Getting SSD Even If You Can Work

Receiving Social Security Disability (“SSD”) benefits is dependent upon the interaction between medical and vocational evidence. There are circumstances where a person can receive SSD benefits even if physically able to work, because of adverse vocational factors.

I represent a 57 year old who immigrated here from Haiti after graduating high school, and spent his last 26 years working for New York City as an automobile mechanic. The claimant was treated by an orthopedic surgeon for knee, bilateral shoulder and lumbar back injuries. The doctor said that the claimant could do some sedentary work, but his findings and conclusions showed the Plaintiff lacked the ability to perform a full range of sedentary work. Nonetheless, I was able to get the claimant’s application approved without a hearing based on the vocational evidence.

If the relevant past work of a person over the age of 55 was not sedentary, and there are no skills that are transferable to sedentary work, then that person is entitled to SSD benefits even if physically capable of sedentary work. I provided the hearing office with case law holding that there are no transferable skills for an automobile mechanic, which is medium to heavy work. Therefore, even if the medical evidence were interpreted as showing the claimant had a sedentary work ability, I had demonstrated that the claimant would still be entitled to SSD benefits. An attorney advisor agreed, and issued a fully favorable decision approving the claimant’s application without having to wait for a hearing.

Settling With CIGNA

Like many insurance companies, CIGNA’s initial decisions to terminate long term disability (“LTD”) benefits can be quite indefensible. Unfortunately, most people are unable to persuade CIGNA to reverse an adverse decision, and need an attorney’s assistance.

I was retained by a former paramedic officer from Arizona to represent him in connection with his LTD claim with CIGNA. After discussing the claim with the representative who terminated the LTD benefits, I was advised that CIGNA would not reverse its decision. Therefore, my client asked me to file a lawsuit against CIGNA.

The medical and vocational evidence weighed heavily in favor of finding that the claimant remained disabled under CIGNA’s policy, and I drafted a 33 page Complaint. However, before filing the action, I provided a copy of the Complaint to a senior level CIGNA representative to review. While initially believing that CIGNA’s decision appeared appropriate, after discussing the Complaint with me and considering the Complaint in full detail, the senior representative decided to reverse CIGNA’s decision to terminate benefits.

If I had litigated the case, as requested by the claimant, I am confident that the court would have reversed CIGNA’s decision, which could have resulted in a substantial amount of additional attorney fees. However, by persuading the claimant to consider allowing CIGNA to review the Complaint before actually filing suit it resulted in his LTD benefits being restored more quickly.

It obviously makes sense to retain an attorney experienced in disability litigation when seeking LTD benefits. Familiarity with the minutia of the legal issues relating to claims involving LTD benefits enabled me to persuade CIGNA to reverse its decision without having to litigate, which enabled the claimant to receive his benefits much sooner than he expected.

Health Insurance For Children

For many disabled parents, the loss of working income makes it difficulty to afford health insurance for children. After a year long court battle to recover child’s benefits in connection with a Social Security Disability case, I received a Notice of Award for child’s benefits that included a note about insurance for children through the Children’s Health Insurance Program (“CHIP”).

Each State’s CHIP provides health insurance to uninsured, low-income children 18 years of age or younger, including those who are homeless. You can call 1-877-KIDS-NOW (1-877-543-7669) to find out how to apply, or go to http://cms.hhs.gov/schip for more information.

Avoiding An Improper Consultative Exam

In the vast majority of cases, the Social Security Administration (“SSA”) insists that disability claimants attend a consultative examination (“CE”), which is performed by a doctor selected by the SSA. However, the SSA rules and regulations require that the claimant’s treating doctor perform a CE subject to a few exceptions. The exception that the SSA usually relies upon as grounds for a CE is that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies. Before the SSA or an Administrative Law Judge (“ALJ”) can ask a claimant to attend a CE by a non-treating doctor on the grounds that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies, the ALJ must first recontact the treating doctor to explain the perceived conflict, gap or inconsistency.

I represent a former police officer whose arthritis specialist and orthopedist provided reports describing why their patient’s condition prevented him from working in any capacity. ALJ Weiss insisted that the officer attend a CE by an “independent” orthopedist because of alleged conflicts and inconsistencies in the medical reports, but I insisted that the ALJ first recontact the treating doctors in accordance with the regulations. ALJ Weiss then denied the officer’s application on the grounds that the officer lacked good cause for refusing to attend the CE.

After filing a complaint in federal court, the SSA admitted that the officer had good cause for refusing to attend the “independent” CE, and that it was improper to penalize the officer for refusing to attend it. The SSA asked the officer to remand the case, and would require the ALJ to recontact the treating doctors to clarify or provide additional information to resolve the perceived conflicts and inconsistencies in their reports. The SSA also agreed that the Appeals Council remand order will direct the ALJ to issue a decision on the merits of the case even if the officer refuses to attend an independent CE without good cause.

The SSA’s remand offer confirms that a treating source is the preferred source for performing a CE. The SSA’s remand offer also confirms that it cannot ask an “independent” doctor to perform a CE unless the treating source is given the chance to explain any alleged conflict, gap or inconsistency. Finally, the SSA’s remand offer shows that a claimant has good cause, and cannot be penalized, for refusing to attend a CE that fails to comply with the SSA’s rules and regulations.

Multiple Sclerosis

The best type of evidence for a Social Security Disability (“SSD”) claim is evidence that shows the claimant meets a “listed impairment.” If the criteria of a “listing” are met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

Multiple Sclerosis (“MS”) is typically treated by a neurologist. Therefore, when applying for SSD benefits based upon MS, the best type of evidence would be an opinion from a neurologist that the claimant meets the criteria under the 11.09 listing for MS.

I represent a 53 year old former secretary and bookkeeper for her husband’s business whose SSD application was approved yesterday, just one month after I submitted a narrative report from her neurologist explaining why the 11.09 criteria were met. The claimant was not even asked to be examined by a Social Security doctor.

The rapid approval was undoubtedly due to the listing opinion from the neurologist. The first thing I always do when analyzing a claim is to determine whether the claimant’s condition can meet or equal a listing, and then securing the necessary records and reports from the treating doctor. If a hearing has already been scheduled, showing that a claimant meets a listing is important because it makes it significantly more difficult for an Administrative Law Judge to deny the claim, or for the denial to be sustained on appeal.

Protective Filing Dates

When filing a Social Security Disability (“SSD”) application, it is possible to be awarded up to twelve months of retroactive benefits. Since there is a full five month waiting period for SSD benefits, a claimant will not lose potential SSD benefits as long as the application is filed seventeen months after the onset of the disability.

For a variety of reasons many people do not file SSD applications immediately after their disability onset. If there is a possibility of filing an application and the 17 month mark is approaching, the safe thing to do is to seek a protective filing date.

A protective filing date is the date a claimant first contacts the Social Security about filing for SSD benefits. The protective filing date can be used to establish an earlier application date than the date when Social Security actually receives the signed application. A protective filing date can be established by calling the Social Security Administration’s toll free number - 800-772-1213, which eventually leads to a live operator who will take the application. The SSA usually follows up with a letter confirming an appointment. Even if the appointment is cancelled, the letters serves as proof for a protective filing date.

It is important to retain the SSA letter. I received a fully favorable on the record decision today that did not provide the protective filing date. I had reminded the claimant of the importance of the letter, but he misplaced the letter, resulting in a loss of a month’s benefits.

SSD Delays

Delays are commonplace when applying for Social Security Disability (“SSD”) benefits. Those delays frequently create “dire need” situations, such as being unable to afford medications, medical treatment, utilities, rent, or mortgage costs. Fortunately, the Social Security Program Operations Manual System permits expediting a claim when dire need circumstances exist.

I advise my clients to write me a letter explaining why their need exceeds that of other claimants, who may be able to pay for their health and housing. I suggest that they provide copies of eviction papers or past dues notices that substantiate their claims. I then provide the letter to the SSA describing how their delays have exacerbated the claimant’s dire need, and cite the relevant rules pertaining to expediting such claims.

