Bench Decision

Sometimes a Social Security Disability (“SSD”) claimant will retain me shortly before their hearing. When I have represented a claimant from the outset, I am usually able to submit an on-the-record (”OTR”) request for a fully favorable decision. If the OTR is approved, then the claimant receives SSD benefits without needing a hearing.

Once a hearing is scheduled, it would be highly unusual for an Administrative Law Judge (“ALJ”) to approve the OTR, since its purpose is to expedite benefits prior to a hearing. In those circumstances, requesting a bench decision should be considered.

An ALJ can orally issue a bench decision. Like an OTR, a bench decision is always fully favorable. The bench decision explains the ALJ’s reasons for granting the application at the hearing. Because the bench decision uses a short template, the decision can be issued quickly.

I was retained by a 54 year old medical equipment repairer from Florida after his hearing was scheduled. The ALJ issued his written bench decision today a week after the hearing, which was possible because it was unnecessary to spend the extra time it would have taken to prepare a typical fully favorable written decision.

ALJs may be reluctant to issue bench decisions out of concern that the Appeals Council would reject the decisions as part of the Social Security Administration’s (“SSA”) quality control. I have seen the Appeals Council reject well-written fully favorable decisions. The SSA is urging greater productivity from ALJs so it would seem to make sense for the Commissioner to make it clear to ALJs that using the bench decision procedure will not result in a rejection by the Appeals Council.

Disability Benefits For Nurse

As a medical professional, you would think that an intensive care unit (“ICU”) nurse would recognize when a person can no longer work. That seems especially true when that worker or person is the nurse herself. Certainly a nurse is better able to assess limiting effects of medical impairments than a clerk who works for the State agency that initially decides eligibility for Social Security Disability (“SSD”) decisions.

You would think that it would be obvious that when a person has worked at the same job for a quarter of a century, and says their medical condition prevents them from continuing to work, that their work ethic shows they are telling the truth. That seems especially true when the person is earning a high salary of almost $100,000 annually. What makes it even more obvious is that an ICU nurse has no transferable skills to sedentary work, and if the nurse is over 50, the medical-vocational rules require a finding of disabled even if the ICU nurse had a sedentary work capacity.

So when a 55 year old person tells the State agency that she can no longer work as an ICU nurse after 25 years, where she was earning close to $100,000 annually, and four different medical specialists provide detailed reports showing that the nurse cannot even do sedentary work, the SSD claim looks like a no-brainer. After all, why would the ICU nurse exaggerate her claim that she lacks the ability to work in order to receive SSD benefits that are less than a third of her working income? But of course then there are State agency examiner’s like F. Osorio who can’t fathom the obvious.

The State agency denied the ICU nurse’s SSD application because Osorio wanted the claimant to attend a consultative examination (“CE”) by IMA Disability. Osorio refused to address the reasons why the nurse objected to the CE; namely, that it failed to comply with the Social Security rules and regulations. Therefore, despite all the medical evidence overwhelmingly supporting the ICU nurse’s credible disability application, Osorio denied it.

Luckily, the Social Security Administration (“SSA”) immediately rejected and reversed Osorio’s denial. Earlier this month I submitted an on-the-record (“OTR”) request for a fully favorable decision, and yesterday, the SSA approved it. Therefore, the claimant avoids wait for a hearing and decision. Unfortunately, the claimant’s SSD benefits were still unnecessarily delayed by the State agency decision.

When State agency examiners deny applications because claimants refuse to attend CEs that are scheduled in violation of the rules and regulations it wastes time and money. Tax payer money. Your money. Is the State agency knee jerk insistence for CEs a boondoggle? Are CEs automatically required because State agency examiners are lazy and simply want to rubberstamp what a CE says instead of reviewing the entire medical file? By demanding a CE the State agency is saying it does not believe what the treating doctor says, which contradicts the SSA laws that say treating doctors’ opinions are supposed to be given extra weight.

Hearing Avoided

Sometimes the apparent need for a hearing to determine if a person qualifies for Social Security Disability (“SSD”) benefits has nothing to do with the medical evidence. A 61 year old former attorney, who had received a partially favorable decision, retained me after she was scheduled for a hearing to see if she was entitled to SSD benefits starting from an earlier date than had been approved. After reviewing the claimant’s efolder, it became clear that the issue of the claimant’s correct onset date concerned non-medical evidence only.

