“Accentuate The Positive, Eliminate The Negative”

Bing Crosby’s lyrics are applicable to securing Social Security Disability (“SSD”) benefits without having to go to a hearing. I represent a 31 year old skilled laborer whose SSD application was approved on-the-record (“OTR”) without a hearing because the positive medical evidence was accentuated and the negative medical evidence was eliminated.

The claimant had a bad back, and had undergone multiple surgeries. Even though I had submitted supportive reports from the treating neurologist and family doctor, the claimant’s application was denied after he went for an “orthopedic” examination by a Social Security doctor. On appeal I accentuated the positive and eliminated the negative.

In addition to updated reports from the neurologist and family doctors, I obtained reports from the claimant’s neurosurgeon. All three doctors’ reports were consistent and corroborated the claimant’s extremely limited functional capacity, which was supported by their clinical records and diagnostic tests.

I dealt with the Social Security doctor’s report, which the claimant stated was replete was false findings, by sending him to an orthopedist for an independent medical exam (“IME”). Not surprisingly, the IME contradicted the findings of the Social Security doctor’s report, and confirmed the conclusions of the treating specialists.

Dire Need

The main way to avoid the long hearing wait once a Social Security Disability claim winds up at the hearing office, is to submit a request for a fully favorable decision on-the-record (“OTR”). One way to expedite an OTR decision is if you can argue “dire need”.

I represent a 52 year old masonry helper whose claim was denied initially even though his treated specialists concluded he was not capable of working. His claim was approved today without a hearing just a short period of time after the OTR was submitted.

The claimant lost his medical insurance and needed surgery. I advised the hearing office about the claimant’s predicament. Under the hearing office rules, known as the HALLEX, this type of critical situation is called “dire need.”

A dire need situation exists when a person has insufficient income or resources to meet an immediate threat to health or safety, such as the lack of food, clothing, shelter or medical care. To have a claim expedited for a dire need, the claimant must allege specific, immediate circumstances, such as needing medical care, but lacks health insurance.

As Katie Couric noted on CBS Evening News last Sunday, http://www.cbsnews.com/stories/2008/01/15/cbsnews_investigates/main3718129.shtml, a 2 ½ year wait for a hearing is commonplace. An OTR is the vehicle for avoiding that delay, and notifying the hearing office about a dire need situation should expedite the OTR decision.

How To Avoid Hearing Delays

Most Social Security Disability (“SSD”) claims are denied initially, and the denial rates are even higher in New York. After the state agency renders its decision, the claim gets transferred to the Social Security Administration (“SSA”) for adjudication at the hearing level. The most frequent complaint at this next level is the amount of time it takes before a hearing is scheduled. Two years is not unusual.

It may be possible to avoid a hearing by requesting an “on the record (“OTR”) decision. An OTR summarizes the medical and vocational evidence and explains why the objective evidence in the file suffices to establish disability under the SSA rules and regulations. Some hearing offices are allowing Senior Attorney Adjudicators to decide OTRs, which helps expedite the process even more. I just had an OTR approved that illustrates some of the key tactics for getting an OTR approved.

The claimant’s primary medical condition was Guillain-Barre syndrome. Since Attorney Adjudicators are not doctors, I explained what Guillain-Barre syndrome is and how it affects a person’s ability to work, along with an article providing statistics regarding the percentage of patients who become disabled from it. According to an article republished on the National Institutes of Health. Reports detailing the claimant’s functional capacity were submitted not only from the claimant’s neurologist, but also rheumatologist and internist. While only one physician is technically required, the chances of having an OTR approved increases with multiple corroborating sources.

Because I established a rapport with the staff attorney, he contacted me and asked if there were any recent diagnostic or laboratory tests. Even though I did not feel they were needed, I immediately complied to ensure that the staff attorney would feel comfortable contacting me in the future.

Finally, I emphasized the import of the vocational evidence, which is frequently as important as the medical evidence. The claimant 58 years old and her past work was non-sedentary. Under the SSA regulations, those facts meant that in order to find the claimant had transferable skills to sedentary there had to be very little, if any, adjustment. Therefore, under another SSA rule, known as a grid rule, the claimant would have to be found disabled even if capable of performing sedentary work.

The medical and vocational evidence reviewed by the state agency before the SSA took over may have been sufficient for the claimant to win at a hearing. However, to secure benefits through an OTR, a stronger case needs to be presented.

Police Disability

To qualify for a disability pension under NYCERS, a police officer needs to show the inability to perform his past work. By contrast, to qualify for Social Security Disability (“SSD”) benefits, a police officer needs to show the inability to perform any other work. Therefore, it would seem that a favorable NYCERS decision would not be that helpful when applying for SSD benefits. However, that is not necessarily true for two reasons.

