TBI and Vocational Evidence

The focus on disability claims is almost always on medical evidence because claimants seek benefits on the grounds their medical condition prevents them from working. However, situations arise where there is little or no medical evidence. For example, the claimant might be unable to afford medical treatment, or perhaps further medical treatment cannot improve the medical condition. In these types of circumstances the vocational evidence could be helpful.

I represented a 52 year old woman claimant who suffered a traumatic brain injury (“TBI”) and other physical injuries as a result of a car accident while crossing a street in Manhattan. Her physical injuries had heeled. Essentially, her medical treatment was limited to a psychologist, who indicated the claimant’s mental problems had largely resolved except for her cognitive deficits. Nonetheless, I was able to secure her disability benefits in only four months.

Like most cases, the key to obtaining the disability benefits was establishing the credibility of the claimant’s allegations regarding the severity of her limitations. I described the serious nature of the accident, which not only killed her husband, but also required her to have extensive hospitalization. I pointed out that prior to her accident, the claimant was a high functioning executive earning over $90,000 a year. In contrast, while the claimant had made a significant recovery from the year old accident, I emphasized that the claimant resides in an assisted living facility. Those are not medical facts, but they explained why the claimant should be believed when she claimed she could not work.

Failure To Receive Notice

What happens if you don’t receive a copy of an unfavorable decision from the Administrative Law Judge who denied your Social Security Disability (“SSD”) application, and therefore, you don’t appeal on time? What happens if the Appeals Council then refuses to hear your appeal because it’s not filed on time? That sounds unfair, and it is. I took over a case from another attorney who was faced with that very situation.

After the Appeals Council rejects a request for review, the claimant’s final resort is going to federal court. Under the circumstances described above, the only relief that a federal court can provide is a remand for a hearing before the Social Security Administration (the “SSA”) regarding whether the claimant had good cause for requesting review belatedly.

It would have taken months if not years for the SSA to file its administrative record, have the parties brief the matter, and the wait for the district court to issue its decision. To avoid the wait, I supplied an affidavit from the claimant’s prior attorney detailing his normal business practices and the circumstances that led to the late filing. The U.S. Attorney provided the affidavit, and case law directly on point in the claimant’s favor, to counsel for the SSA. The result was that the SSA voluntarily agreed to remand the case without having to litigate the matter.

When litigating SSD claims, it pays to research the case thoroughly before filing. Even if you do not wind up briefing the case, the research can provide the basis for a discussion with the U.S. Attorney who might be persuaded to voluntarily remand the action.

Inability To Speak English

When applying for social security disability (“SSD”) benefits, it is important to mention a claimant’s inability to communicate in English. A client’s application was approved today which illustrates this point.

The claimant, who was born March 20, 1957 and was 49 years old at the onset of his disability, was from El Salvador and could not read, write or speak English. The claimant’s past work was all unskilled, manual labor.

The claimant’s application was approved less than two months after submitting a request for a fully favorable decision on the record (“OTR”), which meant he did not have to wait two years for a hearing. The application was approved based on the “medical-vocational rules” 201.17 and 201.09. Without discussing the medical vocational or “grid rules” in detail, rule 201.17 requires a person between the ages of 45 and 49 with an unskilled work history to be found disabled if unable to communicate in English. In contrast, if the claimant were able to speak English, the grid rules require that the claimant be found not disabled.

This case illustrates how vocational evidence can be just as important as medical evidence.

Mental Disorders

Many clients tell me that they have been told, even by attorneys who practice Social Security law, that it is very hard to secure social security disability (“SSD”) benefits based upon mental impairments. The truth is that while different standards may be used, obtaining benefits for a mental disorder is no more difficult than obtaining benefits for an equally severe physical condition. The problem may be that most people simply do not know how to establish the severity of a mental condition properly.

A 27 year old claimant came to me after his SSD application was denied on the grounds that his mental disorder was not severe enough to prevent him from working. I did a couple of things to help establish the severity of his condition. First, I had the psychiatrist assess the claimant ability to handle mental tasks. Second, because the assessment was rather severe, I then asked whether the claimant met a listing, which the psychiatrist said the claimant did. When a claimant meets a listing the claimant is presumptively deemed disabled. Third, I advised the claimant to start seeing a psychologist too. The psychiatrist concurred with the findings and conclusions of the psychiatrist. Thus, the claimant now had two very strong treating opinions regarding his limited mental functionality.

Because the findings and conclusions of the psychologist and psychiatrist were so supportive of the claimant’s diminished mental functional capacity, I submitted an request for an on the record (“OTR”) decision. The OTR was approved in less than two months. The end result is that the client avoided having to confront the stress of a hearing. Just as importantly, the claimant did not have to wait two years for a hearing before having his application approved.

Don’t Be Intimidated By DDS

The initial decision in Social Security Disability (“SSD”) cases is made by state agencies referred to as Division of Disability Determination Services (“DDDS”). Almost without exception, the DDDS will insist that a claimant be examined by doctors that it selects. Because the DDDS doctors make a living examining SSD claimants, they rarely conclude that a claimant is disabled. Furthermore, their reports usually contain examination findings that are made up.

If the DDDS truly believes that an examination is needed for additional medical information to evaluate a claim, then the DDDS must ask the treating doctor, as the “preferred source,” to perform the examination. The New Jersey DDDS kept insisting that one of my clients be examined by their doctors. I insisted that any examination would have to be performed by the claimant’s orthopedist, internist or pain management specialist, each of whom had already supplied very supportive and detailed medical evidence.

The debate regarding who should examine the claimant lasted a couple of months, and the claimant’s application was approved yesterday. However, had the claimant been examined by the DDDS doctors, who certainly would have concluded the claimant was capable of working, then the claimant’s application would have been denied, and he would have been compelled to wait close to two years for a hearing.

Discovery In ERISA Cases

An insurance company almost always argues that no discovery should be allowed in a long term disability (“LTD”) case because it realizes that allowing a claimant to investigate the decision making process will show that the denial or termination of benefits was unjustified. Continental Casualty Company and Hartford Life Insurance Company of New York (collectively, the “insurance companies”) made that argument this week to federal Magistrate Judge E. Thomas Boyle, who rejected it.

