What is an Administrative Record?

According to the Supreme Court, the administrative record includes all materials compiled by the agency, which were before the agency at the time the decision was made. That definition is well settled. Nonetheless, even though they know that they are not agencies, disability insurance companies constantly argue that the claim file they compile is an administrative record in ERISA benefit actions. 

Disability insurers assert that their claim files are administrative records in order to evade discovery. For decades, disability insurers have filed motions “on the administrative record.” Courts regularly hold that no such thing exists, and treat the motions as motions for summary judgment. Insurers misname their motions because summary judgment specifically anticipates that the motion will follow the completion of discovery. 

Similarly, disability insurers assert that their claim files are administrative records in order to evade their initial disclosure obligations under Rule 26(1)(1). Unum made that argument in one of my pending cases, but Judge Abrams rejected it today. 

Judge Abrams explained that unlike a federal agency, which is statutorily bound to be neutral, insurance companies like Unum are not. As another Court reasoned: 

“In an agency proceeding, the court reviews the decision of a board or other agency tribunal that has been authorized by Congress to make such decisions after appropriate administrative proceedings. None of the neutrality or hearing-type protections in those cases is present here.”

Pain Medicine

According to the American Board of Pain Medicine, pain medicine is concerned with the prevention of pain, and the evaluation, treatment, and rehabilitation of persons in pain. The POMS says there is no specialty board for pain or certification program. The POMS is wrong because the following specialty boards have certifications for Pain Medicine: Anesthesiology, Emergency Medicine, Family Medicine, Physical Medicine and Rehabilitation, Neurology, and Radiology. 

I represent a 45 year old former nurse assistant whose application for Social Security Disability (“SSD”) benefits was approved today by an administrative law judge (“ALJ”) on-the-record (“OTR”) without a hearing. The claimant has neck and back problems that cause neck, back, leg, and hand pain, which have persisted despite treatment with the claimant’s board certified physiatrist who is certified in Pain Medicine. 

When making its initial SSD decision, the State agency, is supposed to follow the POMS. Perhaps if the POMS correctly recognized that numerous medical specialty boards, including physiatry, maintain certification programs for Pain Medicine, then the State agency would have approved the claimant’s SSD application. Considering that most claimants are disabled by pain, extra weight should be given to pain specialists, regardless of whether there is an independent medical board that is part of the American Board of Medical Specialities.

SSD Approved in 2 Months

I represent a 55 year old sewer superintendent with abdominal and hiatal hernias, glaucoma, diabetes, obesity, and lastly, an ankle problem. The state agency insisted, not once, but twice, that it was “necessary” for the claimant to attend a consultative examination (“CE”) for a “joint problem;” that he “must keep” that appointment. 

We advised the State agency that the claimant wanted his treating doctor to perform the CE, as the regulations stipulate. The claimant did not have a CE, yet his application for Social Security Disability (“SSD”) benefits was approved in two months, a few weeks after the State agency told the claimant that he had to go to the CE. 

When will the State agency on its own, or at the direction of the Social Security Administration (“SSA”), eliminate the misrepresentative language of the letters notifying claimants about CEs? The notices should not say the CEs are “necessary.” The notices should not say the claimant “must” attend the CE. Most importantly, when will the State agency, or the SSA, require compliance with the regulations that provide CEs should be performed by treating doctors?

Hiring A Vocational Expert

Regardless of the reason why an Administrative Law Judge (“ALJ”) has a vocational expert (“VE”)  testify at a hearing for Social Security Disability (“SSD”) benefits, a claimant should consider retaining their own VE. 

I represent a former carpenter with hand and shoulder impairments, whose SSD application was approved following an Appeals Council remand. His case turned on a report submitted by his VE. 

The Social Security VE at the hearing testified that while the claimant only had use of his left hand and upper extremity, he could do jobs, such as working as a parking attendant and toll collector. I got the VE to admit that her testimony was not based on the Dictionary of Occupational Titles. Furthermore, I persuaded the ALJ that it was poor reasoning to assume that a person without use of their dominant upper extremity could be trusted to park cars safely, or grab money and operate a cash register with one hand. 

The claimant’s VE, who has also worked as a VE at SSD hearings, had submitted a report concluding that the claimant was incapable of any full time work due to his impairments. The ALJ gave greater weight to the claimant’s VE, than to the hearing VE. Importantly, that means that the ALJ gave some weight to the hearing VE. Therefore, in the absence of the claimant’s VE, his SSD claim would have been denied.

VA Rating & SSD

I represent a former mail carrier seeking Social Security Disability (“SSD”) benefits, who the Department of Veterans Affairs (“DVA”) had rated as 90% disabled. More importantly, the DVA states that the claimant was ”totally and permanently disabled due solely to your service connected disabilities.” 

Last year, the Seventh Circuit ruled that great – not some - weight should be given to a DVA disability finding of 70% because any differences between the VA and SSA disability criteria are small. While the administrative law judge (“ALJ”) approved my client’s SSD claim after a hearing, he only gave the VA disability some weight. 

The Seventh Circuit approach makes more sense. The VA and SSA are both federal agencies with the same task; deciding whether a claimant is totally disabled from being able to work. Considering that the Seventh Circuit ruled that a VA rating of 70% should be given great weight, there is even more reason to give a VA rating of 90% great weight. Had the ALJ given the 90% VA rating great weight, then there would have been little or no need to conduct a hearing, which is important since the wait for a hearing is now nearing two years.

NYSLERS Approval

I represent a 53 year old former toll collector with chronic fatigue syndrome, arthritis, depression,and anxiety impairments whose application for an Article 15 disability application was approved today. NYSLERS requested the identical information more than once, and in fact, the entire application needed to be resubmitted. This is a common occurrence, and claimants should regularly contact NYSLERS for status updates to ensure their application is being processed properly. 

NYSLERS determined that the claimant is permanently incapacitated from performing the duties of her job. The decision comes as little surprise since the Social Security Administration found the claimant disabled from her past work as well as any other work.

Second Circuit Case

Judge Bianco of the Eastern District of New York recently rejected the decision of an ALJ, which denied Social Security Disability benefits to my client. Judge Bianco accepted my argument that the reasons the Social Security Administration (“SSA”) gave for rejecting the treating doctor’s opinion were “post hoc”. 

I have a case that was just argued before the Second Circuit involving another claimant, Botta v. Colvin. The district court judge accepted the SSA arguments as to why the ALJ properly rejected the treating doctor’s opinion that the claimant could not use her legs to work as a sewing machine operator. My argument was that the SSA arguments were never made by the ALJ, rendering them impermissibly post hoc. 

Hopefully, the Second Circuit will agree, and end the claimant’s 15 year struggle for SSD benefits.

