Reviewing An Employer’s Work Description

The typical Long Term Disability (“LTD”) application has three forms; one for the claimant, one for the treating doctor, and one is for the employer. While the doctor’s form provides the medical information, the employer’s form provides the vocational information. The importance of the Employer’s form should not be overlooked because the vocational evidence is just as important as the medical evidence. It is especially easy to disregard the importance of the Employer’s form if the insurance company processing the LTD application sends it directly to the employer for completion. 

I filed an LTD application with Guardian Life Insurance Company of America for a 55 year old floor trader who sustained left leg, right hand and arm injuries. The claimant stood virtually the entire day at work. However, when I asked for a copy of the Employer’s form from Guardian, the Human Resources manager indicated the job was sedentary. After notifying the discrepancy with the claimant, he obtained a letter from his direct supervisor attesting to the fact that the occupation required being on his feet most of the day, as well as a letter from the Human Resources manager that her error happened because she used the incorrect job description to complete the Employer’s form. 

I received a letter today from Guardian approving the LTD application. There is a very good chance that the application may have been denied absent the correction to the vocational information provided by the Employer’s form.

Podiatrists

The Social Security regulations specifically state that podiatrists are acceptable medical sources for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle. Nonetheless, claimants often overlook podiatrists when seeking Social Security Disability (“SSD”) benefits. 

I have stated in the past not to underestimate the importance of podiatrists when applying for disability benefits, which some claimants apparently do because foot problems are not the primary impairment. When a foot problem is the primary problem, the treating podiatrist’s opinion is paramount. 

I represent a 48 year former warehouse worker whose suffered injuries in a vehicular accident. His main injury was to his left foot, although he also sustained severe neck and back injuries. His SSD application was approved today. While the claimant submitted a report from his neurologist explaining how his neck and back injuries prevented him from working, the Administrative Law Judge gave greater emphasis to the opinion of the claimant’s podiatrist. 

If you have a foot injury, regardless of whether its your primary problem, your podiatrist’s records and disability opinion should be sought.

Off Task

I received an interesting fully favorable decision today for a 49 year old former fire fighter with pulmonary problems that originated from 9/11 related exposure. 

The claimant’s breathing problems resulted in sleeping problems, which caused the claimant to sleep during the day. Furthermore, the claimant’s medications exacerbated the claimant’s daytime somnolence. As a result, the Administrative Law Judge (“ALJ”) found that the claimant would be off task at least 20% of the work day. 

I researched the various Social Security rules and regulations, but did not find anything regarding being off task and disability. However, a review of the case law revealed dozens of cases where vocational experts unanimously testified that a person would be disabled from substantial gainful activity if off task 20% of the time. 

Many symptoms, such as pain, fatigue, or mental disorders causing a lack of focus and concentration, can effect a person’s ability to stay on task. Medical opinions regarding the percentage of time that impairments cause claimants to be off task should be incorporate into functional assessments. Not only can an opinion supporting a claimant’s inability to stay on task provide positive evidence to support a claim, but it can also provide ammunition to cross examine an unsupportive vocational expert.

Social Security Reconsideration

In most States, if your application for Social Security Disability (“SSD”) is denied, the first appeal you can file is a Request for Reconsideration. Seeking reconsideration only requires you to complete a short form concerning any changes in your health, and any work you have done since you filed your SDD application. Like the first level of review, reconsideration decisions are made by a claims examiner from the State Disability Determination Services (“DDS”). 

New York is one of the States where reconsideration of an SSD claim denied for medical reasons has been eliminated. Most reconsiderations are denied; about 85% of cases. Criticism about reconsideration being a rubberstamping formality led to its elimination in some states. 

 I represent a 49 year old electrician whose SSD application was approved by the New Jersey DDS. What makes the reconsideration approval especially rare, is that no additional medical evidence was submitted. This indicates that the DDS recognized its original decision was seriously flawed. While the decision saved Social Security resources by reducing the hearing office caseload, one wonders why the application was not approved form the outset.