The parties disagree as to the applicable standard of review, and the insurance companies argued that the standard of review must be established prior to discovery. I argued that even if the applicable standard of review were arbitrary and capricious that discovery must be allowed in order to assist the court in evaluating 1) the nature of the information considered in making the decision; 2) whether the decision maker was competent to evaluate the information; 3) how the decision maker reached its decision; 4) whether the decision maker should have sought outside technical assistance in reaching a "fair and full review" of the claim; and 5) to determine whether a conflict of interest existed.

Magistrate Judge Boyle agreed that the claimant should be allowed discovery immediately, including depositions, regardless of the standard of review. Magistrate Judge Boyle followed the reasoning of District Court Judge Hurley in McGann v. Travelers Property Cas. Corp. Welfare Ben. Plan, 2007 WL 2769500 (E.D.N.Y. Sept. 21, 2007).

‘If the court finds that the administrator was in fact influenced by the conflict of interest, the deference otherwise accorded the administrator's decision drops away and the court interprets the plan de novo.’. If the plaintiff cannot carry this burden, any conflict the administrator has is simply one more factor to be considered in determining whether the challenged decision was arbitrary and capricious. Therefore, Plaintiff is entitled to conduct discovery in order to show that good cause exists for considering evidence outside the record.

An LTD claimant should always insist on discovery. If insurance companies did not have so much to hide, then they would not vehemently oppose discovery. I always unearth very helpful information through discovery in LTD cases.

Multiple Sclerosis

Every once in a while the right thing happens when filing a disability claim. I submitted a Social Security Disability (“SSD”) benefits application for a 46 year old, college educated claimant with MS. In addition to providing all of the medical and vocational information on the application forms, all I provided were some preliminary treatment records. While the application and treatment records established the existence of MS, they did not discuss the effects the MS had on functionality.

In the absence of evidence regarding functionality, SSD applications are virtually always denied. In fact, even when supportive functionality assessments are submitted, SSD applications are frequently denied. Therefore, it was surprising to learn that the SSD application was approved in less than two months. This aberrant result should not dissuade claimants though from the cost of seeking functionality assessments as soon as practicable.

Avoiding Hearings

Although a Social Security claim should be approved if the treating physician’s opinion is well supported by the medical evidence, most disability applications are denied initially by the state agency. The next step is a hearing before a Social Security administrative law judge (“ALJ”), which is about a two year wait. If the ALJ applied the treating physician rule properly, then the disability application should be approved.

While it may seem unfair to make a claimant wait years to have the treating physician rule applied properly, there is an alternative. A claimant can make an “on-the-record” (“OTR”) request for a fully favorable decision pending the hearing. The OTR basically asks that the application be approved because the medical evidence is so strong that a hearing is unnecessary.

When submitting an OTR, it is important to have a file that clearly shows an entitlement to benefits. Thus, while a single supporting physician should suffice at a hearing, it may not suffice when submitting an OTR. Therefore, furnishing medical evidence from additional treating sources is important.

I represent a 45 year old school crossing guard, whose application was denied even though it was supported by an arthritis specialist who provided a detailed report summarizing the clinical, diagnostic and subjective medical findings, and concluded that the claimant was unable to perform sedentary work. In connection with an OTR, a second report was submitted from the claimant’s treating orthopedist. Like the arthritis specialist, the orthopedist’s report summarized the clinical, diagnostic and subjective medical findings, and concluded that the claimant was unable to perform sedentary work.

The OTR was approved. As a result, the claimant did not have to wait for a hearing, go through the stress of a hearing, and had a smaller attorney fee. While it is possible that the OTR may have been approved without the report from the orthopedist, experience has shown that an OTR is usually denied when based upon medical evidence from a single supporting physician.

Working Does Not Preclude Benefits

The Social Security Administration (“SSA”) wants to encourage people to work. Depending on the circumstances, the SSA may allow a person to collect Social Security Disability (“SSD”) benefits during a time period in which they worked. One such circumstance is called an “unsuccessful work attempt (“UWA”)”.

I received an approval in a case today involving an UWA. The SSA originally concluded that the onset of a claimant’s disability was April 26, 2000, which is when she stopped working at a department store. Because the claimant had to prove that she became disabled before December 31, 1999, the SSA denied SSD benefits.

I took over the case when the claimant had to go to federal court. I pointed out that the claimant was injured at work in February 1997, and had not worked since the accident except for March and April 2000 at the department store. I argued that because the department store work lasted less than three months, it was an UWA, and denial of SSD benefits was wrong. The federal court agreed and remanded the case to the SSA for a new hearing.

At the second hearing, the SSA determined that the work at the department store constituted an UWA. Therefore, the SSA concluded that the claimant’s onset date was February 1997, not April 26, 2000. Because the claimant established that her disability began prior to December 31, 1999, the SSA found that she was entitled to retroactive SSD benefits, including benefits for March and April 2000.

Be Wary of Forms

Applying for disability benefits normally means having to complete forms. However, even if forms appear to be clear they may be skewed in a manner that makes it difficult to be approved for disability benefits.

A Social Security Disability (“SSD”) claimant to me after the Social Security Administration (the “SSA”) rejected her application. A review of the claimant’s file indicated that her treating doctor completed an SSA form that seemed to favor her claim. The doctor checked off the most restrictive box that the form had for sitting, which was less than six hours during an eight hour day. The least strenuous type of work is se3dentary, which requires the ability to sit for most of the day. Nonetheless, the claim had been denied because a disability examiner concluded that there were many jobs where the claimant could sit for about five hours a day, and stand and walk for the remainder.

On appeal, I had the same doctor complete one of my own forms to assess the claimant’s ability to sit during an eight hour day. The form gave the doctor nine options to circle; that is, from zero through eight hours. The doctor selected two hours, which eviscerated the argument that the medical evidence supported the claimant’s ability to perform a job where she could sit five hours a day. Accordingly, the claimant’s SSD application was approved.

There was nothing incorrect with the SSA form. However, the SSA form is designed to make some functional assessments appear less severe and possibly capable of gainful activity. When applying for disability it is important to recognize how form questions can be misleading.

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.

SSD for Firefighter

The fact that a firefighter was found disabled by the fire department does not mean that he must be found disabled by Social Security because the two agencies have different standards. A disability pension from the fire department requires proving the inability to work as a fire fighter while disability benefits from the Social Security Administration (the “SSA”) requires proving the inability to do any type of work in most circumstances. Nonetheless, it is important to inform the SSA if a fire fighter has received a disability pension.

