When a medical expert (“ME”) testifies at a Social Security hearing, the testimony is usually adverse to finding the claimant disabled. Apparently, one way to increase the likelihood that an ME will testify favorably is to provide a copy of all the hospitalization records. Within the last month, I had two different MEs say the evidence supported finding the claimants disabled based upon the voluminous hospitalization records.
The cases were completely different. One involved Social Security Disability (“SSD”) benefits for an adult with various musculoskeletal problems, while the other concerned Child’s Insurance Benefits (“CIB”) for a claimant with interstitial cystitis. There were thousands of pages of hospital records, and just today, about another thousand were received in the CIB case after the fully favorable decision was received. The ME in the adult case admitted that he did not read all the records.
There are listings that apply where a claimant has been hospitalized a certain number of times during a fixed period of time, but neither of the MEs testified as much. I suspect that the MEs equate hospitalizations with the severity of a medical impairment. Obtaining hospital records are usually more difficult to obtain in a timely manner compared to treating doctors’ records. However, even if most of the documentation may not contain much information pertinent to the claimant’s disability application, the need for the hospitalization seems to impress an ME much more than progress notes.
Both of these cases
happened to be on Long Island, but in general, my office staff is very
familiar with requesting medical records from the hospitals in the
Metropolitan area including Nassau and Suffolk Counties, Queens,
Brooklyn and Manhattan.
If
you find yourself in the position of needing to apply for SSD benefits,
please call my office for a free phone consultation. My staff and I
will be able to assist you with any questions you might have. Having a SSD attorney with years of experience and
expertise handling your claim will make the process of applying for SSD
much less stressful and overwhelming.
Wednesday, September 25, 2019
Monday, September 23, 2019
Expert Interrogatories
When an administrative law judge (“ALJ”) wants to deny a Social Security Disability (“SSD”) application after a hearing, but the evidence supports disability, the ALJ may send interrogatories to a medical expert (“ME”). If the interrogatories are adverse to the claimant, the ALJ must follow proffer procedures, and the claimant has the right to cross examine the ME. If the ALJ denies an application based on the interrogatories without proffering them, then the SSD claim will be remanded for further proceedings.
Most of the time, ME interrogatory responses contradict the supporting opinions of the treating physicians. In those unusual situations where the opposite is true, and the ALJ intends to issue a fully favorable decision, the interrogatories do not need to be proffered. What happens if the ALJ tries to get a ME to retract an opinion that supports finding you disabled?
I have a case where ALJ Donaghy received interrogatory responses from ME Rita Clark last March that corroborated the disability findings and opinions of the claimant’s psychiatrist and psychologist, and concluded that the claimant met a listing. The ALJ never proffered those responses, and refused to issue a fully favorable decision. Instead, last August, the ALJ resent the verbatim interrogatories, which even included the identical typos.
The only ostensible reasons to resend the identical interrogatories was the ALJ’s hope that Dr. Clark would change her responses for some reason. However, that did not happen. In fact, Dr. Clark reinforced her prior interrogatories responses as additional evidence in the eFolder that supported her opinion.
The three mental health providers who had been treating the claimant since 2009 each concluded that the claimant became disabled before 2010. Despite the fact that the unanimous consensus was that the claimant has been disabled since before 2010, the ALJ decided to ignore all of their opinions, and to ask ME Clark when the claimant became disabled.
The fourth interrogatory asked:
if you have sufficient information to form an opinion within a reasonable degree of medical or psychological probability as to past limitations, on what date were the limitations you found first present?
The question you posed was not the least bit ambiguous or confusing. In fact, to make sure that there was absolutely no misunderstanding the interrogatory, the ALJ’s letter to ME Clark stated: "Please note that the relevant period for this opinion is 12/14/04 - 12/31/10." To make matters even clearer for Dr. Clark, if that were even possible, the ALJ italicized and bolded her statement, so that Dr. Clark could not conceivably misunderstand the request. And ME Clark did not.
Dr. Clark agreed with the conclusions of the three treating sources. In no uncertain terms, in response to the fourth interrogatory, Dr. Clark stated that the claimant has been disabled since April 6, 2009. However, just as the ALJ was unwilling to accept the opinions of the three treating sources that the claimant became disabled during the relevant period, she was unwilling to accept that Dr. Clark concurred with them, even though the fourth interrogatory and answer were perfectly clear.
