Is Strauss Serious?

The Padro Class Action brought bias charges against five Administrative Law Judges (the “Queens Five”). I think that there is a fairly strong consensus that Hazel Strauss is easily the worst of the Queens Five. During the Padro litigation, one of the things that Social Security pointed to as evidence that the Queens Five had learned their lesson was that the percentage of cases that the Queens Five were approving had increased – that is, except for Strauss. 

Judge Amon has held a fairness hearing in connection with the proposed settlement in Padro, and is deciding whether to approve it. The settlement essentially provides for a 36 month probationary period for the Queens Five. I have maintained that after the 36 month period, I expect the Queens Five approval rates to revert to pre-Padro levels. 

Before the Padro settlement terms were proposed, the Queens Five at least had the commonsense to recognize that they had to change their conduct during the pendency of the Padro litigation. That is, all the ALJs comprising the Queens Five except for Strauss. Strauss’ approval rate has not changed, and is half that of the rest of the Queens hearing office.

That leads to today’s question, “Is Strauss serious?” Strauss wrote a letter to Judge Amon claiming that it was wrong for Plaintiff’s counsel to tell claimants, “that the ALJs had acted wrongfully, which was the reason for the Settlement Agreement.” I guess Strauss’ employer, the Social Security Administration, is requiring that thousands of disability claims be reheard for absolutely no reason at all. Obviously, the Padro allegations were not baseless.  Has she actually deluded herself into believing that she is innocent of the charges?  Read pages 58 through 66 of the Amended Complaint, which can be accessed on the “Padro Class Action” Tab of my webpage. Those pages summarize some of the highlights about what federal district court judges – not claimants’ attorneys – have said about Strauss. 

Despite the aforementioned, Strauss has the incredible hypocrisy, the audacity, the temerity, the gall, the impudence to write a letter to Judge Amon howling that she has been vilified and the Settlement Agreement should contain “specific unequivocal language that this Settlement in no way makes any finding that there has been any wrongdoing” on her part. Strauss closed her letter with a plea for “fair and equitable treatment,” the one thing that she has so callously and repeatedly denied disability claimants. 

Strauss claimed that the other ALJs share her views and make the same request. Funny thing though, none of the other ALJs signed the letter that she submitted to Judge Amon.

Is It The New Commissioner?

I had two Social Security Disability (“SSD”) claims with nothing in common that were approved today. While that is not unusual, the fact that each had only been filed less than months ago is. The first SSD application was filed a month ago, and involved a 58 year old heavy equipment supervisor with back pain. The second SSD application was filed two months ago, and involved a 57 year old motor vehicle license examiner with Marie Charcot Tooth Disease. 

No unusual type of medical evidence was submitted in these case to explain the rapid approvals. Furthermore, the Social Security Administration typically slows down during the summer months. The next few weeks should disclose whether this was an odd coincidence, or part of a designed process to expedited the processing of SSD claims.

Padro Class Action Problem

I received an order today from the Appeals Council that exemplifies the problem with the proposed settlement of the Padro class action. The order remanded an unfavorable decision from ALJ Hoppenfeld. Hoppenfeld’s conduct in this matter was even more reprehensible compared to the allegations asserted against her in the Padro class action complaint, which can be accessed via hypertext on my website’s “Padro Class Action” tab.

While the Appeals Council remanded the matter, it concluded that there was no bias because it myopically only considered the allegations in connection with the claimant’s individual case. I showed that Hoppenfeld’s countless gross violations of well settled hearing procedures, which the Appeals Council admitted resulted in a denial of Due Process, were the result of Hoppenfeld’s longstanding pattern and practice of biased decision making.

In other words, the Appeals Council did what is always does – it turned a blind eye to the fact that Hoppendfeld’s transparently wrong errors of fact and law were part of her general bias against claimants. The Padro settlement failed to achieve the goal of the action, which class counsel said was to remove the Queens Five. As a result, the Appeals Council will continue to bury its head in the sand when it reviewing decisions that were obviously the result of bias.

Padro Class Action Hearing Next Week

On July 16, 2013, Judge Amon issued a scheduling order for the Padro Class Action fairness hearing, which is scheduled for July 24, 2013 at 2:30p.m. at the Courthouse located at 225 Cadman Plaza East, Brooklyn, NY 11201.  Fourteen individuals were granted permission to speak for up to five minutes each, to discuss whether the proposed terms of the settlement are fair, reasonable, and adequate. 

If you have questions regarding how the settlement affects your claim you can contact class counsel or our office for information. Mr. Delott was one of the only two attorneys who was willing to submit an affidavit in support of the bias allegations against the Queens Five.  Even Binder did not submit an affidavit in support of its clients and other claimants whose disability claims were denied by the Queens Five.

