ALJ Carlton Reversed Again

Administrative Law Judge (“ALJ”) John Carlton  denies most cases Social Security Disability (“SSD”) cases because he bases his decisions on his interpretation of the medical data, instead of the interpretation of physicians, as the law requires.

We represent a 56 year old claimant from Bay Shore with hip problems, who worked for over 30 years as a truck driver,  warehouseman, and police officer.  ALJ Carlton, who was not qualified to interpret an x-ray, decided that the claimant only became disabled on the date the claimant’s hip x-ray demonstrated arthritis and degenerative changes.  You do not have to be a physician to realize that degenerative changes cannot possibly occur overnight.  Notably, we represented another claimant in Vellone v. Saul, 2021 WL 2801138 (S.D.N.Y. 07/06/2021) where the court reversed ALJ Carlton’s decision because, once again, he decided to play doctor, and relied on his interpretation of the medical evidence to reject the treating doctor’s opinion that the plaintiff’s hip and back pain precluded working.

In the present instance, ALJ Carlton never explained how the claimant’s hip problems suddenly went from not even being severe, to limiting the claimant to light work, on April 13, 2019.  Upon appealing the case to federal court, we sent a short letter to counsel for the Social Security Administration (“SSA”).  Based upon that letter, the SSA agreed that ALJ Carlton’s decision was indefensible, and voluntarily remanded the claim.

On remand, the case was reassigned to ALJ Alan Berkowitz.  Today, ALJ Berkowitz issued a fully favorable decision, and awarded the claimant SSD benefits, without even holding a hearing.

Hartford Breached Its Fiduciary Duty

Hartford Life, as claims administrator of a long term disability (“LTD”) plan, relies on claim procedures, which the Second Circuit found violated ERISA’s regulations.  Hartford argued that its procedures, which it called “protocols,” entitled Hartford to take more than 45 days to decide if a claimant is entitled to receive benefits.  Hartford admitted that it routinely applies the protocols.  One protocol is Hartford’s appeals department remanding administrative appeals to Hartford’s claims department.  Another protocol is arguing that COVID entitles Hartford to an extension of time.

Since Hartford admitted that it regularly employs the protocols as a general matter, we asserted a cause of action for breach of fiduciary duty, and as relief, asked that Hartford be removed as the Plan’s claim administrator.  Hartford asked the Court to dismiss the breach of fiduciary duty claims.  On January 13, 2023, Magistrate Judge (“MJ”) Arlene Lindsay rejected Hartford’s request.  However, MJ Lindsay indicated that since the breach of fiduciary claims may subject Hartford to a class action, within 30 days, she wanted to be notified of the steps the plaintiff will take towards serving as an adequate representative.

In compliance with MJ Lindsay’s order, we served interrogatories on Hartford that seek the identities of past and present participants of the LTD Plan, since each of those individuals is a potential plaintiff.  The interrogatories also seek the identities of past and present participants of other disability plans where Hartford has or may apply its protocols because each of those individuals also has a potential breach of fiduciary duty claim against Hartford.

Feel free to contact us if Hartford is your LTD claim administrator, and you have questions about the way your claim has been handled. We can be reached at (888) 572-0861.

 

 

 

Excuses Excuses

By Susan Golden

The number one question we get everyday is, "How long will it take to get a decision on my claim?"  The answer is, "Be prepared for the long haul."  Why is that?  As soon as we file a social security disability ("SSD") claim with our client's local Social Security Administration ("SSA") office, the excuses and delays begin.  Popular excuses from the local offices include: "We don't have all the paperwork;" "The file must be sitting on someone's desk;" "We're backlogged;" "The person handling the case is out;" and "We don't know why it hasn't been processed yet, everything we need is here!"

After your local SSA office processes the claim, they send it to the State agency, where the claim is reviewed.  Everything is done electronically, so the file should be transferred quickly to the State agency, and include everything submitted to the Local SSA office, such as your application and our letters of representation.  However, depending on the local office, it can take weeks, sometimes months, to get the file transferred, and even then, the State agency claims documents are  missing.

Your file has been transferred to the State agency!  Great, now things will start moving.  Hold on, let's not get ahead of ourselves.  The State agency is full of their own excuses and delay tactics.  In fact, they are masters at it.  They constantly complain that they don't have enough information from the claimant's treating doctors, even though we have submitted exactly what they are asking for!  They mislabel documents in the file, and are too lazy to look through them, because if they did, then they would realize that the file does indeed have exactly what they are asking for.   They don't look at a file for months, and then all of a sudden they complain the records we have submitted are "stale," when we had submitted them in a timely manner.  Luckily, we know how to play their game, and call them out on their delay tactics.