I sent the ALJ a letter stating that the “new” interrogatories asked exactly what the fourth interrogatory previously asked, and that the ALJ neglected to explain for the record why she believed it was necessary to ask Dr. Clark the same thing again, other than to get her to change her answer to create an excuse to reject the opinions of the three treating sources. Nonetheless, the ALJ still refused to decide the claimant’s application. Only after a letter recounting the facts was sent to the Division of Quality Service did the ALJ finally approve the claimant’s SSD benefits.
Most of the time, ME interrogatory responses contradict the supporting opinions of the treating physicians. In those unusual situations where the opposite is true, and the ALJ intends to issue a fully favorable decision, the interrogatories do not need to be proffered. What happens if the ALJ tries to get a ME to retract an opinion that supports finding you disabled?
I have a case where ALJ Donaghy received interrogatory responses from ME Rita Clark last March that corroborated the disability findings and opinions of the claimant’s psychiatrist and psychologist, and concluded that the claimant met a listing. The ALJ never proffered those responses, and refused to issue a fully favorable decision. Instead, last August, the ALJ resent the verbatim interrogatories, which even included the identical typos.
The only ostensible reasons to resend the identical interrogatories was the ALJ’s hope that Dr. Clark would change her responses for some reason. However, that did not happen. In fact, Dr. Clark reinforced her prior interrogatories responses as additional evidence in the eFolder that supported her opinion.
The three mental health providers who had been treating the claimant since 2009 each concluded that the claimant became disabled before 2010. Despite the fact that the unanimous consensus was that the claimant has been disabled since before 2010, the ALJ decided to ignore all of their opinions, and to ask ME Clark when the claimant became disabled.
The fourth interrogatory asked:
if you have sufficient information to form an opinion within a reasonable degree of medical or psychological probability as to past limitations, on what date were the limitations you found first present?
The question you posed was not the least bit ambiguous or confusing. In fact, to make sure that there was absolutely no misunderstanding the interrogatory, the ALJ’s letter to ME Clark stated: "Please note that the relevant period for this opinion is 12/14/04 - 12/31/10." To make matters even clearer for Dr. Clark, if that were even possible, the ALJ italicized and bolded her statement, so that Dr. Clark could not conceivably misunderstand the request. And ME Clark did not.
Dr. Clark agreed with the conclusions of the three treating sources. In no uncertain terms, in response to the fourth interrogatory, Dr. Clark stated that the claimant has been disabled since April 6, 2009. However, just as the ALJ was unwilling to accept the opinions of the three treating sources that the claimant became disabled during the relevant period, she was unwilling to accept that Dr. Clark concurred with them, even though the fourth interrogatory and answer were perfectly clear.
I sent the ALJ a letter stating that the “new” interrogatories asked exactly what the fourth interrogatory previously asked, and that the ALJ neglected to explain for the record why she believed it was necessary to ask Dr. Clark the same thing again, other than to get her to change her answer to create an excuse to reject the opinions of the three treating sources. Nonetheless, the ALJ still refused to decide the claimant’s application. Only after a letter recounting the facts was sent to the Division of Quality Service did the ALJ finally approve the claimant’s SSD benefits.
We let the
claimant know today that he was approved. He had initially filed his application on his own, and decided to retain us after his claim was initially denied. He believed his application would have been denied again if not for our help. Although the claimant
resides in Rego Park, Queens, a friend of his who was a former client of mine,
referred him to my office. While I am a disability attorney with offices in Jericho and Melville on
Long Island, I regularly do hearings in Queens. Many of my clients do not reside in Nassau or Suffolk County. Because of their disabilities, many clients, even those who live on Long Island, have difficulty coming to my offices. Therefore, my staff and I make the process easy by
collecting information by phone, email and fax to minimize their need to travel to my office.
Thursday, September 19, 2019
Surveillance Report
I represent a 53 year old former auto body mechanic from Rego Park, Queens, with back and emotional impairments whose Social Security Disability (“SSD”) application was approved today without a hearing. What made this case interesting was that the file, more specifically, the medical evidence “F” section of the eFolder, included a surveillance report from the Cooperative Disability Investigations (“CDI”) Unit of the Social Security Administration (“SSA”).
