Report IMA & DDS Fraud To Inspector General

When a Social Security hearing office receives a disability appeal, it sends the claimant form HA-L2, which is a Request for Hearing Acknowledgment Letter. At the bottom of the first page of Form HA-L2 in bold face type is the (800) 269-0271 telephone number for the Inspector General’s Fraud Hotline, in case you “Suspect Social Security Fraud.” Presumably, that warning is designed to intimidate claimants. 

In all my years representing Social Security Disability (“SSD”) claimants, I can think of only one instance of a claimant attempting to perpetrate a fraud. On the other hand, on a seemingly weekly basis, I find the Disability Determination Services (“DDS”) and its contractor, IMA, committing fraud. Claimants and their advocates should call the Inspector General’s Fraud Hotline when DDS or IMA fraud is suspected. 

One of my client’s eFolder became accessible today. A review of the eFolder revealed several instances of fraud by the DDS and IMA. 

First, a DDS examiner named V. Kumar wrote that the claimant’s doctors refused to perform a consultative examination (“CE”) for the state approved vendor fee. That was a lie. Neither Kumar nor anybody else from the DDS ever contacted any of the claimant’s doctors to ask them if they would perform a CE, let alone ask them if they would perform a CE for any particular fee. What makes Kumar’s fraudulent misrepresentation especially appalling is that I had sent a letter about the CE, which stated: 

"the treating physicians are ready, willing, and able to perform a CE, but you have not asked them to perform a CE. I have spoken with the claimant who has agreed to pay any difference between what you are willing to pay and the amount the treating doctor would charge. Therefore, do not falsely claim that a treating source refused to do the CE because of the fee involved."

If you have a case that is pending at a hearing office, I would suggest reviewing the eCAT report to see what the DDS examiner wrote.

The second fraudulent assertion that Kumar made was that the CE was needed because there was insufficient evidence to evaluate the claim. The file contains over a hundred pages of treatment records, functionality opinions, and diagnostic testing. To compound matters, I sent a detailed seven page single spaced letter to the DDS, asking them to identify any additional medical evidence that they claimed was needed to evaluate the claim. As always, instead of specifying a single piece of medical evidence they purportedly needed, the DDS simply sent a second CE notice, despite my having sent them that detailed letter, which among other things stated: 

"In order for me to have the chance to obtain the information that you claim you need, you need to clarify precisely what information you are seeking. Simply resending a notice with a new CE date fails to fulfill your responsibility to develop the record, and shows that you lack any valid reason for the CE."

Kumar’s third fraudulent misrepresentation was that stating “No RFC /MRFC assessments are associated with this claim.” Contrary to Kumar’s unambiguous statement, the eFolder contained, not one, but two, Residual Functional Capacity (“RFC”) assessments. In fact, the RFC from the claimant’s orthopedist appears in the eFolder twice. There was also an RFC from the claimant’s cardiologist. It was impossible for Kumar to have missed all three reports when reviewing the claimant’s file. Nonetheless, Kumar stated in no uncertain terms that no RFC assessment was in the eFolder. 

The fourth instance of fraud also concerns the CE. Kumar wrote that the claimant missed both CE appointments. As discussed below, that statement is demonstrably false. However, giving Kumar the benefit of the doubt, it is possible that Kumar was provided with the false information by IMA. 

In the eFolder is form DDD-4184, entitled CE Appointment Notice History. The form DDD-4184 states that the claimant did not keep the appointment for the CE. It is unclear who prepared form DDD-4184, but it is clear that whoever did so, committed fraud. The claimant has photographs of him entering the IMA offices. The claimant also has videotape of him inside the IMA offices, being told to leave by IMA. It is a blatant and undeniable lie that the claimant did not keep the appointment. 

As stated in prior posts, I would advise claimants to videotape their CE. There is nothing in the Social Security statute, regulations, POMS, HALLEX, or case law that precludes videotaping a CE. Furthermore, I secured a copy of the contract that IMA has with the DDS, and there is nothing in it that prohibits videotaping a CE.

Social Security Fraud

by Susan Golden 

It seems as if we are always hearing stories about people who are defrauding the Social Security Disability (“SSD”) system. We read about it in the newspapers, and we watch it on the news. Even 60 Minutes and 20/20 have devoted entire segments to those stories. While there may be a small minority of people who improperly receive SSD benefits, most people who apply are honest and hard working individuals, who would much rather continue to work if they could. However, what the media is not reporting is how the Social Security Administration (“SSA”) is defrauding us. 

The SSA disability process is getting more corrupt by the day. The SSA does whatever it wants, without any repercussions, without any real checks and balances. When someone files an application for SSD benefits, his or her local office processes it. The local offices constantly lose important paperwork, which holds up the applications, or even deny applications based upon the local office’s own errors and incompetence. When they do eventually process the SSD application, the local office sends it out to the New York State Office of Temporary and Disability Assistance, to review the medical evidence. Much of the time, the local office does not forward all the paperwork, including medical records that the claimant has submitted, creating more problems for the claimant. The biggest joke of all is the “reviewing” of the claim by the “analyst” at the NYS office. They don’t follow their own rules and regulations, important medical evidence is misplaced, or worse yet, purged from the record, in order to provide them with a specious basis for denial. The State agency also fabricates communications with treating doctors. 