PRUDENTIAL LTD FRAUD

When Prudential was forced to conclude that a long term disability (“LTD”) claimant lacked full time work capacity and had reached maximum medical capacity, it transferred that claim to its Mature Claim Team (“MCT”). The MCT was the place for claims where Prudential recognized it was liable for having to pay LTD benefits for the maximum duration under Prudential’s LTD policies. Since MCT claims involved claimants with permanent or progressive medical conditions, as a cost saving measure, Prudential’s procedures required that MCT claims be reviewed less often. 

I am currently litigating two cases in federal court with Prudential. Both plaintiffs have permanent and progressive medical conditions, and were paid LTD benefits for over a decade. Prudential had concluded that both plaintiffs lacked full time work capacity and had reached maximum medical improvement. Consequently, Prudential transferred each plaintiff’s claims to Prudential’s MCT. 
Even though Prudential had determined that each plaintiff had medical problems that had reached maximum medical improvement, and therefore, would never change for the better, in 2014, Prudential decided that it needed each plaintiff’s doctors to explain why their patients remained disabled. After each of the plaintiff’s doctors did so, Prudential then had its own doctors reject the opinions of each plaintiff’s doctors in order to conclude that the plaintiffs were no longer disabled. In both cases, Prudential failed to identify any medical test or exam finding that had changed between the time Prudential found the plaintiffs disabled and no longer disabled. 

The similarities between the two cases are obviously no coincidence. Prudential made the business decision to invade the MCT in 2014 in order to increase its profitability by reducing those MCT reserves. Its strategy was to get the treating doctors to say the claimants had work capacity, and if the doctors refused to buy into that argument, then Prudential would have its doctors reject the opinions of the treating doctors. 

If Prudential terminated your LTD benefits, demand a copy of your claim file. Check to see if your file contains references about Prudential transferring your claim to its MCT or TRT. Also, check to see if your file contains references to NC/M, which means Prudential determined that you lack work capacity and have reached maximum medical improvement, which might be abbreviated as MMI. I would appreciate hearing if you were subjected to this particular bad faith practice and pattern of Prudential’s.

District Court Rejects SSA Denial

I represent a claimant whose Social Security Disability (“SSD”) claim was denied by Administrative Law Judge (“ALJ”) Seymour Rayner on the grounds that she could do sedentary work. My appeal to federal court was granted today by Judge Joseph Bianco. 

The ALJ, as well as the Appeals Council, ignored the report from the claimant’s rheumatologist because she started treating the claimant after her date last insured. I argued that treating physicians are allowed to provide retrospective opinions. The Judge agreed. I also argued that every argument the SSA made in support of denying SSD benefits was never made by the ALJ, and therefore had to be rejected as post hoc. The Judge also agreed.

Macroprolactinoma

Prolactinomas are the most common type of pituitary adenomas. Macroprolactinoma is a prolactin secreting pituitary tumor more than 10 mm in diameter that causes serum prolactin levels higher than 500ng per mL. These tumors commonly cause symptoms due to the excessive production of prolactin as well as complaints caused by tumor mass and compression of neural adjacent structures. 

I represent a claimant with chronic fatigue, dizziness, and disturbed sleep that his physician attributes to extensive and inoperable macroprolactinoma. The Social Security Disability (“SSD”) application was approved in three months, but then was held up for an extra review. I suspect that the State agency found the medical evidence compelling. However, as the medical condition is somewhat atypical, it appears that further investigation was deemed necessary. 

Whenever I represent a claimant with a condition that is less common, I submit third party medical support from the internet. Care needs to be taken to ensure that the source is reliable. For example, medical information from government websites, the Mayo Clinic, WebMD etc. The State agency frequently questions the reliability of treating physician opinion, but it is difficult to reject the information about a medical condition’s symptoms and resultant limitations when it comes from what the State agency would consider to be a disinterested source.

Work Record

Never under estimate the importance of a claimant’s work record when an administrative law judge (“ALJ”) adjudicates a Social Security Disability (“SSD”) application. 

The ostensible purpose of a hearing is to enable an ALJ to assess a claimant’s credibility. Since claimants say they are disabled when they file an SSD application, if their credibility is accepted, then they are usually approved for SSD benefits. Even when a claimant has submitted objective diagnostic tests that provide strong support of disability, ALJ’s frequently hold hearings. 

I represent a 55 year old former cost accountant with knee and back impairments. Even though there were a dozen supporting MRIs, and the claimant had a 40 year work record, the ALJ held a hearing. However, because the ALJ found the claimant had “a solid wage history,” he accepted the claimant’s complaints about pain and the need to lie down during the day, which the vocational expert stated precluded gainful activity.

Jerome Caiati

Jerome Caiati is a doctor who needs to make a living by examining claimants who have applied for Social Security Disability (“SSD”) benefits. Apparently, for good reason. 

Caiati received the lowest possible rating from ratemds.com, which commented “As a new patient I sat at the office waiting for 3 hours and when I complained I was told he was a good doctor and if I didn't like the wait time I could leave that this was normal.” According to different comments on Vitals.com, Caiati “is a very nasty man and should not practice on a dog; ” and “Waited 2hrs each visit. Cancelled on twice. Would not recommend this practice.” Caiati also received the worst possible rating from yelp.com and healthgrades.com. No wonder he resorted to Groupon! 

My colleagues say that when Caiati does a consultative examination (“CE”), he never opines that a claimant is unable to work. It seems that even the Administrative Law Judges (“ALJ”) are getting fed up with Caiati, and are rejecting his opinion. ALJ Wexler concluded that “It strains credulity that, given the claimant's significant medical history and the positive examination findings for high blood pressure, the claimant would have had absolutely no physical limitations as opined by Dr. Caiati. I just had another case where Caiati’s opinion strains credulity.

I represent a 38 year old bartender, whose feet were amputated after suffering complications from a dissected aortic aneurysm. Nonetheless, Caiati concluded that the claimant would only have a “minimal to mild limitation” standing, walking and climbing. Not surprisingly, ALJ Crawley gave Caiati’s opinion “little weight,” and approved his SSD benefits.

Importance of Diagnostic Testing

I represent a Social Security Disability (“SSD”) applicant who stopped working when he was 39 years old due to orthopedic, neurological, and cardiovascular conditions that limited his ability to use his arms and legs. His SSD application had been denied based upon a consultative examination, so he retained me to handle the appeal. 

The claimant’s orthopedist, chiropractor, and neurologist provided reports concluding the claimant could not perform any type of full time work. Administrative law judges (“ALJ”) typically give little weight to treating doctors’ opinion when there are few treatment records in the file. While that was true for the claimant, he had an inordinate number of diagnostic tests, including multiple upper and lower NCV/EMGs, cervical and lumbar MRIs, as well as operative reports. 

I contended that the diagnostic test reports amply supported the opinions of the treating specialists. The ALJ agreed and credited their opinions.

SSD Approved In 2 Months

At a time when there are record wait times for processing Social Security Disability (“SSD”) claims, sometimes the State agency quickly approves SSD claims, in much less time than usual. 