Fully Favorable Decisions

Not all fully favorable decisions from Social Security are actually fully favorable. A couple of months ago, I received an approval of Social Security Disability (“SSD”) benefits from an Administrative Law Judge (“”ALJ”). During the hearing, I amended the claimant’s onset date to January 2010. However, when I reviewed the decision, I noticed that the onset date was amended to June 2010. 

There is a 60 day period to raise any issue with respect to a hearing decision. I notified the hearing the office of the discrepancy. Today, a revised hearing decision was issued that accepted January 2010 as the amended the disability onset date. As a result, the claimant will receive an addition half year’s SSD benefits. Even if you receive what appears to be a fully favorable decision, you need to review it carefully to ensure that no benefits are effectively being waived.

Operative Reports

It is not uncommon for an Administrative Law Judge (“ALJ”) to deny a Social Security Disability (“SSD”) claim on the grounds that a medical condition is not severe enough to be disabling because the claimant did not have surgery.  The case law had made clear that it is not necessary to have surgery to show that medical condition is disabling.  Nonetheless, if you have undergone surgery, then it should be obtained and submitted as evidence.

I had two cases that were approved today without any difficulty.  Both claimants sustained orthopedic injuries from motor vehicle accidents.  The first case involved a 48 year old warehouse manager whose foot was crushed, and the other concerned a 41 year old paralegal whose neck and back were injured.   

Generally, Social Security prefers denying SSD benefits to claimants who are under 50 years old.  I have had many claimants who are under 50 years old with motor vehicle injuries who retained me after their SSD application was denied.  What the two cases I had today in common was that each claimant underwent major surgery.  Each ALJ decision highlighted the surgery.

Treatment reports and functional capacity assessments can suffice to establish entitlement to SSD benefits.  However, operative reports tend to lead to faster claim approvals.  Many ALJs favor what Social Security doctors say over treating doctors because the ALJs think that treating doctors’ reports overstate a claimants’ disability in order to help them get SSD benefits.  It seems that ALJs perceive surgery as evidence that a treating doctor is not exaggerating the extent of a claimant’s inability to work.

Unusual SSD Approvals

I received two very different and unusual approvals of Social Security Disability (“SSD”) applications today. 

The first was a fully favorable decision from the Appeals Council (“AC”). While that by itself is rare, since most AC decision are either remands or denials of relief, this decision was particularly rare because the Administrative Law Judge (“ALJ”) had approved the application last month. On its own initiative, the AC decided to review the ALJ’s approval, and decided that there was nothing to do. I have had more reviews by the AC on its own initiative during the last year than in the last ten years combined. It is unclear whether such reviews are a wise use of the Agency’s limited resources. 

The second unusual decision was a fully favorable approval of an application that was filed almost a decade ago in 2004. I took over the case after it had already been to federal court. After I took the case to federal court a second time and two more hearings with medical and vocational experts, the claimant’s application was finally approved.

Risky Side Effects

Disability claim adjudicators try to guess claimant’s motivation for seeking disability benefits. Depending upon the type of disability benefit at stake, different methods are used to determine motivation. 

Long term disability (“LTD”) insurers, such as Unum and Cigna, assume that claimants are lying about their disorder in order to defraud the insurer out of their money. LTD insurers use surveillance, field visits, and background checks for criminal history, financial problems and so, to create evidence to show that claimants are being dishonest. LTD insurers have adopted an irrational culture of corporate paranoia as a way of doing business. 

Social Security has rules and regulations that provide how a claimant’s credibility must be assessed. While those rules and regulations can be misapplied, they at least provide an objective guideline that provides grounds for appeal when not followed. One of things that Social Security is supposed to analyze when evaluating a claimant’s credibility are the side effects of medication. 

 I represent a 43 year old stock broker with psoriatic arthritis whose Social Security Disability (“SSD”) claim was approved today, without a hearing. The diagnosis of psoriatic arthritis itself does not show that the claimant was disabled. Like other psoriatic arthritis cases that I have had where a hearing was required, the stockbroker’s doctors provided reports explaining why the condition precluded work. What is different here was the claimant’s treatment. 