Perhaps the greatest injustice of all is the State agency’s practice of scheduling claimants to attend Consultative Exams (“CE’s”), which are frequently performed by unqualified doctors, who usually misrepresent their findings. As a result of the fictitious CE findings, claimants are typically denied SSD benefits. Importantly, the SSA’s own rules state that a treating doctor should perform any CE, although the State agency rarely, if ever, complies with those rules. 

To avoid being denied SSD benefits for supposedly “failing to cooperate,” which is the SSA’s practice if the claimant does not attend the CE, we have advised our clients to video tape their CE’s. There is no Social Security rule or regulation that prohibits recording of a CE, which has become necessary since the doctors blatantly lie about what occurs during the exam. Notably, the New York State agency overseeing workers compensations (“WC”) benefits has a rule explicitly stating that a claimant can video tape an independent medical exam (“IME”), which is equivalent to the SSA CE, precisely to guard against fictitious exam findings. It defies logic for a claimant with both an SSD and WC claim to be allowed to tape an IME but not a CE. 

One of our clients went to his CE today, and recorded the visit. However, the person at the CE receptionist desk from Industrial Medicine Associates (“IMA”) told our client that they would not allow him to record the CE, and asked him to leave their office. It was the IMA doctor contracted by the SSA, not the claimant, who refused to proceed with the CE. The claimant recorded the IMA receptionist saying they would claim that the claimant failed to show up for his CE, which is an unmitigated lie. In fact, it seems that IMA’s claiming that a claimant failed to appear for his CE is an act of fraud that must be investigated by the SSA Office of the Inspector General (“OIG”). 

The sad fact is there apparently is not a damn thing that can be done about these fraudulent practices. Over the years, we have shown how CE reports are replete with medical findings that could not possibly have been made, and have requested that the matter be referred to the OIG, but to no avail. Therefore, claimants will most likely continue to be wrongly denied SSD benefits for purportedly not attending the CE, or attending one that culminates in a report containing fraudulent findings. 

The SSA should help the disabled, especially the homeless, which increasingly includes many veterans. Instead, the SSA only hurts and demeans the people who need help the most; those who can no longer work and have no money to survive. It is a travesty and disgrace. When will the media do a story about this?

Why Bother With An Exam By IMA?

When filing for Social Security Disability ("SSD") benefits, the Social Security Administration ("SSA") usually asks claimants to be examined by one of its doctors in what is referred to as a consultative examination ("CE"). In New York, you will probably be sent to a doctor from Industrial Medicine Associates (“IMA”) for the CE.

The SSA requires a CE in the vast majority of cases even though the regulations actually permit CEs in very limited circumstances. If a CE is actually needed, then it is supposed to be performed by a treating doctor. The SSA leads claimants to believe that their SSD application will be denied if they refuse to attend the CE.

A CE is a single exam, with a vague opinion regarding a claimant’s functionality. The courts have ruled that a CE opinion is usually entitled to little or no weight. Therefore, why do we as tax payers pay millions of dollars for CEs?

A 54 year old former electrician retained me after the SSA denied his SSD application. The opinion from the IMA CE included that the claimant must avoid even mild exertion, which indicates that he could not even do sedentary work. Moreover, the IMA CE concluded that the claimant had “moderate” limitations walking, standing, and sitting. Light work requires frequent standing and walking. A moderate limitation would be inconsistent with light work, which requires 6 hours of being on one’s feet out of 8. A moderate limitation could also be inconsistent with sedentary work, which only requires 2 hours of being on one’s feet out of 8. Similarly, a moderate limitation of lifting and carrying would be inconsistent with light work, which requires lifting 20 lbs. A moderate limitation may be consistent with sedentary work, which only requires lifting 10 pounds.

Under the SSA medical-vocational rules, the claimant had to be found disabled even if able to do sedentary or light work. Thus, the claimant had to be able to do medium work, which requires lifting up to 50 pounds, not to be found disabled. Although the CE opinion described above showed the claimant could not do sedentary work, let alone light work, the State agency had denied the application.

When I was retained, I secured a report from the claimant’s orthopedist, which specified the claimant lacked the ability to lift, carry, walk, stand, and sit needed to do sedentary work. I submitted that report when I appealed the State agency decision to the SSA. The SSA approved the application today without a hearing based on the treating orthopedist’s opinion.

The question arises why wasn’t the application approved based upon the IMA CE? The great majority of CE opinions contend that claimants are not disabled, which are accepted as the basis for denying applications. Why then, in the rare situation where a CE shows a claimant is disabled does the State agency still deny the application? What is the purpose of an IMA CE when regardless of its opinion it will be used to deny an application? What is the purpose of an IMA CE when the SSA rejects it as a one time exam that the regulations require be given little weight?

The Wall Street Journal wrote an article that tried to blame the SSA’s financial problems on attorneys representing disabled people. Perhaps that paper’s resources would be more productively spent directing its attention to the CE boondoggle. Whereas attorneys are making sure that the rules and regulations are being applied, CEs are being ordered by the tens of thousands in violation of the rules and regulations.

NYS OTDA Fraud

The initial medical decision in Social Security Disability (“SSD”) cases has been delegated to state agencies, which in New York State is the Office of Temporary Disability Assistance (the “OTDA”). The OTDA goes to great lengths to ensure that SSD claimants get denied. 

I represent a 50 year old with scleroderma, sarcoidosis, Raynaud’s Disease, arthritic knees, back and hands, left leg nerve damage, and a blind right eye. He earned over $100,000 annually working as a steamfitter for 31 years, which required lifting up to 100 pounds. Common sense tells you that anyone who worked that long at that job, earning that amount of money, stopped only because he was no longer able to continue. 