I represent a 58 year old auto mechanic with spinal problems, whose SSD application was approved in two months. The obvious question is what accounted for the decision? I submitted a strong disability report from the treating spine specialist, but that has failed to suffice to win approval where claimant’s had similar medical problems. The claimant had a protracted work history doing heavy, skilled work, but again, that alone has failed to suffice to win approval where claimant’s had similar work backgrounds. 

It appears that when presented with a strong disability report for a claimant with a long history of performing heavy work, then the State agency will approve the claim quickly without mechanically insisting that the agency doctor examine the claimant. Taxpayers would be better served if the State agency would refrain from improperly insisting that the agency doctor examine other claimants.

Unemployment Benefits Do Not Preclude SSD

I represent a 55 year old former steamfitter with spine problems whose Social Security Disability (“SSD”) benefits were approved today in a decision by Administrative Law Judge (“ALJ”) Andrew Weiss. The initial issue the ALJ had to decide was whether the claimant had engaged in substantial gainful activity (“SGA”). 

The claimant had earned around $900 for one quarter, which the ALJ noted was below the SGA threshold, which is about a $1,000 a month. The claimant had also received money from his union’s benefit fund and from unemployment insurance, neither of which the ALJ found were from work activity. 

It was nice to have an ALJ acknowledge that unemployment benefits do not bar SSD benefits. In the past, some ALJ’s, notably the Padro ALJs, had used a claimant’s receipt of unemployment benefits as an excuse to deny SSD benefits. Those denials were always overturned on appeal.

ALJ Relies On Disgraced “Medical Expert”

When a Social Security Disability (“SSD”) claimant has a hearing, the administrative law judge (“ALJ”) can schedule a “medical expert” “(ME”) to provide testimony. According to the Social Security Administration’s “Medical Expert Handbook,” 

The ALJ will ask you questions before you testify to establish your independence and impartiality, and your medical qualifications and competence to testify. If the ALJ does not already have it, you should provide him or her with a written résumé or curriculum vitae summarizing your experience and background which the ALJ will enter into the case record as evidence. The ALJ will also ask you whether the résumé or curriculum vitae is accurate and up to date, and will likely ask you whether you are familiar with applicable SSA regulations and other rules. The ALJ will also ask the claimant and his or her representative, if any, whether they object to your testifying. 

It is imperative that you investigate the background of any ME who is scheduled to testify at your hearing. 

I represent a 59 year old former respiratory therapist with cardiovascular problems. ALJ Weiss denied the claimant’s SSD application today based on the opinion of a disgraced ME, Steven L. Shilling, who testified that the claimant could work. 

Prior to the hearing, Shilling submitted a resume that only went up to the year 2012. Even though the hearing was taking place in 2016, and the ALJ was obligated to ask Shilling whether his résumé was accurate and up to date, the ALJ conspicuously failed to do so. In light of the glaring gap in Shilling’s resume, I asked him if it was accurate and up to date, to which he said no. At that point, despite ALJ Weiss’s inexplicable recalcitrance, I insisted that I be supplied with a current resume. 

It was no accident that Shilling had supplied an out of date resume --it was an attempt to cover up his protracted history of professional misconduct. One can only wonder why ALJ Weiss initially did not want to compel Shilling to provide a current resume as required by the Social Security rules. 

After Shilling faxed his current resume for cross examination, I noticed that there was a two year employment gap, and then he claimed that he was simultaneously doing seven (7) jobs since 2014, including serving as an ME for the SSA. After questioning him about those seven jobs, it turns out that he had not actually worked at several of them. It is my understanding that it is illegal to submit documents to a federal agency that contains false information. More importantly, it shows that Shilling is dishonest. 

After learning Shilling was dishonest about his work history, I proceeded to ask him if his resume was accurate about where he went to school, where he trained, and that he was triple board certified, all of which he confirmed. Both of his resumes stated that he was board certified in Internal Medicine, Cardiovascular Medicine, and Interventional Cardiology. According to the resume he had submitted, his education was completed in 1994, and from 1994 to 2012 was in private practice with “Cardiac Associates” as a cardiologist. When I asked what month in 2012 he stopped working there he said March, for "a lot of different reasons.” When I asked him what the reasons were, he simply reiterated what he had just said, and refused to give a specific reason. 

I gave the ALJ a copy of the information provided by Healthgrades to mark as an Exhibit. I asked Shilling if the information from Healthgrades about where he went to school, did his residency, and then his fellowship were accurate, he stated that it was. I then stated that according to Healthgrades the State Medical Board found him guilty of professional misconduct on April 12, 2013, and asked if that was also true. He said yes, but claimed that his professional misconduct had nothing to do with his leaving Cardiac Associates after 2012. 

Next, I gave the ALJ a copy of some pages from the December 2012 TMB Bulletin, the newsletter of the Texas Medical Board, to mark as an Exhibit. According to the TMB Bulletin, disciplinary action was taken against Shilling on October 9, 2012 because of his use of drugs and alcohol in an intemperate manner that could endanger patients. I asked if that was related to why he stopped working at Cardiac Associate, but Shilling claimed it was not. When I asked Shilling what he recalled about that misconduct, he said something about having a glass of wine with his lunch and then going back to work. 

Next, I gave the ALJ a copy of an article from the April 23, 2013 Houston News to mark as an Exhibit. According to that newspaper article, while the Medical Board took action on April 12, 2013 against Shilling, it said that he had surrendered hospital privileges in 2010. When I asked Shilling if he ever got them back, he said no. When I asked him why he surrendered privileges back in 2010, he admitted that it was a prior instance of substance abuse. The Houston News article also stated that Shilling was not practicing medicine, and had no plans to return to practice. When I asked him if that was why he never worked after Cardiac Associates to work, he again denied that there was any connection. 

Next, I gave the ALJ a copy of an article from the October 25, 2012 Dallas Morning News to mark as an Exhibit. According to the Dallas Morning News, “The medical board recently asked an administrative law judge to authorize discipline of the doctor.” It said Shilling “admitted to consuming alcohol” before going to the Irving hospital in 2010, “has a history” of drunken driving charges, “has been in treatment for prescription medication abuse” and “continues to drink presently.” Shilling conceded that the 2010 misconduct was independent of the 2012 misconduct. 

Next, I gave the ALJ a copy of the printout from a search done on the American Board of Medical Specialties (“ABMS”) website to mark as an Exhibit. I noted that Shilling had testified just a few minutes earlier that he was triple board certified. I asked him what was the American Board of Medical Specialties, and Shilling stated it was the organization that certified physicians. When I asked Shilling if he could explain why, according to the ABMS, he was not board certified in any field, he admitted that he was no longer board certified in Internal Medicine or Interventional Cardiology, but claimed he was board certified in Cardiology. However, he was unable to explain why the ABMS stated that he was not, other than surmising that they Ddid not have his updated paperwork, even though two years had passed. 