I could go on and on, but don't have enough space or time, but you get the picture.  If you need to apply for SSD, you should make certain that you retain an experienced disability attorney.  We have over three decades of experience, and know the SSA system inside and out.  Please feel free to call our office for a free phone consultation.  We have offices in Nassau and Suffolk counties on Long Island.

SSD Embarrassment

Most people applying for Social Security Disability ("SSD") benefits or Supplemental Security Income benefits ("SSI") understand that their doctors need to support the disability claims.  What most people don't know is that their doctors must support the inability to work at any full time job.  The Social Security Administration ("SSA") evaluates if there are any occupations in the economy that exist "in significant numbers" that a claimant could perform.   The SSA doesn't care if the occupations they find are still in existence, or performed in the same manner, or what the purported jobs pay.  The SSA only cares about denying as many cases as possible, even if their methods are questionable and inaccurate.

The SSA relies on testimony from a "Vocational Expert" ("VE") at hearing.  The VE uses an antiquated publication called the Dictionary of Occupational Titles ("DOT") to come up with jobs that a claimant could do when the claimant can't perform their own occupation.  The DOT was updated in 1977.  It doesn't take a rocket scientist to understand that a lot has changed in the last 45 years, especially in the ways jobs are performed.  A lot of the jobs in the DOT don't even exist anymore.  Claimants are continuously denied SSD/SSI benefits when a VE finds jobs in the DOT that claimants supposedly can do, and then the VE uses unreliable methods to estimate how many of these jobs are available nationwide.  The SSA wastes billions of dollars, and can never seem to make the necessary updates and changes to their system to be able to make more accurate assessments and decisions.  It's embarrassing!

It is vitally important that you retain an experienced attorney who specializes in disability and knows how the system works.  We have over three decades of experience working with the SSA and its Administrative Law Judges ("ALJs"), cross examining the medical experts and VEs, which requires a thorough understanding of the DOT and ONET.  Unlike many other disability attorneys, if an ALJ denies your claim, we can appeal your case to Federal Court, where we can succeed in obtaining a new hearing, or an approval of benefits.  While we cannot guarantee the outcome, we can guarantee that we will fight for you to make certain you get a fair hearing.

Please feel free to call our office for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Approved In Under Two Months

As the Washington Post just reported, the system for processing applications for Social Security Disability (“SSD”) benefits is more overburdened than ever.  Knowing how to navigate the process is more important than ever.

We represent a 60 year old barber from Fresh Meadows with cancer.  We succeeded in obtaining SSD benefits in less than two months during the time when most claimants are waiting years.  Understanding what was needed, and promptly obtaining and submitting it, enabled us to expedite securing the claimant's benefits.

CE Boondoggle Continues

Time to discuss again the needless demands the State agency makes for a Social Security Disability (“SSD”) claimant to attend a consultative examination (“CE”).

Since the last Century, virtually every CE notice I have received has violated the Social Security regulations.  Demanding a CE means the State agency refuses to believe what the treating doctors say.  The CEs have delayed claimants’ receipt of SSD benefits, wasted taxpayer money, and wasted the time of administrative law judges.  To make matters worse, the State agency has insisted on CEs throughout COVID.

I represent a 47 year old former clerk from Glen Cove with multiple sclerosis (“MS”), bladder cancer and depression.  Despite supportive reports and records from the claimant’s urologist, neurologist and psychiatrist, the State agency denied SSD benefits because the claimant, with a compromised immune system due to cancer, would not attend a CE.

The case was approved today without a hearing.  As soon as an attorney from the Social Security Administration received the case, it was approved OTR.  The four demands for the claimant to attend a CE obviously were unnecessary.

Does the State agency have an unwritten regulation that requires they insist that every claimant attend a CE?  Doubtful.  More likely, the State agency examiners are too lazy or too busy to read the file.  Therefore, the examiners want to disregard all the medical evidence in the file, and just want to rely on what the CE says.

 

ALJ Grossman Reversed Again

Only 14% of cases that the Appeals Council reviews are reversed.  As a statistical matter, the odds of a case being reversed by the Appeals Council twice are an infinitesimal .0196%.  However, those odds increase greatly when a decision of administrative law judge (“ALJ”) Seth Grossman is being reviewed.

ALJ Grossman has a very low approval rate, and a reputation for issuing biased decisions.  As a result, I have filed extensive Complaints and requests for investigations pursuant to Social Security Ruling SSR 13-1 at the request of clients.

Yesterday, the Appeals Council reversed a decision by ALJ Grossman, for the second time.  The Appeals Council determined that Grossman had committed fundamental errors yet again.  Consequently, the Appeals Council ruled that it would be inappropriate for further review by ALJ Grossman, and ordered that the case be reassigned to another ALJ.