Onset and Application Dates

Receiving a decision approving your Social Security Disability (“SSD”) application, or receiving your first check for SSD benefits, does not always mean that you received all of the benefits to which you are entitled.

I filed an application on April 29, 2008 for a 35 year old woman who stopped working in 1998 because of Multiple Sclerosis. On July 16, 2008, I received a letter indicating that the claimant’s application would be approved, but that letter did not mean that my work was completed because it made no reference to the application filing date.

A claimant can receive SSD benefits retroactive for only 12 months prior to the filing of an application. Therefore, the earliest date when the claimant could receive benefits was as of April 2007, assuming that she established the onset of her disability more than five months before that date. That is because there is a full five month waiting period before SSD benefits are available. I was able to establish that the claimant became disabled in May 2003.

The SSA frequently notes the wrong date in the claimant’s files for applications. Recognizing that problem, I filed the application via certified mail containing the following statement: “Note the certified mail date when inputting the application date.” Additionally, upon receipt of the July 16, 2008 letter, I faxed another letter to the SSA with delivery confirmation reiterating that I filed the claimant’s application via certified mail on April 29, 2008 under cover letter stating “Note the certified mail date when inputting the application date.”

Despite the steps taken above, I learned via telephone that the SSA did not issue the claimant’s benefits in full because it used an application date of May 2008. The result is the loss of one month’s benefits. Fortunately, I notified the SSA of the error, which it stated will be corrected. The moral is that even if the SSA issues a check or a decision that purports to be fully favorable you still need to check that the amount of the check or decision is correct.

Supreme Court Helps LTD Claimants

The Supreme Court’s decision in Metropolitan Life Ins. Co. v. Glenn should result in more favorable rulings for long term disability (“LTD”) benefits. Insurance companies have routinely denied or terminated LTD benefits despite strong and even overwhelming evidence that the claimant is unable to work because of a federal law called Employee Retirement Income Security Act (“ERISA”).

Under ERISA, courts reviewing LTD claims would usually apply an “arbitrary and capricious” standard of review. Under that standard, even if the court believed the insurance company made the wrong decision in finding the claimant unable to work the court could rule in favor of the insurance company. The Supreme Court’s decision in Glenn should be interpreted as abandoning the arbitrary and capricious standard of review in favor of an “abuse of discretion” standard of review. This change in the standard of review should level the playing field to a significant extent.

Most LTD Plans are administered by insurance companies that decide if the claimant gets paid benefits, which it then has to pay. A court must now weight that conflict of interest when deciding whether the decision to deny or terminate LTD benefits was proper. The court’s evaluation should result in additional discovery, which the insurance companies have vigorously opposed because discovery usually sheds light on the impropriety of their decisions.

Significantly, the Supreme Court held that compelling the claimant apply for Social Security Disability benefits, let alone offsetting those benefits from LTD benefits, while denying or terminating LTD benefits is evidence of conflicted decision making. The insurance companies’ acceptance of the opinions of industry medical reviewers like University Disability Consortium and MES etc., and disregard of treating physician opinion, should also provide evidence of a conflicted decision making process.

Two Heads Are Better Than One

While statistics show that most applications for Social Security Disability (“SSD”) benefits are denied initially, about half of my clients’ applications are approved initially. A major reason for the success can be attributed to supplying medical evidence from more than one treating doctor, which is why two heads are better than one. I represent a 55 year old truck driver, whose application was approved today only three months after I submitted his application, and less than two months after I submitted records from several of his doctors.

First, to ensure that the claim could not be rejected for a lack of “objective” evidence, I submitted a lumbar MRI that revealed herniated and bulging discs impinging the thecal sac and L4 and S1 nerve roots. The second report was a consultative narrative report from a spine specialist that detailed the claimant’s positive clinical findings, such as tenderness, muscle spasms, restricted ranges of motion, and abnormal sensation. The third report was a detailed narrative from the claimant’s pain management doctor, which detailed clinical exam findings and concluded that. “THE PATIENT IS TOTALLY DISABLED”. The last document was an EMG that revealed a chronic right L5 radiculopathy.

Submitting a combination of medical records that detail the positive clinical exam and diagnostic test findings, together with functionality opinions, maximizes the chances of securing SSD benefits without having to await a hearing.

Expediting SSD Cases

It takes a relatively long time before a decision is made on application for Social Security Disability benefits. In the mean time, because the claimant cannot work and has no income, savings become depleted quickly, oftentimes with dire results. There may be a silver lining under such circumstances.

The Social Security Administration (the “SSA”) is supposed to give priority to certain types of claims. For example, claimants with a terminal illness are supposed to be given top priority. Also, what are referred to as “dire need” cases are also supposed to receive immediate attention.

I represent a claimant whose financial circumstances became so poor that foreclosure papers were filed against him. On June 16, 2008, I provided a copy of the foreclosure papers to the SSA. Two weeks later I received a telephone call advising me that the claimant’s application had been approved, and one week after that I received the benefit check.

There are other circumstances that can qualify for expediting claim processing. If your situation becomes perilous, the SSA should disclose if it qualifies for expedited treatment.

Retrospective Medical Opinions

I represent a 48 years old word processor who had to show that she became disabled by her cervical and lumbar radiculopathy before 2006 in order to receive Social Security Disability benefits. The claimant’s family doctor and rheumatologist both concluded that the claimant had a less than sedentary work capacity. Their opinions were supported by their clinical records and cervical and lumbar MRIs. However, their opinions were ignored because they began treating the claimant after the onset of her disability, and her application was denied.

The case law provides that even if a retrospective opinion refers to an onset several years prior to the commencement of the treating relationship it must be given significant weight as long as it is predicated upon a medically acceptable clinical diagnostic technique. On appeal, I persuaded the Administrative Law Judge (“ALJ”) that the clinical records and diagnostic evidence showed the claimant was disabled as of her onset date, which was prior to the date when her current doctors began treating her. The ALJ then applied treating physician retrospectively, accepted their opinions regarding the onset of the claimant's inability to work, and approved her benefits.

LTD Litigation

When litigation ensues involving a claim under a group long term disability (“LTD”) plan courts are frequently reluctant to allow the claimant to introduce evidence that was not previously submitted to the insurance company that denied or terminated the benefits. Therefore, it is critical to ensure that all necessary medical and vocational evidence is supplied before the insurance company renders its final decision.

As long as the insurance company can perceive any arguable deficiency in the evidence it will resort to its default position, which is to avoid paying benefits. If there is no perceivable deficiency, then the insurance company will probably try to concoct a reason to deny or terminate LTD benefits by relying on its staff doctors or repeatedly used outside doctors to write a review rejecting the treating doctors’ opinions.

Even if a claimant furnishes evidence that reveals the insurer’s utter failure to review the evidence objectively and fairly, the insurer often ignores the obvious to deny or terminate benefits in order to require the claimant to proceed to litigation. The insurer’s goal is to reduce its liability through a lump sum “buy out” of the claimant’s claim for a percentage of its present value. That tactic is sometimes called “post-claim underwriting.”

I just had two LTD claims, one with Hartford and the other with CIGNA, following the pattern of post claim underwriting. In both instances, I had been involved at the administrative level and ensured that the medical and vocational evidence overwhelmingly supported the claimants’ position. And in both instances the insurance companies wrote to the courts requesting settlement conferences, where they sought a buy out of the claim at a discount.

Since insurance companies are not going to end the practice of post claim underwriting, it is critical to ensure that the claim file includes all the necessary evidence before the insurer makes its final decision. Many attorneys will not even consider litigating a case when they have not had the opportunity to submit evidence prior to litigation.