The Notice of Disapproved Claim found that the claimant became disabled as of November 1, 2010, the established onset date (“EOD”). The issue on appeal was whether the claimant should have been found disabled prior to the EOD. There were no medical records that corresponded with November 1, 2010; no medical evidence that indicated the claimant’s condition deteriorated as of November 1, 2010. The sole reason for the partially favorable decision was not medically related.

Three different earnings reports prepared by the Social Security Administration (“SSA”) demonstrated that the claimant earned no money after 2008, which was consistent with the claimant’s September 5, 2008 alleged onset date (“AOD”). I notified the hearing office that the State agency analyst had issued a partially favorable decision based upon mistaken information. While implicitly admitting that the medical evidence showed the claimant was disabled, the State agency said that the work history report that the claimant submitted showed that she worked as a lawyer through November 1, 2010. However, the work history report did not support the State agency’s issuing a partially favorable decision.

The State agency interviewer who discussed the work history with the claimant clarified that the claimant stopped working for a law firm in September 2008, and then worked on her own. However, the claimant was never actually able to work regularly after September 2008, which was evidenced by the three SSA earnings reports. Additionally, even if the SSA earnings reports were wrong, and the claimant had worked, the SSA interviewer made clear that any post 2008 work would have constituted an unsuccessful work attempt.

The hearing office stated that the Administrative Law Judge (“ALJ”), who turned out to be Brian Crawley, believed that additional evidence was needed to confirm the claimant’s lack of work activity after the AOD. The ALJ gave Schedule C tax returns as an example. Two weeks after I submitted those records, the hearing office confirmed the AOD would be accepted, and therefore, the hearing would be canceled as a fully favorable decision would be issued. That decision was issued today.

Reopening Disability Applications

An application for disability benefits can be reopened for good cause. If a prior application is reopened, then the earlier filing date is used to calculate benefits, which can result in additional benefits being awarded.

I represent a claimant who became disabled on June 10, 2009. I filed her application for Social Security Disability (“SSD”) benefits on June 28, 2011. While reviewing the claimant’s efolder, I learned that the claimant had filed an application on her own on December 8, 2009, which she had forgotten about. I made a motion to reopen that application.

Last month, I received a fully favorable decision for a Social Security Disability (“SSD”) application. However, that decision was not actually fully favorable because it did not address my motion to reopen. Therefore, I submitted a request that the decision be reopened and amended to address the prior application. Today, I received a reopened and revised decision to reflect the December 8, 2009 application date. As a result, the claimant will receive an additional 18 months of SSD benefits.

Disability Pension Award From Union

Four months ago, a 61 year old crane operator with shoulder and knee problems that prevented him from working contacted me to file his application for Social Security Disability (“SSD”) benefits. At the time, he was already receiving federal workers compensation benefits, and I asked him if he was also receiving disability benefits from his employer or union. While he knew that all of his benefits came through the International Union of Operating Engineers, Local 14B, he was unaware of any potential disability benefits through them.

I asked the claimant to get copies of his benefit booklets from the union. Turns out that his Summary Plan Description (“SPD”) for his pension fund does provide for benefits if he becomes disabled and the Social Security Administration (“SSA”) finds that he cannot work.

The claimant’s SSD application was approved today. As a result, he can now seek a disability award pension from the union. If you are a member of a union and become disabled, always request your SPD to see if you may potentially be entitled to receive disability benefits from your union as well as from the SSA.

IMA Exams In New York

In New York, the Division of Disability Determinations of the New York State Office of Temporary and Disability Assistance (“OTDA”) decides if the medical evidence supports an application for Social Security Disability (“SSD”) benefits. If the OTDA believes that the claimant’s medical information is unavailable or insufficient, then the OTDA can pay for a consultative examination (“CE”). The Social Security rules and regulations clearly state that a claimant’s treating doctor is the preferred source for a CE, which Administrative Law Judges reluctantly admit.

Even though I submit medical tests, functionality opinions, and clinical records, when I file SSD applications, the OTDA almost without exception sends notices for my clients to go for a CE by IMA Disability Services. IMA Disability Services, which has also gone by the name Industrial Medicine Associates, is part of The IMA Group (collectively, ”IMA”).