You might think that the OTDA lacks common sense because it denied the claimant SSD benefits. However, a review of the Social Security Administration (“SSA”) claim file reveals that the OTDA acted in bad faith, and actually committed fraud, in order to deny the SSD application. 

Last August, the OTDA told the claimant that he had to go to a consultative exam (“CE”) for sarcoidosis that would have required him to travel over 3 hours and 140 miles from his home. The claimant lives in eastern Suffolk County, and the CE was scheduled in Poughkeepsie, NY in Duchess County. In other words, the OTDA was telling the claimant to travel across Suffolk County, and the Nassau, Queens, Bronx, Westchester, and Putnam Counties to get to the CE in Duchess County. That CE demand was beyond reasonable, and could only have been made in bad faith. 

After I brought the unreasonableness of the CE location to the OTDA’s attention, it rescheduled the CE, but did so at the same location, which it did three days later, and then about four weeks later. The OTDA refused to send the claimant a notice that rescheduled the sarcoidosis CE at a reasonable location, although it managed to schedule a psychiatric CE nearby his home, which the claimant attended. However, the claimant never alleged that he had any mental impairment of any type. 

The OTDA denied the claimant’s SSD application on the grounds that the claimant did not attend the CE. While scheduling the CE over 3 hours and 140 miles from the claimant’s home was malevolent, a review of the SSA claim file shows that the OTDA’s conduct was even worse. 

When scheduling a CE, the OTDA is required by law to ask a treating doctor to perform it. An OTDA disability examiner named Y. Ellison-Nixon claimed that a treating doctor was asked to perform the CE, but that the doctor “does not accept the state approved vendor fee.” Ellison-Nixon lied. The claimant has over a half dozen medical specialists, and the OTDA never asked any of them to perform a CE, let alone asked any of them if they would do so for a specific fee. Ellison-Nixon committed fraud, that is, knowingly doing or saying something that is false, in order to evade the legal obligation to ask a treating doctor, as the preferred source, to perform the CE. While the Social Security hearing office will undoubtedly reverse the OTDA denial on appeal, the claimant’s SSD benefits should not have been delayed. This is precisely the type of incident that should be reported to the SSA Inspector General.

Fraud In The Social Security Disability process

I represent a 49 year old delivery truck driver whose application for Social Security Disability (“SSD”) benefits was approved today by an Administrative Law Judge (“ALJ”) today without a hearing. The only problem is that the State agency (“DDS”), which makes the initial disability determination, should have approved the application without the need for an ALJ to review it. 

The DDS denied the application because at least one of its employees, or IMA who has the contract from the DDS, committed fraud. The DDS told the claimant that a consultative examination (“CE”) was required. Most of the time, the DDS request for a CE  is not actually required. Searching my blog will reveal many entries discussing how IMA, the service that performs New York CEs, sends claimants for CEs even though to do so is contrary to the Social Security rules and regulations . IMA is happy if DDS disregards the rules and regulations because it means it will earn more money. There is no credible way that the DDS can claim it is unaware that excessive CEs are being requested. 

Claiming that a CE is needed when one it not required under the rules and regulations is wrong. Lying about the facts in order to have IMA do the CE is fraud. 

According to a disability adjudicator/examiner named Antonio Rivera, a CE was required in my client’s case. That conclusion was wrong because under the circumstances the request for the CE was not authorized by the rules and regulations. However, Mr. Rivera then indicated that none of the claimant’s doctors were contacted to do the CE, as the rules and regulations require, because they do “not accept the state approved vendor fee.” That assertion was false. 

If the DDS never contacted the treating doctors, then the DDS had no way of knowing that the treating sources would not accept the fee for performing the CE. Furthermore, there was no report of contact or letter in the claimant’s file showing that the DDS made any attempt to contact any of the claimant’s doctors by phone or in writing about doing a CE. Moreover, Rivera stated that the claimant refused to attend a CE, which was also untrue. To the contrary, the claimant advised the DDS, in writing, that he would attend a CE by a treating doctor in accordance with the Social Security rules and regulations. 

Scheduling CEs when they are not needed or consistent with the rules and regulations is a waste of time and tax payer money. Are the DDS disability adjudicator/examiners required for undisclosed reasons to insist on CE’s when contrary to the rules and regulations? Do DDS disability adjudicator/examiners demand that CEs be done because it is easier for them to rubberstamp a CE conclusion instead of reviewing the entire medical file? Do DDS disability adjudicator/examiners insist that CEs be done because they assume that the opinions of treating doctors cannot be trusted, which contradicts the rules and regulations that require extra weight be given to treating doctors’ opinions? 

Unnecessary CEs waste money in two ways. First, if they are performed, then they waste money by requiring payment for something that was not needed. Second, denying an application for refusing to attend an unlawful CE wastes the resources of the ALJ and hearing office that have to review the denied application, which should have been approved initially by the DDS.

State Agency Fraud

I represent a 60 year old with orthopedic and cardiovascular problems who worked for 46 years, including over three decades as a media salesperson, where he earned a large six figure income. His application for Social Security Disability (“SSD”) benefits was initially denied by the State agency. 

Common sense dictates that a claimant does not misrepresent or exaggerate his disability in order to trick the government into paying SSD benefits that are a tenth of his past income. Nonetheless, despite having submitted Residual Functional Capacity (“RFC”) assessments from his orthopedist, cardiologist, and internist, the claimant was compelled to attend a hearing before his SSD benefits were approved today. Compelling a hearing was particularly appalling in light of fraudulent misrepresentations that the State agency in connection with a report that DDS Disability Adjudicator/Examiner V. Kumar prepared in connection with the claimant’s application. 