Finally, I gave the ALJ a copy of the Agreed Order, dated April 12, 2013 signed by Shilling and the Texas Medical Board for the ALJ to enter as an Exhibit. That was the only document from the cross examination that the ALJ marked as an Exhibit. HALLEX I-2—1-20(B)(3) states that when an ALJ issues an unfavorable decision, he is required to provide a finalized exhibit list “to protect the claimant's due process rights. The claimant is entitled to know the information the ALJ relied on when making the decision.” 

ALJ Weiss violated the claimant’s Due Process rights by purposely purging from the exhibits the evidence that I submitted to him, and used during the cross examination of Shilling. The ALJ was obviously trying to mitigate the evidence relating to the reliability of Shilling’s opinion because it served as the sole basis for the ALJ’s denial. The ALJ’s reliance was particularly insidious because federal courts have warned him before that he cannot rely on the opinions of MEs to deny claims. 

In sum Shilling and the ALJ wanted me to rely on an outdated resume, which would have failed to reflect a two year gap in Shilling’s work history. That gap, which was readily evident in the current resume, obviously invited questioning for its existence. That questioning inevitably should have led the discovery of Shilling’s history of professional misconduct, and his exaggerating his qualifications to over compensate for his failings. Shilling’s testimony is tainted by financial conflict of interest because he is dependent on making a living as a consultant. The ALJ evidenced complicity in Shilling’s deception by refusing to mark the cross examination evidence as exhibits in order to bolster his decision to deny the claimant benefits based upon Shilling’s opinion. Similarly, the ALJ refused to require Shilling to produce his tax records, which would have established his dependence on income from testifying as an ME.

SSD Approved for Crohn’s Disease

Crohn’s disease is one of the conditions that is known as Inflammatory Bowel Diseases (“IBD”).  Social Security Disability (“SSD”) claimants with Crohn's and other types of IBD are usually denied initially, and then forced to go to a hearing before an Administrative Law Judge as the next step of the approval process. Unfortunately, the wait for a hearing these days is very long.

I represent a 35 year old former special ed teacher with Crohn’s who was just approved without the need for a hearing. While no express reason was provided for the approval, the relatively rapid approval was apparently because the Crohn’s disease met the listing for IBD.

Medical information supporting the listing elements was submitted, along with a medical report detailing how the Crohn’s reduced the claimant’s ability to function. Recognizing what information needs to be submitted in light of the particular medical condition is essential to securing SSD benefits, especially without having to wait for a hearing.

NYSLERS

I represent a 53 year old former teacher with mental impairments whose application for an Article 15 disability application was approved today a little over a year after it was filed. In the interim, NYSLERS requested the identical information that had already been submitted. I had to submit the treatment records of one treating doctor three times. 

NYSLERS determined that the claimant is permanently incapacitated from performing the duties of her job as a teacher. The NYSLERS decision should be accepted by Social Security as proof that the claimant cannot do her past work, and given the vocational facts of her case, may suffice for an award of Social Security Disability (“SSD”) benefits. 

While a year may seem like a long time to get NYSLERS to approve a disability application, that would be fairly quick for the Social Security to do the same. However, with the NYSLERS award, that should expedite the SSD decision.

Claimant Credibility and Work History

The Social Security Administration (the “SSA”) regulations are only interested in the last 15 years of a disability claimant’s work history because after that time acquired skills are not considered transferable. However, work history in excess of 15 years is important with respect to a claimant’s credibility. The federal courts have repeatedly stated that a claimant with a strong work history justifies the inference that his or her complaints are credible.

A strong work history is essentially objective evidence to support the credibility of a claimant’s testimony at a hearing.  This objective evidence of one’s credibility is important because many cases, such as those involving pain syndromes, fatigue or mental impairments, are based on subjective complaints. The theory is that a claimant with a good work ethic would continue to work if possible.

I represent a 58 year old former collections manager whose Social Security Disability (“SSD”) benefits were approved today because of his work history. While the claimant had two supporting doctors, the Administrative Law Judge (“ALJ”) gave their opinions only “some” weight. However, the ALJ was impressed with the claimant’s longstanding work history, and accepted his testimony about the reason why he could not work. 

 The ALJ did not ask the claimant about his work beyond 15 years. I developed the details about the claimant’s entire work history after the ALJ was done questioning the claimant. A strong work history should always be brought to an ALJ’s attention.

NYS OTDA Fraud Update

A year ago, I posted about unacceptable conduct committed by the New York State Office of Temporary Disability Assistance (the “OTDA”). Unfortunately, there has been no change in the OTDA’s conduct. 

I represent a 54 year old with diabetes, and neck, back, and hand problems, who earned over $100,000 annually working as a steamfitter for 28 years, which required lifting up to 100 pounds. Common sense tells you that anyone who worked that long at that job, earning that amount of money, stopped only because he was no longer able to continue. 

Once again, a review of the Social Security Administration (“SSA”) claim file reveals that the OTDA acted in bad faith, and actually committed fraud, in order to deny the Social Security Disability (“SSD”) application. 

In 2014, the OTDA told the claimant that he was required to go to a consultative exam (“CE”). The OTDA denied the claimant’s SSD application on the grounds that the claimant did not attend the CE, but when scheduling a CE, the OTDA is required by law to ask a treating doctor to perform it. An OTDA disability examiner named A. Washington claimed that there was no treating doctor to perform the CE, and that the claimant had no medical opinion about his being disabled. However, each of those statements was patently false. 

The SSA’s file revealed numerous documents listing the doctors who had been treating the claimant. Moreover, the SSA file contained, not one, but two, reports from treating physicians detailing the reasons why the claimant lacked the physical capacity to work. A. Washington simply lied; i.e., committed fraud, which is knowingly doing or saying something that was false, in order to evade the legal obligation to ask a treating doctor, as the preferred source, to perform the CE. 

The SSA reversed the OTDA denial on appeal, at a rapid hearing where the medical and vocational experts immediately testified in the claimant’s favor. 

Any type of incident where the OTDA misrepresents the truth should be reported to the SSA Inspector General.

SSD Approved in Less Than Months

The Deputy Commissioner of the Office of Disability Adjudication and Review (“ODAR”) of the Social Security Administration (“SSA”) is Theresa Gruber. According to Ms. Gruber, the 1.1 million pending hearings at ODAR is a record high, as is the 543 days on average that it takes ODAR to process a claim. Fortunately, I represent a former 58 year old plumber whose Social Security Disability (“SSD”) application was approved in about a month and half, so he avoided the ODAR delays. 

The plumber had two bad knees, one of which had been surgically replaced. I obtained a report from the claimant’s surgeon detailing how the claimant could not stand, walk, and sit anywhere near the number of hours required to perform full time work. However, many claimants provide similar medical support without getting approved so quickly. So what happened here? 

