Irrelevant Medical Conditions

The Department of Disability Determinations is the state agency that initially decides Social Security disability applications (the “DDD”). Every so often, the DDD requests medical information regarding a medical condition about which the claimant never complained. The DDD contends that it needs the information to ensure that the claimant has the best chance of securing benefits, but experience indicates otherwise.

The application forms do not request information concerning all medical impairments; only those that impact the claimant’s ability to work. I used to comply with the DDD requests for medical evidence regarding secondary impairments. However, I no longer do so because applications were being denied on the grounds that those secondary impairments were not disabling, and the primary impairments were being ignored.

I represent a claimant whose application papers specified that she was disabled by her knee, back and shoulder problems. The DDD was provided with reports from the claimant’s treating arthritis specialist, pain management specialist, chiropractor, internist, and physical therapist. Each treating source provided an extremely limited functional capacity that precluded work. Nonetheless, the DDD sought information relating to the claimant’s “cardiac condition.”

I advised the DDD that the claimant would not submit any further medical evidence because more than enough medical evidence had already been submitted to approve the claim. I demanded that benefits be approved immediately or the application denied so I could seek an approval on the record with the Social Security Administration. The application was approved shortly thereafter.

Establishing Credibility

The majority of disability claims involve assessing the claimant’s credibility. The existence claimant’s medical condition or diagnosis is not questioned, only its severity. I represent a claimant whose application was approved today without a hearing because I was able to objectify her credibility.

The claimant had orthopedic problems that caused her pain. While the diagnosis of degenerative disc disease was accepted, the application was initially denied on the grounds that her condition was not severe enough to prevent her from working. In other words, her complaints of pain were not deemed credible. I did several things to establish the claimant’s credibility, and I’ll discuss two in brief.

The medical evidence can usually be used to support a claimant’s credibility in a variety of ways. The reports of the pain management specialist who gave the claimant epidural steroidal injections are fairly obvious. Less obvious are pharmaceutical records. I submitted the claimant’s pharmacy printout, which revealed a constant supply of Tylenol with codeine and Lyrica that her orthopedist had been prescribing. Just as an anesthesiologist only inject drugs into the spine when a patient has a severely painful medical condition, so too an orthopedist only prescribes those potent oral medications when a severely painful condition exists.

I also relied on the vocational evidence to support the claimant’s credibility. The courts have ruled that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. Because the claimant had worked for over 30 years, including over 25 years as a bus drive, I argued that the claimant’s work history justified the inference that when she stopped working she did so for the reasons testified to.

Medical Updates

It can take months, even years, to get a decision on a disability application or appeal. While waiting for a decision, it is important to provide updated medical information that further supports the disability claim.

I filed an appeal last November after a disability application was denied in October. Last week, I finally obtained records from the claimant’s new pain management specialist, who had administered epidural steroid injections (“ESIs”) in September and October 2007. The claimant decided to have the ESIs after a visit to the emergency room because her pain was so bad, and Morphine, Lyrica and Skelaxin failed to alleviate the pain.

The claimant’s application was denied even though her orthopedist and chiropractor provided medical reports concluding that she could not work. Today, shortly after providing the records from the pain management specialist and emergency room visit, the claimant’s appeal was approved.

No Health Insurance

The purpose of health insurance is to make sure that you can afford medical treatment. Unfortunately, when people become disabled and can no longer work, they frequently lose their health insurance just when they need it the most.

A claim for Social Security Disability (“SSD”) benefits can take years to process. If a claimant cannot afford to continue medical insurance under COBRA, then even if the SSD application is approved, Medicare may not be available for 24 months. During the interim, a claimant’s condition can become much worse.

A disability claimant who lacks medical insurance and is unable to obtain medicine or medical care should notify the Social Security Administration (“SSA”). The claimant should specify the basis for the lack of medicine or medical care. For example, stating that the he or she needs medicine or medical care, but is unable to obtain it either because there is no health insurance or because of lack of resources. When a person has a dire need for medical care, that critical situation is supposed to receive expedited treatment by the SSA.

I represent a claimant whose SSD application was denied on October 22, 2007. I submitted a request for a fully favorable decision on the record (“OTR”) on January 4, 2008. On February 15, 2008, I notified the SSA of the claimant’s dire need for medical treatment. That same day, the claimant’s OTR was approved, which could be a coincidence. Nonetheless, it certainly cannot hurt to notify the SSA of dire need circumstances, such as lack of medical care, food or housing.

Application Dates

A surprising number of disability application approvals by the Social Security Administration (the “SSA”) rely on incorrect filing dates. In some circumstances, a belated filing date can result in the loss of benefits. This past week, I received two “fully favorable” decisions involving the wrong filing dates.

