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.