Replace UNUM

That is what Linda Nee, a former Unum employee and whistle blower, says that employers should do. In her blog today, Ms. Nee suggested that employers can protect employees from Unum’s abuses by replacing Unum with another insurance company, or by insisting on a “service contract” designed to provide a fair review, if the employer has more than 2,000 employees. 

Unum has had a poor reputation for a very long time, and was actually found to be the second worst company in the entire insurance industry.  That finding came several years after the 2004 Regulatory Settlement Agreement (“RSA”) in which the U.S. Department of Labor and the state insurance regulators forced Unum to reconsider about 200,000 disability benefit claims that it previously denied or terminated. The RSA was supposed to ensure that Unum cleaned up its act.

Ms. Nee’s blog focused on service contracts, but the easier course of action would seem to be replacing Unum. The problem is that many other insurers have started adopting Unum’s methods. CIGNA did so, and as a result, was recently subjected to an RSA, which can be found on the CIGNA tab on my home page, that was modeled on the 2004 Unum RSA.  If switching carriers fails to result in fairer claims processing, then the best answer is asking the employer to insist on a policy that does not provide Unum or the replacement insurance company with discretionary authority, which is the source for most of the unjust actions by the insurers.

Court Said IME Doctor Lied

New York State Supreme Court Judge Duane Hart concluded that an “independent medical expert” (“IME”) named Michael Katz, who insurance companies regularly employed to undercut workers' compensation claims, lied about how extensive his exams were. 

Dr. Katz claimed that he performed various tests during his 20 minute examination. However, the claimant’s videotape of the exam showed that it lasted less than two minutes, and that the tests were not done. Judge Hart declared that Dr. Katz had lied, and stated that the matter should be referred to the District Attorney to prosecute for perjury. The judge also imposed $10,000 sanctions upon the attorneys representing the insurance company that hired Dr. Katz. 

Long Term Disability insurers are well known for their using IMEs to create evidence to contradict the supporting treating medical experts. However, it seems to me that Judge Hart’s conclusions can also be applied to the consultative examinations (“CEs”) that are done in connection with Social Security Disability (“SSD”) hearings. 

I have advised administrative law judges (“ALJs”) for years that the CEs are fraudulent because the reports contain exam finding that never took place. I have even advised some of my clients to videotape the exams, a practice that I will now universally endorse. 

It seems to me that if a fraudulent exam by an IME in the context of a State workers compensation case is perjury, then a fraudulent CE in the context of a federal SSD case would be a false or fictitious statement in violation of 18 U.S.C. § 1001. Since a doctor who seeks payment from the Social Security Administration under Medicare for tests that were not done can be prosecuted under 18 U.S.C. § 1001, then why can’t a doctor who seeks payment from the Social Security Administration under the SSD program for tests that were not done be prosecuted under 18 U.S.C. § 1001?

Expediting SSD Hearings

Applicants for Social Security Disability (“SSD”) benefits have complained about the tortuously slow process for many years. Not long ago, a two year wait for a hearing at the Jericho hearing office, which services many of my clients, was commonplace. However, according to the most recent statistics, the processing time for claims at the Jericho hearing office is now 292 days, making it the eighth fastest out of the 185 hearing offices. 

While 292 days is commendable, it still represents too long a period of time for some claimants. People who have little or no savings who lose their income when their disability forces them to stop working can find themselves in desperate financial straits. There are circumstances where certain claims are allowed to leap frog to the head of the line, and dire need is one of them. 

I represent a 55 year old former medical assistant who had to stop working due to back and knee problems and diabetes as well. Even though she had worked full time as a medical assistant for 14 years, she had little savings. Because she lost her income she became homeless. After bringing the claimant’s situation to the attention of the hearing office, her case was expedited, and approved. 

Just because a claim is expedited does not guarantee that it will be approved. But if the claim is going to be denied, then it is still better to get the denial expedited to hasten the appeal process.

Continuing Disability Review

Two of my clients with back problems received fully favorable Social Security Disability (“SSD”) decisions today from the same Administrative Law Judge (“ALJ”). One was an automobile mechanic who was over 50 years old, and the other was an operations agent who was less than 50 years old. The ALJ found that each was disabled and entitled to benefits. However, the ALJ closed his opinion for the operations agent by saying that medical improvement is expected with appropriate treatment, and therefore, recommended a continuing disability review (“CDR”) in twelve months. 