There are five steps to the SSA hearing process. The fourth step is can the claimant perform past work, and the fifth is can the claimant perform any other work. While the claimant has the burden of proof at the fourth step the SSA has the burden of proof at the fifth step. Since the fire department is in a better position than the SSA to determine that a claimant cannot continue to work as a fire fighter, it would be nearly impossible for the SSA to issue a contrary ruling. Therefore, the fire department’s ruling effectively shifts the burden of proof to the SSA.

The burden of proof shift is very important. I represent a firefighter who came to me after his application was denied based on the report from the SSA doctor. I obtained reports from the claimant’s doctors that contradicted the SSA doctor. Even if there were a stalemate between the doctors, the claimant would be entitled to benefits because the SSA had the burden of proof. As a result, the SSA approved the fire fighter’s benefits.

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.

Purpose of SSD Hearing

It is a relatively rare situation where the Social Security Administration (the “SSA”) contests a claimant’s alleged medical impairments. While the diagnoses are not at issue, the severity of the claimant’s medical condition is the primary issue at the vast majority of Social Security Disability (“SSD”) hearings.

When preparing for a hearing, it is critical to focus on the real purpose for holding a hearing. A hearing is required when the SSA has determined that the objective medical evidence in the file does not suffice to establish the claimant’s entitlement to SSD benefits. Therefore, a hearing is held to see if the subjective medical evidence, the claimant’s sworn testimony, is enough to establish the claimant’s entitlement to SSD benefits when added to the objective medical evidence.

Since the purpose of the hearing is to assess whether the claimant’s subjective complaints are credible, evidence establishing credibility in general should be provided. I received a fully favorable decision today that illustrates this point.

The claimant was under 50 years of age, had a high school education, and a skilled sedentary job, which qualified her as a young, skilled, well educated person. An application by such a claimant is subject to the strictest standard for entitlement to SSD benefits. While an older, less skilled or less educated person with the same medical records may have been entitled to SSD benefits, my client had to rely on her subjective complaints to augment her claim.

I did two things to bolster the claimant’s credibility. First, I conducted a direct examination eliciting the claimant’s entire work history based on her SSA earnings record, which extended 31 years including the last 13 years with the same employer. I advised the ALJ on the record that the federal courts hold that where a claimant has a long work history of continuous work at the same employer, her testimony as to her capabilities is entitled to substantial credibility, and, that a claimant’s long and honorable work history justifies the inference that when she stopped working she did so for the reasons testified to. I then pointed out that the claimant’s SSD benefits would not come close to the income of her well paying job, and that commonsense dictated that she would have continued working if able to do so.

The other tactic that I intended to use to bolster the claimant’s testimony was to have the claimant’s mother testify as a witness, but the ALJ stated that would not be necessary. That indicated the ALJ accepted the claimant’s credibility and would approve SSD benefits because failing to develop the administrative hearing record by precluding witness testimony would have been reversible error

Overreach For Disability Retirement

In order to obtain disability pension benefits under the New York State Retirement System, a claimant needs to show the inability to continuing working at his or her job. I have succeeded in securing benefits each time I submitted applications by providing evidence that the claimant is incapable of performing ANY work, let alone the claimant’s prior position.

A claim was approved yesterday that illustrates the above strategy. The starting point, which is frequently overlooked, is establishing the vocational demands of the claimant’s job. Obviously, the most physically and mentally strenuous, the easier it is to argue the job’s demands can no longer be met. The claimant worked in law enforcement, which clearly was not a sedentary position. The next step is showing how the medical evidence shows that claimant cannot perform the past work. However, rather than simply obtaining medical records and opinions demonstrating that the claimant could no longer perform her job in law enforcement, I showed how the medical evidence demonstrated the claimant could not perform the demands of any type of work on a full time basis, even sedentary desk work.

While many of my colleagues believe my tactics are excessive, I succeed at the initial application stage. Unlike some other sources of disability benefits, the chances of securing disability pension benefits do not increase at subsequent appeal stages. Additionally, from the client’s perspective, avoiding the time it takes to appeal an initial denial reduces attorney fees, which are typically at least partially contingent.

Insurance Department Complaint

Insurance companies constantly deny and terminate Long Term Disability (“LTD”) claims without any legitimate basis because their decisions are usually subject to deferential review. Even if the basis for the denial or termination is wrong, a reviewing court will not overturn the decision unless it is patently arbitrary. Therefore, rather than paying disability benefits, insurance wrongfully deny and terminate claims because they hope a court will uphold the decision even if it is wrong.

One way to combat an insurer’s improper claims decision is by filing a complaint with the State insurance regulatory agency. Such a complaint must be filed prior to litigation, while the claim is still subject to administrative review by the insurer. I have a client from Ohio whose claim was approved by Aetna yesterday, not coincidentally after a complaint was filed with the Ohio Insurance Department.

The claimant filed her LTD application by providing all of the information required by Aetna’s application forms, including medical reports from her three treating doctors. Nonetheless, Aetna denied her application. I filed a complaint with the Insurance Department because, among other things, Aetna refused to provide a copy of the claimant’s file other than her medical records. Even though the claimant’s appeal relied on the same medical records from the same treating doctors, the application was approved after the Insurance Department complaint was filed.

If a case proceeds to federal court, in most cases the only risk for the insurer is the possibility of paying the claimant’s attorneys fees. Filing a complaint with the insurance department can result in other types of penalties and the filing itself is a blot on the insurer’s record. Furthermore, filing the insurance department complaint sends a signal to the insurer that the claimant is serious about obtaining disability benefits and most likely will litigate if necessary.

As noted above, insurers frequently risk going to court rather than paying disability benefits because they hope a court will uphold the decision even if it is wrong. Nonetheless, insurers often try to increase their chances succeeding in court by avoiding terminating or denying a claim with well developed evidentiary support. Claims that are prepared in anticipation of litigation, which includes filing insurance department complaints, vigorously rebutting all of the insurer’s arguments, and submitting both medical and vocational evidence in support of the claim, will increase the chances of securing benefits prior to having to proceed to court.

Why Wait?

Some disability attorneys do not submit medical records in support of Social Security Disability ("SSD") claims until after the application has been denied. The rationale is that the State agency that makes the initial determination will disapprove the claim regardless of what medical evidence is submitted. Therefore, medical records are submitted only after the claim file is transferred from the State agency to the Social Security Administration ("SSA") for further processing. I disagree with that approach.

Government statistics indicate that about 30% of SSD claims are approved by the State agency. While the percentage of claims approved by the SSA at the hearing level is higher, it still makes sense to present the strongest case possible at the initial level. I aggressively secure medical evidence and submit it as soon as possible to the State agency, even though it might require me to resubmit it to the SSA if an appeal is required.