I represent a 52 year old teacher who had to apply for food stamps while awaiting a decision on her SSD application. The SSA local office lost the application and demanded a new one. After showing proof that I had submitted the application, I sent a copy of the claimant’s letter stating that she had been approved for food stamps, and asked that the case be expedited as a dire need situation without having to submit a new application. The claimant was approved today for SSD benefits just one month after the dire need letter was submitted.

Reopening Past SSD Denial

It is common for people to apply for Social Security Disability (“SSD”) benefits more than once. Each new application starts a new date when benefits potentially become payable. What many people don’t realize is that it may be possible to “reopen” a prior application, which can result in the payment of additional benefits.

I represented a 44 year old carpenter who had applied three times, and was proceeding with his third application when he retained me. The oldest application was filed in February 2004, and the latest was filed in July 2007. I requested copies of the prior application files.

After reviewing all of the records, I obtained a report from the claimant’s treating physician that showed the claimant had lacked the ability to work since November 2003. I made a motion to reopen the prior application on the grounds that the report constituted new and material evidence. ALJ Brian Crawley agreed, and issued a fully favorable decision that approved SSD benefits based upon the prior application’s filing date.

The result of the reopening was that the claimant received well over three years of additional SSD benefits. When filing a new application always investigate whether there are grounds for reopening the prior one

ALJ Strauss’ Reliance On ME Cohen’s Testimony Proves She Is Biased

ALJ Hazel Strauss just issued a decision that proves she is biased against disability claimants. The Appeals Council had reassigned the case to ALJ Strauss from ALJ Seymour Fier on remand. The claimant is a 62 year old Italian woman with a third grade education who had worked as an unskilled sewing machine operator.

ALJ Strauss relied on the testimony of a medical expert (“ME”) from a prior hearing named Theodore Cohen. ME Cohen’s testimony was shown to be so utterly biased against claimants that ALJ Fier ruled that it had to be struck from the record; and therefore, he did not refer to ME Cohen’s anywhere in his 2008 decision. However, without any authority or explanation for doing so, ALJ Strauss based her October 2, 2009 decision on ME Cohen’s testimony.

Since ALJ Strauss knew that she could not use ME Cohen’s testimony because it had been struck from the record, how is it possible to explain her relying upon it? What possible excuse did ALJ Strauss have for using ME Cohen’s testimony, when it was clear from the record's hearing transcript and ALJ Fier’s 2008 decision that it had been struck?

ALJ Strauss claimed that she reviewed the entire record, which made it abundantly clear that ME Cohen's testimony had been struck. Therefore, ALJ Strauss cannot cannot claim that it was stupidity or negligence that caused her to rely on ME Cohen’s testimony -- ALJ Strauss knew that she was improperly relying on it. ALJ Strauss purposely relied on ME Cohen’s testimony because her preference for denying disability claims inhibited her impartial judgment, which is the American Heritage Dictionary definition for bias.

ALJ Strauss' will be reversed, although that is little solace to the claimant who now has to wait for the lengthy appeal process.

Multiple Medical Sources

Disability cases are usually a battle of the medical experts with your doctor saying you cannot work while their doctor saying you can. One of the best ways to ensure that your doctor’s opinion will be accepted over the non-treating doctor’s opinion is to have other doctors corroborate your doctor’s opinion.

I represent a 62 year old former Administrative Assistant with various back and foot problems. Instead of simply relying on the opinion of the claimant’s primary treating source, her neurologist, I secured opinions from the claimant’s rheumatologist, family doctor, orthopedist and chiropractor that concurred with the neurologist. Additionally, some investigation revealed that the non-treating doctor was not even board certified. Not surprisingly, the claimant’s application for disability benefits was approved.

While it may have been possible that the claimant could have received disability benefits without the concurring medical opinions, I prefer to stack the deck in the claimant’s favor, and minimize the chances of having to file an appeal. Since claimants normally need disability benefits as soon as possible to replace their lost income, the relatively small investment in time and money to secure the additional medical support should be well worth it.

Listed Impairments

The best type of evidence for a Social Security Disability (“SSD”) claim is evidence that shows the claimant meets a “listed impairment.” If the criteria of a “listing” is met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

I represent a 59 year old, whose past work was primarily in the security field. I sent the claimant for cognitive testing, which revealed a performance IQ between 60 and 70. I obtained a report from an arthritis specialist indicating that the claimant’s low back pain limited his ability to do full time sedentary work. I argued that those medical records showed the claimant met listing 12.05(C).

The SSA apparently agreed that the claimant met the listing because the application was approved in less than four months. Those familiar with the disability process know that approval within a few months is relatively rare. Medical sources should be asked from the outset for evidence to support a claimant’s meeting listing criteria because such claims are frequently screened for quick approval

Attorney Advisors

In May 2007, the Social Security Administration (the “SSA”) announced plans to eliminate the backlog of hearing requests by providing funding to hire additional staff. According to the SSA’s own statistics, in the New York region, the hearing wait was 547 days in May 2007. As of August 2009, the hearing wait had been reduced to 474 days.

Notwithstanding the SSA’s statistics, it is not unusual for a Social Security Disability claimant to have to wait nearly two years before an Administrative Law Judge (“ALJ”) hears the case. However, that delay can be avoided by making use of the staff attorneys at hearing offices known as Attorney Advisors. The SSA has extended the Attorney Advisor program to August 2011.

The Attorney Advisor program allows the hearing office attorneys to issue fully favorable on-the-record (“OTR”) decisions, which negates the need for a hearing with an ALJ. Allowing the attorneys to approve the more obvious cases not only expedites those claimants’ benefits, but also enables ALJs to focus on the more complex cases. The best way to show an Attorney Advisor that a case does not require an ALJ is by showing the claimant meets a Medical-Vocational rule or listed impairment criteria that requires a finding of disability. I received a fully favorable OTR decision today from an Attorney Advisor that illustrates this point.

I represent a 59 year old former mason tender and currency trader. I cited a Medical-Vocational rule that required finding him disabled even he were capable of performing sedentary work. The Attorney Advisor accepted the evidence and arguments in support of applying that rule, which made it an obvious case for approval. Instead of waiting 474 days for a hearing, the claimant’s OTR was approved in less than 60 days.

Avoiding Consultative Examinations

When applying for Social Security Disability (“SSD”) benefits, the Social Security Administration (the “SSA”) virtually always sends a notice stating that the claimant has to be examined by one of its doctors for a Consultative Examination (“CE”). Almost without exception, the CE concludes that the claimant is capable of working, and therefore, the SSA denies the SSD application.

What most applicants don’t realize is that the rules and regulations severely restrict the circumstances where the SSA can require a CE. For example, POMS DI 57540.020 requires the SSA to identify the “essential evidence missing from the file,” and then to request it from the treating source. Similarly, Social Security regulation 20 C.F.R. § 404.1512(f), states that a CE is appropriate only if information the SSA “need(s) is not readily available from the records of your medical treatment source, or we are unable to seek clarification from your medical source;” and 20 C.F.R. § 404.1519a(a)(1) requires the SSA to seek the information from the claimant’s treating source before resorting to a CE. There are many other rules, regulations, and federal court decisions that provide the same.

I always insist that the SSA comply with the rules and regulations regarding CEs. I offer to provide any medical evidence the SSA can specify, and to facilitate a CE by the claimant’s treating doctor. The absence of the CE by the SSA prevents negative evidence from making its way into the file, which delays the application’s approval. I represent a former school superintendent whose SSD application was approved today in only four months. Had I allowed the CE to proceed, then the SSA would have required a hearing to weigh the conflicting opinions.

Atypical Parkinson’s

Patients with atypical parkinsonism have some features of Parkinson's Disease (“PD”) such as tremors at rest, slowness of movement, stiffness, unsteadiness and freezing while walking). However, symptoms of atypical parkinsonism result not only from loss of cells of the substantia nigra as in classic PD, but also from degeneration of cells in other areas of the nervous system. Older patients are more severely affected by atypical parkinsonism and PD in general.

When applying for Social Security Disability ("SSD") benefits based on atypical parkinsonism, the Medical-Vocational rules should always be reviewed because the claimant is likely to be older than 50. I represent a 59 year old women who taught school for the last 15 years of her career. According to the Dictionary of Occupational Titles, teaching is light work, which means it is done primarily while standing and walking. A person who is at least 50 years old, and has only performed light work during the past 15 years must be found disabled under Medical-Vocational Rule 201.04 in the absence of transferable skills – even if capable of performing full time sedentary work.

