Workers Compensation & SSD

I represent a 55 year old trucker with back problems whose application for Social Security Disability (“SSD”) benefits was approved today without a hearing based on a request for a fully favorable decision on the record (“OTR”) that I filed. The claimant had also applied for workers compensation (“WC”) benefits, and that affected his SSD claim in two ways.

The State agency had denied the claimant’s SSD application based on the one time consultative exam by a WC doctor named John Waller. The OTR discussed how the case law holds that where the WC insurer paid a doctor, like Waller, to examine the claimant, and it had a vested interest in minimizing the claimant’s impairments. The OTR also pointed out that even some of Waller's own patients do not approve of his services:

terrible doctor. didn't pay attention to my condition.
didn't send a diagnosis to my primary doctor, no
improvement in my condition. somewhat condescending.

More importantly, I highlighted that even the WC Board had rejected Waller’s report, and continues to pay benefits to the claimant. Social security agreed with the arguments in the OTR, and gave greater weight to the opinion of the claimant’s orthopedist.

The other way that the WC application may affect the claimant’s SSD benefits is that it could result in an offset. The Social Security regulations provide that a claimant’s SSD benefits might be reduced if other disability benefits are received, including WC. In general, SSD and WC benefits together cannot exceed 80% of the claimant’s predisability income.

Hoppenfeld Bias

The Appeals Council rejected ALJ Hoppenfeld’s denial of Social Security Disability (“SSD”) benefits to a claimant for the second time, and ordered that another ALJ hear the case. However, the Appeals Council stated that it "appeared" Hoppenfeld did not display bias on the issue of fibromyalgia because I had the opportunity to cross examine the medical expert. That assertion is a disgraceful misrepresentation of the facts.

I never contended that I was denied the right to cross the examine Dr. Alfred Jonas, who essentially testified that fibromyalgia does not exist. Rather, I argued that one of the indicia of Hoppenfeld’s fibromyalgia bias is that she precluded me from asking Jonas questions concerning the basis for his contention that fibromyalgia does not exist. The Appeals Council’s conflation of the issue is especially troubling in light of the pending Bailey class action, because it shows that the Appeals Council cannot be relied upon to police ALJ bias.

To the Appeals Council’s credit, it referred the fibromyalgia bias matter to “another component” of the Social Security Administration (“SSA”), which is basically an admission that the Appeals Council lacks the ability to investigate bias adequately. Furthermore, while the issue of fibromyalgia bias is intricately interwoven into the claimant’s claim, nothing regarding the bias investigation has been incorporated into the claim file.

The issue of fibromyalgia bias is central to Ms. Thelot’s case, which will include another hearing on remand with medical experts. Accordingly, it is essential that your investigation, which the Order references, be included in the claimant’s efolder. For the reasons stated above, and detailed in my prior letters to you, it is imperative that your investigation be added to the efolder. Otherwise, the entire agency process for addressing bias will be demonstrably evasive and unresponsive. Please provide me with a copy, or add it to the efolder, as soon as possible.

Anyone with a fibromyalgia claim before Hoppenfeld should carefully cross examine the medical experts, their backgrounds, and testimony from other reported cases. Whose claim was denied should raise the issue of bias before it is deemed waived

Veteran Gets SSD for Memorial Day

I represent a 42 year old veteran with back problems and post traumatic stress disorder who worked on subway breaking systems. He retained me after his application for Social Security Disability ("SSD") was denied, even though his treatment records from the Veterans Administration (the “VA”) were very detailed.

VA clinical notes are created to aid the doctors when treating their patients, and not to serve as evidence in connection with a disability claim. Therefore, the VA records usually do not contain any information about the patient's ability to work or function. However, VA rules now specify that their doctors should help patients seek SSD benefits, which includes completing functionality assessments.

The claimant was approved for SSD benefits today based upon the functionality report that I obtained from the treating internist, which indicated the claimant lacked a sedentary work capacity. The internist is the doctor at the VA responsible for referring the claimant to specialists, monitoring his medication, and is charged with the overall management of his medical care. Because of the internist’s role, her opinion was given “great weight,” even though she is not a specialist, because of her “familiarity with the claimant’s condition.”

