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.

CE Boondoggle Continues

For many years, I have been describing how virtually every single State agency examiner who processes applications for Social Security Disability benefits insists that claimants must attend consultative examination “CE”s. Almost every CE is scheduled in violation of the Social security rules and regulations, and results in a waste of time and taxpayer money. By demanding a CE, the State agency is saying it does not believe what the treating doctor says. Notably, ALJ Kilgannon just said the same thing during a hearing last week, which shows that the aforementioned concept is not limited to the State agency. 

I represent a 54 year old former carpenter with knee, neck, back, and shoulder impairments. On May 21, 2018, the State agency told the claimant he had to attend CEs for his knee and depression. Ignoring my May 23, 2018 letter detailing why a CE was improper, the State agency rescheduled them on May 31, 2018. 

When the State agency sent a reminder letter about the CEs on June 1, 2018, we faxed a letter advising the State agency that the claimant neither has, nor claimed, a mental impairment. Nonetheless, on June 14, and 15, 2018, the State agency sent additional letters to remind the claimant about the CEs. After a series of calls, the State agency finally agreed that a CE was not needed to address a mental impairment. 

The good news is that the claimant’s SSD benefits were approved last week without a hearing. The bad news is that the attempt to compel the claimant to submit to a mental CE must have delayed the processing of the application. There was nothing in the application regarding a mental impairment. There was no medical record regarding any mental problem. No psychotropic medication was prescribed for the claimant. 

Did the State agency fail to review the file properly when scheduling the mental CE? Does the State agency or its examiners have an undisclosed incentive to schedule needless CEs? I suspect we will still be asking these questions for the unforeseeable future.

Consultative Examinations

Social Security Disability claims are usually denied based on the reports of consultative examinations (“CEs”). I advise my clients not to attend CEs because the regulations provide that the preferred source for performing a CE is the treating physician, and not a doctor selected by the state agency processing the initial application. There are three possible outcomes where a claimant does not attend a CE by a state agency consultant.

The first possibility is that the medical evidence supplied by the claimant and obtained by the state agency is so strong that the application gets approved despite refusal to attend the CE.

The second possibility is that the application will be denied on the grounds of non-cooperation. However, if the state agency is advised how the regulations would be violated if the CE is not performed by the treating physician, and the claimant offers to supply whatever specific medical information the state agency contends is needed to adjudicate the claim, then there is no valid basis for asserting non-cooperation. If then application is denied, the non-cooperation argument does not stand up on appeal.

The third possibility is that the state agency will agree to have the treating physician perform the CE. This is rarely the case, but when it happens, it virtually guarantees that the application will be approved on appeal if the state agency denies the application. I just had a lightning fast approval of such a case.

I represented a client whose application was denied despite the fact that I persuaded the state agency to have the treating orthopedist perform the CE, who concluded that the claimant was totally disabled and could not do any type of work. The day the claim file was transferred to the hearing office I submitted a request asking that the claimant’s application be approved based upon the evidence currently in the file. I argued that all the medical evidence, including the CE paid for by the state agency, showed the claimant was entitled to disability benefits. I received a telephone call in less than a week advising me that the application would be approved, and a written decision was received a couple of weeks later.

Disability Benefits For Nurse

As a medical professional, you would think that an intensive care unit (“ICU”) nurse would recognize when a person can no longer work. That seems especially true when that worker or person is the nurse herself. Certainly a nurse is better able to assess limiting effects of medical impairments than a clerk who works for the State agency that initially decides eligibility for Social Security Disability (“SSD”) decisions.

You would think that it would be obvious that when a person has worked at the same job for a quarter of a century, and says their medical condition prevents them from continuing to work, that their work ethic shows they are telling the truth. That seems especially true when the person is earning a high salary of almost $100,000 annually. What makes it even more obvious is that an ICU nurse has no transferable skills to sedentary work, and if the nurse is over 50, the medical-vocational rules require a finding of disabled even if the ICU nurse had a sedentary work capacity.

So when a 55 year old person tells the State agency that she can no longer work as an ICU nurse after 25 years, where she was earning close to $100,000 annually, and four different medical specialists provide detailed reports showing that the nurse cannot even do sedentary work, the SSD claim looks like a no-brainer. After all, why would the ICU nurse exaggerate her claim that she lacks the ability to work in order to receive SSD benefits that are less than a third of her working income? But of course then there are State agency examiner’s like F. Osorio who can’t fathom the obvious.