The claimant worked as a plumber for 32 years, earning a six figure income. While the SSA denial rates have increased, there seems to be a trend of approving SSD applications more quickly when the claimant has a protracted work history with a high income. It may be that in light of the hearing backlog, state agencies are being less rigorous when claimants have a protracted work history with a high income because common sense dictates that such a person would continue to work if they could.

Padro Benefits

The Padro class action provided disability claimants with new hearings if their case was denied by the five defendant Queens ALJs. I represented a 40 year old pharmaceutical territory manager whose Social Security Disability (“SSD”) was denied by one of the Padro ALJs, and succeeded in winning her case after a new hearing by a non-Padro ALJ. Although it took over a year, she will finally receive her SSD benefits, which will exceed $200,000.

Social Worker’s Opinion

In general, Social Security will only give controlling weight to the opinion of a medical doctor. However, under certain circumstances, Social Security will give greater weight to the opinions of those who are not deemed acceptable treating sources. 

I represent a 36 year old teacher whose Social Security Disability (“SSD”) benefits were approved today based largely on the opinion of a Social Worker. The Social Security rules provide that evidence from non-acceptable medical sources can be used to show the severity of the individual's impairment(s) and how it affects the individual's ability to function just as an acceptable medical source. In fact, 06-3p states that in some circumstances, such as when the source frequently treats the claimant over a long period of time, the non-acceptable source’s opinion can be given even greater weight than an accepted medical source. 

The Social Worker was found to treat the claimant frequently, and because of his special knowledge of the claimant, was believed to have insight into the severity of the mental impairment. The functional limitations identified by the Social Worker were found to preclude the claimant from working. Opinions regarding the restrictions and limitations caused by medical conditions should always be sought from anyone who treats those conditions even if they are not medical doctors.

Combined Disabling Conditions

Claimants frequently omit information concerning some medical problems because they say it is not the main problem. That is a mistake, especially when applying for Social Security Disability (“SSD”) benefits. Social Security has a rule that requires considering the combined effect of all of a claimant’s impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. 

I represent a 49 year old legal secretary with physical and mental impairments from an accident, whose SSD benefits were approved today without a hearing. I submitted reports from the claimant’s pain management specialist and orthopedist regarding the physical impairments, and reports from the claimant’s psychiatrist and therapist regarding her mental impairments. 

Most cases with severe physical or mental impairments still require a hearing before SSD benefits are approved. While the claimant probably would have been approved based upon either her physical or mental impairments after a hearing, developing the record for both impairments facilitated a decision without one. The goal is not simply to win, but to do so as quickly as possible.

Lymphedema

Lymphedema refers to swelling that generally occurs in the arms or legs, which is usually caused by the removal of, or damage to, your lymph nodes. The swelling occurs from a blockage in your lymphatic system that prevents lymph fluid from draining well, and the fluid buildup leads to swelling and frequently causes pain and reduced mobility. According to webmd, elevating the swollen arm or leg can help drain lymph fluid from the affected limb. 

I represent a 51 year old former art director with lymphedema whose Social Security Disability application was approved today. A key reason for the approval was the opinion of the treating physician, who opined that the claimant should elevate her leg hourly, which the vocational expert said precluded work. The Administrative Law Judge gave great weight to that doctor’s opinion, and accepted the vocational expert’s opinion.

Significant Weight Suffices

Social Security Administration (“SSA”) regulations require Administrative Law Judges (“ALJs”) to assign weight to all medical opinions. ALJs must also discuss the factors explaining the level of weight assigned. The question arises, if your doctor’s opinion supports your disability claim, then how much weight does an ALJ need to assign that opinion for you to win? 

An ALJ gives controlling weight to an opinion if it is well-supported by medically recognized clinical and laboratory diagnostic techniques, and is not inconsistent with the rest of the medical evidence. That requires the ALJ to approve disability benefits. However, what happens if the ALJ gives less than controlling weight to your doctor’s opinion, can you still win your case? 

The answer is yes. Frequently, ALJ’s give great or greatest weight to treating physician opinions when they approve disability benefits. I represent a 38 year old former administrative assistant and stockbroker whose Social Security Disability application was approved today after the ALJ gave “significant weight” to the opinions of four treating specialists.

Cancer Claims

The Social Security Administration (the “SSA”) tries different types of initiatives and programs on a regular basis. Usually, those programs reduce the number of claims being approved. For example, the SSA virtually eliminated the authority of staff attorneys to write OTRs, and the SSA increased the number of claims approved by ALJ’s for review. 

The SSA may have another initiative currently. The SSA seems recently to be approving cancer claims more rapidly. In fact we had two more such claims approved today. While compassionate allowances, which include many cancers, are always supposed to be expedited, that has frequently not been the case. 

The SSA does not automatically approve cancer claims. However, bringing it to the attention of the right people at the SSA should expedite its resolution, especially if there is presently a focus on such claims.

Combined Disabling Conditions

Claimants frequently omit information concerning some medical problems because they say it is not the main problem. That is a mistake, especially when applying for Social Security Disability (“SSD”) benefits. Social Security has a rule that requires considering the combined effect of all of a claimant’s impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. 

I represent a 49 year old legal secretary with physical and mental impairments from an accident, whose SSD benefits were approved today without a hearing. I submitted reports from the claimant’s pain management specialist and orthopedist regarding the physical impairments, and reports from the claimant’s psychiatrist and therapist regarding her mental impairments. 

Most cases with severe physical or mental impairments still require a hearing before SSD benefits are approved. While the claimant probably would have been approved based upon either her physical or mental impairments after a hearing, developing the record for both impairments facilitated a decision without one. The goal is not simply to win, but to do so as quickly as possible.

Deceptive Insurance Practices

New York has a General Business Law (“GBL”) that imposes liability for deceptive business practices in the conduct of any business, trade, or commerce. GBL 349 has three elements: 1) the conduct must be consumer-oriented; 2) the conduct must be misleading; and 3) the plaintiff must be injured as a result of the deceptive act or practice. GBL 349 permits recovery of up to three times the plaintiff’s damages, and a court can also award attorneys’ fees. 

The courts have upheld GBL 349 claims involving many different types of economic activity, and that includes conduct by disability companies. Claimants whose benefits under individual disability policies were wrongfully denied have commenced actions alleging that the disability insurer violated GBL 349. 

I represent a 60 year old client who had to stop working as a foreign exchange broker after more than a quarter century following his sixth lumbar back surgery. The Social Security Administration and Reliance Standard quickly found the claimant was disabled from any full time occupation, let alone his own occupation. 

Met Life found the claimant disabled from his own occupation, but then refused to pay additional benefits after a few months. I filed an action against Met Life that included a cause of action for GBL 349 violations. Met Life moved to dismiss the claim, arguing that it did not apply where a plaintiff sought benefits under a disability insurance policy. Specifically, Met Life argued that the complaint was merely a private dispute. The court rejected Met Life’s argument on the grounds that the claimant had stated claims that affected the public in general. Therefore, the court held that the claimant had properly stated a cause of action for GBL 349 violations, and denied Met Life’s motion to dismiss.