Establishing Mental Disability

A 55 year old woman with PTSD and depression retained me after her application for Social Security Disability (“SSD”) benefits was denied on the grounds that she could do simple work. The claimant, who had worked for New York City as a clerk and cashier, was approved today without a hearing based on an on-the-record (“OTR”) request I filed in March.

A psychologist from Industrial Medicine Associates (“IMA”) examined the claimant, and his exam report was the basis for the State agency denying the SS application. In connection with the OTR, I obtained reports from both the claimant’s psychologist and psychiatrist, each of which showed that the claimant met the listing for depression.

It appears that submitting reports from both the treating psychologist and psychiatrist was the key. Not only did they corroborate each other and were based on a substantial length of treatment, but they also made the IMA psychologist’s opinion the aberrant one. Accordingly, the treating doctors’ opinions were given great weight, while the IMA psychologist’s opinion was given “limited weight” because it was “not consistent with the treating sources’ assessments.”

Had I merely submitted a report from one of the claimant’s treating sources, it is possible that the claimant would have needed to attend a hearing because then each doctor’s opinion would have been inconsistent with the other.

Vocational Evidence

The importance of vocational information should not be neglected when seeking disability benefits. I represent a 57 year old nurse’s aide with back and hip problems, whose application for Social Security Disability (“SSD”) benefits was approved today four months after it was filed. The Social Security Administration (“SSA”) did not even ask the claimant to be examined by IMA Disability Services.

Countless people with back and hip problems seek SSD benefits, and the majority of them are required to be examined by Social Security doctors and are denied. The difference here was the vocational information. The claimant was over 55, and lacked a high school education. Most importantly, the claimant’s past work was as a nurse’s aide.

According to the Dictionary of Occupational Titles (“DOT”), which the SSA uses, the claimant’s past work resembled the DOT description of a nurse assistant. There are three reported SSD cases that addressed whether a nurse assistant has transferable skills, and each held that there are none. I made it clear from the outset that under these circumstances, even if the claimant had the ability to perform light work, which required lifting up to 20 pounds and being on one’s feet for most of the work day, the claimant would still have to be found disabled under the SSA rules.

The people at the State agencies who make the initial SSD decisions can overlook the SSA rules. Highlighting the applicable rule can avoid an exam by IMA, which saves everyone money, and can expedite getting approved for SSD benefits.

IMA Exam Is Not Required

I filed an application for Social Security Disability (“SSD”) benefits for a plumber who became disabled when he was 58 years old. The application was denied because he objected to a consultative examination (“CE”) that IMA Disability Services (“IMA”) was scheduled to perform.

The claimant appealed, and had a hearing before Administrative Law Judge (“ALJ”) Seymour Fier. ALJ Fier contended that unless the claimant attended a CE by IMA he would deny the claim because the issue on appeal was the failure to attend the CE. I argued that because the hearing was de novo, the issue was whether the claimant was disabled, and that the HALLEX and regulations provided that a treating doctor was the preferred source for any CE.

After the hearing, ALJ Fier called me to say that he reviewed the law, and agreed that the rules provide that a treating doctor should perform the CE. He then asked me to arrange a CE with the claimant’s doctor as soon as possible, which I did. Based on the medical records that were already in the file, and the additional records provided after the claimant was re-examined, his SSD application was approved today.

Postherpetic Neuralgia

According to the Mayo Clinic, postherpetic neuralgia (“PHN”), which is a complication of shingles, is a painful condition that affects the nerve fibers and skin. The burning pain associated with PHN can be severe enough to interfere with sleep and appetite. The risk of PHN increases with age, primarily affecting people over the age of 60. The Mayo Clinic points out that effective treatment of PHN is difficult, and the pain can last for months or even years.

Six weeks ago, a 55 year old former vendor management specialist with PHN asked me to take over her Social Security Disability (“SSD”) case from one of those local law firms that advertises on television. I received a decision today approving her SSD benefits.

I secured a report from the claimant’s neurologist, who specialized in pain management, describing how the pain resulting from the PHN limited her ability to function. I also explained why the doctor from Industrial Medicine Associates (“IMA”) lacked the qualifications for assessing the claimant’s PHN. The decision approving SSD benefits gave greater weight to the treating doctor because the IMA doctor’s opinion was found inconsistent with the claimant’s consistent complaints of pain for which numerous pain medications had been provided.