The State agency denied the ICU nurse’s SSD application because Osorio wanted the claimant to attend a consultative examination (“CE”) by IMA Disability. Osorio refused to address the reasons why the nurse objected to the CE; namely, that it failed to comply with the Social Security rules and regulations. Therefore, despite all the medical evidence overwhelmingly supporting the ICU nurse’s credible disability application, Osorio denied it.

Luckily, the Social Security Administration (“SSA”) immediately rejected and reversed Osorio’s denial. Earlier this month I submitted an on-the-record (“OTR”) request for a fully favorable decision, and yesterday, the SSA approved it. Therefore, the claimant avoids wait for a hearing and decision. Unfortunately, the claimant’s SSD benefits were still unnecessarily delayed by the State agency decision.

When State agency examiners deny applications because claimants refuse to attend CEs that are scheduled in violation of the rules and regulations it wastes time and money. Tax payer money. Your money. Is the State agency knee jerk insistence for CEs a boondoggle? Are CEs automatically required because State agency examiners are lazy and simply want to rubberstamp what a CE says instead of reviewing the entire medical file? By demanding a CE the State agency is saying it does not believe what the treating doctor says, which contradicts the SSA laws that say treating doctors’ opinions are supposed to be given extra weight.

More State Agency Deceit

We filed a reconsideration appeal on May 3, 2021.  Just three weeks later, the Stage agency denied the claim without requesting any additional information. The State agency claimed that we refused to allow our client to attend a Consultative Exam (“CE”) because of “a medical condition.”  That claim was deceptive at best.

The State agency concealed that the claimant’s "medical condition" was his cardiovascular heart disease, which resulted in two heart surgeries in February, and two more surgeries in March, when COVID was still raging.  In his condition, the claimant could not risk being exposed to COVID.  To minimize the risk, we offered to have one of his cardiologists perform the CE, who also happen to be the preferred source under the regulations.  His doctors were perfectly willing to perform the CE, but the State agency ignored that offer.

The medical section of our client’s Social Security claim file contains 2,421 pages of records that support his disability from work.  The State agency denied this claim because the claimant did not attend a CE.  We have seen quality control memos rejecting such denials, and reminding the State agency to make a decision on the other evidence in the file.  The State agency failed to do that here.

There were thousands of pages of medical records.  The State agency refused to identify any medical documentation that was purportedly missing.  There was a great deal of documentation regarding our client’s medical conditions, including diagnoses, objective diagnostic test data, operative reports, supportive letters and reports from multiple treating doctors.  There was no need for our client to attend a CE.

Logic dictates that the State agency was too lazy to review the 2,421 pages of medical records. This claim should have been approved.  It is a travesty that it was denied.

We will continue to fight for our client and are confident that the hearing office will give this claim the proper consideration and review.  If you find yourself in need of assistance applying for disability, please contact my office for a free phone consultation.  We have offices conveniently located on Long Island in Nassau and Suffolk counties.

 

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.

DDS Laziness

We represent a 49 year old financial advisor from Plainview with residual problems from a stroke, whose Social Security Disability (“SSD”) benefits were approved today without a hearing, but with little help from the State agency. 

Since the claimant was under 50 years of age, there was little need for vocational information, because transferable skills were not an issue. Nonetheless, the State agency repeatedly held the claim up by requesting more details about the claimant’s work duties than they do in other cases. 

To compound matters further, we submitted thousands of pages of medical and hospital records detailing the stroke sequelae. The records documented hemiparalysis, balance issues, fatigue, foot drop, among other things. Nonetheless, the State agency kept sending requests for the claimant’s brain scans – which we confirmed each time had already been submitted. Then it became obvious to us what the problem was. 

We went through the records that were in the State agency’s electronic folder for the claimant. We pulled out the brain scans, and resubmitted a second time. SSD benefits were approved shortly thereafter. In other words, the State Agency representative refused to review the medical records because they were so voluminous, so we had to do their job for them. 