I had a client's SSD application approved today after only two and a half months. The client is thrilled because she gets her benefits sooner than expected, which also means that her attorney will be smaller. While aggressively prosecuting claims does not usually result in claims being approved this quickly, not submitting medical evidence until SSA takes over responsibility for the file all but forecloses the possibility of a rapid approval.

No Objective Testing Required for Chronic Fatigue

I took over a Social Security Disability (“SSD”) case from another attorney when the claimant had to go to federal court. The claimant was diagnosed with vestibular disorder and then Chronic Fatigue Syndrome (“CFS”). I succeeded in having the court order another hearing before an administrative law judge (“ALJ”).

The case had been denied for lack of objective evidence. Regarding the vestibular disorder, I pointed out that while the ALJ had cited a normal diagnostic test, he had overlooked five other abnormal tests that substantiated the disorder. Nonetheless, the focus became CFS because the claimant’s infectious disease specialist and family doctor believed the vestibular disorder was symptomatic of the overall CFS.

The treating doctors summarized their clinical findings and conclusions. Their reports also provided detailed functional capacity assessments that precluded sedentary work. However, neither physician cited any diagnostic test data to support their opinions. To the contrary, each stated that there is no diagnostic testing associated with CFS, and that diagnoses, treatment and their disability o pinions were based on their clinical treatment history.

Disability claims are routinely denied or terminated for lack of “objective” evidence. In submitting a case, it is important to note whether there is any diagnostic testing that could possibly be submitted. It is equally important to highlight that physical examination findings are objective medical according to any medical dictionary or treatise.

Non-binding Disability Decision

Many claimants submit applications for more than one type of disability benefit. A reviewing agency or insurance company will always point out that being approved by another agency or insurer for disability benefits is not binding upon it. Nonetheless, a favorable decision should always be supplied because it is still persuasive evidence that must be considered.

Courts repeatedly state that although a Social Security Disability (“SSD”) decision is not binding upon an insurance company in the group long term disability context, it is arbitrary for an insurer to refuse to explain why the favorable SSD decision was wrong. I received a favorable SSD decision that also illustrates an approval should always be brought to the attention of another disability decision maker.

I represent a client whose SSD claim was pending for a year at the initial level. The Social Security Administration (the "SSA) kept raising excuses for refusing to decide the matter. In the interim, I obtained an approval for the claimant’s New York State Disability Retirement Pension. Shortly after I submitted the NYS decision to the SSA, the claimant’s SSD application was approved without explanation, despite threats to deny the SSD claim because the claimant refused to attend a consultative examination. Those threats make it unlikely that it was simply a coincidence that the SSD claim was approved right after the NYS decision was submitted.

Expediting SSD Benefits

Most people who can no longer work need Social Security Disability (“SSD”) benefits as soon as possible to help compensate for the loss of their employment income. The majority of SSD claims are denied leaving, and the typical wait for a hearing is about two years. Under these circumstances a claimant should consider making a request for a fully favorable decision On The Record (“OTR”).

An OTR summarizes the medical and vocational evidence together with the appropriate legal arguments and asks the hearing office to approve SSD benefits without a hearing. My strategy, which is usually successful, is to provide supportive medical evidence from as many treating and consultative sources as possible, even if they do not pertain to the claimant’s primary impairment.

I just had another OTR approved within a month after it was submitted. I obtained medical reports from both of the claimant’s orthopedists, chiropractor and physiatrist, even though from a technical legal basis only a single report is needed to establish entitlement to SSD benefits. However, by submitting four reports, each doctor’s opinion corroborates another, and it would have been very difficult for an Administrative Law Judge (“ALJ”) to come up with excuses to reject the opinions of all four doctors.

While an SSD claim may eventually be approved based upon support from a single source, the chances of avoiding a hearing by obtaining an OTR increase as the number of supporting medical opinions increases. If SSD benefits are needed sooner rather than later, then the extra work involved in preparing an OTR should not be a consideration.

Always Review Your File

If your Social Security Disability claim has been denied, you do not have to wait for a hearing, which typically takes close to two years to schedule. You can make an “on the record” (“OTR”) request that your claim be approved based on the information already contained in the file. The OTR summarizes the medical and vocational evidence and then asserts the legal arguments why the application should be approved.   

        As you may suspect, OTR’s are normally approved only where there is little doubt that the State agency, which makes the initial disability decision, erroneously denied the application. Most of the time, the denial is erroneous for refusing to give adequate weight to evidence from treating sources or for ignoring favorable vocational factors. However, the State agency also makes obvious errors, such as completely overlooking certain evidence or losing evidence, with surprising regularity. Alerting the hearing office to those errors in an OTR is likely to result in the claim being approved.

       I received an OTR today that illustrates how a careful review of a file led to a rapid approval. The claimant’s medical evidence was not that strong. In fact, her long time treating doctors refused to complete reports to support the claimant’s application because, like many doctors, they don’t want to get involved in the disability process. The State agency had denied the application based on the report from the “Consultative Examiner (“CE”),” who is essentially the doctor from Social Security. An exacting review of the file however revealed a note from the State agency disability analyst, which to my shock and glee actually stated in writing that the CE report had to rejected because its conclusions were too vague.

       The claimant did have one doctor who recently began treating her who supported her claims. Because the disability analyst rejected the CE report, there was no medical evidence to contradict the treating doctor’s opinion. Consequently, although the claimant is only 45 years old, and only has one relatively new treating doctor to support her claim, the claimant’s OTR was approved in two weeks.

Vocational Evidence & Credibility

Evidence is divided into objective and subjective evidence. Examples of objective medical evidence are clinical observations and diagnostic tests, while symptoms are subjective. Disability claims are frequently rejected for lack of “objective” medical evidence, or are denied on the grounds that the claimant’s subjective complaints are exaggerated or lack credibility.

Just as it is important to emphasize the objective medical evidence that supports a claim, the objective vocational evidence that supports a claim should also be highlighted. Most claimants overlook how vocational evidence can support their credibility, making it more difficult for their claim to be denied for lack of objective evidence.

One of my client’s disability applications was just approved without ever having been denied. While the claimant had medical evidence supporting his claim, there was no diagnostic testing to support his claims, just clinical records and reports. Nonetheless, the claimant’s application was approved quickly because of the emphasis placed on the vocational evidence.