Kumar wrote that the claimant’s doctors refused to perform a consultative examination (“CE”) for the state approved vendor fee. Neither Kumar nor anybody else from the DDS ever spoke with any of the claimant’s doctors to ask them if they would perform a CE, let alone ask them if they would perform a CE for any particular fee. The official Social Security folder showed that the DDS never even contacted any of the claimant’s doctors by mail about anything. 

What made Kumar’s fraudulent misrepresentation especially appalling is that I had sent a letter that stated: 

"the treating physicians are ready, willing, and able to perform a CE, but you have not asked them to perform a CE. I have spoken with the claimant who has agreed to pay any difference between what you are willing to pay and the amount the treating doctor would charge. Therefore, do not falsely claim that a treating source refused to do the CE because of the fee involved."

The second fraudulent assertion that Kumar made was that the CE was needed because there was insufficient evidence to evaluate the claim. The file contained over a hundred pages of treatment records, functionality opinions, and diagnostic testing. Proof that the evidence was sufficient is that the judge only asked a couple of questions at the hearing. Moreover, I had sent a detailed seven page single spaced letter to the DDS, asking them to identify any additional medical evidence that they claimed was needed to evaluate the claim. As always, instead of specifying a single piece of medical evidence they purportedly needed, the DDS simply sent a second CE notice, despite my having sent them that detailed letter, which among other things stated: 

"In order for me to have the chance to obtain the information that you claim you need, you need to clarify precisely what information you are seeking. Simply resending a notice with a new CE date fails to fulfill your responsibility to develop the record, and shows that you lack any valid reason for the CE."

Kumar’s third fraudulent misrepresentation was that stating “No RFC /MRFC assessments are associated with this claim.” As discussed above, the folder contained three RFC assessments. In fact, the RFC from the claimant’s orthopedist appears in the eFolder twice. It was impossible for Kumar to have missed all three reports when reviewing the claimant’s file. Nonetheless, Kumar stated in no uncertain terms that no such RFC assessment existed in the folder. 

The most egregious fraud committed was Kumar’s writing that the claimant missed two CE appointments. The claim folder included a form DDD-4184, entitled CE Appointment Notice History. The form DDD-4184 stated that the claimant did not keep the appointment for the CE. Whoever prepared the form DDD-4184 committed fraud because the claimant has photographs of him entering the IMA offices for the CE. The claimant also videotaped him inside the IMA offices, and being told to leave by IMA. 

Although I asked the judge what steps he would take to address the fraudulent misconduct by the State agency and/or IMA, I never received a response.

IMA Consultative Examinations

When filing for Social Security Disability ("SSD") benefits, the overwhelming vast majority of the time, the Social Security Administration ("SSA") sends notices to claimants that they have been scheduled for a “consultative examination” ("CE"). In New York, the CE notices are sent by the Office of Temporary & Disability Assistance (the “State agency”), which is responsible for making the initial medical decision on SSD claims. The notices say that IMA Disability Services will perform the CE. The notice is usually followed by phone calls from IMA warning that the SSD application will be denied if the claimant fails to appear for the appointment.

The CE notices are misleading because they state, “It will be necessary for you to be examined by the Specialist named below.” The so-called specialist is “IMA Disability Services.” The CE notices also state that, “You must keep this appointment at the time and date indicated below.” The use of the words “necessary” and “must” are untrue because most claimants do not need to be seen by a doctor from IMA.

The SSA rules and regulations actually provide for relatively few situations where a CE would be appropriate. Three of my SSD clients were approved for benefits today. The SSA had sent CE notices to all three of the claimants, but none of them went for the CE.

In all three cases, I filed written objections to the CE, specifying the factual and legal reasons why the CE would violate the SSA rules and regulations. In the limited circumstances where a CE is actually needed, it is supposed to be performed by a treating doctor. As discussed in my September 28, 2011 blog entry, the SSA cannot ask a claimant to go for a CE simply because it wants an “independent’ opinion. Before asking a claimant to go for a CE on the grounds that a treating doctor’s report supposedly contains a conflict or ambiguity that must be resolved, the SSA is obligated to ask the treating doctor to explain the alleged conflict or inconsistency.

IMA Folly

I represent a 60 year old former institutional cook whose Social Security Disability (“SSD”) application was approved today, but not before IMA Disability Associates (“IMA”) sent over a half dozen letters insisting that he must attend a consultative examination (“CE”). My client did not. 

On October 22, 2015 and October 23, 2016, the State agency sent letters stating that the claimant “must” attend a CE because it was “necessary” for him to be examined by IMA. Both letters were received on October 26, 2015. That day, I faxed the State agency a detailed seven page letter explaining the reasons why scheduling a CE with IMA was improper. My letter specified that the claimant was not refusing to attend a CE, but asked the State agency to address the questions raised in my letter raised first. 

On November 5, 2015, the State agency refused to address the issues raised in my October 26, 2015, and said that this was the claimant’s last chance to attend a CE. The State agency then send another notice on November 10, 2015, reiterating that the claimant “must” attend a CE because it was “necessary” for him to be examined by IMA. On November 12, 2015, I replied that the claimant would attend the CE as soon as the State agency responded to the matters raised in my October 26, 2015 letter. 