In the first case, the decision stated that the application was filed a month after the actual filing date. Since the claimant’s onset date was two years before her application was filed the wrong onset date reduced her benefits by a month. Because the SSA has a habit of losing documents, I submit time sensitive and original records, such as birth certificates, by certified mail. While using certified mail does not reduce the number of mailings the SSA loses, the receipt provides proof that the SSA received the delivery. After presenting a copy of the mailing receipt, the claimant was approved for another month of benefits.

In the second case, when the SSA local office in the Bronx typed up the claimant’s handwritten application, it changed the claimant’s onset date from October 2004 to February 1, 2005. I learned about the error only after the Bronx hearing office gave me a copy of the file because the Bronx local office had refused to provide me with access to the claim file. In connection with a request for a fully favorable decision on the record (“OTR”), I notified the SSA that the claimant’s correct onset date was October 2004. The OTR was approved using the corrected filing date, thus avoiding the loss of four months of benefits.

The SSA has a history of losing records and making mistakes regarding critical dates. Claim files, hearing level decision and notices of awards always need to be checked to ensure that there is no deprivation of benefits.

Possible Delay Remedy

CBS recently did a two part investigative news piece on the backlog of Social Security cases. The investigation focused on the extraordinary number of disabled applicants who have to wait for years before their claims get evaluated. What the investigation did not discuss is that many applicants have to wait months if not years to receive their benefits after their claims have been evaluated and approved.

I represent a claimant diagnosed with osteoarthritis, low back and neck pain, peripheral neuropathy, tinnitus, hearing loss, colitis, toxicity among other things. After fighting with the Social Security Administration (“SSA”) and the State agency for ten months to get a decision on the claimant’s application, I finally was told that benefits had been approved. However, despite an endless barrage of telephone calls, letters and faxes, the SSA kept providing new reasons why benefits were not being released.

Many months went by without payment of benefits. When it became obvious that nothing the claimant or I could say would motivate the SSA to pay the benefits that had been approved many months previously, I directed my client to contact her Congressman. While the SSA may not care what an attorney or claimant have to say, it responds when contacted by a federal official with oversight authority. Finally, shortly after the Congressman sent a letter asking for an explanation as to why the disability benefits had not been paid, a check showed up at the claimant’s house yesterday.

Perhaps if enough constituents contact their Senators and Congressmen some of them will address the backlog highlighted by CBS investigative news.

Unum Reassessment Loophole

On November 18, 2004, UnumProvident was compelled to agree to a settlement that was intended to protect disabled workers. The result was that Unum was required to reassess over 200,000 claims that previously had been rejected. The settlement required Unum to restructure its claim handling procedures to ensure objectivity and fairness. However, the settlement has a loophole.

I represent a claimant who was victimized by the precise type of tactics that the settlement was designed to eradicate. My client was found totally disabled and unable to do any type of work by Social Security, and the settlement required that the Social Security decision be given significant weight.

The settlement does not revive a victim’s right to sue in federal court, leaving Unum to police itself under the reassessment if the claimant’s statute of limitations has expired. My client’s claim was wrongfully denied before the 60 Minutes and Dateline NBC exposes made Unum’s bad faith tactics common knowledge, which is why she did not sue Unum. The reassessment failed to treat my client’s reassessment claim fairly because she could not proceed to federal court.

Neither the New York State Insurance Department nor Governor Spitzer’s office did anything to help my client. However, the Maine Insurance Department, the lead regulator responsible for monitoring Unum’s conduct in connection with the reassessment, was instrumental in getting Unum to reevaluate its reassessment decision. According to a telephone call today from Unum, the result of that final review is that my client’s benefits have been approved from April 2002, the inception of her disability, to the present.

Benefits Despite Income

A common misconception is that you cannot receive Social Security Disability (“SSD”) Benefits if you report income. In fact, you could earn a million dollars a years from investments, rent, loan repayment or other types of passive income without any effect on your entitlement to SSD benefits. Two recent decisions illustrate just a couple of ways that a person can have income without it affecting SSD benefits. In both cases, the claimant’s application was approved without the need for a hearing.

The first case involved a 52 years old woman who had worked as an office supervisor and bookkeeper of an audio visual store that her husband opened in the late 1990’s. The claimant was on the payroll until 2006, but had stopped working at the store in 2004 because of her medical condition. I obtained a letter from the claimant’s accountant confirming that the claimant stopped working in 2004, but had been paid in 2005 and 2006 for past services. When the business started, the claimant was paid below fair market value for her services, and the subsequent payments were delayed compensation akin to a deferred dividend.

The second case involved a 60 year old woman who had worked as a secretary at her husband’s business. The claimant stopped working because of cancer, but was kept on the payroll solely to maintain health insurance. Once again, a letter from the claimant’s accountant verified that the claimant had stopped working.

When considering an onset date, the focus should be on the date when the claimant became incapable of working, not the date when the income stopped.

Consultative Examinations

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

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

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