Cyclic Vomiting Syndrome

According to an article in the Journal of Child Neurology, cyclic vomiting syndrome (CVS”) is a gastrointestinal disorder that is “characterized by severe discrete episodes of nausea, vomiting, and lethargy.” CVS is a fairly common, disabling, predominately childhood condition that has increasingly been seen in adults in recent years. 

I represent a 49 year old former truck driver with CVS whose Social Security Disability (“SSD”) application was approved today five months after it was filed. The claimant had been treating with a gastroenterologist for this chronic condition since 2012. The claimant was missing about three days a month due to the CVS, which most vocational experts would say makes a person unable to sustain employment. However, even if CVS does not require a person to miss an entire day, it renders a person off task too often to be able to perform full time work on a sustained basis.

Kudos To ALJ Wexler

I represented a former valet with cardiovascular problems whose claim for Social Security Disability (“SSD”) benefits was approved today by Administrative Law Judge (“ALJ”) April Wexler. Unfortunately, the claimant died on February 27, 2016, from those health problems. 

The Social Security Administration (“SSA”) had insisted that the claimant attend a consultative examination (CE”) by Jerome Caiati, a doctor who claims to be an internist working for IMA Disability. According to the American Medical Association, American Board of Medical Specialties and New York State Department of Health, Caiati did not attend medical school in the United States, and is not board certified in any medical field. That fact alone should suffice to accord little weight to Caiati’s opinion. 

As discussed in my prior postings, the IMA CEs are frequently baseless. Some of my colleagues believe that the Caiati CE reports are the worst of all. ALJ Wexler’s decision is consistent with that opinion. 

Caiati diagnosed the claimant with history of "asymptomatic" hypertension/high blood pressure, while cautioning the claimant to follow up with his own physician after the CE revealed elevated blood pressure. As he virtually always does, Caiati opined that the claimant had no limitations in sitting, standing, walking, reaching, pushing, pulling, lifting, climbing, and bending. 

ALJ Wexler gave Caiati's opinion little weight because it was not only inconsistent with the record as a whole, but with is own CE findings as well. For example, the ALJ pointed out that the claimant could not only have a "history" of high blood pressure, implying that it was a thing of the past, while Caiati admitted that the claimant currently had high blood pressure, and even warned that the claimant had to follow up with his own physician. ALJ Wexler added that high blood pressure is etiologically related to the claimant's fatal cardiac failure. 

In rejecting Caiati's opinion, ALJ Wexler concluded that, “It strains credulity that, given the claimant's significant medical history and the positive examination findings for high blood pressure, the claimant would have had absolutely no physical limitations as opined by Dr. Caiati.” 

I am surprised that the ALJ gave any weight to Caiati's opinion at all. Anyone whose SSD application was denied based upon a CE by Caiati should file an appeal.

Vocational Report Pays Off

Disability claims involve both medical and vocational issues. However, while disability claimants frequently pay for medical reports, they rarely consider investing in a vocational report. I represent a former construction manger with neck and back problems who was approved for Social Security Disability (“SSD”) benefits today because after an Administrative Law Judge (“ALJ”) reviewed the claimant’s vocational report. 

The ALJ had scheduled a hearing with a Vocational Expert (“VE”) from the Social Security Administration (“SSA”). I submitted a letter to the ALJ objecting to the SSA VE because the claimant had submitted a report from his own VE, who also happens to serve as a VE for the SSA. My letter explained why none of the reasons set forth in the HALLEX for scheduling a VE to testify applied. The Hearings, Appeals and Litigation Law Manual (“HALLEX”) is a compilation of rules from the Social Security Administration's Office of Disability Adjudication and Review (“ODAR”). Moreover, the claimant’s VE was available to answer any questions that the ALJ might have. 

When the ALJ originally scheduled the hearing, he did not read the VE report. That is because, as frequently happens, that evidence had been excluded from the file. After I resubmitted the VE report, together with the receipt showing that the SSA had received it, the ALJ approved the SSD application without a hearing. As a result, the claimant will be awarded in excess of $100,000. Money well spent for the VE report.

Holding IMA Accountable

We represent a claimant for Social Security Disability ("SSD") benefits. His claim was approved today without a hearing, even though Social Security rarely does this anymore. 

We had filed a request with the Freedom of Information Act (“FOIA”) when the claimant attended a Consultative Exam (CE) at IMA in January, only to be told when he got there that the doctor wasn't in. We filed the FOIA request because we wanted to show that fraud was being committing, as they denied our client his SSD benefits initially for not attending the CE. Our FOIA request was denied. The evidence in other cases was just as strong, so we can only assume that Social Security did not want to have to explain why IMA lied regarding the CE. The bottom line, do not let IMA lie.

Vocational Expert

A vocational expert (“VE”) at a Social Security Disability (“SSD”) hearing is supposed to testify about the functional demands of occupations, the number of various occupations, and transferability of work skills. Administrative Law Judges (“ALJs”) frequently use VEs to create evidence to deny SSD claims.

I represent a former sewer supervisor in connection with his NYSLERS and SSD claims. I had arranged for him to obtain a comprehensive vocational evaluation for his NYSLERS claim, which I also submitted for his SSD claim. The VE happens to be certified as an expert by the Social Security Administration. 

The ALJ scheduled a VE to testify at the claimant’s SSD hearing. I submitted a brief that objected to a VE testifying because the ALJ already had detailed report from a VE certified by the SSA as an expert, and that any question the ALJ had could be addressed to the VE. I maintained that scheduling another VE to testify was patently unnecessary, and gave the appearance of expert shopping. 

The hearing was held without a VE, and the case was approved.

Easy Case For ALJ

I recently wrote about the effect that increased work loads had on an Administrative Law Judge (“ALJ”). One wonders what an ALJ thinks when having to adjudicate a Social Security Disability (“SSD”) claim that the State agency denied. 

I represent a 39 year old sanitation worker with a severe hip problem that requires him to use a cane permanently, and prevents him from prolonged sitting. The State agency said the claimant was credible, did not need a consultative examination, but did not have a medical opinion about his restrictions and limitations. 

Contrary to the State agency’s explanation for denying the claimant’s SSD application, the claimant submitted a report from his surgeon and treating orthopedist that did in fact provide restrictions and limitations. In light of that transparent error, there was no medical issue for ALJ Faraguna to evaluate, and the hearing was short as the ALJ simply focused on the testimony of a vocational expert, which readily found the claimant disabled.

SSD Approved in 2.5 Months

Ironically, while the State agency has been taking longer to approve compassionate allowance Social Security Disability (“SSD”) claims and SSD claims that meet listings, the agency has been taking less time to approve SSD claims of older workers, especially when their occupation was not sedentary. 