Why are claimants always told to go to IMA when the rules and regulations clearly state that the treating physicians are the preferred sources for CEs? Why are claimants told they have to go to IMA CEs in virtually every case? I represent a 59 year old bricklayer whose SSD benefits were paid today two months after I filed his application, even though the OTDA sent two letters stating that it was “necessary” for him to be examined by an unnamed doctor from IMA. Obviously, the CE was not necessary.

The OTDA is supposed to issue three year contracts for performing CEs through a competitive bidding process. David Pulver, the President of IMA, gave a private cocktail party and fundraiser for Alan Hevesi while he was Comptroller. The Comptroller and Attorney General are supposed to review the CE contract process, and the fundraiser occurred when IMA’s contract was pending review at Hevesi’s office. Alan Hevesi plead guilty to unrelated corruption charges, and was sentenced to 1-4 years on April 15, 2011.

As of 2009, IMA held the contracts for performing CEs in 12 of the 13 regions in the State, and now apparently holds all 13, even though a State investigation revealed that IMA engaged in a practice of improperly altering and submitting documents to OTDA in connection with its bids for CE contracts, as well as other improprieties. How much does the OTDA pay IMA annually? Certainly, IMA has a great incentive to retain its monopoly.

The money that goes to IMA comes from our taxes. It would seem that anyone interested in preventing the wasting of tax revenues would want to ask a lot of questions about IMA CEs. Since the State found that there was no undue influence behind the OTDA issuing contracts to IMA, why, as noted above, are claimants reflexively sent for IMA CEs when they are in fact not necessary? Even if a CE is necessary, why does the OTDA insist that IMA perform the exam when many claimants’ doctors would conduct the CE without cost to the taxpayer? How much do we actually pay IMA in total each year for CEs? How much would we save if the OTDA only sent claimants for a CE when they were actually necessary, and then to treating doctors?

AARP On SSD

The June 2012 AARP Bulletin has an article called “Time for a Tune-Up” that discusses potential improvements to the Social Security program. One of the suggestions is raising the full retirement age from 67 to 68 or 70. The increases supposedly would result in savings of 18% and 44% respectively, and the justification is increasing life expectancy.

The article cautions that, “a later full retirement age could be onerous for workers with health problems or physically demanding jobs.” However, that concern is already taken into consideration. People who can no longer work due to health reasons can seek disability instead of retirement benefits from Social Security. Moreover, there are certain rules that make it somewhat easier for workers who have more physically demanding jobs to get Social Security Disability benefits.

How Much Will Social Security Pay You?

Starting in the 1980s, the Social Security Administration (“SSA”) mailed annual statements to workers older than 25 years of age. Last year, the SSA stopped mailing the statements, which provided information about your estimated disability and retirement benefits, in order to save money. The SSA now allows you to get your Social Security Statement online. The Statement will give you an estimate of the retirement and disability benefits you and your family may receive; a list of your lifetime earnings for possible correction; information about qualifying and signing up for Medicare; and a printable version of your Social Security Statement. However, you need to create an account with the SSA to get your information. To create the SSA account, you must go to http://www.ssa.gov/mystatement/ to provide personal information as well as answers to questions that only you are likely to know. You also need to create a username and password to access your online account. If you do not want to create an account, you can try calling your local SSA office or the National Toll-Free number (800) 772-1213 to request your benefit information.

SSD & Unemployment Benefits

Sometimes a Social Security Administrative Law Judge ("ALJ"), especially any one of the five from the Queens ODAR who apparently are currently in Washington DC for retraining in connection with the bias class action law suit, likes to deny disability benefits for any period of time during which a claimant received unemployment benefits. The ALJs argue that when a claimant goes to the unemployment office to receive a benefit check he or she signs a written statement certifying that he or she is ready, willing and able to work, which shows they are not entitled to Social Security Disability (“SSD”) Benefits. That argument fails as both a factual and legal matter.

I represent a 53 year old former business operation manager with lymphangioleiomyomatosis who retained me after her application for SSD benefits was denied. Her application was approved today based on the favorable on the record decision request that I filed. The decision writer said that it would not hold the receipt of unemployment benefits against the claimant because of the benevolent nature of the Social Security laws and their policy of encouraging people to try to work despite their impairments. Hopefully, the Queens Five will be reminded about that rationale during their retraining.