I was able to have the claimant’s SSD application approved without a hearing, which likely would have required an additional 1.5 to 2 years, by demonstrating how the claimant met Medical-Vocational Rule 201.04. Arguments supporting disability based on the Medical-Vocational Rules or a listed impairment should always be highlighted as they are often screened for quick approval.

Chondromalacia

You don’t have to be elderly to have disabling arthritis. Chondromalacia is essentially arthritis of the knee. I represent a 39 year old former press operator whose Social Security Disability (“SSD”) benefits were approved without a hearing.

The claimant retained me after he filed his application for SSD benefits. His application was denied in August on the grounds that the medical evidence failed to show a condition that would prevent him from doing sedentary work. Sedentary work requires lifting 10 pounds, walking and standing about 2 hours a work day, and sitting the remainder of the time.

Last month, I submitted an on-the-record (“OTR”) request for a fully favorable decision. After establishing that chondromalacia is a medially determinable condition, I demonstrated that it reduced the claimant’s functionality to the extent that sedentary work was not possible. The key was securing work assessments from three physicians, two orthopedists and an arthritis specialist, showing that the claimant could not lift 10 pounds, walk and stand for 2 hours a work day, and sit the remainder of the day.

Simply having one physician’s assessment may have sufficed after a hearing to obtain the claimant’s SSD benefits, but probably would not have been enough evidence to succeed via OTR. By successfully using the OTR process, the claimant will not have to wait 18 to 24 months before his hearing would be rescheduled.

Subpoena The SSA Doctor

When you apply for Social Security Disability or Supplemental Security Income benefits, the Social Security Administration ("SSA") will tell you to see its doctor. The SSA calls its doctor a Consultative Examiner ("CE").

Most of the time the actual exam by the CE is cursory, contains findings that simply are made up, and indicates the claimant can work. The SSA then ignores what the treating doctor says and relies on the CE report to deny the application for disability benefits.

In New York, after the initial denial, the Administrative Law Judge ("ALJ") assigned to your case sends you a hearing notice. Among other things, the notice says you have the right to ask the ALJ to issue a subpoena for people or documents. The SSA regulations and case law provide you with the right to cross examine your CE.

Always request that the ALJ subpoena your CE. The CE will not be able to support most of the findings and conclusions in the CE report. Furthermore, if the ALJ refuses to issue the subpoena, then that denial of due process provides automatic grounds for a new hearing if the ALJ denies your claim. I just received a decision from the Appeals Council that rejected an ALJ's unfavorable decision for that very reason.

ALJ Nisenewitz: Stupid or Biased?

Administrative Law Judge David Nisnewitz (“ALJ”) denied a fibromyalgia claimant’s application for the second time. The first time the Appeals Council rejected the ALJ’s denial because there was no medical evidence contradicting the opinion of the treating rheumatologist. This time, the ALJ relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though a federal court previously told the ALJ that the testimony of an ME, the lone dissenting physician, “does not constitute substantial evidence to overcome the opinions of the treating physician” that the claimant is disabled.

The ALJ knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion. Therefore, how is it possible to explain the ALJ’s repeating the same mistake? What possible excuse did the ALJ have for repeating his error, especially since he was reminded in, not one, not two, but three letters that he had been admonished previously for improperly rejecting the opinion of the treating physician in favor of the ME?

The American Heritage Dictionary defines “stupid” as slow to apprehend or dumb, and “bias” as a preference that inhibits impartial judgment. Did the ALJ fail to realize that he was repeating his mistake, despite being reminded in the three letters that elevating an ME’s opinion over a treating physician’s opinion was improper? If so, then it would seem that the ALJ was slow to apprehend the issue, which is the American Heritage Dictionary definition for “stupid”.

Alternatively, the ALJ could have realized that he was repeating his mistake. If so, then it would seem that his preference for denying disability claims inhibited his impartial judgment, which is the American Heritage Dictionary definition for bias. Notably, in a recent Michigan case, another ALJ was accused of bias because his approval rate for disability cases was 41% and 28% in 2005 and 2006. In contrast, it appears that ALJ Nisnewitz’s approval rate was 35% for 2005 and 25% for 2006. The Michigan court also noted there was no evidence of inappropriate comments or animus by the ALJ. On the other hand, Judge Irizarry found ALJ Nisnewitz has displayed both.

It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility. Despite a court stating that investigating ALJ bias allegations would be appropriate on remand in another case, the SSA has refused to fulfill its duty to investigate the allegations. Instead, the SSA speciously claims that the court directed it to comply with a FOIA request, which simply was not the case.

Prudential Reverses Fibromyalgia STD & LTD Denial

I represent a former banker afflicted with fibromyalgia whose short term disability (“STD”) and long term disability (“LTD”) claims had been denied by Prudential Insurance Company of America. Prudential had based its decision to terminate STD benefits and deny LTD benefits on a so-called independent medical examination (“IME”) by a rheumatologist who does not regularly treat fibromyalgia.

The IME admitted the claimant has fibromyalgia; admitted that fibromyalgia is a pain syndrome, admitted that no objective testing exists for fibromyalgia; admitted that the claimant has a global pain syndrome; admitted that the pain is difficult to measure; and admitted that the claimant’s treatment is appropriate. The only difference between the opinions of Dr. Jason Faller, the claimant’s treating rheumatologist, and the IME, was that the IME stated that because the claimant’s pain was difficult to measure, she had no functional limitation. While the IME may have had difficulty measuring the claimant’s pain, Dr. Faller, as the claimant’s long time treating doctor, did not.

Prudential said that the only evidence of functional impairment was the claimant’s self-reported statements, but failed to identify what else could possibly exist other than Dr. Faller’s finding of severe trigger points. The IME had asserted that the claimant’s complaints were inconsistent with range of motion findings, and that absent atrophy, neurological abnormalities and decreased range of motion, the claimant could not be functionally impaired.

In a very abbreviated nutshell, I pointed out that Social Security Disability cases held that “decreased range of motion and/or sensory impairments are not symptoms of fibromyalgia, and the absence of these non-symptoms thus does not reflect on the presence or severity of fibromyalgia.” Prudential implicitly conceded that while no diagnostic test is applicable for fibromyalgia, making it difficult to measure pain in these individuals, the person in the best position to measure the claimant’s pain was Dr. Faller who had examined her many times over many years. Accordingly, Prudential approved both STD and LTD benefits for the claimant

LTD & Health Insurance

Some companies provide their employees with group disability and health coverage. Frequently, the long term disability (“LTD”) and the health insurance plans are linked so that if you become disabled under the LTD plan your premium is waived under the health plan. Thus, your health insurance continues while you are disabled. A problem arises when the LTD insurance company wrongfully terminates or denies LTD benefits, which results in a loss of health care coverage.

When you eventually succeed in securing your LTD benefits, you should not forget to seek reimbursement for your health care expenses. Any money paid toward COBRA or for other health insurance premiums should be sought. Similarly, if health insurance lapsed because the premium could not be afforded, your out of pocket costs should be sought. You should not have to pay any more than you would have if your health insurance was not wrongfully terminated or denied.

Sometimes other employee benefits are also linked to your LTD plan. When seeking LTD benefits always make sure that you have copies of a Summary Plan Description for each group benefit plan that covered you while working.

Teacher Finally Receives SSD Benefits

I was retained after a federal court remanded this case to ALJ Iris Rothman. The claimant’s prior attorney was ambivalent about representing the claimant because ALJ Rothman inexplicably refused to review the case objectively. Sure enough, ALJ Rothman denied the claim a second time despite overwhelming medical and vocational evidence.

Rather than the usual terse one or two page or two decision, the Appeals Council (the “AC”) remanded this claim a second time in a detailed five page remand order. The AC not only made it clear that ALJ Rothman’s second decision was utterly devoid of any merit, but strongly and repeatedly indicated that the claim met at least one of three listed impairments. If a listing is met, then the claimant is deemed disabled without any further evaluation.