I represent a client with back, neck and hip problems who had worked as a real estate agent and machine supervisor. The medical problems did not meet a listing, nor did they constitute a compassionate allowance, but he did have strong supporting reports from his treating specialists. The claimant’s past work was not sedentary, and he was 60 years old when he became disabled. The SSD application was approved today in a couple days short of 2.5 months. 

Social Security has always stated that transferability of skills to sedentary work for individuals who are 55 and over requires little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry. Perhaps Social Security recognizes that the aforementioned rule is even truer today than ever as our constantly evolving workforce requires greater skills now to be employable. That would explain quicker SSD approvals for older workers with protracted non-sedentary work histories.

ALJ Quotas

Last year, a federal appellate court rejected a lawsuit by Social Security Administration (“SSA”) Administrative Law Judges (“ALJ’s”) that had challenged the SSA’s requiring ALJs to decide between 500 and 700 cases annually. The court said that while some ALJs might dismiss more cases than they would have preferred to do, the increased caseload did not interfere with decisional independence. 

Last year, ALJ Weiss dismissed an SSD case that did not even address the findings and opinions from the primary treating physician, a psychiatrist. The decision was so contrary to the ALJ’s typically cogent decisions that my appeal comments stated: 

“Presumably, the ALJ had a quota to meet, and had somebody else write the Decision for him, which he never bothered to review.” 

It appears that my supposition was correct. The Appeals Council remanded the claim for reconsideration of the psychiatrist’s opinion. The ALJ approved the claim today without an additional hearing based on the psychiatrist’s findings and conclusions, which shows the ALJ would have approved the claim initially had he been able to spend more time on it.

NYSLERS

I just had two applications for ordinary disability retirement approved by NYSLERS. The claims involved claimants with completely different medical conditions and occupations, but in each case I required the claimant’s to undergo comprehensive vocational evaluations. 

Over the years, I noticed that when NYSLERS rejected Article 15 Disability Retirement applications there was no nexus between the supporting medical evidence that I submitted and the physical and mental occupational demands of the claimant’s job. The general purpose of a vocational evaluation is to assess the employment capabilities of an individual using skill, situational, standardized and functional assessments. When filing Article 15 Disability Retirement application, the vocational evaluation enhances NYSLERS’ ability to understand how a claimant’s medical condition affects their ability to perform the material and substantial duties of their job. 

In short, the vocational evaluation seems to mitigate much of the guessing game that can take place when the focus is only the medical evidence.

ALJ Quotas

Last year, a federal appellate court rejected a lawsuit by Social Security Administration (“SSA”) Administrative Law Judges (“ALJ’s”) that had challenged the SSA’s requiring ALJs to decide between 500 and 700 cases annually. The court said that while some ALJs might dismiss more cases than they would have preferred to do, the increased caseload did not interfere with decisional independence. 

Last year, ALJ Weiss dismissed an SSD case that did not even address the findings and opinions from the primary treating physician, a psychiatrist. The decision was so contrary to the ALJ’s typically cogent decisions that my appeal comments stated: 

“Presumably, the ALJ had a quota to meet, and had somebody else write the Decision for him, which he never bothered to review.” 

It appears that my supposition was correct. The Appeals Council remanded the claim for reconsideration of the psychiatrist’s opinion. The ALJ approved the claim today without an additional hearing based on the psychiatrist’s findings and conclusions, which shows the ALJ would have approved the claim initially had he been able to spend more time on it.

Appealing Partially Favorable SSD Decisions

When you apply for Social Security Disability (“SSD”) benefits, the State agency  can approve your application, but based on a date after you claimed you became disabled. The result of that partially favorable decision (“PFD”) is that you may lose benefits, and it may take longer for you to receive Medicare. 

To decide whether or not to appeal, you must review the entire file. However, frequently the reason why a particular later date was selected for the disability onset cannot be discerned. Regardless, the issue boils down to what changed between the time you claimed you became disabled, and the date you were found to become disabled. 

I just received two ALJ decisions that rejected the State agency PFDs. One was a 56 year old former bread machine operator with upper left arm impairments, and the other was a 52 year old former stock clerk with progressive orthopedic injuries from car accidents. The State agency claimed there was no contemporary medical records for either. At their hearings, I showed that there were in fact contemporary medical records for the former, and a valid retrospective medical opinion for the latter. 

The ALJ agreed with my arguments, which essentially demonstrated that each claimant’s medical restrictions and limitations had existed since the date that each claimed they had become unable to work. Consequently, the ALJ issued a fully favorable decision for each claimant. The result was that each claimant received in excess of another year of SSD benefits.

Subpoenas

The Social Security regulations, and HALLEX rules for Administrative Law Judges (“ALJs”), allow claimants to request subpoenas for the appearance of witnesses or documents. New York courts have repeatedly recognized the right of a claimant to subpoena and cross-examine witnesses who submit reports adverse to the disability claim, especially when ALJs substantially rely on the report. 

The courts have held that an ALJ abuses his discretion, and cannot rely upon the opinion of a consultative examiner (“CE”) if it was unclear if a CE reviewed the treating doctor’s reports, or if the reliability of the CE’s report is sufficiently controversial to merit cross-examination. I recently invoked a claimant’s right to subpoena a CE for cross examination because her opinion was contradicted by six other doctors, and the reliability of the CE’s aberrant and vague report was questionable, especially in light of her medical license revocation and incarceration for felonious fraud. The CE needed to be cross examined about her review of the treating doctor reports, and her qualifications for evaluating them. 

The ALJ issued a fully favorable decision today, which failed to address the subpoena. Had the ALJ denied the claimant’s disability application, then the failure to issue the subpoena, let alone address the subpoena request, would have provided automatic grounds for a remand.

IMA Folly

I represent a 60 year old former institutional cook whose Social Security Disability (“SSD”) application was approved today, but not before IMA Disability Associates (“IMA”) sent over a half dozen letters insisting that he must attend a consultative examination (“CE”). My client did not. 

On October 22, 2015 and October 23, 2016, the State agency sent letters stating that the claimant “must” attend a CE because it was “necessary” for him to be examined by IMA. Both letters were received on October 26, 2015. That day, I faxed the State agency a detailed seven page letter explaining the reasons why scheduling a CE with IMA was improper. My letter specified that the claimant was not refusing to attend a CE, but asked the State agency to address the questions raised in my letter raised first. 

On November 5, 2015, the State agency refused to address the issues raised in my October 26, 2015, and said that this was the claimant’s last chance to attend a CE. The State agency then send another notice on November 10, 2015, reiterating that the claimant “must” attend a CE because it was “necessary” for him to be examined by IMA. On November 12, 2015, I replied that the claimant would attend the CE as soon as the State agency responded to the matters raised in my October 26, 2015 letter. 

