (“IMA”).
The State agency approved the SSD application today of a 37 year old woman with mental impairments who had worked as a personal banker. Previously though, on May 11, June 15, June 30, July 14, and July 15, 2015, the State agency sent letters stating that it was “necessary” for the claimant, that is, the claimant “must keep” the appointment to be examined by two doctors from IMA.
For years I have been asking if the State agency’s insisting on IMA exams were a boondoggle. The question remains: Why are millions of dollars being spent on unnecessary exams?
The State agency approved the SSD application today of a 37 year old woman with mental impairments who had worked as a personal banker. Previously though, on May 11, June 15, June 30, July 14, and July 15, 2015, the State agency sent letters stating that it was “necessary” for the claimant, that is, the claimant “must keep” the appointment to be examined by two doctors from IMA.
For years I have been asking if the State agency’s insisting on IMA exams were a boondoggle. The question remains: Why are millions of dollars being spent on unnecessary exams?
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