The new ALJ assigned to the case issued a fully favorable decision on the grounds that the claimant’s macular degeneration equaled listing 2.04 as of her February 1, 2005 onset date. If you believe the denial of your SSD benefits was wrong seek a second legal opinion. While the legal process for reversing an erroneous benefits decision may take some time, SSD benefits should be approved as long as there is supporting medical and vocational evidence.

SSA Consultative Examiners

The reason that Administrative Law Judges give the vast majority of the time to deny applications for Social Security Disability (“SSD”) benefits is that the opinions of the state agency consultative examiners (“CEs”) show the claimant can work. Once again, a federal district court has ruled that it was improper for an ALJ to do so.

I was retained to appeal an SSD case to the Eastern District of New York, which was assigned to Judge Nicholas Garaufis. My primary argument was that the ALJ gave more weight to the opinions of the CEs than to the claimant’s treating doctors, and in doing so, failed to apply the treating physician rule properly. In the New York metro area, CEs are usually performed by Industrial Medicine Associates.

The claimant’s treating doctor provided a detailed residual functional capacity (“RFC”) assessment demonstrating the claimant lacked the ability to perform the physical demands of sedentary work. However, the ALJ interpreted the CEs’ vague conclusions as providing for a sedentary RFC, and relied on those opinions to deny the claimant’s SSD application. Judge Garaufis ruled that:

"As Plaintiff correctly notes, the ALJ cannot rely on those RFCs as evidence contradicting the Treating Physician RFC. This is because an inconsistency with a consultative examiner is not sufficient, on its own, to reject the opinion of the treating physician."

It seems that most ALJ SSD denials are based upon the opinions of the CEs, and most of the time the ALJ provides little or no reason for elevating the CEs’ opinion over that of the treating physician. Whether appealing to the Appeals Council or federal court, it is essential to point out the absence of a legitimate or logical basis for the ALJ’s rejecting the treating physician’s opinion.

Child’s Benefits

If you succeed in winning Social Security Disability (“SSD”) benefits, then you may also be entitled to receive additional benefits for your children under 18 years of age. The child’s benefit is usually about half of the SSD benefit. You cannot rely on the Social Security Administration (the “SSA”) to take steps to help you secure the child’s benefits.

I represent a 53 year old press operator whose SSD application was approved after 4 months. The SSA did not notify him about his right to child’s benefits. The claimant did not think he was entitled to child benefits because his son had already graduated from high school. However, the claimant’s SSD benefit onset date was several months before the son graduated. As a result, the claimant will be entitled to receive several additional thousand dollars worth of benefits.

When applying for SSD benefits, always disclose the identities of dependents. The disclosure provides a protective filing date for child’s benefits.

UPS

Aetna administers the United Parcel Service (UPS) long term disability (“LTD”) plan. Fortunately, UPS maintains the right to reverse Aetna’s decisions.

A UPS package supervisor retained me after Aetna terminated his LTD benefits on the grounds that he could do sedentary work based upon an functional capacity examination (“FCE”). In my 74 page appeal to Aetna, which included 46 pages of new medical records, I explained how the FCE actually showed that the claimant could not do sedentary work. Aetna denied the appeal based upon a peer review that rejected the FCE, and conclusorily stated that there was no clinical support showing the claimant was unable to do sedentary work.

Aetna’s final decision was hypocritical. Aetna relied upon the FCE to terminate LTD benefits, but Aetna refused to allow the claimant to rely upon the FCE after admitting that it showed the claimant could not do sedentary work. In other words, Aetna accepts evidence when it thinks the evidence will support its decision, but rejects the identical evidence when it thinks the evidence will not support its decision.

As for the peer review, Aetna provided absolutely no reason why it accepted the opinion of the peer review doctor it paid to review the claimant’s medical records, over the opinions of the claimant’s treating orthopedist, pain management specialist, internist, rheumatologist, physiatrist, and physical therapist, each of whom explained why the claimant could not do sedentary work. I pointed out these and other critical flaws to UPS, which reversed Aetna’s decision.

The claimant went without LTD benefits for nearly a year because of Aetna’s actions. To compound matters, the claimant’s other benefits, such as medical insurance, were terminated when the LTD benefits were terminated. The claimant had to spend thousands of dollars for medical testing, reports, and attorney’s fees to get his benefits reinstated. If UPS employees have any influence at work they should consider persuading management to replace Aetna.

Retrospective Medical Opinions

In Scandura v. Astrue, 2009 WL 648611 (E.D.N.Y. Mar 10, 2009), the Chief Judge of the Eastern District of New York rejected the opinion of Administrative Law Judge (“ALJ”) Hazel Strauss because, among other things, the ALJ failed to acknowledge the validity of a retrospective medical opinion. Similarly, in Vicari v. Astrue, 2009 WL 331242 (E.D.N.Y. Feb 10, 2009), the court rejected the ALJ’s decision because it erroneously asserted that “a retrospective opinion is not acceptable dispite [sic] the attorneys [sic] allegations to the contrary.”

In other words, even if a physician first examines a Social Security Disability (“SSD”) claimant after the date last insured (“DLI”), the retrospective opinion still must be examined under the treating physician rule. In order to receive SSD benefits, a claimant must establish disability prior to the DLI.

I represent a 45 year old former carpenter who minimized his medical treatment after losing his health insurance. As a result, there was no doctor who treated the claimant prior to DLI to give an opinion regarding the claimant’s functional capacity. However, I submitted a functional assessment from the claimant’s current doctor, who gave a retrospective disability onset date. ALJ Crawley gave significant weight to the opinion, and approved the claimant’s SSD application.

The law is clear and well-established. As long as the retrospective opinion is well supported, such as when the doctor bases his opinion in part on reviewing pre-DLI medical records, it must be analyzed like any other medical opinion.

Senior Attorney Adjudicators

It is not unusual for a Social Security Disability claimant to have to wait two years before an Administrative Law Judge (“ALJ”) hears the case. One way the Social Security Administration is trying to reduce the backlog is the Senior Attorney Adjudicator program. The purpose of the initiative is to allow certain attorney advisors to issue fully favorable on-the-record (“OTR”) decisions to expedite the decisions, and conserve ALJ resources for the more complex cases and cases that require a hearing.

The chances of having an OTR approved, which at many hearing offices is now the province of Senior Attorney Adjudicators, is by explaining why the decision is not a complicated one that requires a hearing. This can be accomplished by showing that the application must be approved because the claimant meets a Medical-Vocational rule that requires a finding of disability. I received a fully favorable OTR decision today from a Senior Attorney Adjudicator that illustrates this point.

I represent a 53 year old former elementary school crossing guard, which is light, unskilled work, with an 8th grade education. A Medical-Vocational rule requires finding such a person disabled, even if they are capable of performing sedentary work. In other words, the medical evidence would have to show that the claimant is capable of performing at least light work, which among other things, requires the ability to lift up to 20 pounds occasionally and 10 pounds frequently, and stand or walk for 6 hours during an 8-hour workday. Citing evidence that indicated the claimant could not even do full time sedentary work made it an uncomplicated case.

Medical Improvement

Statistics from the Social Security Administration show that some Administrative Law Judges (“ALJs”) have a significantly lower approval rate than other ALJs. ALJ Seymour Fier only had an approval rate of 33% for 2008, which is less than half that of other ALJs, including those at the same hearing office. Just because ALJ Fier labels his decision "fully favorable," doesn't mean that it actually is.

ALJ Fier issued a fully favorable decision to a clothing salesman who was 48 years old when he became disabled due to very severe asthma and cardiovascular disease. At the hearing, the ALJ had the medical expert (“ME”) testify before the claimant, and the ME concluded the claimant could not do sedentary work. When I stated that I only had a few questions for the ME because he could confirm that the claimant met two of the listings for pulmonary impairments, the ALJ stated that it was not necessary in light of the ME’s testimony.

The ALJ’s “fully favorable” decision states that the claimant should be re-evaluated in 24 months because "medical improvement is expected." None of the medical evidence supports that statement. To the contrary, the treating doctors stated that the claimant’s conditions are permanent and progressive. While there is no doubt that the claimant’s condition will continue to deteriorate, the issue of medical improvement should not have been an issue if the ME had been allowed to testify regarding the claimant meeting a pulmonary listing.