It is vital to have an experienced disability attorney represent you if you plan on applying for SSD benefits. From the moment we file our client’s application, we stay on top of the representative(s) handling your claim. For example, when we submit medical evidence directly into our client’s efile, we receive a confirmatory receipt. However, we consistently find that when we check the efile a few days later, the evidence we submitted is not there. The State agency analysts' stock answer is that it’s the “system’s” fault. It’s a constant game of submitting evidence, checking to make sure it shows up in our claimant’s file, and then calling the State agency when we don’t find the evidence in the file. 

The bottom line is that most of the analysts at the State agency do not do their jobs. It could be that they are lazy, stupid or they just don’t care. If you want to maximize your chances of being approved for SSD benefits, then you need to retain an experienced disability attorney. We have been handling disability claims since the last Century. Please call our office for a free phone consultation if you plan on applying for SSD benefits. We have offices located in both Nassau and Suffolk counties on Long Island.

State Agency Fraud

The Social Security Administration (the “SSA”) is reinstituting the reconsideration stage in New York come January 1, 2019. Close to 90% of claims are denied on reconsideration, so why is it being restored? Given that the SSA has been passing rules to make it more difficult to obtain benefits, such as eliminating the treating physician rule, logic dictates that reinstituting reconsideration is intended to do the same. 

Here is a recent example of what can be expected from an extra round of State agency review. I represent a 58 year old claimant who had worked as a school nurse for 27 years. A pain management specialist, internist, and pulmonologist each concluded the claimant had a less than sedentary work capacity. The claimant’s pulmonary function tests each show she met a listing. 

On January 9, 2018, “L. Samuel,” (the State agency doctors are afraid to disclose their first names) a State agency internist, concluded that the claimant was limited to lifting 10 pounds, and was credible. Based on that opinion, the State agency analyst advised approving the claim. However, it was decided that there was a vocational “error” in applying the medical-vocational rules. The State agency then had Samuel redo his report two weeks later. 

During the two week interim period, there was absolutely nothing added to the claim file – no medical evidence, no financial evidence, no vocational evidence. Nonetheless, based on the identical information, without any explanation whatsoever, Samuel now concluded that the claimant could lift twice as much, 20 pounds, and for some reason, was no longer credible. 

Subsequently, an internist from the SSA reviewed the medical records, and rejected Samuel’s attempt to “redo” his conclusions. When brought to the attention of the ALJ assigned to case, the claim was approved without a hearing. I suggested that L. Samuel be referred to the Office of the Inspector General to account for his fraud, but I am confidant that nothing will be done. 

The above illustrates what happens when the State agency effectively reconsiders a claim. Although I would not anticipate that each reconsideration will result in fraud, this serves as evidence that State agency doctors are partial, which serves the interest in the SSA reducing the number of approvals, and increasing delays for those who eventually do get approved.

Appealing Partially Favorable Decisions

The State agency regularly issues a partially favorable decision (“PFD”) when making initial determinations on Social Security Disability (“SSD”) applications. A PFD should almost always be appealed as this could result in the receipt of substantial additional benefits. 

The first step in appealing is to check all the documents in the eFolder to see if there is a document explaining why a later onset date was chosen. Many times it seems that there is absolutely no reason for the delayed onset date, and that the SSA is simply trying to avoid having to pay additional benefits. Sometimes there is no document in the eFolder that provides a reason why the State agency issued the PFD. I received a fully favorable decision today from administrative law judge (“ALJ”) Seymour Rayner that illustrates this point. 

The claimant’s alleged that she became disabled on February 1, 2011 (the “AOD”). The State agency’s said the claimant became on July 1, 2012 (the “EOD”). The ALJ asked what evidence the State agency relied upon as the basis for the EOD. I stated that there was no medical record in the file that was created on July 1, 2012, or referred to that date, and that it appeared as if the State agency analyst arbitrarily plucked the EOD out of thin air because it failed to correspond to any evidence. 

The ALJ then asked what evidence the claimant was relying upon to support the AOD. I stated that there were two medical reports from the claimant’s psychiatrist that supported the AOD, by describing why the claimant met the listed criteria for an anxiety disorder no later than the AOD. The claimant also testified that her anxiety did not change on or about the EOD, and had been the same level of severity since the AOD. 

The ALJ agreed that because the claimant’s condition was the same at the AOD as it was at the EOD, the claimant’s onset appeal should be granted. As a result, the claimant received over half a year of additional benefits. 