It is well established in the courts that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. The courts have repeatedly held that a claimant’s long and honorable work history justifies the inference that when a claimant stopped working she did so for the reasons testified to. The presumption of credibility is even stronger where a claimant has a long work history of continuous work at the same employer.

My client’s disability application only wanted the claimant’s work history for the last 15 years. However, I stressed the claimant’s extraordinarily strong, continuous (40) forty year work history. I explained how the claimant’s work history provided objective evidence that rendered his subjective complaints credible. Considering the majority of disability claims are denied initially, and my client did not have unusually strong supporting medical evidence, the emphasis on his vocational evidence was critical to his obtaining benefits quickly

The More The Merrier

The saying, “The More The Merrier,” is particularly apt when applying for disability benefits. Most disability applications do not require more than one treating source as a prerequisite to receiving benefits. However, as the number of supporting sources increases, so too do the chances of securing disability benefits sooner.

I had a perfect application of the more the merrier saying to a disability claim last Friday. I represent a 46 year old health care attendant with her Social Security Disability (“SSD”) and her Disability Pension Retirement (“DPR”) claims. It took only a few months for her SSD claim to be approved, which should increase the chances of her DPR claim, which was just filed, also being approved. An SSD claim typically takes much longer than just a few months to be approved, particularly for a claimant less than 50 years of age.

My client’s claim was approved quickly because supporting reports from three treating sources were submitted. While the claim could have been approved eventually by relying solely on one of the physicians’ reports, it is highly unlikely that the approval would have occurred after only a few months.

When filing a disability application it is critical to ask as many treating sources as possible to prepare supportive reports, even if the doctors or other health care providers are not treating the primary medical condition. If treating sources will not complete paperwork, which happens fairly frequently for a variety of reasons, then start treating with other health care professionals who will. The sooner multiple treating reports are submitting to support a claim, the sooner the claim is likely to be approved.

Always Check The Listings

When applying for Social Security Disability (“SSD”) benefits, make sure to check to see if the disabling impairments meet a “listing”. If a claimant meets the criteria of a “listed” impairment contained in the Social Security regulations, then the claimant’s medical condition is considered to be so severe that the claimant is presumptively deemed disabled and entitled to receive disability benefits.

Despite the fact that many SSD claimants are able to submit reports from medical sources opining that the claimant is disabled, a large percentage of those claimants’ applications are still denied by the state agencies making the initial disability determinations. Submitting evidence that a claimant meets a listed impairment significantly increases the chances that the SSD application will be approved.

I filed an SSD application for an attorney last May, even though he is still working on a limited basis. While it was clear that the work isinsufficient to preclude SSD benefits, working usually gives the state agency the excuse it needs to disapprove an application. Nonetheless, I succeeded in getting the application approved in only three months’ times.

Like all of the claims I handle, I promptly submitted medical records and reports from the treating physicians. However, few applications are approved in only three months. The difference here was that I was able to show that the medical records met pulmonary listings. I have no doubt that the claimant’s application would have been approved without the memo explaining how the test data met the criteria of listed impairments. However, by providing that memo the application was approved much faster.

Avoid Early Retirement

Social Security Disability (“SSD”) benefits are available up to your full retirement age. When I submit an SSD application for a claimant who is over 62 years or old enough for early retirement, the Social Security Administration (the “SSA”) frequently suggests that I withdraw the SSD application and file an application for retirement benefits instead. The SSA reasons that it can take months, if not years, to get SSD benefits, while retirement benefits take relatively no time at all to receive after filing for them. I advise against withdrawing the SSD application.

I filed an SSD application for a 62 year old client last November. The SSA repeatedly argued that withdrawing the SSD application would be to my client’s benefit because he would not have to wait a long time to receive early retirement benefits. Despite rejecting the SSA’s advice, it sent a letter last March “confirming” the withdrawal of the client’s disability application, which I immediately disavowed in writing.

It took longer than usual to get the SSD application approved, eight and a half months, which may be related to the claimant’s refusal to withdraw it in favor of filing a retirement benefits application. Despite the delay, the client will ultimately be in a stronger financial position for refusing to withdraw his SSD application. SSD benefits can continue until the individual reaches full retirement age. By avoiding early retirement, the client’s eventual monthly retirement benefit will be larger.

LTD & SSD

Just because you qualify for long term disability (“LTD”) benefits does not mean that you qualify for Social Security Disability (“SSD”) benefits, and vice versa. I have a 40 year old client from Wisconsin who was denied SSD benefits even though he had been receiving LTD benefits for years.

After reviewing the client’s LTD and SSD files I learned that the client was relying primarily on medical evidence from his chiropractor. The medical evidence previously submitted revealed that a cervical disc was deforming the claimant’s spinal cord. The claimant also submitted an attending physician statement from his chiropractor, which concluded the claimant was permanently disabled and had a less than sedentary residual functional capacity (“RFC”). While the contractual language of the LTD plan did not distinguish between a chiropractor and a physician, the Social Security Administration (the “SSA”) regulations do.

On appeal, I obtained two things from the claimant’s neurologist. First, an opinion that the claimant met a “listed impairment” of the spine. Second, an RFC assessment concluding that the claimant could not do sedentary work. Additionally, I obtained an RFC assessment from the claimant’s family doctor that also concluded the claimant lacked a sedentary RFC. I submitted the evidence in connection with a request for a fully favorable decision on the record (“OTR”).

Based on the new medical evidence the claimant’s OTR was granted. Therefore, not only was the claimant’s application approved, but he did not have to appear for a hearing, which probably would not have been scheduled for another year or two.

Getting Benefits Faster

It is true that in order to obtain Social Security Disability (“SSD”) benefits you only need one treating physician to support your application. However, with only one supporting medical source it may take you several levels of appeals, possibly including having to go to federal court, to secure SSD benefits.

One of my client’s with neck, back and shoulder impairments had his application approved in only four months. The claimant is being treated by a neurologist, which is an appropriate specialist for his impairments. However, if I had only submitted medical evidence from the neurologist, it is unlikely that the application would have been approved so quickly.

I obtained medical reports from the claimant’s family doctor and chiropractor. Although not a specialist, because of the family doctor's long term treatment of the claimant’s overall health, he was familiar with the claimant's medical status, which rendered that doctor's functionality assessment significant. And while the chiropractor is not a medical doctor, the frequency of his treatment rendered his opinion regarding the severity of the claimant’s condition important. Additionally, I referred the claimant to a rheumatologist and a physiatrist, whose opinions corroborated those of the other treating medical sources.