Fibromyalgia

Disability benefits adjudicators are averse to approving claims based upon fibromyalgia. Fibromyalgia claims are frequently denied for allegedly lacking objective evidence. I represent a 37 year old banker with fibromyalgia whose application for Social Security Disability (“SSD”) benefits was approved in only three months.

To ensure that there was no mistaking the severity of the claimant’s fibromyalgia, I submitted functionality assessments from two rheumatologists and an infectious disease specialist. Based upon their examinations and review of the medical records, each specialist concluded the claimant was unable to do sedentary work on a full time basis.

The rheumatologists’ opinions are particularly important because the only accepted standard for diagnosing fibromyalgia is the criteria from the American College of Rheumatology (the “ACR”). The rheumatologists specified that their diagnosis and opinions regarding the severity of the claimant’ fibromyalgia was based on strict adherence to the ACR criteria. All three specialists explained why the claimant’s fibromyalgia was severe enough to preclude her from working, and those opinions were buttressed by a report that a vocational consultant prepared.

Fibromyalgia claims not only need longitudinal treatment records showing complaints and diagnoses of fibromyalgia, but also multiple expert opinions regarding the severity of the claimant’s condition to have any chance of being approved.

Chronic Fatigue Syndrome (CFS)

The Social Security Administration (the “SSA”), which denies a majority of disability claims initially, has a particularly difficult time approving CFS claims. In fact, the SSA had to issue a Ruling specifically addressing how CFS claims need to be evaluated, known as 99-2p.

I represent a 58 year old medical laboratory technologist who stopped working because of CFS. Her request for a fully favorable decision on the record was just approved, which means that she will receive her Social Security Disability (“SSD”) benefits without having to wait for a hearing.

I attribute the approval to two things. First, I obtained a detailed narrative from the claimant’s infectious disease specialist, Dr. Susan Levine. CFS is a diagnosis through exclusion, and frequently involves overlapping medical conditions. Dr. Levine’s report explained how the claimant’s complex and disparate medical findings supported the CFS diagnosis and functional limitations.

Second, and more importantly, in the absence of diagnostic testing for CFS, the claimant’s credibility is especially important. I provided legal precedents explaining why the claimant’s 35 year work history required a presumption of credibility. Moreover, I obtained medical assessments from four other treating physicians who corroborated Dr. Levine’s opinion that the claimant could not do sedentary work. In light of the five supporting medical opinions, the Administrative Law Judge who approved the case rejected the opinion of the SSA disability analyst who said the claimant could work.

When seeking SSD benefits based on CFS, a claimant should attempt to submit both a narrative report that provides a detailed explanation for the diagnosis, and multiple functional assessments.

Dictionary of Occupational Titles

Applications for Social Security Disability (“SSD”) benefits require providing work history information. When I submit SSD applications, I provide the Dictionary of Occupations Title (the “DOT”) occupation code for the claimant’s past work where I believe Social Security medical-vocational rules, also known as the “Grid rules,” should apply.

I represent a 58 year old former dental assistant, who stopped working because of her back, neck and knee pain. I provided the DOT code when submitting the SSD application, and pointed out how the claimant would be entitled to receive SSD benefits even if the medical evidence indicated that she had the ability to do sedentary work.

The majority of SSD applications are denied initially. Those applications that are not denied, typically take at least five months to be approved. The claimant’s application was approved in only three months.

Providing the DOT code may avoid having the file referred for vocational review, which saves time. Highlighting the applicability of the Grid rules may also help the State agency recognize that SSD benefits should be approved.

Voluntary Remand

When Social Security claims are pursued in federal court two things typically happen. First, after the parties brief their case, the court decides in favor of one side, or neither side and remands the case back to the Administrative Law Judge (“ALJ”) who previously heard the case. Second, the U.S. Attorney representing the Social Security Administration (the “SSA”) might suggest that the action be remanded to the ALJ, which would be called a voluntary remand. The question arises, does it ever make sense to reject a voluntary remand.

Accepting a voluntary remand avoids the possibility that a federal district court judge would affirm the decision of the SSA. The next step would be to proceed to a federal appellate court, but they do not usually reverse such decisions. Nonetheless, there are some occasions when a voluntary remand should be rejected.

I represent a minor plaintiff whose claim for Supplemental Security Income (“SSI”) benefits was denied by ALJ Newton Greenberg. I believed that the evidence showed the plaintiff met childhood listings for mental retardation. In fact, I believed the ALJ’s own conclusions showed the plaintiff met listings 112.05D and 112.05F, without any need for the federal court judge to consider anything other than the ALJ’s unfavorable decision. Moreover, my legal research uncovered two factually indistinguishable cases where the courts granted the plaintiff’s motion for judgment on the pleadings, and remanded solely for the calculation of benefits.

Each time that the U.S. Attorney offered my client a voluntary remand, I advised his mother to decline it. After granting the U.S. Attorney extra time to brief the case and discuss it with the SSA, he advised me that the SSA had decided to pay the plaintiff all of his SSI benefits.

Had I accepted the offer, then the plaintiff would have needed to wait for another hearing before ALJ Greenberg, which the plaintiff’s mother did not want because she felt he was very abusive towards her son. Thus, by rejecting the voluntary remand, the plaintiff received his SSI benefits much faster than he would have, even if ALJ Greenberg had reversed himself. Furthermore, the plaintiff avoided having to be subjected to ALJ Greenberg’s abusive questioning.

Subpoena Denials

The law requires that a Social Security Disability claimant be able to cross-examine the author of an adverse report. Since the reports of the doctors who do the consultative examinations (“CE”) for Social Security almost invariably indicate the claimant can work, I always insist that the administrative law judge (“ALJ”) issue a subpoena for the CE doctor.

I have had cases reversed by the Appeals Council and federal courts recently because the ALJ failed to give a valid reason for refusing to issue subpoenas for CEs. When an ALJ denies a subpoena request, I always respond to protect the record for appeal. I did this Friday after ALJ Hazel Strauss refused to issue a subpoena.

The first reason for Strauss’ refusal was that the CE took place eight years ago. However, Strauss would not allow the passage of time to prevent her from giving any weight to the CE report, I stated that her precluding me from cross-examining the CE doctor is a denial of Due Process.

The second reason for Strauss’ refusal was her belief that “it is not likely [the CE doctor] would be able to testify to anything except what the report of the examination states, as consultants do not keep records beyond year of such examinations.” I noted that not only is her speculation as to what the CE doctor might remember irrelevant, but also my cross examination does not need to be limited to examination findings because his examination practices and procedures during the thousands of CEs he performed are proper subjects of cross examination because they could provide probative information.

Third reason for Strauss’ refusal was that CE records are disposed within a year. I replied that such a justification for rejecting a subpoena is absurd because it takes more than a year between the time the CE is performed and the hearing is scheduled. According to Strauss’ logic, no CE doctor would ever be subpoenaed.

The letter to ALJ Strauss provides the Appeals Council with a clear procedural Due Process violation for remanding a potential adverse decision. The subpoena denial is also a failure to develop the record that a U.S. Attorney can accept as an excuse for a voluntary remand.

Courts Rules CIGNA Is Biased

A Minnesota judge just ruled that CIGNA’s evaluation of a long term disability (“LTD”) claim was “biased.” In McNally v. CIGNA, 2009 WL 1458275 (D. Minn. May 26, 2009), CIGNA terminated the LTD benefits of a claimant with Multiple Sclerosis (“MS”), a progressive neurological disorder. The court found that CIGNA’s handling of the claim was so defective that it could only have resulted from “either bias or incompetence,” and concluded the former was the reason.

The court highlighted that CIGNA improperly relied on the opinion of Dr. John Mendez, its in-house internal/occupational medicine physician, because he “obviously lacks the necessary familiarity or training with the nature of fatigue and multiple sclerosis”. The court ruled that CIGNA “had little reason to disregard the opinions of McNally’s treating neurologist in favor of Mendez’ opinion.”