The State agency continued to refuse to cooperate, and instead, on November 16, 2015, sent yet another CE notice stating that the claimant “must” attend a CE on November 16, 2015, because it was “necessary” for him to be examined by IMA. On November 18, 2015, I faxed the State agency we received their letter on November 17, 2015, the day after the CE was scheduled. Moreover, I advised the State agency that I sent them a detailed report from the claimant’s pain management specialist, together with a lumbar spine MRI, which obviated any supposed need for the CE. I added that if they believed otherwise, then respond to each of the matters raised in my October 26, 2015 letter. 

The State agency never attempted to address any of the issues raised in my October 26, 2015 letter, and it did finally approve SSD benefits, but the claimant never went to IMA for a CE. The question is, why does the State agency keep telling claimants that claimants “must” attend IMA CEs when that is not true.

Social Security Doctors

When filing for Social Security Disability ("SSD") benefits, the Social Security Administration ("SSA") usually asks claimants to be examined by one of its doctors in what is referred to as a consultative examination ("CE"). The SSA leads claimants to believe that their SSD application will be denied if they refuse to attend the CE.

The SSA rules and regulations actually provide for relatively few situations where a CE would be appropriate. In general, if a CE is actually needed, then it is supposed to be performed by a treating doctor. Nonetheless, in almost every case, claimants are sent letters telling them that they must go to a CE by an unnamed doctor.

I represent a 59 year old teacher who was told that she must attend a CE by Industrial Medicine Associates ("IMA"). After I sent a detailed letter explaining why the rules and regulations showed that such a request was inappropriate, the CE demand was withdrawn, and she received a check for SSD benefits today.

The state agency, which requests the CEs, and IMA, have both told me that CEs are routinely scheduled on every case. I represent a former nurse whose SSD benefits were also approved today, and she was never sent a notice to attend a CE. Therefore, it cannot be said that SSA policy requires a CE in every case.

While there are some circumstances when a CE is needed, since the CE reports normally indicate that the claimant is not disabled, a CE by a non-treating doctor should be attended only if the request is authorized under the SSA rules and regulations.

Consultative Exam Withdrawn

It is unclear why claimants applying for Social Security Disability (“SSD”) are virtually always told they have to attend a consultative examination ("CE”) since the rules actually permit them only in limited circumstances. In New York, IMA has the contract to perform the CEs now.

Every once in a while the State agency withdraws a CE request. Sometimes the State agency sends a letter specifically notifying you that the CE request is being withdrawn, which does not always result in an approval. When it doesn’t, and the basis for the denial is failing to attend the CE, you should certainly argue that it is inconsistent to withdraw a CE, but then claim not attending the CE is the basis for the denial. Sometimes the CE request is implicitly withdrawn.

I represent a 50 year old laborer who did road construction, who alleged disability due to back problem. Last month, the State agency sent the claimant a letter saying he needed to attend a CE. A week later, I submitted an EMG that showed the claimant had lumbar radiculopathy. The SSD application was approved today, which shows the CE was never needed, or was no longer needed because of the EMG. Regardless of why the CE was withdrawn, it was done so without the State agency sending written notice, which is an example of a CE implicitly being withdrawn.

ALJ Hoppenfeld Must Be Barred From FMS Cases

I have asked the Regional Chief Administrative Law Judge (RCALJ”) to prohibit ALJ Hoppenfeld from hearing any case where the claimant’s inability to work is due to fibromyalgia (“FMS”). I would encourage others to write the RCALJ too.

At my client’s first hearing, ALJ Hoppenfeld saw no need for a medical expert (“ME”) to testify. The only evidence that arguably contradicted the disability opinions of the claimant’s rheumatologist, pain management specialist, internist, podiatrist and nurse practitioner was the report of Kautilya Puri, a consultative examiner (“CE). Therefore, I requested that CE Puri be subpoenaed for cross-examination, but ALJ Hoppenfeld claimed the subpoena was not issued due to “office error”.

During the hearing I advised ALJ Hoppenfeld that CE Puri was not board certified. When ALJ Hoppenfeld expressed surprise, I offered to submit written confirmation that CE Puri lacked board certification, but ALJ Hoppenfeld said it was not necessary. I advised ALJ Hoppenfeld in writing that the American Board of Medical Specialties (“ABMS”) confirmed that CE Puri is not a board certified internist. In fact, I advised the ALJ the ABMS stated that CE Puri is not board certified in any field of medicine. I wrote ALJ Hoppenfeld that she could confirm CE Puri’s lack of certification for herself by calling the ABMS at (847) 491-9091, or by checking the ABMS website www.abms.org. ALJ Hoppenfeld never took any step to verify CE Puri’s certification status.

During the first hearing, ALJ Hoppenfeld indicated that she was unsure if she could accept the opinions of the treating specialists because she needed to see if medical tests supported them. In Brunson v. Barnhart, 2002 WL 393078 (E.D.N.Y. Mar. 14, 2002) the court explained in detail why ALJ Hoppenfeld is not permitted to reject a treating doctor’s opinion about the disabling effects of FMS for lack of diagnostic testing. Nonetheless, relying on CE Puri’s report, and ignoring Brunson, ALJ Hoppenfeld denied the claimant’s application.