Thus, instead of presenting one medical opinion to support the claimant’s application, I submitted five. Since most estimates are that it typically takes a year or two to secure SSD benefits, the additional medical support obviously was instrumental in securing the rapid approval.

Medical Records & Reports

Disability claimants frequently express shock and befuddlement that their applications for benefits were denied despite the fact that they submitted records from their doctors who all support the claimant’s inability to work. Many of these claimants’ incomprehension results from their not being aware of the difference between treatment records and medical reports.

A common rationale given for denying a claim is that while it is not disputed that the claimant has the alleged medical condition, the medical evidence fails to show that the condition is serious to prevent the individual from working. The treatment records typically provide a diagnosis identifying the medical condition, and treatment for the condition. Diagnostic tests can corroborate the clinical findings that led to the diagnosis. However, records and tests usually do not address the extent to which the medical condition affects the patient’s ability to function or work because that is not the doctor’s focus.

Yesterday, I received an approval on an LTD claim illustrating the difference between medical records and reports. The claimant had submitted records and confirming tests from five different medical specialists, each of whom supported the claimant’s application for disability benefits, yet the application was denied on the grounds that there was no evidence that the claimant’s back condition was severe enough to prevent him from working. On appeal, without securing any additional treatment records or tests, I obtained reports assessing the claimant’s functional capacity from each of the specialists. The claim was approved after the reports were submitted.

When seeking disability benefits, it is imperative to submit reports addressing functionality. It is the functionality opinions, backed up by the treatment and test records, that reveal the severity of a medical condition.

Discovery in LTD Cases

When a group long term disability (“LTD”) claim is litigated, insurance companies argue that no discovery should be allowed because the court’s decision has to be based on the administrative record, that is, the claim file, that the insurer used. The insurance companies oppose discovery because they know it will reveal evidence that they improperly decided to deny or terminate a claim.

Last week, I received a decision that rejected the insurance company’s argument that no discovery should be allowed in an LTD case, even though the magistrate judge who issued the decision had previously ruled against discovery in a similar situation. The court ruled that while no evidence had been presented to admit additional evidence outside of the administrative record, the claimant was entitled to determine who the decision makers were, why certain pieces of evidence were deemed more credible than others, and whether the administrative record was complete.

Obtaining the type of discovery approved by the court is critical for two reasons. First, the discovery helps show why the insurer’s decision was unreasonable. Second, because of what discovery is likely to reveal, it frequently pressures the insurer into settling the litigation.

Constant Vigilance

It typically takes about six months to get a decision from the Social Security Administration (the “SSA”) when filing an application for disability benefits. If a decision has not been received by that time, it frequently means that something has gone wrong.

Regardless of whether I submit records by certified mail, fax with confirmed receipt, by hand with time stamped copy, and even when submitted electronically using the SSA’s secured website with confirmation receipt, the SSA loses submissions. When the SSA loses evidence, it tends simply to sit on the claim.

I received a fully favorable decision today on an application that should have been decided several months earlier, but was delayed because the SSA lost evidence and sat on the application. The claim had very strong medical and vocational support. When there was no decision on the initial application after six months, I sent letters and made phone calls to learn why the claim had not been approved. About three months later, I finally received a letter from the SSA claiming that it had no record of my client’s application, so I would have to file a new application all over again.

I advised the local SSA representative that I would not begin the application all over again. I added that the fact that he had sent me a notice of disapproved claim shows that he had the file at some point, and that because he had received the certified mail request for a hearing he was required to transfer the file to the hearing office.

When two weeks went by and the file was not transferred, I notified the SSA representative that I intended to hold him personally responsible, and would commence a Congressional inquiry into his losing the application and directing that a new application be filed. I warned that if he failed to drop his demand for a new application and failed to transfer the claim for a hearing immediately, I would have the claimant’s Congressman contact the representative’s District Manager to explain how he denied the claim, but now claimed that he never had it. The file was transferred within a few days.

Once the file was transferred, I filed a request for a fully favorable decision on the record, which was granted. The claimant did not have to attend a hearing, which meant he avoided the two year delay in obtaining benefits. However, because of the local office’s actions, the claimant’s benefits were delayed several months.

Judges Are Fallible

I received a partially favorable decision from a Social Security Administrative Law Judge (the “ALJ”) today, which provided the claimant with 80% of the benefits sought. When the client called to pick up the file, I asked why. The answer, “Because the Judge said I wasn’t entitled to anything more.” The claimant was also concerned about the decision being reversed if appealed.

I explained that there were four different grounds for reversing the ALJ’s decision. The ALJ failed to follow the rules for: (1) assessing testimony, (2) determining if the claimant was presumptively disabled under a “listed” impairment, (3) evaluating medical evidence under the “treating physician rule,” and (4) using a medical expert to determine the disability onset date. I explained that additional benefits were dependent on just one of those grounds being accepted. After the claimant understood why the ALJ’s decision was faulty, and that ALJ decisions are rejected on appeal a substantial percentage of the time, the claimant decided to appeal the decision.

A claimant should insist on a detailed explanation if their hearing decision is not fully favorable. If the attorney does not think there are grounds for an appeal, get a second opinion.

Clerical Mistakes

The Social Security Administration (the “SSA”) makes clerical mistakes all the time. For example, the SSA constantly loses birth certificates and medical records even when those documents are sent by certified mail. The SSA also has frequent problems with maintaining its files. The SSA fails to get records to the state agency reviewing the file and vice versa; and the district office fails to get all of the records to the hearing office (“ODAR”).

I represented a claimant with a strong case for receiving Social Security Disability (“SSD”) benefits whose claim was approved today. Like the majority of SSD claims, the SSA denied the initial application. Once the file was transferred to the ODAR, I submitted a request for a fully favorable decision on the record (“OTR”) summarizing the medical and vocational evidence and providing the legal arguments in support of awarding SSD benefits.

The majority of the time, my OTR requests are approved, which saves the claimant money and avoids the stress of having to attend a hearing. Despite the fact that this claimant’s OTR was very strong, the OTR was denied. The ODAR would not explain the basis for rejecting the OTR, and the claimant was scheduled for a hearing. In preparation for the hearing I reviewed the file. However, even though the OTR was hand delivered, it was not in the file. I showed the filing receipt to the ODAR, but they had no answer why the OTR was not associated with the file.