Besides reliance on the Mendez opinion, the court held that CIGNA’s “bias is apparent from other evidence as well.” However, I want to point out that CIGNA knew its reliance on Mendez was improper because it was chastised for doing the same in Alfano v. CIGNA, 2009 WL 222351 (S.D.N.Y. Jan 30, 2009).

In Alfano, I represented the claimant, who primarily suffered from a back problem. For more information about Alfano see my prior blogs or the decision which is available on my web site. In Alfano, CIGNA also rejected the opinions of the treating specialists in favor of Mendez. Mendez’ entire analysis of Mr. Alfano’s claim, which consisted of hundreds of pages of medical records, was only two sentences.

If your LTD claim has been denied by CIGNA, make sure that you consult with an attorney as soon as possible. Once you have exhausted your appeals with CIGNA it may be too late to allow a court to review additional evidence that reveals CIGNA’s bias.

SSD & Taxes

After winning benefits, my clients frequently ask me about the tax ramifications of their disability benefits. Since I am not a CPA or tax attorney, I usually tell them that I am not qualified to advise them about tax matters. However, NOSSCR provides some general advice.

Social Security and Income Tax

This page gives general income tax guidance with citations, and should not be used as the basis for tax advice in individual cases. Taxpayers should always seek guidance from competent tax professionals, and should use this page only as an aid to asking the right questions.

Note: Social Security disability benefits and retirement benefits are treated the same for income tax purposes. SSI benefits are not subject to income tax.

Common questions:

• How should I handle income taxes on my retroactive lump sum payment of disability benefits?

• How much of my ongoing Social Security disability benefit is subject to income tax?

• What about my attorney fee for the disability appeal — is it deductible?

• I owe most of the Social Security lump sum to a long term disability carrier, so how do I avoid double taxation?

Lowering the tax impact of a lump sum. Congress has provided a special election allowing a client to take advantage of the tax exempt base amount for each of the retroactive years represented in a Social Security lump sum. [I.R. Code §86(e); see I.R.S. Publication 915] In most cases, this special election will be desirable, because it enables the taxpayer to offset the lump sum with a multiple of base amounts, described below. Also, the election removes the need to amend prior tax returns.

SSA-1099. Social Security is required to send each benefit recipient an SSA-1099 by February 1 of the following year, specifying how much of the Social Security benefit received in the lump sum was really a payment for some prior year or years. The 1099 also lists the attorney fee. These SSA-1099 forms are often inaccurate, and the taxpayer must use award notices to double check the 1099.

Income Tax on Social Security Benefits.

The Basic Rule. Up to 50% of Social Security benefits are taxable if total “provisional income” (adjusted gross income, tax-exempt interest and one half of Social Security benefits) exceeds a base amount: $25,000 for single taxpayers and $32,000 for married taxpayers filing jointly. At this level, taxes are payable on the lesser of (1) 50% of Social Security benefits received, or (2) one half of the difference between provisional income and the applicable base amount. Fortunately, this is the end of the income taxation picture for most recipients of disability benefits.

The Second Tier. A second tier of income tax - reaching up to 85% of Social Security benefits received - kicks in (1) for single taxpayers with provisional income over $34,000, (2) for married taxpayers filing jointly with provisional income over $44,000, and (3) for all married taxpayers who file separate returns, but do not live apart.

For these second-tier categories, income taxes are payable on the lesser of (A) 85% of Social Security benefits or (B) the total of (1) 85% of the difference between provisional income and the applicable adjusted base amount ($34,000/$44,000), plus (2) the lesser of (a) half the benefits or (b) $4,500 (for singles / $6,000 (for married couples filing jointly). The adjusted base amount for married persons filing separately but living together is zero; taxes are payable on the lesser of 85% of benefits or 85% of provisional income.

Attorney Fee Deduction. If a taxpayer discovers that some of the Social Security lump sum - when added to regular benefits received in the same year - turns out to be taxable, the attorney fee may be deducted from income, but only to the same extent that Social Security is taxed. For example, if a taxpayer paid tax on 50% of SSA benefits received, the taxpayer may deduct half of the attorney fee paid or incurred during the same year. [IRS Revenue Ruling 87-102] The taxpayer faces the burden of filing an itemized return, of course, and this limited deduction is further subject to the “2% of adjusted gross” ceiling on miscellaneous itemized deductions.

Worker’s Compensation Reduction. Social Security disability may be reduced for worker’s compensation and other public disability benefits. Oddly, the amounts deducted are included as benefits received for purposes of income tax. In effect, state worker’s compensation is rendered taxable in an amount equal to the Social Security reduction, but only to the extent that Social Security is taxable for the year. [I.R. Code §86(d)(3)]

Auxiliary [child or spouse] benefits. Benefits are included in the taxable income of the person who has the legal right to receive them. For example, a child’s benefits are added to the child’s other income (if any) to determine taxability, even though the benefits are paid on the parent’s earnings record. The child receives a separate SSA-1099.

Income Tax Withholding. Voluntary Tax Withholding (VTW) from Social Security benefit income will help some taxpayers avoid quarterly estimated tax payments or an onerous lump sum due by April 15th. To begin or modify a withholding request, submit completed IRS Form W-4V to a local Social Security office. The available withholding rates are 7, 10, 15 or 27 percent. The form is posted on the Social Security web site: www.ssa.gov/taxwithhold.html

LTD reimbursement. What if the taxpayer used all or part of a Social Security back payment to reimburse a long-term disability carrier? Special tax relief is available under §1341 of the Internal Revenue Code, again avoiding the need to amend a prior tax return. See IRS Publication 525. If the repayment to the LTD carrier is under $3,000, the taxpayer gets a deduction on the current year’s tax return. For repayments over $3,000, the taxpayer chooses either the deduction or a tax credit for the excess tax paid in the prior year. A subtle tax issue to watch: LTD reimbursements to the carrier also cause “phantom” taxable income in some cases, due to the separate 1099 forms issued for the year by SSA and by the carrier.

Other Tax Notes.

Deductions for the Self-Employed. Since the self-employed pay all of their Social Security and Medicare taxes, these workers receive a Social Security tax deduction and an income tax deduction at tax time, designed to achieve parity with the employed, who do not pay FICA or income tax on the value of the employer's FICA tax payment. For the Social Security tax deduction, the self-employed deduct 7.65% of net earnings before computing the tax at 15.3%. For the income tax deduction, 50% of the net social security tax liability (after applying the Social Security tax deduction above) is deducted from gross earnings as a business expense.

Tax Liens and Social Security. To collect delinquent taxes, the IRS is authorized by the Taxpayer Relief Act of 1997 to impose an administrative offset against disability or retirement benefits. 26 USC 6334(c). The offset provision applies to delinquent income taxes, corporate withholding and FICA withholding falling within the 10-year look back range of the law.

The collection is 15% per month, with no income exemptions or set asides. There are no collections from children's benefits, from benefits already being reduced to collect a Social Security overpayment, or from SSI benefits.

For concurrent (Social Security and SSI) beneficiaries, 15% of the Social Security benefit will be taken, with no corresponding increase in SSI for the month. Couples jointly liable for a tax debt will lose 30% of their Social Security income during the collection period.

Note that beneficiaries do have the right to appeal the accuracy of the debt, to offer a compromise lump sum, to request repayment at a slower rate, and to seek a hardship exemption. These rights are administered by the IRS, not Social Security. Debt collection activity should stop while the beneficiary seeks this relief.

The elderly and disabled incur income tax liability from a surprising array of sources, including self-employment efforts, the taxable portion of Social Security benefits as detailed above, emergency withdrawals from IRAs, gains from the early and unplanned sale of investments, and damage awards that include lost wages. The vast majority of this population incurred the tax liability unexpectedly, and without adequate resources to cover the debt. These beneficiaries now face the loss of critical Social Security income through a tax lien, and affected individuals should be encouraged to contact the Taxpayer Advocate Service, a remarkably helpful and independent entity within the IRS: 1-877-777-4778 (toll free), or www.irs.gov/advocate.