While the decision writer explained why the receipt of unemployment benefits should not be held against an SSD claimant, there is another reason why the receipt cannot be held against a claimant. The Social Security laws provide that a claimant is disabled when unable to work on a “regular and continuing” basis, which means 8 hours a day, 5 days a week. However, under New York State law, a claimant can receive unemployment benefits even if capable of working only part-time. Therefore, a claimant could be ready, willing and able to work on a part time basis, but the impairment may preclude full time substantial gainful activity. In other words, a claimant can look for part-time work and receive unemployment compensation benefits while still retaining eligibility for Social Security benefits.

State Agency-IMA Bad Faith Tactics

Regular readers of my blogs know that I have described how the State agency routinely deceives Social Security Disability claimants into going for examinations by doctors from IMA Disability Services. It seems the State agency is employing new tactics in order to assure that claimants go to these exams.

The first tactic is conveniently failing to notify me when my client has been asked to attend a consultative examination ("CE") by IMA. I first learn about the CE only after I see the claimant's efolder on appeal after the State agency has denied the application. The second tactic is calling the claimant on the telephone to tell them to go to the IMA CE, but mailing the notice to me two days before the 9am CE, which the State agency knows will not be delivered until after the CE. When I ask the claimants why they did not tell me they were going to the CE they said they thought I knew. In fact, one client told me today that they thought it was my office that was telling them to go the CE.

The State agency's unethical tactics are designed to circumvent my interposing objections to the CE or advising the claimant not to attend. What makes the State agency's tactics all the more unethical is that they have been specifically advised in writing that they are not to contact the claimant directly without my prior written authorization in violation of their own rules - POMS GN 03910.050.

Why Bother With An Exam By IMA?

When filing for Social Security Disability ("SSD") benefits, the Social Security Administration ("SSA") usually asks claimants to be examined by one of its doctors in what is referred to as a consultative examination ("CE"). In New York, you will probably be sent to a doctor from Industrial Medicine Associates (“IMA”) for the CE.

The SSA requires a CE in the vast majority of cases even though the regulations actually permit CEs in very limited circumstances. If a CE is actually needed, then it is supposed to be performed by a treating doctor. The SSA leads claimants to believe that their SSD application will be denied if they refuse to attend the CE.

A CE is a single exam, with a vague opinion regarding a claimant’s functionality. The courts have ruled that a CE opinion is usually entitled to little or no weight. Therefore, why do we as tax payers pay millions of dollars for CEs?

A 54 year old former electrician retained me after the SSA denied his SSD application. The opinion from the IMA CE included that the claimant must avoid even mild exertion, which indicates that he could not even do sedentary work. Moreover, the IMA CE concluded that the claimant had “moderate” limitations walking, standing, and sitting. Light work requires frequent standing and walking. A moderate limitation would be inconsistent with light work, which requires 6 hours of being on one’s feet out of 8. A moderate limitation could also be inconsistent with sedentary work, which only requires 2 hours of being on one’s feet out of 8. Similarly, a moderate limitation of lifting and carrying would be inconsistent with light work, which requires lifting 20 lbs. A moderate limitation may be consistent with sedentary work, which only requires lifting 10 pounds.

Under the SSA medical-vocational rules, the claimant had to be found disabled even if able to do sedentary or light work. Thus, the claimant had to be able to do medium work, which requires lifting up to 50 pounds, not to be found disabled. Although the CE opinion described above showed the claimant could not do sedentary work, let alone light work, the State agency had denied the application.

When I was retained, I secured a report from the claimant’s orthopedist, which specified the claimant lacked the ability to lift, carry, walk, stand, and sit needed to do sedentary work. I submitted that report when I appealed the State agency decision to the SSA. The SSA approved the application today without a hearing based on the treating orthopedist’s opinion.

The question arises why wasn’t the application approved based upon the IMA CE? The great majority of CE opinions contend that claimants are not disabled, which are accepted as the basis for denying applications. Why then, in the rare situation where a CE shows a claimant is disabled does the State agency still deny the application? What is the purpose of an IMA CE when regardless of its opinion it will be used to deny an application? What is the purpose of an IMA CE when the SSA rejects it as a one time exam that the regulations require be given little weight?

The Wall Street Journal wrote an article that tried to blame the SSA’s financial problems on attorneys representing disabled people. Perhaps that paper’s resources would be more productively spent directing its attention to the CE boondoggle. Whereas attorneys are making sure that the rules and regulations are being applied, CEs are being ordered by the tens of thousands in violation of the rules and regulations.