For years, the claimant has been required to take Humira, Remicade and now Enbrel injections. Those medications are known as disease-modifying antirheumatic drugs (“DMARDs”). DMARDs have very serious side effects caused by the medications’ blocking the immune system. I contended that the claimant having no choice but to continue taking DMARDs shows that his psoriatic arthritis is very severe. The Administrative Law Judge agreed, and approved the SSD application.

ALJ Strauss Claimants

If you had a Social Security hearing before Administrative Law Judge (“ALJ”) Hazel Strauss where you thought you were denied a fair hearing, now is your chance to let her know.

The federal court has scheduled another Fairness Hearing regarding the Padro class action for September 16, 2013. ALJ Strauss asked Judge Amon for the opportunity to speak at the Fairness Hearing. Notably, ALJ Strauss made use of government resources, official SSA letterhead, envelope, and apparently postal meter, to mail her personal request.

ALJ Strauss wants to complain to Judge Amon about how unfairly she has been treated in the Padro class action. I am sure that Judge Amon would like to hear from claimants who were treated unfairly by ALJ Strauss as well.

Unsuccessful Work Attempt

Just because you worked after the date you said you became disabled does not automatically mean that you cannot get Social Security Disability (“SSD”) benefits. An unsuccessful work attempt (“UWA”) is one way that you can receive SSD benefits even if you have worked after your disability began. 

I represent a 50 year old motor equipment operator with back problems whose SSD application was approved today without a hearing. The claimant stopped working on May 24, 2012. However, the claimant did try to resume working in March and April of this year, but had to stop when working exacerbated his symptoms. 

If you worked for less than three months because of your medical impairment, the work effort can be treated as an UWA. Your impairment may have caused you to leave because you couldn't do the work, your doctor's restrictions wouldn't allow you to do the work, or the removal of special conditions, known as accommodations, were removed. Examples of accommodations include: assistance from other employees; special equipment; modified work schedule; to work irregular hours; extra breaks; and so. 

Because the claimant stopped working within three months for the reasons set forth above, his UWA did not stop him from receiving any SSD benefits. Had he worked between 6 and 9 months, then the requirements for qualifying as an UWA would be more restrictive.

Unum Pressures Doctors

When I represent a claimant for an Long Term Disabilty (“LTD”) claim, I send a letter of representation letter with specific instructions to the insurance company to have no further contact with the claimant, and that all communication goes through me. I also advise the claimant to set up a meeting with their doctors to ask them not to speak to anyone, including doctors, who call the insurance company handling their claim.

Why do I take these measures? Unum, in particular, has a habit of calling and harassing the claimant’s doctors. This bullying is done on purpose, calling the doctors in the middle of the day, during their busiest time. The claimant’s doctor may just provide information, without even checking their patients. This is why it is imperative to have a face to face conversation with all your doctors when applying for LTD.

Patchogue Continued Ineptitude

I submitted an application on December 3, 2013 to the Patchogue field office. The application was sent no less than 20 times due to our experience with that office losing or "never receiving" the paperwork. SS requires originals of some of the documents and those are mailed the same day the application is faxed. Somehow, this office never seems to get their mail, because they are forever accusing us of not mailing originals. Because of their ineptitude, we now ask claimants to send us duplicate orgininals so we are prepared to mail them again, when Patchogue claims not to have received them.

My office has been calling on this application since December, including calling the Office of Public Affairs. However, it is impossible to call and speak to anyone at the Patchogue office since they have all their phone calls rerouted to Social Security's national number. This does not help since they cannot tell us if Patchogue has received anything from us. We were forced to fax Patchogue letters, asking them to call us regarding this claimant since we cannot reach them by phone. They did not, and have not called us. We were assured in February by Public Affairs that Patchogue was overwhelmed and backlogged with work but would get the application processed.

My office spoke to Public Affairs again in April, only to be told that Patchogue claimed they had never received the original documents. My office mailed them our "duplicate" originals that same day. Today, Public Affairs advised me, almost 9 months after the application was originally submitted, and 4 months after the "duplicate" originals were mailed, that Patchogue still says they never received the original forms and cannot process the application. Patchogue even went as far as to lie to Public Affairs by telling them they sent us a letter stating this. We have not received any correspondence from them regarding this claimant.