ALJ Hoppenfeld Must Be Barred From FMS Cases

I have asked the Regional Chief Administrative Law Judge (RCALJ”) to prohibit ALJ Hoppenfeld from hearing any case where the claimant’s inability to work is due to fibromyalgia (“FMS”). I would encourage others to write the RCALJ too.

At my client’s first hearing, ALJ Hoppenfeld saw no need for a medical expert (“ME”) to testify. The only evidence that arguably contradicted the disability opinions of the claimant’s rheumatologist, pain management specialist, internist, podiatrist and nurse practitioner was the report of Kautilya Puri, a consultative examiner (“CE). Therefore, I requested that CE Puri be subpoenaed for cross-examination, but ALJ Hoppenfeld claimed the subpoena was not issued due to “office error”.

During the hearing I advised ALJ Hoppenfeld that CE Puri was not board certified. When ALJ Hoppenfeld expressed surprise, I offered to submit written confirmation that CE Puri lacked board certification, but ALJ Hoppenfeld said it was not necessary. I advised ALJ Hoppenfeld in writing that the American Board of Medical Specialties (“ABMS”) confirmed that CE Puri is not a board certified internist. In fact, I advised the ALJ the ABMS stated that CE Puri is not board certified in any field of medicine. I wrote ALJ Hoppenfeld that she could confirm CE Puri’s lack of certification for herself by calling the ABMS at (847) 491-9091, or by checking the ABMS website www.abms.org. ALJ Hoppenfeld never took any step to verify CE Puri’s certification status.

During the first hearing, ALJ Hoppenfeld indicated that she was unsure if she could accept the opinions of the treating specialists because she needed to see if medical tests supported them. In Brunson v. Barnhart, 2002 WL 393078 (E.D.N.Y. Mar. 14, 2002) the court explained in detail why ALJ Hoppenfeld is not permitted to reject a treating doctor’s opinion about the disabling effects of FMS for lack of diagnostic testing. Nonetheless, relying on CE Puri’s report, and ignoring Brunson, ALJ Hoppenfeld denied the claimant’s application.

Rather than the typical two year wait, the Appeals Council rejected ALJ Hoppenfeld’s decision in only two months. The Appeals Council suggested a VE at the new hearing, but saw no need for an ME. Nonetheless, ALJ Hoppenfeld insisted that, not one, but two experts testify, a psychiatrist and a neurologist. In Tempesta v. Astrue, 2009 WL 211362 (E.D.N.Y. Jan 28, 2009), the court reversed ALJ Hoppenfeld for refusing to give controlling weight to treating physicians by effectively requiring objective evidence beyond the clinical findings necessary for a diagnosis of FMS under established medical guidelines of the American College of Rheumatology 1990 Classification. Thus, Hoppenfeld knew that rheumatologists, not psychiatrists or neurologists, were the appropriate specialist for evaluating FMS. I wrote ALJ Hoppenfeld that her doing so showed that she intended to disregard the treating physician rule just as she had done in Kearney v. Astrue, 2008 WL 270525 (E.D.N.Y. July 11, 2008), where the court called ALJ Hoppenfeld’s failure to follow the treating physician rule “baffling,” and added that “for reasons defying comprehension, [you] chose to repeat the same error” after he previously remanded the case to her.

Since the only evidence that arguably contradicted the reports of the treating doctors was the CE Puri report, I again asked Hoppenfeld to issue a subpoena so I could cross-examine CE Puri. To avoid another “office error,” I submitted my subpoena request by fax and ERE with confirmations. Yet, once again, Hoppenfeld failed to explain her failure to issue the subpoena.

At last week’s hearing, even though I had made it clear the claimant is not asserting disability due to a mental disorder, ALJ Hoppenfeld repeatedly tried to get the claimant to say that she had a history of abuse or mental disorder, which the claimant refused to do. ALJ Hoppenfeld then had ME Winkler testify, who out of the blue asserted that FMS is really a manifestation of people with a history of mental illness, and then said that the psychiatrist would discuss that further. Incredibly, ALJ Hoppenfeld refused to allow me to cross examine ME Winkler regarding his testimony, and terminated the hearing. In other words, since Hoppenfeld knew that the medical evidence showed the claimant’s FMS was disabling, she tried to argue it was not FMS, but a mental disorder.

Because the Queens ALJs have a history of conveniently losing hearing recording when they don’t like the testimony, I asked the Queens ODAR for a copy of the hearing immediately after it was terminated. I was told a copy would be mailed to me the following day. I called the Queens ODAR 5 days later, but was told I never requested a copy, so I then arranged to pick it up that day. However, later that day, I was told the person who makes the hearing recordings was out. Then the next day I was told that for some inexplicable reason the hearing was not recorded. The hearing tape failure was no accident.

Don’t Believe Everything You Read

Just because your summary plan description (“SPD”) for your group disability plan says that it is governed by “the Employee Retirement Income Security Act of 1974 (“ERISA”) does not mean that ERISA actually applies. There are well known exceptions to ERISA. For example, many governmental or religious entities are exempt from ERISA’s coverage.

It is extremely important to make sure that the insurance company that is acting as a claims administrator realizes that you know your disability claim will not be governed by ERISA. ERISA provides significant advantages for insurers if they have discretionary, such as no jury trial trials, no punitive damages, and their decisions are overturned only for an abuse of discretion. When insurance companies cannot hide behind ERISA’s unlevel playing field they are much more reluctant to reject a claim.

Last year, after the court ruled that my client’s long term disability (“LTD”) claim was exempt from ERISA under the Church Plan exception, CIGNA demanded that the Court order a mediation to try to settle the case. Today, First Reliance approved an application I filed for a claimant who was a teacher.

The teacher’s SPD for the LTD plan stated that ERISA applied. However, I notified Reliance that the teacher’s school district constituted a political subdivision, and therefore, was exempted from ERISA as a governmental entity. Facing immediate state court litigation with unfettered discovery, and the right to a jury trial, the teacher’s application was immediately approved. I doubt that the application would have been approved as rapidly, if approved at all, had I not made clear why Reliance’s decision was not governed by ERISA.

On The Record Request

After a Social Security Disability (“SSD”) claim has been denied, but before a hearing takes place, a claimant can ask for a fully favorable decision on the record (“OTR”). The OTR summarizes the medical and vocation evidence, and explains why the applicable Social Security rules, regulations and law show that a hearing is not need to approve SSD benefits. Even if the OTR is not approved, it can still benefit the claimant.

I submitted an OTR for a 49 year old former youth coordinator who was hit by a car. Despite serious injuries, and against his doctors’ advice, the claimant returned to work. I requested an OTR for the period of time before the claimant resumed working. While the OTR was rejected, it still yielded benefits.

ALJ Weiselthier was assigned the hearing, and he had arranged for a medical expert to appear. I was summoned to speak with the ALJ before the claimant arrived. I was advised that since the medical expert would confirm the contentions raised in the OTR regarding the claimant’s medical condition the case would be approved. After a short hearing on the record, the claimant’s application was officially granted. I told this to the claimant as I bumped into him entering the hearing office when I was leaving.

Avoiding SSD Remand Hearing

When the Appeals Council vacates a Social Security claim, the remand order tells the Administrative Law Judge (“ALJ”) what to do, which is almost invariably to reevaluate the evidence and hold a new hearing. I was able to avoid having a 30 year old client attend a second hearing by submitting on-the-record (“OTR”) request that the ALJ granted. The OTR argued that the claimant became disabled before he turned 22, and thus was entitled to disabled child’s benefits.

The Remand Order stated that the ALJ failed to evaluate the testimony of the claimant and his mother adequately. I explained that the claimant and his mother had already testified fully, and there was nothing new to add at a hearing. The ALJ agreed that he simply had to re-evaluate the testimony under the guidelines of the Social Security regulations, case law, and ruling, and that additional testimony was not required.

The Remand Order also stated that the ALJ did not analyze the claimant’s residual functional capacity (“RFC”) properly. In issuing his partially favorable decision after the first hearing, the ALJ determined that the claimant became disabled in 2004, so I maintained that any new medical evidence would be irrelevant. Furthermore, I pointed out that all evidence predating 2004 had already been submitted. The ALJ agreed that he simply had to re-evaluate the claimant’s RFC under the guidelines of the Social Security regulations and rulings.