After resubmitting the OTR, the claimant’s application and OTR were approved. Because of the ODAR clerical error, the claimant had to wait a few extra months to receive his SSD benefits. This was yet another example showing that despite documents being sent via certified mail or hand delivered, after a claim is denied the file should always be reviewed as soon as possible.

Needless Forms

I had another self employed claimant's SSD application approved today at the initial level. I was surprised because I had been told that the claim would be denied for two reasons.

First, I was told that the claim would be denied if I failed to submit a work activity report, which details any work after the alleged disability onset date. I refused to submit the work activity form because I contended that all the information had already been supplied with the application. Second, I was told that the claimant's application would be denied unless I submitted his complete tax records for the past year, but I refused to provide anything other than the first page of the federal tax return on grounds of relevancy.

Because the application was approved at the initial level without explanation, I cannot know the reason why the "required" information did not prevent approval of the application. However, the experience does indicate that demands for superfluous information cannot justify rejecting a valid claim.

Objective Evidence of Pain

Thousands of disability claims of all types are denied for lack of “objective” evidence, even though the case law consistently states that a claim should be denied solely because of a purported lack of objective evidence. Many people can no longer work because of pain, which is by definition subjective. Even when objective proof of a condition that causes the pain is presented, it is common for the claim to be denied.

A great way to “objectify” the pain is treatment by a pain management specialist. I had a claimant who was diagnosed with fibromyalgia and reflex sympathy dystrophy (“RSD) by a rheumatologist. The diagnoses were not disputed and were confirmed by objective clinical findings. Even though the rheumatologist supported the claim, the claim was denied on the grounds that there was no support that the claimant’s pain was severe enough to prevent her from working. The claimant asked me to handle the appeal.

On appeal, I submitted a medical report from the claimant’s pain management specialist, who was also a board certified neurologist. The neurologist had not been contacted, nor had his records been obtained. It seemed arbitrary to deny that the claimant’s pain was disabling without considering any evidence from the pain management specialist.

The neurologist diagnosed the claimant with fibromyalgia, complex regional pain syndrome, and chronic pain syndrome. Just like the rheumatologist, the neurologist identified the positive clinical findings that supported the diagnoses, and he also provided similar restrictions and limitations. The only real difference in the reports was that the neurologist detailed the nature, location, frequency, severity and precipitating factors of the claimant’s pain. As a pain management specialist, there was no basis for discounting his opinion regarding the severity of the claimant’s pain, and the claim was approved today.

I advise my clients to treat with pain specialists, even if the medications and treatments offered are similar to what other treating physicians are providing. It seems difficult to reject an opinion regarding a claimant’s pain from a physician who specializes in pain management.

The SSA & The Self Employed Claimant

When it comes to disability, the default position of the Social Security Administration (the “SSA”) is that applicants are not disabled. Thus, the SSA draws every presumption and inference in favor of denying an application for Social Security Disability (“SSD”) benefits. One such presumption concerns applicants who were self-employed.

When an applicant who was self employed applies for SSD, the SSA presumes that the applicant is still working off the books. This presumption frequently gets extended to ridiculous lengths. I had a client who after receiving SSD told the SSA that he was resuming work for his wife’s company. Instead of rewarding the claimant for his honesty, the SSA demanded an overpayment on the grounds that he must have been working off the books for years.

Despite the fact that the SSA never has any evidence that a formerly self-employed SSD applicant is working off the books, the SSA asserts that it will deny benefits unless the claimant proves otherwise. The claimant can submit an affidavit that he or she is not working, which is the same evidence that must be accepted at a hearing. However then the SSA has rejected such affidavits at the initial application stage, and requested tax records. However, when I have produced the tax records revealing no income, or advised the SSA that the claimant did not file because there was no income, the SSA still refused to approve benefits for lack of evidence.

The problem is that the SSA is requiring the claimant to prove a negative; that is, something that does not exist. You can prove you are working by your testimony or that of co-workers. Employment and tax records can also establish gainful activity. Because there is no direct proof that one is not working, what can one do when the SSA rejects indirect proof?

I recently succeeded in getting SSD benefits approved for a formerly self-employed hardware store owner at the initial application stage. I refused to provide the tax records of the applicant’s spouse on numerous grounds. However, I supplied letters from the hardware store suppliers stating that the applicant no longer worked at the store. Those letters must have sufficed because the SSA, which had told me benefits would be denied if I refused to turn over the tax records, approved the application. The letters were very short, and required little effort on the part of the suppliers, or the claimant in securing them.

POMS For Mental Impairment Claims

I receive many Social Security Disability referrals for claimants with mental impairments. It seems that unless a mental impairment is so severe that the claimant is hospitalized, the attorney is not interested in handling the claim. That should not be the case.

Like physical impairments, a claimant can establish entitlement to benefits by providing evidence that a "Listing" is satisfied. If the criteria of a listing are met, then the claimant is presumptively deemed disabled, and there is no need to consider if the claimant can perform past or any other work. A claimant's condition needs to be pretty severe to meet a listing.

A case that I got approved this week, for a woman in her thirties, at the initial application level, illustrates another way to get benefits approved. When a claimant's mental limitations do not meet or equal a listing, the Social Security Administration (the "SSA") must consider if the claimant has the ability to meet the mental demands of past relevant work. The SSA is supposed to do that by considering whether the claimant can meet the basic mental demands of unskilled work.

According to the SSA's internal operating rules called the "POMS", the mental demands of unskilled work include the ability to: (a) understand, carry out and remember simple instructions; (b) make judgments that are commensurate with the functions of unskilled work, i.e., simple work-related decisions; (c) respond appropriately to supervision, coworkers and work situations; and (d) deal with changes in a routine work setting. A substantial loss of ability to meet ANY of those basic mental demands justifies a finding that the claimant is disabled.

By providing a detailed questionnaire to the claimant's treating mental health provider, I was able to show that the claimant is disabled under the POMS. Since the POMS is supposed to apply at the initial application level, providing evidence to support the POMS is an effective way to get an application approved quickly.

Don’t Be Misled By A Biased Judge

Many of the Administrative Law Judges (“ALJs”) at the Queens Office of Disability and Adjudication Review have reputations for disapproving strong disability claims. Statistics show that a higher percentage of cases from Queens are overturned compared to other hearing offices. The ALJs often go to extraordinary lengths to justify their denials.