Rather than the typical two year wait, the Appeals Council rejected ALJ Hoppenfeld’s decision in only two months. The Appeals Council suggested a VE at the new hearing, but saw no need for an ME. Nonetheless, ALJ Hoppenfeld insisted that, not one, but two experts testify, a psychiatrist and a neurologist. In Tempesta v. Astrue, 2009 WL 211362 (E.D.N.Y. Jan 28, 2009), the court reversed ALJ Hoppenfeld for refusing to give controlling weight to treating physicians by effectively requiring objective evidence beyond the clinical findings necessary for a diagnosis of FMS under established medical guidelines of the American College of Rheumatology 1990 Classification. Thus, Hoppenfeld knew that rheumatologists, not psychiatrists or neurologists, were the appropriate specialist for evaluating FMS. I wrote ALJ Hoppenfeld that her doing so showed that she intended to disregard the treating physician rule just as she had done in Kearney v. Astrue, 2008 WL 270525 (E.D.N.Y. July 11, 2008), where the court called ALJ Hoppenfeld’s failure to follow the treating physician rule “baffling,” and added that “for reasons defying comprehension, [you] chose to repeat the same error” after he previously remanded the case to her.

Since the only evidence that arguably contradicted the reports of the treating doctors was the CE Puri report, I again asked Hoppenfeld to issue a subpoena so I could cross-examine CE Puri. To avoid another “office error,” I submitted my subpoena request by fax and ERE with confirmations. Yet, once again, Hoppenfeld failed to explain her failure to issue the subpoena.

At last week’s hearing, even though I had made it clear the claimant is not asserting disability due to a mental disorder, ALJ Hoppenfeld repeatedly tried to get the claimant to say that she had a history of abuse or mental disorder, which the claimant refused to do. ALJ Hoppenfeld then had ME Winkler testify, who out of the blue asserted that FMS is really a manifestation of people with a history of mental illness, and then said that the psychiatrist would discuss that further. Incredibly, ALJ Hoppenfeld refused to allow me to cross examine ME Winkler regarding his testimony, and terminated the hearing. In other words, since Hoppenfeld knew that the medical evidence showed the claimant’s FMS was disabling, she tried to argue it was not FMS, but a mental disorder.

Because the Queens ALJs have a history of conveniently losing hearing recording when they don’t like the testimony, I asked the Queens ODAR for a copy of the hearing immediately after it was terminated. I was told a copy would be mailed to me the following day. I called the Queens ODAR 5 days later, but was told I never requested a copy, so I then arranged to pick it up that day. However, later that day, I was told the person who makes the hearing recordings was out. Then the next day I was told that for some inexplicable reason the hearing was not recorded. The hearing tape failure was no accident.

Avoiding An Improper Consultative Exam

In the vast majority of cases, the Social Security Administration (“SSA”) insists that disability claimants attend a consultative examination (“CE”), which is performed by a doctor selected by the SSA. However, the SSA rules and regulations require that the claimant’s treating doctor perform a CE subject to a few exceptions. The exception that the SSA usually relies upon as grounds for a CE is that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies. Before the SSA or an Administrative Law Judge (“ALJ”) can ask a claimant to attend a CE by a non-treating doctor on the grounds that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies, the ALJ must first recontact the treating doctor to explain the perceived conflict, gap or inconsistency.

I represent a former police officer whose arthritis specialist and orthopedist provided reports describing why their patient’s condition prevented him from working in any capacity. ALJ Weiss insisted that the officer attend a CE by an “independent” orthopedist because of alleged conflicts and inconsistencies in the medical reports, but I insisted that the ALJ first recontact the treating doctors in accordance with the regulations. ALJ Weiss then denied the officer’s application on the grounds that the officer lacked good cause for refusing to attend the CE.

After filing a complaint in federal court, the SSA admitted that the officer had good cause for refusing to attend the “independent” CE, and that it was improper to penalize the officer for refusing to attend it. The SSA asked the officer to remand the case, and would require the ALJ to recontact the treating doctors to clarify or provide additional information to resolve the perceived conflicts and inconsistencies in their reports. The SSA also agreed that the Appeals Council remand order will direct the ALJ to issue a decision on the merits of the case even if the officer refuses to attend an independent CE without good cause.

The SSA’s remand offer confirms that a treating source is the preferred source for performing a CE. The SSA’s remand offer also confirms that it cannot ask an “independent” doctor to perform a CE unless the treating source is given the chance to explain any alleged conflict, gap or inconsistency. Finally, the SSA’s remand offer shows that a claimant has good cause, and cannot be penalized, for refusing to attend a CE that fails to comply with the SSA’s rules and regulations.

Exam Secrets

The Social Security Administration (the “SSA”) has many regulations and secrets concerning a consultative examination (“CE”). A CE is when a doctor selected by the SSA examines a claimant.

One secret is that even though the SSA has claimants sign authorizations so they can receive copies of CE reports, the SSA never provides them. The SSA also does not tell claimants that it pays the same doctors to examine thousands of claimants, and these CE doctors rarely conclude that claimants cannot work.

Being familiar with CE secrets and regulations can be critical to obtaining benefits. I just succeeded in having a 43 year old client’s disability application approved without a hearing based on such knowledge.

As usual, Disability Determination Services “DDS” represented that the claimant had to attend a CE. I advised the DDS it is not allowed to order a CE simply for a “second opinion”. However, I told the DDS that if it contended a CE was needed to provide additional information, then the regulations required that the CE be performed by the “preferred source,” which is the treating physician. The DDS agreed and the treating physician’s CE report completely supported the client’s inability to work. Nonetheless, the DDS still denied the disability application despite lacking any grounds whatsoever for doing so.

