IMA & DDS

The questionable relationship between IMA and the State agency  continues, without any meaningful oversight.  It seems nobody is concerned about the thousands of unnecessary exams.

We were retained by a 55 year old pharmacy tech from West Babylon with progressive orthopedic impairments following a motor vehicle accident, after her Social Security Disability (“SSD”) application was denied.  As usual, the claimant was sent a letter stating that it was “necessary for” her to be examined by an unnamed doctor from IMA Disability Services.

In light of the persistent COVID-19 pandemic, we advised the State agency that it was more important now than ever to comply with the regulation concerning a consultative examination (“CE”).  After all, according to Social Security’s website, they continue to conduct many hearings by telephone due to COVID-19.  We advised the State agency to make a decision because the claimant was not willing to postpone a CE with IMA.  Additionally, we advised the State agency that whatever information it believed was needed from IMA, could be requested from the claimant’s medical sources, who are the preferred source pursuant to the regulations.

The claimant did not attend a CE with IMA.  We received a Notice of Award today for the claimant, who provided all her medical records and reports from her doctors.  The State agency’s motivation for disregarding the CE regulations remains unclear.  However, it is clear that the State agency’s letters asserting the IMA CEs are “necessary” is untrue.  The claimant’s application should never have been denied in the first place.

 

Hartford Loses Again

Last month’s post, briefly discussed McQuillin v. Hartford, which the Second Circuit issued following an oral argument that sharply criticized Hartford.  The decision also decisively rejected Hartford’s argument that it did not have to decide if a claimant is entitled to receive long term disability (“LTD”) benefits in 45 days.

Despite being trounced by the Second Circuit panel at oral argument and in its decision, Hartford decided to file a forty-two (42) page petition in support of a rehearing.  The Second Circuit saw fit to respond to Hartford’s petition in only a couple of sentences:

Appellee Hartford Life and Accident Insurance Company, filed a petition for rehearing en banc.  The active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.

 

 

Long COVID Strugglers

Almost all of us either had COVID, or know someone who has contracted it.  Most people recover and are able to resume their normal lives.  However, a growing number of people are left with debilitating symptoms months after they have had the virus.  The medical community is advising people with long COVID to rest as much as they can, as they believe that is the best medicine to regain their health.  There are a myriad of long COVID symptoms, some of which are severe fatigue, memory and cognitive problems, pain and general malaise.  Even the slightest exertion seems to aggravate these symptoms.

At present, Social Security Disability seems to be the only answer, but waiting for a decision can take months, if not years.  Hopefully, the Social Security Administration can make some long overdue changes to the program that would help these long COVID strugglers, as well as anyone else who is unable to work a full-time job due to a medical illness, so they can receive disability benefits and Medicare in a more timely manner.

 

 

 

 

Adversarial ALJs

An administrative law judge (“ALJ”) is required to adjudicate your Social Security Disability (“SSD”) claim in a neutral manner.  That means an ALJ has a legal duty to treat your claim in a non-adversarial manner.  If an ALJ acts in a way that reflects unfairness, bias, or discrimination, they should be held accountable for failing to fulfill their duties with fairness and impartiality.

If each time you submit evidence, the ALJ seeks to obtain contradictory medical and or vocational evidence, especially post hearing, to rebut your evidence, then the ALJ is probably acting in an adversarial manner.  It is improper for the ALJ to assume that the medical and vocational evidence you submit is suspect because the ALJ is required to adjudicate claims neutrally.  Therefore, when the ALJ seeks to rebut your evidence, especially if done more than once with, e.g., post hearing interrogatories or supplemental hearings with new experts, you should file a complaint against that ALJ, pursuant to Social Security Ruling 13-1p.

One way to hold the ALJ accountable is by filing a complaint with the Division of Quality Service (“DQS”), to determine if the ALJ should be disciplined.  The DQS is responsible for receiving, tracking, and monitoring complaints that it receives.  That tracking will also help support the complaints of other SSD applicants who were subjected to similar unfair treatment by the ALJ.

If you want the DQS to review or investigate the ALJ, you must file a written  complaint, that must be received within 180 days of the wrongful action.  The complaint should contain specific information about the ALJ’s conduct.  Your attorney can file the complaint on your behalf.

 

 

2d Circuit Reverses LTD Dismissal

The Second Circuit issued McQuillin v. Hartford today, which reversed the decision of U.S. District Court Judge Seybert.  A copy of the decision can be found under the Resources tab on my website.  Judge Seybert had granted Hartford’s motion to dismiss based on a purported failure to exhaust administrative remedies.

The Second Circuit held that ERISA requires a decision on the merits within 45 days.  Since Hartford failed to do so, or to identify “special circumstances” for an extension, within 45 days, the Second Circuit ruled that Mr. McQuillin had exhausted his administrative remedies.  Thus, the Second Circuit remanded the case back to Judge Seybert so Mr. McQuillin can now receive his day court.

Lupus Anticoagulant

Lupus Anticoagulants are a type of protein antibody called antiphospholipids.  These proteins react to phospholipids, which are fat molecules in your blood cells that can stop your cells from working properly.  The problem with these antiphospholipids is that they can cause blood clots in your lungs, legs, heart and brain.

We represent a 59 year old security guard with Lupus Anticoagulant from Syosset whose Social Security Disability (“SSD”) application was approved today.  The claimant could not sit, stand or walk for more than 10 minutes without his legs swelling, despite being medicated with blood thinners. Consequently, the claimant has to spend as much time elevating his legs to reduce swelling, as he does sitting, standing or walking, which a vocational expert testified precluded all work.

Our office offers free phone consultations if you are thinking about applying for disability and want to retain an attorney who specializes in disability.   We have offices located in Nassau and Suffolk counties on Long Island.

Consultative Exams

The State agency continues to send claimant’s letters stating that they “need” to, and “must,” be examined by Social Security doctors.  They don’t.  I have regularly posted about why the DDS letters are misleading and inaccurate.

Once again, I represent a claimant, this one an attorney from Hewlett with cardiovascular and mental impairments, to whom the State agency sent repeated letters insisting that he attend a consultative examination (“CE”).  Because of COVID, he wanted his doctor to perform the CE, which is what the regulations actually require.

The claimant was awarded Social Security Disability (“SSD”) benefits without the need for a hearing.  Obviously, it was not necessary that he attend a CE in order to be eligible to receive SSD benefits.

The analysts at the State agency like to harass and threaten people.  If you don't have a disability attorney representing you who is experienced with dealing with these analysts, you will have a very difficult time doing so on your own, not to mention the stress and heartache it will cause you.  We have over 35 years of experience representing disabled workers.  You can call our office for a free phone consultation.  Our offices are conveniently located in both Nassau and Suffolk counties on Long Island.