As a related matter, I submitted a fee agreement stating that, “If the Social Security Administration (“SSA”) decides the claim favorably at the initial, reconsideration or initial Administrative Law Judge (“ALJ”) hearing stage, then Claimant will pay Attorney a fee that is equal to the lesser of twenty-five (25%) of the past due benefits.” (emphasis added). The agreement has been approved countless times where an ALJ issued a favorable decision following a State agency partially favorable decision. ALJ Rayner incorrectly denied the fee agreement on the grounds that it “is only valid if the claim is favorably decided at the initial level.” I’d say that ALJ needs to learn how to use a dictionary, but who doesn’t know the meaning of the word “or”?

State Agency Exam Notices

Whenever a Social Security Disability (“SSD”) claimant in New York applies for benefits, regardless of his or her diagnosis, the State agency sends a notice stating that, “It will be necessary for you to be examined by” IMA Disability Services (“IMA”).  Unsuspecting claimants think that they have no choice about going to the consultative examination (“CE”) because the State agency notice says it is “necessary."

The State agency notice is misleading.  The Social Security regulations state when it is necessary to attend a CE.  There are actually very few situations where a CE is “necessary,” and in the majority of those cases, the regulations provide that the CE should be performed by the claimant’s treating doctor.

I represent a 49 year old former public safety officer with a back problem.  As is usual, the State agency sent her letters that said it was necessary for her to be examined by IMA for her back.  For various reasons the claimant declined the CE.  Today, I received the claimant’s Notice of Award.

The State agency knows that its notice is misleading.  I send the State agency a lengthy, detailed letter explaining why the CE is not necessary, and asking if they asked the treating doctor to supply the same information that they asked IMA to supply.  Not surprisingly, the State agency fails to respond to my letters, and instead, simply sends another notice, which says that the CE is “necessary.”

Lourdes Marasigan

The New York State Office of Temporary & Disability Assistance, Division of Disability Determinations (the “State agency) needs to fire Lourdes T. Marasigan. I have spent years having to overturn decisions that denied Social Security Disability (“SSD”) benefits based on irresponsible reports by Marasigan. 

According to both the American Board of Medical Specialties and New York State Department of Health, Marasigan is not board certified in any specialty, went to medical school in the Philippines, and was trained as an anesthesiologist. Nonetheless, the State agency has Marasigan review every type of medical problem under the sun, including hearing loss, lumbar radiculopathy, brain injuries, vision impairments. As a result, in those rare instances where a consultative examination (“CE”) by Industrial Medicine Associates actually supports an SSD claim, Marasigan comes to the opposite conclusion. 

I represent a 53 year old former truck loader who had seven heart attacks, five stent surgeries, a triple cardiac bypass surgery, hyperlipidemia, hypertension, polycythemia, sleep apnea, and diabetes, that caused weakness, fatigue, vertigo, shortness of breath, and a grand mal seizure. The CE noted the claimant even needed to hold onto the table in the exam room. The CE concluded that the claimant was markedly limited in the ability to walk, stand, climb, or lift anything. 

It is very unusual for a CE to assert that a claimant has any marked limitation, which essentially means precluded for that activity. There is no possibly rational way to interpret the CE to conclude the claimant could stand and walk for even 2 out of 8 hours, or lift any weight for up to a third of the day. Nonetheless, Marasigan opined that the claimant could stand and walk for 6 out of 8 hours and could lift and carry 20 pounds for up to a third of the day, and could lift and carry 10 pounds for about 6 hours a day. 

The State agency denied the SSD claim based on Marasigan’s opinion, even though she never examined or even saw the claimant, and even though the claimant’s cardiologist limited the claimant to sitting for 1 out of 8 hours, standing/walking for less than 1 out of 8 hours, and lifting and carrying somewhere between 0 and 5 pounds for up to a third of the day. The claimant’s internist provided similar restrictions. The bad news was that even though every doctor who examined the claimant, included the CE, provided restrictions that precluded the claimant from any full time activity, the State agency denied the claimant SSD benefits. 

The even worse news was that the case was reconsidered by the State agency quality control, which is fairly rare, yet the claim still was denied. The average wait for a hearing is now well over 600 days. The good news is that rather than remaining idle all that time, the hearing office reviewed the claim about a month later, and reversed the decision.

There simply is no excuse to continue to spend the State agency’s limited resources by employing non-examining doctors, with inapt medical qualifications or backgrounds, to review SSD claims. That injudicious expenditure of resources then wastes the hearing office’s resources too.