The good news is that the DDS’s conduct was so patently wrong that the SSA approved the client’s disability application less than a month after it was submitted. Had I permitted the claimant to attend a CE by the SSA’s non-preferred source, it is very unlikely that the disability application would have been approved without a hearing.

Subpoena Denials

The law requires that a Social Security Disability claimant be able to cross-examine the author of an adverse report. Since the reports of the doctors who do the consultative examinations (“CE”) for Social Security almost invariably indicate the claimant can work, I always insist that the administrative law judge (“ALJ”) issue a subpoena for the CE doctor.

I have had cases reversed by the Appeals Council and federal courts recently because the ALJ failed to give a valid reason for refusing to issue subpoenas for CEs. When an ALJ denies a subpoena request, I always respond to protect the record for appeal. I did this Friday after ALJ Hazel Strauss refused to issue a subpoena.

The first reason for Strauss’ refusal was that the CE took place eight years ago. However, Strauss would not allow the passage of time to prevent her from giving any weight to the CE report, I stated that her precluding me from cross-examining the CE doctor is a denial of Due Process.

The second reason for Strauss’ refusal was her belief that “it is not likely [the CE doctor] would be able to testify to anything except what the report of the examination states, as consultants do not keep records beyond year of such examinations.” I noted that not only is her speculation as to what the CE doctor might remember irrelevant, but also my cross examination does not need to be limited to examination findings because his examination practices and procedures during the thousands of CEs he performed are proper subjects of cross examination because they could provide probative information.

Third reason for Strauss’ refusal was that CE records are disposed within a year. I replied that such a justification for rejecting a subpoena is absurd because it takes more than a year between the time the CE is performed and the hearing is scheduled. According to Strauss’ logic, no CE doctor would ever be subpoenaed.

The letter to ALJ Strauss provides the Appeals Council with a clear procedural Due Process violation for remanding a potential adverse decision. The subpoena denial is also a failure to develop the record that a U.S. Attorney can accept as an excuse for a voluntary remand.

Consultative Examinations

The rules and regulations of the Social Security Administration (the “SSA”) limit the situations when a claimant should be asked to attend a consultative examination (“CE”) by a non-treating doctor. Nonetheless, the SSA very rarely processes a disability application without sending the claimant a notice for a CE. There is nothing wrong with the SSA asking the claimant to attend a CE. What is wrong is that the CE notice asks the claimant to be examined by a doctor who is not treating the claimant.

I usually object to CE notices. When doing so, I offer provide whatever medical information the SSA requests. I advise the SSA that as long as they specify what medical information they claim is needed to evaluate the application I will get it for them. I also offer to facilitate a CE with a treating physician because he or she is the “preferred source” for any CE according to the regulations. The goal is to show that while I am objecting to the CE notice, the claimant could not possibly be more cooperative.

I had an application approved today where the SSA sent four CE demands. In response to my letters, the SSA failed to specify any additional information that was purportedly needed to evaluate the application. My letters showed that the claimant was cooperating while the SSA was not. The regulations do not permit the SSA to have a CE simply because they want a second opinion.

Another CE Problem

     I have written dozens of times about the problems posed when Social Security schedules a Consultative Examination (“CE”) with a non-treating doctor. I had a hearing yesterday in Queens that illustrates one such problem. 

     I was representing a 37 year old former EMT who sustained serious back and knee injuries after a series of motor vehicle accidents. The medical records and the reports of the claimant’s neurologist repeatedly demonstrated that the claimant met the listing criteria for a spinal disorder. However, the medical expert at the hearing questioned whether the listing was met because the report of the one time CE by a non-treating doctor contained some contrary findings. 

     Aberrant findings from a single CE report, from a doctor who is not a neurologist, should not suffice to contradict the longitudinal and consistent medical findings of a neurologist regarding a neurological disorder. Furthermore, the claimant was prepared to testify that the CE findings were fraudulent in that the CE did not actually test what the report claimed was tested. 

     Fortunately, the medical expert testified that while the claimant did not meet the spinal disorder listing, he equaled it in severity. However, another medical expert or Administrative Law Judge may have concluded that the CE findings prevented the listing from being met or equaled. According to the regulations, there was no valid ground for the claimant to have been asked to have a CE with a non-treating doctor. Had the claimant refused to attend the CE, there would have been no evidence to contradict the claimant’s meeting a listing, and he could have avoided the need and wait for a hearing.

IMA Exams In New York

In New York, the Division of Disability Determinations of the New York State Office of Temporary and Disability Assistance (“OTDA”) decides if the medical evidence supports an application for Social Security Disability (“SSD”) benefits. If the OTDA believes that the claimant’s medical information is unavailable or insufficient, then the OTDA can pay for a consultative examination (“CE”). The Social Security rules and regulations clearly state that a claimant’s treating doctor is the preferred source for a CE, which Administrative Law Judges reluctantly admit.

Even though I submit medical tests, functionality opinions, and clinical records, when I file SSD applications, the OTDA almost without exception sends notices for my clients to go for a CE by IMA Disability Services. IMA Disability Services, which has also gone by the name Industrial Medicine Associates, is part of The IMA Group (collectively, ”IMA”).

Why are claimants always told to go to IMA when the rules and regulations clearly state that the treating physicians are the preferred sources for CEs? Why are claimants told they have to go to IMA CEs in virtually every case? I represent a 59 year old bricklayer whose SSD benefits were paid today two months after I filed his application, even though the OTDA sent two letters stating that it was “necessary” for him to be examined by an unnamed doctor from IMA. Obviously, the CE was not necessary.