An SSD claimant has the burden of proving that he or she cannot do past work. If successful the SSA then has the burden of proving the claimant can do other work. If a claimant has worked as a police officer for the last 15 years and qualified for a disability pension under NYCERS then that basically satisfies the burden of proving the inability to do past work. It would be virtually impossible for the SSA to argue that it is in a better position to assess a police officer’s ability to work as a police officer than the police department and its medical board. Therefore, a favorable NYCERS decision shifts the burden of proving disability from the police officer to the SSA.

If the police officer is older than 50, then consequences are even more significant. I just obtained SSD benefits without a hearing for a 53 year old police officer because of his NYCERS decision. The SSA accepted the argument that he could not perform his past work as a police officer because the police medical board found him disabled. I then argued that a police officer has no skills that are transferable to sedentary work, which the SSA accepted. The “vocational-medical rules” state that a claimant who is older than 50 years old with a history of non-sedentary work, without transferable skills, must be found disabled. Therefore, the SSA had to find the police officer disabled.

Seminar

Yesterday, I was one of three attorneys who presented a seminar on how to handle Social Security Disability (“SSD”) case for the National Business Institute. One issue that surprised attorneys was the potential for a malpractice claim if they neglected to advise their clients about other potential disability claims they might have.

It may be perfectly clear that a client is seeking an attorney to file an SSD case. Nonetheless, it is quite possible that they client may have claims for other benefits such as workers compensation, short and long term disability, city, state, federal or union disability pension benefits, premium waivers under a group health or life insurance plan and so on. Failure to advise the client about these other potential claims in a prompt manner could result in the loss of these benefits, which in turn could result in a malpractice claim. Therefore, attorneys need to interview clients carefully to ensure that no benefit is overlooked, and clients need to ask attorneys what other potential benefits may exist.

Uveitis

The default position for many Long Term Disability (“LTD”) claims administrators, which are usually the insurance companies who issued the policy that has to pay the disability benefit under the LTD Plan, is to deny a claim. This is true even when it should be obvious that working will make the claimant’s symptoms worse. The insurer typically argues that the current medical evidence indicates the claimant’s condition has improved and is not severe enough to preclude work. However, the insurer usually overlooks the fact that the medical evidence reflects the claimant’s condition a substantial period after he or she stopped working.

I represent a 33 year old claimant with uveitis, and the medical evidence showed that the uveitis was exacerbated from work stress. The insurer denied the claim initially on the grounds that because the medical evidence revealed the uveitis had been treated and had currently abated the claimant should be able to resume working.

On appeal, I submitted additional evidence that essentially reiterated what the treating uveitis specialist had already submitted in connection with the application forms. The only real difference on appeal was that I had the opportunity to attack the insurer’s rationale denying the LTD benefits. Essentially, I emphasized that the claimant’s medical expert made clear that stress did not merely contribute to uveitis, but rather, triggers flare ups, just as stress can trigger a heart attack. Just as eliminating work stress helps prevent the risk of heart attacks, in the claimant’s case, eliminating work helps prevent uveitis exacerbations, which were causing permanent vision loss.

The Unum appeal reviewed called me to let me know that he had reversed Unum’s denial of benefits. He followed up with a letter confirming that he had reversed the denial of benefits. However, the person who issued the denial subsequently claimed that Unum did not reverse the denial of benefits.

There are many medical conditions that are exacerbated by work stress. It might be advisable to retain a vocational expert to render an opinion regarding the effect that work stress has on the claimant’s health condition. It certainly needs to be emphasized that the current functional limitations will get worse if the claimant were to resume working. In any case, make sure to record all telephone calls with Unum because they have proven that they cannot be relied upon to tell the truth.

Expediting LTD Benefits

Most insurance companies who administer group Long Term Disability (“LTD”) Plans are well known for the often extraordinary lengths that they go to in order to deny or terminate claims. I attempt to counter the insurance company’s tactics by overwhelming them from the outset.

I represent a 39 year old who could no longer work as a floor trader because of knee impairments. Despite some irrelevant information demands from the insurance company, I succeeded in getting the claimant’s LTD application approved in less than months after it was filed. I did so by providing more information than was required when applying. Whereas the application only required an Attending Physician Statement (“APS”) as medical proof, I submitted three, as well diagnostic test data and functional capacity information. Moreover, I submitted a detailed evaluation from a vocational expert (“VE”), even though none was required.

Submitting all the medical and vocational evidence quickly eliminated many things the insurance company typically does. There was no time for surveillance. Their in house medical staff would have to explain why three medical opinions were all wrong. Had their only been one APS, then the insurer certainly would have been likely to concoct an excuse for rejecting the sole opinion. Alternatively, when the medical evidence is strong, insurers frequently rely on a VE to come up with a reason why the claimant can work. However, that tactic would effectively preempted by the VE report I submitted.

Disability insurers frequently behave like burglars in that they seek the path of least resistance. If a burglar comes across two homes, and one has a big dog, they are likely to move on to the other house. The disability insurer’s goal is to deny or terminate as many claims as possible because that increases their profitability. If a claim looks strong from the outset, then the insurer will move on to the next claim.