Pontine Stroke

According to reference.com, a pontine stroke is one that occurs in the pons, which is a portion of the brain stem. The pons, which is located between the midbrain and medulla, relays messages between the cerebral hemispheres and cerebellum. Common symptoms include double vision, dizziness, vertigo, slurred speech and imbalance. 

Being disabled from a condition that is somewhat atypical may have helped one of my client’s get approved for Social Security Disability (“SSD”) benefits. The State agency usually requires claimants to attend a consultative examination (“CE”) that its contracted doctor performs. CE opinions are almost always less supportive than treating doctor opinions. 

I represent a claimant who suffered from a pontine stroke. The State agency wanted to send the claimant for a CE to Industrial Medicine Associates (“IMA”), which I objected to for several reasons. On this occasion, the State agency agreed with my request that the claimant’s treating doctor perform the CE. 

The treating doctor’s CE report stated that the claimant suffered from slurred speech, imbalance, spasticity and right sided weakness, including abnormal gross and fine manipulation. The CE report also provided a less than sedentary work ability. The State agency approved SSD benefits after receiving the report. 

Treating doctors frequently supply opinions that claimants possess less than sedentary work abilities to the State agency, but those opinions are usually rejected in favor of the IMA opinion, or are simply rejected on the grounds that determination of disability is for the State agency to make. It may be possible that because the claimant’s problem was somewhat unusual, IMA lacked a proper doctor to do the CE, and therefore, the State agency agreed to allow the treating doctor to do the CE.

State Agency-IMA Bad Faith Tactics

Regular readers of my blogs know that I have described how the State agency routinely deceives Social Security Disability claimants into going for examinations by doctors from IMA Disability Services. It seems the State agency is employing new tactics in order to assure that claimants go to these exams.

The first tactic is conveniently failing to notify me when my client has been asked to attend a consultative examination ("CE") by IMA. I first learn about the CE only after I see the claimant's efolder on appeal after the State agency has denied the application. The second tactic is calling the claimant on the telephone to tell them to go to the IMA CE, but mailing the notice to me two days before the 9am CE, which the State agency knows will not be delivered until after the CE. When I ask the claimants why they did not tell me they were going to the CE they said they thought I knew. In fact, one client told me today that they thought it was my office that was telling them to go the CE.

The State agency's unethical tactics are designed to circumvent my interposing objections to the CE or advising the claimant not to attend. What makes the State agency's tactics all the more unethical is that they have been specifically advised in writing that they are not to contact the claimant directly without my prior written authorization in violation of their own rules - POMS GN 03910.050.

State Agency Waste and Delay

The State Agency makes the initial decision when you apply for Social Security Disability (“SSD”) benefits. Unfortunately, the vast majority of the time, it is a clerk, not a doctor, who makes the decision for the State agency. As you can imagine, those clerks usually make the wrong decision. Even worse, sometimes the clerks go out of their way to avoid approving SSD applications. 

I represent a 49 year old pharmaceutical manager with depression. The State agency clerk named T. Cotman denied the application on the grounds that the claimant’s psychiatrist did not send treatment notes to substantiate her opinions about the claimant’s mental limitations. The psychologist had submitted a report that specifically identified the medical findings supporting her restrictions and limitations due to the claimant’s depression. However, Cotman purged that report from the claimant’s file. On appeal, a copy of the report, together with the Electronic Records Express receipt showing that the State agency received it on November 23, 2012 at 2:51 PM EST, was resubmitted. 

The psychologist’s report showed that the claimant met the listing for depression. Based solely upon that report, the claimant’s SSD application should have been approved. The administrative law judge (“ALJ”) approved the claimant’s SSD application today based upon that report; as the psychologist refused to produce the treatment records on confidentiality grounds. The ALJ did have a Social Security psychologist review the report, who opined it showed the claimant met the listing. 

If Cotman had asked a Social Security psychologist to review the report, instead of purging it from the file, then the claimant’s application would have been approved more than a year earlier. Moreover, it would have prevented the hearing office and ALJ from having to expend their time and resources to do precisely what the State agency was obligated to do.