The OTDA is supposed to issue three year contracts for performing CEs through a competitive bidding process. David Pulver, the President of IMA, gave a private cocktail party and fundraiser for Alan Hevesi while he was Comptroller. The Comptroller and Attorney General are supposed to review the CE contract process, and the fundraiser occurred when IMA’s contract was pending review at Hevesi’s office. Alan Hevesi plead guilty to unrelated corruption charges, and was sentenced to 1-4 years on April 15, 2011.

As of 2009, IMA held the contracts for performing CEs in 12 of the 13 regions in the State, and now apparently holds all 13, even though a State investigation revealed that IMA engaged in a practice of improperly altering and submitting documents to OTDA in connection with its bids for CE contracts, as well as other improprieties. How much does the OTDA pay IMA annually? Certainly, IMA has a great incentive to retain its monopoly.

The money that goes to IMA comes from our taxes. It would seem that anyone interested in preventing the wasting of tax revenues would want to ask a lot of questions about IMA CEs. Since the State found that there was no undue influence behind the OTDA issuing contracts to IMA, why, as noted above, are claimants reflexively sent for IMA CEs when they are in fact not necessary? Even if a CE is necessary, why does the OTDA insist that IMA perform the exam when many claimants’ doctors would conduct the CE without cost to the taxpayer? How much do we actually pay IMA in total each year for CEs? How much would we save if the OTDA only sent claimants for a CE when they were actually necessary, and then to treating doctors?

Consultative Examinations

When the Social Security Administration (the “SSA”) tells a claimant to be examined by one of its doctors it is called a consultative examination (“CE”). The Social Security regulations provide very limited circumstances when the SSA can require a claimant to attend a CE. Nonetheless, the SSA directs virtually every claimant to attend a CE.

Anyone familiar with the SSA doctors knows to expect a report indicating that there is little to nothing wrong with the claimant. If a claimant fails to attend a CE, the SSA frequently denies the application on the grounds that the claimant refused to cooperate.

I regularly advise my clients not to attend CEs. I provide a detailed explanation to the SSA citing the legal reasons why a CE would be inappropriate under the circumstances. Additionally, I offer to provide whatever medical information the SSA specifies, and to facilitate a CE with a treating physician. When the SSA refuses to identify any particular medical information, and ignores my offer to arrange a CE with a treating physician, I can show that it was the SSA, not my client, who failed to cooperate.

I represent 45 year old nurse whose Social Security Disability (“SSD”) application was approved today despite two demands that she attend a CE. I strongly doubt that the claimant’s SSD application would have been approved if file contained the typical adverse CE report from an SSA doctor.

Videotaping IMA Consultative Examinations

An Administrative Law Judge issued a favorable decision today that approved the Social Security Disability (“SSD”) application of my client, a former firefighter, without requiring a hearing. 

The State agency had denied the claimant’s SSD application on the fraudulent grounds that the claimant had failed to be examined by its doctors from Industrial Medicine Associates (“IMA”). That assertion was untrue. The claimant was ready, willing, and able, to be examined by IMA, and appeared at IMA’s office at the designated date and time for his consultative examination (“CE”). However, IMA refused to proceed with the CE because the claimant brought a camera to videotape the CE. In other words, it was IMA, not the claimant, who refused to proceed with the CE. 

There is no rule, regulation, statute, guideline, or case law that precludes an SSD claimant from recording his or her CE. There have been countless times where IMA doctors have been banned from performing CE’s, or their opinions have been rejected, after substantial evidence or cross examinations showed they falsified CE findings. If IMA doctors perform CEs in accordance with the regulations, then they should have nothing to hide, and should have no problem with the videotaping. Videotaping an IMA CE is consistent with the SSA recording experts and witnesses at hearings. IMA has a protracted history of acting improperly. Read some of my prior entries on this topic: 11/22/10, 6/6/12, 5/17/12, 10/5/11, 6/29/12, 6/16/12, 3/8/10, 8/31/12, 8/11/08, 4/21/10, 6/4/12, 9/8/10, 8/16/12. 

IMA has a contract with New York State to perform CEs, for which it gets paid a ton of taxpayer money. Medical Experts at hearings are videotaped, and IMA has no excuse or legal authority to justify its refusal to have its doctors videotaped while performing a CE ordered and paid for by New York State. Perhaps if IMA refuses to perform a large number of CEs when claimants try to videotape them, the State will terminate or refuse to renew its contract with IMA.

State Agency Analyst Lied

One of my client’s eFolder became available today. The eFolder contained one document that said my client did not comply with requests to have a consultative examination (“CE”), and the other said that my client did not keep the CE appointment. Both documents were written by J. Nimrod, a State agency analyst. Nimrod is a liar. 

My client appeared for his CE. In fact, he has videotape showing that he complied with the CE request, and kept the CE appointment. The videotape is concrete proof that Nimrod lied when representing in writing that my client neither complied with the CE demand, nor kept the appointment. 

Nimrod and other analysts habitually fail to follow the rules.  Nimrod and his ilk have made it a habit of lying about claimants supposedly not appearing for their CE. These so-called analysts know that there is no rule precluding claimants from taping a CE. Consequently, the analysts blatantly lie when a claimant appears for a CE with a videorecorder, and claim that they never showed up. 

It is difficult to have any respect for the State agency when its employees destroy its integrity through flagrantly fraudulent misrepresentations.