Establishing entitlement to disability benefits for PHN not only requires the treating specialist to explain why the disease prevents the patient from being able to work, but also requires rebutting the negative evidence in the claim file.

Multiple Sclerosis

According to the National Multiple Sclerosis ("MS") Society, MS is a chronic, often disabling disease that attacks the brain, spinal cord, and optic nerves. Disabling symptoms include overwhelming fatigue, numbness, and poor coordination. Since MS attacks the central nervous system, it is typically treated by a neurologist. Therefore, when applying for disability benefits, objective, clinical, and functional evidence should be sought from the treating neurologist.

I represent a 45 year old former computer consultant whose disability application was approved less than two months after I was retained. I secured a report from the treating neurologist, who specializes in MS, that summarized his clinical and functional findings. I also obtained a copy of the claimant’s brain MRI, which revealed moderate cerebral atrophy.

The decision approving disability benefits gave greater weight to the findings and opinions of the neurologist than the other doctors, not only because he was a neurologist, but also because of his long standing treating relationship.

Disabling AION

According to www.lowvision.org, Anterior Ischemic Optic Neuropathy (“AION”):

is a potentially visually devastating disease that occurs in the middle aged and the elderly. This condition is often referred to as a stroke of the optic nerve, and it usually begins suddenly with little warning in one eye, but frequently progresses to the other eye over time. Vision loss often includes both the loss of visual field and visual acuity which can vary from being nearly normal to severely impaired. The unexpected sudden visual acuity and visual field loss makes AION a particularly overwhelming disease for many patients.

When it comes to visual impairments, the State agency and Social Security Administrative Law Judges tend to focus solely on visual acuity. I suspect that tendency is because acuity is simpler to understand than other visual impairments, and that is especially true when considering the impairment listings for visual problems. Social Security is continually making the listings more complicated; probably to make it more difficult for claimants to meet.

I was retained by a 60 year old apartment manager with AION after his Social Security Disability application was denied. While the medical records showed that his visual acuity did not meet the listings, they did show that his visual fields did. I had the claimant’s eye doctor explain in simple steps why the claimant’s central and peripheral vision met both listings relating to visual fields. I submitted an on-the-record request based on the eye doctor’s explanation, which was approved today.

Proof of Birth for SSD

I represent a former truck driver whose application for Social Security Disability (“SSD”) benefits was approved today less than 2.5 months after I filed it. The approval could have come a week sooner if I had mailed the claimant’s birth certificate in with the application, but I advised against it.

It is almost routine for Social Security offices to lose or misplace documents. There have been cases where I have needed to submit the same documents numerous times electronically, by mail, and fax.

My client was born in Guatemala. Because Social Security frequently loses records, I advise my clients against submitting original birth records by mail, especially when the records are from other countries and replacing them would be difficult. Instead, once the SSD application is processed, I direct my clients to provide the birth certificate or other record to the local office for copying while the claimant waits for its immediate return.

Any delay associated with personally presenting original records should outweigh the risk of potentially having to replace them if they get lost.

Social Security Listings

Social Security’s Listing of Impairments describes medical conditions that are considered severe enough to prevent a person from doing any gainful activity.  Most of the listed impairments are permanent or expected to result in death.  If you show that you have an impairment that meets the criteria of a listing, then it is unnecessary to show that you cannot do your past or any other work.

I represent a 54 year old carpenter whose application for Social Security Disability benefits was approved today after the Administrative Law Judge (“ALJ”) agreed that the claimant’s knee impairments satisfied the criteria of two different listings.  One listing concerned a major dysfunction of a joint, and the other concerned reconstructive surgery of a major weight bearing joint.

In addition to providing surgical reports, treatment records, and functional assessment, I also provided the ALJ with an opinion from the claimant’s knee specialist that explicitly stated the listing criteria were met.  Although I could have shown how the records satisfy the criteria, experience has shown that having a medical opinion that the criteria is met is better than making a legal argument that the criteria are met.