Last week a Queens ALJ stated that because a claimant had not been terminated from her job she was not disabled. I explained that the issue is not whether the claimant was employed in name, but rather whether she was capable of engaging in substantial gainful activity. The ALJ obviously knew he was wrong because for decades the courts have ruled that, “The first step in the sequential process is a decision whether the claimant is engaged in ‘substantial gainful activity.’” Furthermore, the ALJ knows that the regulations state that, “At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.” In other words, in order to avoid approving the claimant’s application, the ALJ was intentionally misapplying the most basic issue at any Social Security Disability hearing.

A claimant unfamiliar with Social Security law would not have thought to question the ALJ’s assertion that because the claimant was not terminated from her job she was not entitled to disability benefits. Neither claimants nor their representatives should blindly accept an ALJ’s opinion of the law. In a situation such as this, I immediately request a copy of the hearing tape and submit a post-hearing memorandum explaining the correct recitation of the law.

LTD Plan Limitations

Many disability plans provide for the payment of benefits through an insurance policy. When an insurance carrier is liable for paying benefits under a disability plan it usually also acts as the plan’s claims administrator. In those circumstances, the insurance carrier has a conflict of interest because if it approves a claim as claims administrator, then it has to pay those benefits under the policy it issued that provides for the payment of benefits. Consequently, the insurance company’s decisions as claims administrator favor avoiding the payment of claims.

One way that carriers avoid liability is by intentionally mischaracterizing physical disability claims as mental disability claims. I just received an approval of both a short and long term disability claim where the carrier’s conflict of interest obviously influenced its decision.

The claimant submitted evidence that her mental and physical impairments precluded her from being able to work. Jefferson Pilot approved disability benefits based upon the mental condition, but asserted that there was insufficient evidence of physical impairments to support total disability. That assertion was false because there was just as much, if not more, evidence to support disability based solely upon the claimant’s physical impairments. As it typical of many disability plans, the claimant’s limited benefits for a mental condition for 24 months. Jefferson Pilot’s decision was a baseless attempt to limit its liability to 24 months.

Under these circumstances, I always send a letter to the carrier immediately, advising that the claimant rejects the decision insofar as it rejected disability benefits based upon the physical impairments. This avoids the carrier from subsequently arguing that a claim based upon physical impairments is waived. I expressly notify the carrier that the claimant will pursue disability benefits beyond 24 months because the medical evidence establishes an inability to work due solely to physical impairments.

Faster Benefit Approval

Regardless of the type of disability benefits that are sought, the claimant must have a doctor who is willing to support the claimant’s inability to work. A corollary is that the more doctors a claimant has who are willing to support the claimant’s inability to work, the faster the application usually gets approved.

A couple of days ago, a Social Security Disability (“SSD”) application I submitted was approved without ever being denied. The claimant’s impairments were typical – neck, back, knee and wrist problems. Because the claimant did not have a very long work history, she was concerned about being approved at all.

The claimant had a spine specialist who fully supported the claimant’s application with treatment records, diagnostic test results and a disability assessment. Many people submit the same type of evidence yet their applications get denied. This requires the claimant to spend more time through the various levels of appeals, securing more reports from and records from doctors, before the application gets approved. The delay can cause financial hardship, and there is no interest for delayed receipt of benefits.

In this case, as well as virtually every case, I advised the claimant to secure supporting evidence from another one of her doctors to corroborate the spine specialist’s findings and conclusions. Because the claimant had only been seeing the spine specialist, in light of her impairments, I advised her to start treating with an arthritis specialist. Eventually, the claimant obtained a disability assessment from the arthritis specialist, and it concurred with that of the spine specialist.

Considering that most SSD applications are denied initially, I believe that this particular claimant’s application was approved from the outset because of the corroborative evidence from the second medical source. My experience has repeatedly shown that absent corroborating medical evidence, an SSD application will not be approved initially unless the situation involves an impairment that simply requires proof that the condition exists, such as blindness or paralysis.

LTD Approval Letters

In previous blog entries I discussed some of the problems relating to Social Security Administration decisions that purported to be fully favorable, but in actuality were not. The same problem arises in the long term disability context.

After a two and a half year battle, I was finally able to persuade with Trustmark that my client was entitled to benefits under its disability policy. I received a letter that explained the claimant would be paid for the maximum 12 months under the policy. The only problem is that the policy was for a 24 month period. I contacted the claims representative, who said it was an underwriting mistake, and that the matter could be rectified easily.

When finally securing approval of benefits a claimant is apt to be elated and relieved. That euphoria is likely to cause the claimant to overlook the full extent of benefits that may be due. For example, during the period of disability, there is usually a premium waiver, which should be reimbursed, but is frequently disregarded. Care should be taken to ensure that all benefits are correctly calculated and included.

A claimant might also decide to forfeit the full extent of the benefits that are due for fear that the carrier may reverse its position altogether, but that concern should be ignored. If an insurer approves disability benefits, but then reverses its decision after a claimant seeks to recover additional benefits due under a policy, its explanation for the reversal will not be credible. If the matter resorts to litgation any court will readily see through the insurer’s subterfuge.

Surprise Disability Benefits

Learning the full extent of potential disability benefits is critical when you become unable to work. One of my clients referred a woman who had just stopped working as a cafeteria aide because of a host of orthopedic problems and asthma. The aide was desperate because she had no idea how she would be able to pay her bills. The client who referred the aide to me told her that I could help her get Social Security Disability ("SSD") benefits, just as I had helped her obtain them. However, when I met with the aide she was in for a little surprise.

Upon our initial meeting, I refreshed the aide's recollection that she had a short term disability policy through Aflack. She immediately applied, and shortly thereafter started receiving benefits under that policy, which provided a sense of relief while she awaited the progression of her SSD application. However, the aide was in for a further surprise.

I had asked the aide if she had a long term disability ("LTD") plan through her employer, but she did not know, so I advised her to request a copy of her LTD plan summary plan from her human relations department. It turns out that she does in fact have an LTD plan that can pay up to 60% of her salary, which significantly exceeds her SSD benefit. There was yet another surprise.

During our initial meeting, I asked the aide if she belonged to a union. After learning that she did, and that she had contributed to a pension, I suggested that she request a copy of her union's summary description of the pension plan. It turns out that she will be entitled to receive a disability pension in addition to her other benefits.

When you can no longer work, always investigate what group benefits plans your employer or union have. Besides disability benefits, some plans provide for continued pension credits if disabled, premium waivers for life or health insurance benefits and so on.