The State agency continued to refuse to cooperate, and instead, on November 16, 2015, sent yet another CE notice stating that the claimant “must” attend a CE on November 16, 2015, because it was “necessary” for him to be examined by IMA. On November 18, 2015, I faxed the State agency we received their letter on November 17, 2015, the day after the CE was scheduled. Moreover, I advised the State agency that I sent them a detailed report from the claimant’s pain management specialist, together with a lumbar spine MRI, which obviated any supposed need for the CE. I added that if they believed otherwise, then respond to each of the matters raised in my October 26, 2015 letter. 

The State agency never attempted to address any of the issues raised in my October 26, 2015 letter, and it did finally approve SSD benefits, but the claimant never went to IMA for a CE. The question is, why does the State agency keep telling claimants that claimants “must” attend IMA CEs when that is not true.

SSA Self Policing

“Letting a fox guard the henhouse” illustrates the foolishness of placing a person in charge of something when they have a conflict of interest. When you assign somebody a duty that places that person into a position where he can exploit the situation for his own benefit, then you are letting the proverbial fox guard the henhouse. That is the situation created by allowing the Social Security Administration (“SSA”) to decide the propriety of Freedom of Information Act (“FOIA”) requests. 

We represent a claimant for Social Security Disability ("SSD") benefits. Despite the fact we had submitted supporting evidence from his treating doctors, the SSA scheduled a Consultative Exam ("CE") for him. The client went to the CE, even though he was in a lot of pain, but when he arrived IMA said the CE doctor was out that day. No one from the SSA, State agency, or IMA ever tried to reach the claimant to tell him the CE doctor would not in that day. 

To prove that the DDS/IMA were committing fraud, we filed a FOIA request. Our request included: 1. The number of other patients the CE doctor was scheduled to see that same day, May 8, 2015, at the IMA offices in Hempstead, NY. 2. A copy of all the other patients' medical reports (with the names and Social Security numbers redacted) from May 8, 2015, who were examined by the same doctor that was scheduled to examine our client on that date. 3. The time records for all exams performed by the Hempstead IMA doctors on May 8, 2015. 

In response to our FOIA request, Mary Ann Zimmerman, Acting Privacy Officer, claimed that she did not have our client’s Social Security number, even though it was right at the top of the FOIA request. Yes, Zimmerman claimed that she could not see the Social Security number, which was the very subject of the FOIA request. Then, to make matters even worse, Zimmerman claimed that she did not have proof that we are the claimant's Appointed Representative, even though the SSA had already acknowledged receiving the proof. 

Zimmerman then claimed that she needed the written consent of the claimant whose records were requested. However, we never asked for any personally identifiable information. In fact, we specifically asked for "a copy of all the other patients' medical reports (with the names and Social Security numbers redacted) who were examined on May 8, 2015. In other words, Zimmerman’s response was nonsensical at best as there cannot be a need for the written consent of people when no personally identifiable information was requested. Since we explicitly stated that no personally identifiable information was requested, it is not possible for the FOIA request to constitute an invasion of anyone's personal privacy or violation of the Privacy Act. 

Not surprisingly, the SSA’s Glenn Sklar upheld the decision to deny the FOIA request by citing boilerplate language about the FOIA. Sklar’s only individualized claim was that releasing generic information about the number of exams and their duration performed by IMA doctors would somehow lead to the disclosure of personally identifiable information. Sklar knows that rationalization is a lie because it is impossible to identify a claimant who went for an IMA exam by providing the number of IMA exams and their duration. That is the type of opprobrious misconduct that occurs when you allow the SSA to police itself.

State Agency Fraud

I represent a 60 year old with orthopedic and cardiovascular problems who worked for 46 years, including over three decades as a media salesperson, where he earned a large six figure income. His application for Social Security Disability (“SSD”) benefits was initially denied by the State agency. 

Common sense dictates that a claimant does not misrepresent or exaggerate his disability in order to trick the government into paying SSD benefits that are a tenth of his past income. Nonetheless, despite having submitted Residual Functional Capacity (“RFC”) assessments from his orthopedist, cardiologist, and internist, the claimant was compelled to attend a hearing before his SSD benefits were approved today. Compelling a hearing was particularly appalling in light of fraudulent misrepresentations that the State agency in connection with a report that DDS Disability Adjudicator/Examiner V. Kumar prepared in connection with the claimant’s application. 

Kumar wrote that the claimant’s doctors refused to perform a consultative examination (“CE”) for the state approved vendor fee. Neither Kumar nor anybody else from the DDS ever spoke with any of the claimant’s doctors to ask them if they would perform a CE, let alone ask them if they would perform a CE for any particular fee. The official Social Security folder showed that the DDS never even contacted any of the claimant’s doctors by mail about anything. 

What made Kumar’s fraudulent misrepresentation especially appalling is that I had sent a letter that stated: 

"the treating physicians are ready, willing, and able to perform a CE, but you have not asked them to perform a CE. I have spoken with the claimant who has agreed to pay any difference between what you are willing to pay and the amount the treating doctor would charge. Therefore, do not falsely claim that a treating source refused to do the CE because of the fee involved."

The second fraudulent assertion that Kumar made was that the CE was needed because there was insufficient evidence to evaluate the claim. The file contained over a hundred pages of treatment records, functionality opinions, and diagnostic testing. Proof that the evidence was sufficient is that the judge only asked a couple of questions at the hearing. Moreover, I had sent a detailed seven page single spaced letter to the DDS, asking them to identify any additional medical evidence that they claimed was needed to evaluate the claim. As always, instead of specifying a single piece of medical evidence they purportedly needed, the DDS simply sent a second CE notice, despite my having sent them that detailed letter, which among other things stated: 

"In order for me to have the chance to obtain the information that you claim you need, you need to clarify precisely what information you are seeking. Simply resending a notice with a new CE date fails to fulfill your responsibility to develop the record, and shows that you lack any valid reason for the CE."

Kumar’s third fraudulent misrepresentation was that stating “No RFC /MRFC assessments are associated with this claim.” As discussed above, the folder contained three RFC assessments. In fact, the RFC from the claimant’s orthopedist appears in the eFolder twice. It was impossible for Kumar to have missed all three reports when reviewing the claimant’s file. Nonetheless, Kumar stated in no uncertain terms that no such RFC assessment existed in the folder. 

The most egregious fraud committed was Kumar’s writing that the claimant missed two CE appointments. The claim folder included a form DDD-4184, entitled CE Appointment Notice History. The form DDD-4184 stated that the claimant did not keep the appointment for the CE. Whoever prepared the form DDD-4184 committed fraud because the claimant has photographs of him entering the IMA offices for the CE. The claimant also videotaped him inside the IMA offices, and being told to leave by IMA. 

Although I asked the judge what steps he would take to address the fraudulent misconduct by the State agency and/or IMA, I never received a response.