According to the SSA Office of the Inspector General, the CDI Units investigate disability claims under SSA’s Title II and Title XVI programs that State disability examiners believe are suspicious. The CDI program’s primary mission is to "obtain evidence that can resolve questions of fraud before benefits are ever paid.”
The eFolder contained no explanation why the State disability examiners would believe the claimant’s application was suspicious. Nor did the eFolder provide any basis for suspecting the claimant was engaging in fraudulent activity. Consequently, pursuant to a Social Security regulation and HALLEX provision, I asked the administrative law judge (“ALJ”) to issue a subpoena to command the appearance of the author of the surveillance report, the production of the video recording taken during the investigation, and all documentation that purportedly justified the investigation.
The ALJ approved the claimant’s SSD application the day before the hearing. It is unknown if requesting the subpoena played a role in the ALJ’s decision. If you would like to speak with a disability attorney about a CDI Unit report, feel free to call our office. If you live in Long Island, and have questions about a CDI report or disability matter, you can also meet at our offices.
According to the SSA Office of the Inspector General, the CDI Units investigate disability claims under SSA’s Title II and Title XVI programs that State disability examiners believe are suspicious. The CDI program’s primary mission is to "obtain evidence that can resolve questions of fraud before benefits are ever paid.”
The eFolder contained no explanation why the State disability examiners would believe the claimant’s application was suspicious. Nor did the eFolder provide any basis for suspecting the claimant was engaging in fraudulent activity. Consequently, pursuant to a Social Security regulation and HALLEX provision, I asked the administrative law judge (“ALJ”) to issue a subpoena to command the appearance of the author of the surveillance report, the production of the video recording taken during the investigation, and all documentation that purportedly justified the investigation.
The ALJ approved the claimant’s SSD application the day before the hearing. It is unknown if requesting the subpoena played a role in the ALJ’s decision. If you would like to speak with a disability attorney about a CDI Unit report, feel free to call our office. If you live in Long Island, and have questions about a CDI report or disability matter, you can also meet at our offices.
SSD Approved in 2 Months
I represent a 52 year old former Cable Television maintenance worker with neck and back problems whose Social Security Disability (“SSD”) application was approved today after two months. Since SSD benefit approval rates have been decreasing, while decision-waiting times have been increasing, the question arises: what made this SSD claim different?
The ostensible answer is “objective” evidence. Recent prior posts have discussed how Social Security has placed greater emphasis in the last couple of years on “objective evidence.” To the SSD adjudicators, objective evidence primarily means diagnostic tests.
We submitted an unusually large number of MRI and EMG tests for the claimant, in addition to treatment records and disability assessments from treating physicians. This indicates that even thought the Social Security Administration has eliminated the treating physician rule, when the opinion of a claimant’s physician is accompanied by significant diagnostic testing, the opinion is likely to be accepted.
This case involved a disability claimant from Long Island, and we have been able to obtain SSD benefits for many other disability claimants quickly compared to national averages. For the convenience of our Long Island clients, and potential clients, we have offices in both Nassau and Suffolk county.
The ostensible answer is “objective” evidence. Recent prior posts have discussed how Social Security has placed greater emphasis in the last couple of years on “objective evidence.” To the SSD adjudicators, objective evidence primarily means diagnostic tests.
We submitted an unusually large number of MRI and EMG tests for the claimant, in addition to treatment records and disability assessments from treating physicians. This indicates that even thought the Social Security Administration has eliminated the treating physician rule, when the opinion of a claimant’s physician is accompanied by significant diagnostic testing, the opinion is likely to be accepted.
This case involved a disability claimant from Long Island, and we have been able to obtain SSD benefits for many other disability claimants quickly compared to national averages. For the convenience of our Long Island clients, and potential clients, we have offices in both Nassau and Suffolk county.
Friday, September 6, 2019
Unum Pays
I represent a plaintiff who sued Unum after it terminated her long term disability (“LTD”) benefits in the absence of any improvement in her medical condition. Unum rejected all of the opinions of my client’s doctors in favor of its in house doctors.
Unum reinstated my clients LTD benefits right before trial, and then argued that the plaintiff was not entitled to attorney fees. Yesterday, not only did the court award attorney fees that were four times the amount of the wrongfully withheld LTD benefits, but the court also awarded paralegal fees, costs that included legal research charges, and $7,120.58 in prejudgment interest.