SSD Claimants Need To Review Their Efolders

I represent a 49 year old nurse, whose Social Security Disability (“SSD”) application was approved today. The good news is that a Senior Staff Attorney at the hearing office approved the OTR that I submitted, so the claimant will receive SSD benefits without having to attend a hearing. The bad news is that the claimant’s application had been denied by the State Agency because it had purged the disability reports of the claimant’s two medical specialists from the file. 

The reports of the claimant’s pain management specialist and family doctor each prepared detailed reports explaining why the claimant’s fibromyalgia was disabling. Both reports stated that the claimant met the American College of Rheumatology criteria for fibromyalgia, and identified the clinical signs that support the diagnosis. Both reports provided for a less than sedentary work capacity, and concluded that the claimant could not work because she was completely disabled due to severe pain. 

The State agency, as it has done on previous occasions, mysteriously excluded the treating doctors’ reports from the claimant’s file. Curiously, it seems that whenever a submitted document is missing from a claimant’s folder while being reviewed by the State agency, the document is always one that includes a doctor’s opinion that a claimant lacks the functional capacity to work. 

Once a State agency denial is appealed to the Social Security Administration (“SSA”) hearing office, I can access the efolder. When I reviewed the nurse’s efolder and learned the disability reports were missing, I immediately resubmitted them, together with the Electronic Records Express receipt for showing that the State agency had received those reports on July 12, 2011 at 3:51 and 3:55 PM EST. Fortunately, the SSA Staff Attorney then approved the SSD application promptly without the need for a hearing, after I supplied him with an updated report that he had requested. Unfortunately, the State agency unnecessarily delayed the approval of the claimant’s benefits for a year.

IMA Disability

I used to surmise that the State agency has an unwritten regulation that requires it to insist that every Social Security Disability (“SSD”) claimant attend a consultative examination (“CE”).  I have to come realize that because the State agency examiners and medical consultants are too lazy or too busy to read the claimants’ file, they disregard all the medical evidence in the file, and simply rubberstamp whatever CE concludes.  Therefore, the State agency sends letters to claimants requiring them to attend CEs by IMA.

When attending CEs, we have our clients confirm that the IMA doctors do not review any medical records.  Thus, the State agency does in fact ignore all the medical evidence in claimants’ files other than the CE report.

We represent a 60 year old teacher assistant from Brooklyn with physical and mental impairments.  The State agency sent a letter to the claimant to attend two, not one, IMA CEs.  I sent a letter asking the State agency to explain how the scheduled CEs complied with the regulations.  I never received a response to my letter, but a couple of weeks later, the State agency notified us that the claimant’s  SSD application was approved.

Before we agree to represent our clients, we always emphasize how important it is for them to speak with their doctors to confirm they will support the client's inability to work full time.  As soon as we file an application for SSD benefits, we request the client's medical records, and submit them as soon as possible after obtaining them.

 

 

 

Three Heads Are Better Than One

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A former office manager asked me to represent her shortly before her Social Security Disability hearing.  Her application had been denied on the grounds that her condition was not severe enough to keep her from working.  In denying the application, the State agency conceded that the claimant was afflicted with severe anemia, arthritic knee, back, wrist, and elbow, carpal tunnel syndrome, cardiovascular problem problems, and depression.

When I reviewed the claim file, I found that each of the claimant’s medical conditions was fully documented.  There was no dispute that the claimant suffered from any of the diagnoses.  The State agency merely resorted to its default position that the medical conditions were not severe enough to preclude work.  The State agency usually resorts to its default position where there are medical records without any opinion regarding the effect of the medical conditions upon the claimant’s ability to function.

The decision of the State agency was disturbing here because it had asked the claimant’s hematologist to describe the claimant’s functionality, and he stated that the claimant could not perform sedentary work.  The State agency examiner, who was not a doctor, named M. Jackson, stated that the claimant could do sedentary work.  However, M. Jackson blatantly lied, and represented that the hematologist’s “conclusions about the claimant’s limitations or restrictions [were not] significantly different from your findings.”  If that were true, then M. Jackson would have had to approve the application.

On appeal, I obtained reports from the claimant’s rheumatologist and pain management specialist.  Each of those physicians also concluded that the claimant lacked ability to perform the demands of sedentary work.  Since they say that two heads are better than one, it follows that three heads are even better.  I suspect that if the claimant had submitted the analytic medical opinions at the State agency level, then M. Jackson would have been unable to ignore all three treating opinions.

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?

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.

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.