Because the ALJ found the claimant met a listing, it was unnecessary to consider the claimant’s functional capacity, transferability of acquired skills and other issues that could require experts, and made it more difficult to establish disability.  Whenever it appears that a listing may be satisfied, medical opinion explicitly asserting the listing is met should be presented, rather than legally arguing the issue.

Corroboration is not Superfluous

Getting more than one doctor to provide reports that explain why a disability claimant cannot work is not gratuitous.  Certainly, the confirming opinion is not redundant if the doctors practice different specialties.  Having multiple supporting opinions should be considered a necessity when seeking disability benefits since individual opinions are usually analyzed to see if they are consistent with the record as a whole.

I represent a 41 year old laborer seeking Social Security Disability benefits.  In order to succeed, he needed to demonstrate that he was unable to do sedentary work on a sustained basis.  The claimant’s orthopedist concluded the claimant was temporarily disabled, and then referred the claimant to a knee specialist when a knee replacement was needed.  According to the claimant’s orthopedic knee specialist, the claimant lacked a sedentary work capacity because of his knee problems.  That opinion then was corroborated by the claimant’s physiatrist.  

The Administrative Law Judge (the “ALJ”) gave more weight to the treating doctors’ opinions than the State agency opinions because the former were “more consistent with the record as a whole.”  Had there only been one supporting opinion, then the ALJ could have denied the claim on the grounds that the State agency medical opinions were more consistent. 

Fast SSD Approvals

If you spend a few minutes on the internet researching the Social Security Disability (“SSD”) application procedures, then you will find countless websites that describe the process as one that is frequently protracted, frustrating, and results in a denial the majority of the time.  A denial rate of 60% to 70% is usually cited.  However, that means that 30% to 40% of the time, the application process is more tolerable.

I had two more SSD claims approved today by the State agency.  The obvious upside to the claimant includes improved cash flow and financial stability, reduced attorney fees, and faster peace of mind.  Getting approved by the State agency is not random luck; the better the application is supported by medical and vocational evidence, the better the chances of getting approved.

In each case I provided treatment records, functional assessments, and diagnostic testing.  I also included workers compensation medical reports in one case.  Notably, in each case, I also persuaded the State agency that consultative examinations by Industrial Medicine Associates were not needed.  Applying for SSD benefits can be an exasperating process, but by properly presenting the evidence you can increase the chances of being part of the 30% to 40% who have a better experience.

CIGNA CONTINUES ILLEGAL CONDUCT

Four years have passed since ABC News first exposed CIGNA’s practice of illegally denying and terminating long term disability (“LTD”) claims on Good Morning America.  Nonetheless, rather than acting as a fiduciary in the interests of LTD plan claimants, CIGNA continues to act like a company that decides to terminate benefits, and then tries to create evidence to justify terminating benefits. 
 
I just filed two more actions against CIGNA for terminating LTD claims even though: (a) there had been no change, let alone improvement, in the claimants’ conditions; (b) the treating doctors still concluded the claimants could not resume working; and (c) CIGNA rejected the Social Security Administration (“SSA”) decisions that held the claimants were disabled, yet accepted the SSA decisions to offset the claimants’ LTD benefits.  The facts of my case also follow the fact pattern of Croll v. Connecticut General Life Insurance (CIGNA), 2012 WL 1439172 (D.Colo. April 26, 2012), which was decided four days ago.

In Croll, CIGNA terminated the claimant’s LTD benefits after many years based upon surveillance and an IME.  The court reversed CIGNA’s decision, and ordered CIGNA to pay the LTD benefits and attorney fees to the claimant.  The court ruled that there was no evidence in the record suggesting that the claimant’s condition had improved since CIGNA determined that she was disabled; noted that the treating physicians have continued to express their opinions that the claimant is incapable of performing any work because of her disability; and highlighted that the SSA concluded the claimant was disabled.  On the other hand, the court said that surveillance showing the claimant shopping and going to the library was not inconsistent with being disabled, and the IME doctor’s opinion was less reliable than those of the treating doctors, which were formed “from a much deeper base of knowledge of Ms. Croll and the effects of her specific history.”

As noted in the article about the Good Morning America expose, insurance companies know that if they deny and terminate claims that many of the claimants will not pursue their claims.  Don’t be one of those claimants.