Hopefully, this case will make Unum think twice about employing the same tactics in other cases. If you are thinking about applying for LTD benefits, or appealing a denial, it would be to your advantage to contact a disability attorney who specializes in LTD cases, and is familiar with the tactics the insurance companies use to deny claims. My offices, located on Long Island in Nassau and Suffolk counties, can be contacted for a free phone consultation.
Unum reinstated my clients LTD benefits right before trial, and then argued that the plaintiff was not entitled to attorney fees. Yesterday, not only did the court award attorney fees that were four times the amount of the wrongfully withheld LTD benefits, but the court also awarded paralegal fees, costs that included legal research charges, and $7,120.58 in prejudgment interest.
Hopefully, this case will make Unum think twice about employing the same tactics in other cases. If you are thinking about applying for LTD benefits, or appealing a denial, it would be to your advantage to contact a disability attorney who specializes in LTD cases, and is familiar with the tactics the insurance companies use to deny claims. My offices, located on Long Island in Nassau and Suffolk counties, can be contacted for a free phone consultation.
Bipolar Disorder
According to Stanford Medicine, bipolar disorder is characterized by severe and disabling highs and lows that affects 2.2 million Americans.
I represent a 55 year old former computer programmer from New Jersey whose Social Security Disability (“SSD”) application was approved yesterday without a hearing. Even though I am a disability attorney located on Long Island, and my client lives in New Jersey, there were no logistical problems representing him. The NJ State agency, which makes the initial decision on SSD application, requested the records from each treating source. We provided extensive detailed treatment records and functional assessments from the claimant’s psychiatrist, neurologist, and internist.
While the SSD application was approved, the State agency is holding up benefits until a representative payee is authorized for the claimant. It is always advisable to have a representative payee in mind when seeking SSD benefits when the claim is based on bipolar disorder.
I represent a 55 year old former computer programmer from New Jersey whose Social Security Disability (“SSD”) application was approved yesterday without a hearing. Even though I am a disability attorney located on Long Island, and my client lives in New Jersey, there were no logistical problems representing him. The NJ State agency, which makes the initial decision on SSD application, requested the records from each treating source. We provided extensive detailed treatment records and functional assessments from the claimant’s psychiatrist, neurologist, and internist.
While the SSD application was approved, the State agency is holding up benefits until a representative payee is authorized for the claimant. It is always advisable to have a representative payee in mind when seeking SSD benefits when the claim is based on bipolar disorder.
Thursday, September 5, 2019
“Reserved” to the Commissioner
Time and time again, administrative law judges (“ALJs”) invoke the mantra that determining the issue of disability is an issue that is reserved to the Commissioner when deciding Social Security Disability (“SSD”) claims. While that statement is correct, ALJs invariably apply it incorrectly.
It is true that a treating physician's legal assertion that a claimant is disabled is not entitled to any special significance. However, the case law is clear that the same cannot be said about a treating physician's medical assessment of the claimant’s limitations. The case law holds that a physician’s opinions regarding a claimant’s capacity to sit, lift, and stand for example, are in no way legal conclusions reserved to the Commissioner because they are not an opinion on the issue of legal disability, but on the nature and severity of the claimant’s impairments.
The problem is that ALJs invoke their “reserved” mantra as a basis to reject the limitations of a physician. That is a misapplication of the law. I received a decision today where the ALJ did just that. However, as the ALJ still issued a fully favorable decision, it will not need to be appealed.
It is true that a treating physician's legal assertion that a claimant is disabled is not entitled to any special significance. However, the case law is clear that the same cannot be said about a treating physician's medical assessment of the claimant’s limitations. The case law holds that a physician’s opinions regarding a claimant’s capacity to sit, lift, and stand for example, are in no way legal conclusions reserved to the Commissioner because they are not an opinion on the issue of legal disability, but on the nature and severity of the claimant’s impairments.
The problem is that ALJs invoke their “reserved” mantra as a basis to reject the limitations of a physician. That is a misapplication of the law. I received a decision today where the ALJ did just that. However, as the ALJ still issued a fully favorable decision, it will not need to be appealed.
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