I had previously secured and submitted a retrospective opinion that the claimant became disabled prior to his 22nd birthday, which was unrebutted. Since there was no evidence that the opinion was based upon any unacceptable clinical diagnostic technique, and there was no overwhelmingly compelling non-medical evidence to the contrary, I argued that there could be no “substantial evidence” to reject the retrospective opinion. The ALJ accepted that argument, and approved the OTR.

NYCERS Disability Retirement

A former Assistant Resident Buildings Superintendent who worked for the New York City Housing Authority retained me after NYCERS denied his application for disability retirement benefits under Article 15. NYCERS denied the application even though the claimant submitted reports from several treating doctors that stated he was unable to work. I learned today that NYCERS approved the new application that I put together for the claimant. Why did NYCERS effectively reverse its decision?

The prior application had been summarily denied based upon the conclusion of the NYCERS Medical Board, even though the Board’s examination findings were consistent with the findings of the claimant’s treating doctors. The new application demonstrated how the medical findings and conclusions precluded the claimant from performing his specific work duties and demands, which the Medical Board was unable to rebut.

The application showed how the City’s job description would be classified in the Dictionary of Occupational Titles (the “DOT)”, and that according to the DOT, among other things, a Building Superintendent required lifting up to 20 pounds and standing and walking for at least 6 hours during an 8 hour work day. I then obtained functional assessments from the treating doctors that demonstrated the claimant lacked the capacity to perform the duties and physical demands of a Building Superintendent.

The decisions of the Federal Social Security Administration (the “SSA”) and New York State Workers Compensation Board (the “WC”), which approved the claimant’s applications for benefits, while not binding were certainly persuasive. The WC standard for disability is essentially the same as NYCERS, that is, WC required demonstrating the claimant’s inability to work as a building superintendent. To receive benefits from the SSA, the claimant had to show he was not only unable to work as a building superintendent, but also that he could not even perform sedentary work. Since none of the medical evidence submitted to NYCERS revealed any improvement, I argued it would be incongruous for both the SSA and WC to determine that the claimant is unable to work as an assistant building superintendent, especially since NYCERS had even more supportive medical evidence than either of those other two agencies.

Submitting Medical Records

Timing can be everything. When applying for Social Security Disability (“SSD”) benefits, it can make a critical difference when medical records and reports are submitted. I represent an electrician whose SSD application illustrates this point.

I obtained reports from the electrician’s orthopedist, physical therapist, and neurosurgeon. The orthopedist and physical therapist treated the claimant more frequently than the neurosurgeon. While the reports of the orthopedist and physical therapist were good, the report of the neurosurgeon was great. Since there was no question regarding the diagnosis, only the severity of the claimant’s condition, I only submitted the neurosurgeon’s report.

The claimant never saw a Social Security Administration (“SSA”) doctor, and his other doctors confirmed that they never provided any records to the SSA. The SSD application was approved yesterday in just two months' times based solely on the records and report from the neurosurgeon.

While the reports and records from the orthopedist and physical therapist were good, had they been submitted they would have watered down the strength of the neurosurgeon’s opinion. Therefore, while I have little doubt that the electrician’s application would have eventually been approved, I suspect that it would have been denied initially if all of the medical evidence would have been submitted simultaneously.

CIGNA Ordered To Pay For Its Actions

I recently blogged about Alfano v. CIGNA, where District Court Judge Gerard Lynch, who President Obama has selected to move up to the Second Circuit, reversed CIGNA’s termination of my client’s long term disability (“LTD”) benefits. The decision required CIGNA to pay $89,837.29 in past due benefits. Today, Judge Lynch ordered CIGNA to pay attorney fees, interest, and costs.

In awarding attorney fees, Judge Lynch said that “there was no sound basis for CIGNA’s termination of [LTD] benefits,” and the award was needed to deter “an incentive for potential defendants to deny even meritorious claims.” Judge Lynch added that the ABC News’ “Good Morning America” News expose, which can be seen on the internet at http://abcnews.go.com/GMA/story?id=5257491&page=1, is a reminder “that abuse exists and needs to be deterred.” Judge Lynch noted that my client showed “a clear entitlement to long-term disability benefits under the Plan,” and that “CIGNA attempted to defend a denial of benefits that, in the end, simply was not justified.” Consequently, Judge Lynch found that I was entitled to charge $450 an hour for my legal services, for a total of $105, 840.00.

Judge Lynch also awarded interest on the $89,837.29 in past due LTD benefits, holding that it was necessary to compensate the claimant adequately. The decision explained that: "as CIGNA had no sound basis for concluding that plaintiff’s condition – which it once recognized as sufficiently disabling to give rise to long-term disability benefits – had improved. CIGNA’s baseless conclusion
that its termination of plaintiff’s benefits was justified permitted it the unfair use of money that should have been paid to plaintiff long ago." Therefore, Judge Lynch ruled that my client was entitled to 9% interest from October 27, 2005 when CIGNA stopped paying LTD benefits through January 30, 2009, when judgment was entered. The interest amounts to $26,749.05.

Finally, Judge Lynch also awarded costs for service and filing fees, travel, postage and copying disbursements, and deposition costs, for a total of $1,576,76.

The good news from the client's perspective is that after I receive the attorney fee award, the claimant will be reimbursed the contingency legal fee.

Oops, CIGNA’s Done It Again

Yet another court has found that CIGNA’s terminating long term disability (“LTD”) benefits was so patently without merit that interest and attorney’s fees were awarded. CIGNA’s wrongful LTD termination and denials have become so rampant that ABC News’ Good Morning America did an expose on it. http://abcnews.go.com/Video/playerIndex?id=4724275

The facts of Gordon v. Northwest Airlines, Inc. Long-Term Disability Income Plan, which was decided a couple of weeks ago, mirror those of Alfano v. CIGNA Life Ins. Co. of New York, the case that I won a couple of months earlier. Gordon highlighted that this was not the first case where CIGNA mischaracterized medical records and erroneously asserted that a claimant’s doctor supported the claimant’s ability to sedentary work. Gordon is yet another example of CIGNA’s history of biased claims administration that, under the Supreme Court’s Metlife v. Glenn decision, requires ruling in favor of LTD claimants in closer cases.

In both Alfano and Gordon, CIGNA asked the treating doctors to complete a Physical Abilities Assessment (“PAA”), and each doctor concluded the claimant was limited to sitting less than 2.5 hours during an 8 hour day. Gordon declared that CIGNA’s conclusion that the PAA showed Gordon could do sedentary work was “manifestly false” and based “on an obvious misinterpretation,” and “simply mischaracterized” the PAA. Gordon explained that “Common sense dictates that that someone who cannot walk, sit, or stand more than 2.5 hours per day cannot do sedentary work.”

Similarly, in both Alfano and Gordon, CIGNA terminated LTD benefits based upon transferable skill analysis (“TSA”) that was based on the PAA. Gordon held that “the TSA does not explain how Gordon can do sedentary or light-duty work if he is limited to occasional sitting, standing and walking.”

Gordon ruled the claimant was entitled to interest and attorney fees because CIGNA’s “behavior toward Gordon in this case was not that of a fiduciary acting in his interests and the interests of plan participants. Rather, [CIGNA] acted like a company that first decided to deny Gordon's claim and then went looking for evidence to justify that decision. CIGNA “egregiously mischaracterized the PAA, both internally and to Gordon, to support its conclusion that Gordon could do sedentary work.” Moreover, Gordon found that the CIGNA’s medical review “were so cursory as to amount to mere rubber stamping.” Once again, those are the same allegations that the claimant made in Alfano that the court accepted.

CIGNA was required to pay attorney fees because, “The evidence in the record is overwhelming that Gordon is incapable of earning a living. Rather than view the record through the eyes of a fiduciary, [CIGNA] bent over backwards to find an excuse-any excuse-to deny benefits to Gordon.” Gordon is yet another example that illustrates CIGNA’s practice and pattern of knowingly and wrongfully terminating LTD benefits. The Court awarded attorney's fees because it held that by relying on the PAA and TSA to conclude that Gordon could work, CIGNA “acted not as a fiduciary, but as an adversary.”