The regulations provide that Social Security should perform a CDR approximately every three years. However, if Social Security expects a medical condition to improve it could be sooner than that. Conversely, if Social Security determines that a condition is not expected to improve, it will still perform a CDR, but not as often as every three years. 

When Social Security performs a CDR, it must find that your condition improved in order to terminate SSD benefits. Medical reports indicating medical improvement obviously would provide evidence to support terminating benefits. Stopping or significantly reducing treatment can also be seized upon as justification for terminating benefits. 

Sometimes claimants reduce their frequency of treatment after being approved for SSD benefits because they had increased it simply to avoid Social Security from arguing their infrequent treatment reflected a medical condition that was not severe. Other times, the frequency of treatment is decreased because, once the claimant stops working, the symptoms are no longer exacerbated by the rigors of working. 

If treatment is reduced, the medical records need to reflect the reasons for the reduction, such as the above reasons, to show that the reduction is not due to medical improvement. That is particularly true for claimants under 50, as they are more likely to be designated for an early CDR.

Connect The Dots

When applying for disability benefits it usually it not enough simply to submit medical records. While medical records should provide diagnoses and identify symptoms, disability adjudicators normally want to see the nexus between the diagnoses and symptoms, as well as objective evidence that is not inconsistent with a severe disability claim.

 I represent a 59 year old former Disabled Adult Aide with esophageal varices and diabetic cirrhosis of the liver. Esophageal varices are abnormal, enlarged veins in the lower part of the esophagus — the tube that connects the throat and stomach. Esophageal varices occur most often in people with serious liver diseases. Esophageal varices develop when normal blood flow to the liver is obstructed by scar tissue in the liver or a clot. Seeking a way around the blockages, blood flows into smaller blood vessels that are not designed to carry large volumes of blood. The vessels may leak blood or even rupture, causing life-threatening bleeding.

Cirrhosis is a slowly progressing disease in which healthy liver tissue is replaced with scar tissue, eventually preventing the liver from functioning properly. The scar tissue blocks the flow of blood through the liver and slows the processing of nutrients, hormones, drugs, and naturally produced toxins. It also slows the production of proteins and other substances made by the liver. Cirrhosis is the 12th leading cause of death by disease. 

Besides being life threatening, cirrhosis and esophageal varices can cause fluid buildup in the legs and the abdomen , fatigue , varices in the digestive tract, belly pain or discomfort, all of which the claimant experienced according to his medical records. Those medical conditions can also result in jaundice , itching , nosebleeds, redness of the palms, spider angiomas, bruising easily, weight loss and muscle wasting, frequent infections and confusion. The claimant’s vascular surgeon provided restrictions and limitations that would preclude even sedentary work, and explained how the pain and fatigue were associated with liver disease. An abdominal ultrasound objectively established parenchymal liver disease, splenomegaly, indicative of chronic cirrhosis damage.

Podiatrists

Do not underestimate the importance of podiatrists when applying for disability benefits. Perhaps claimants frequently overlook podiatrists because foot problems are not the primary impairment.

I represent a 55 year school crossing guard with back and feet problems, who was awarded Social Security Disability (“SSD”) benefits today without a hearing. The decision rejected the opinion of the State agency doctors, who said the claimant should be able to work because they failed to consider the combined effect of the claimant’s foot and back problems.

I had obtained a report from the treating podiatrist that limited the claimant’s ability to stand and walk due to a heel spur and plantar fasciitis. Every job requires being on one’s feet to some degree, and according to the U.S. Department of Labor’s Dictionary of Occupational Titles (the “DOT”), a crossing guard must be on her feet for at least 6 hours a work day.

It is unclear if the claimant would have been approved for SSD benefits in the absence of the podiatrist’s report. However, it is fairly clear that the claimant probably would have needed to proceed to a hearing in order to have get her SSD award.

Unum Ordered To Produce Witnesses For Depositions

Unum has a reputation for doing anything it can to avoid discovery when disabled claimants sue for benefits that were wrongfully denied or terminated under an ERISA long term disability plan. In one of my cases, Unum recently argued that my client should not be entitled to any discovery at all. Because of its bad reputation, U.S. District Court Judge Paul Engelmayer rejected Unum's position. A copy of the decision can be found in Court Decisions under the Resources tab on my website.

Calling Unum’s history of biased disability claims administration "regrettable," Judge Engelmayer approved three depositions and written discovery. Addressing Unum’s typical vigorous objections to discovery, the court provided a detailed analysis as to why discovery was appropriate, especially given Unum’s poor claims administration history. Citing the U.S. Supreme Court's decision in Glenn v. MetLife, Judge Engelmayer refused to take Unum’s word that it had corrected its ways since it was forced to agree to the RSA reassessment.