SSD Embarrassment

Most people applying for Social Security Disability ("SSD") benefits or Supplemental Security Income benefits ("SSI") understand that their doctors need to support the disability claims.  What most people don't know is that their doctors must support the inability to work at any full time job.  The Social Security Administration ("SSA") evaluates if there are any occupations in the economy that exist "in significant numbers" that a claimant could perform.   The SSA doesn't care if the occupations they find are still in existence, or performed in the same manner, or what the purported jobs pay.  The SSA only cares about denying as many cases as possible, even if their methods are questionable and inaccurate.

The SSA relies on testimony from a "Vocational Expert" ("VE") at hearing.  The VE uses an antiquated publication called the Dictionary of Occupational Titles ("DOT") to come up with jobs that a claimant could do when the claimant can't perform their own occupation.  The DOT was updated in 1977.  It doesn't take a rocket scientist to understand that a lot has changed in the last 45 years, especially in the ways jobs are performed.  A lot of the jobs in the DOT don't even exist anymore.  Claimants are continuously denied SSD/SSI benefits when a VE finds jobs in the DOT that claimants supposedly can do, and then the VE uses unreliable methods to estimate how many of these jobs are available nationwide.  The SSA wastes billions of dollars, and can never seem to make the necessary updates and changes to their system to be able to make more accurate assessments and decisions.  It's embarrassing!

It is vitally important that you retain an experienced attorney who specializes in disability and knows how the system works.  We have over three decades of experience working with the SSA and its Administrative Law Judges ("ALJs"), cross examining the medical experts and VEs, which requires a thorough understanding of the DOT and ONET.  Unlike many other disability attorneys, if an ALJ denies your claim, we can appeal your case to Federal Court, where we can succeed in obtaining a new hearing, or an approval of benefits.  While we cannot guarantee the outcome, we can guarantee that we will fight for you to make certain you get a fair hearing.

Please feel free to call our office for a free phone consultation.  We have offices conveniently located on Long Island in both Nassau and Suffolk counties.

Approved In Under Two Months

As the Washington Post just reported, the system for processing applications for Social Security Disability (“SSD”) benefits is more overburdened than ever.  Knowing how to navigate the process is more important than ever.

We represent a 60 year old barber from Fresh Meadows with cancer.  We succeeded in obtaining SSD benefits in less than two months during the time when most claimants are waiting years.  Understanding what was needed, and promptly obtaining and submitting it, enabled us to expedite securing the claimant's benefits.

CE Boondoggle Continues

Time to discuss again the needless demands the State agency makes for a Social Security Disability (“SSD”) claimant to attend a consultative examination (“CE”).

Since the last Century, virtually every CE notice I have received has violated the Social Security regulations.  Demanding a CE means the State agency refuses to believe what the treating doctors say.  The CEs have delayed claimants’ receipt of SSD benefits, wasted taxpayer money, and wasted the time of administrative law judges.  To make matters worse, the State agency has insisted on CEs throughout COVID.

I represent a 47 year old former clerk from Glen Cove with multiple sclerosis (“MS”), bladder cancer and depression.  Despite supportive reports and records from the claimant’s urologist, neurologist and psychiatrist, the State agency denied SSD benefits because the claimant, with a compromised immune system due to cancer, would not attend a CE.

The case was approved today without a hearing.  As soon as an attorney from the Social Security Administration received the case, it was approved OTR.  The four demands for the claimant to attend a CE obviously were unnecessary.

Does the State agency have an unwritten regulation that requires they insist that every claimant attend a CE?  Doubtful.  More likely, the State agency examiners are too lazy or too busy to read the file.  Therefore, the examiners want to disregard all the medical evidence in the file, and just want to rely on what the CE says.

 

ALJ Grossman Reversed Again

Only 14% of cases that the Appeals Council reviews are reversed.  As a statistical matter, the odds of a case being reversed by the Appeals Council twice are an infinitesimal .0196%.  However, those odds increase greatly when a decision of administrative law judge (“ALJ”) Seth Grossman is being reviewed.

ALJ Grossman has a very low approval rate, and a reputation for issuing biased decisions.  As a result, I have filed extensive Complaints and requests for investigations pursuant to Social Security Ruling SSR 13-1 at the request of clients.

Yesterday, the Appeals Council reversed a decision by ALJ Grossman, for the second time.  The Appeals Council determined that Grossman had committed fundamental errors yet again.  Consequently, the Appeals Council ruled that it would be inappropriate for further review by ALJ Grossman, and ordered that the case be reassigned to another ALJ.

Is SSD Permanent? No.

The Social Security Administration (“SSA”) will periodically conduct a continuing disability review (“CDR”) to determine if you remain disabled.  The regulations state that a CDR should be done at least once every three years, unless you have a medical condition that is not expected to improve, in which case the CDR should take place every five to seven years. If the SSA determines that your medical condition has improved, then your Social Security Disability (“SSD”) benefits will be terminated.

We represent a 34 year old financial services manager who the SSA found disabled in 2018 due to IBS. However, the SSA terminated his benefits on the grounds that his health had improved, and he retained us again. On reconsideration, we were able to obtain reports from the claimant’s doctors that explained how the objective medical evidence supported his persistent functional deficits. As a result, the SSA reversed its decision, and reinstated SSD benefits.

The SSA has been increasingly seeking ways to reduce the number of claimants collecting SSD benefits. You cannot assume that you will continue to receive SSD benefits until you reach retirement age. That is why it is vital that you continue to see your doctors on a regular basis even after you are approved for SSD benefits.  It is equally as important to retain an experienced Social Security Disability attorney if the SSA erroneously terminates your benefits.  Our office offers free phone consultations and we have offices located on Long Island in both Nassau and Suffolk counties.

Fraudulent CE's

Social Security constantly sends claimants to Consultative Exams ("CEs"), even when the claimant has supporting medical documents from their own treating doctors.  Social Security's own rules specify that the treating provider is the preferred source, and a CE only needs to be scheduled if a claimant does not submit medical documents from their own doctors.  Nevertheless, Social Security almost always ignores their own regulations, and schedules unnecessary CE's for the claimants to attend.  Unfortunately, most of the time, this is not in the claimant's best interest.  The companies that Social Security hires to perform the CEs, and the doctors who perform them, routinely commit fraud.  If you do attend a CE, it is vital that you note everything that the doctor does and does not do, and the length of the exam.  You should bring someone with you to the CE who can be a witness at a hearing if you do get denied based on the CE.

 

SSA - Is Anyone Listening?

by Susan Golden

The Social Security Administration ("SSA") has problems.  Serious problems.  Years and years of backlogged claims, analysts who don't give a damn, inexperienced employees, and Judges who don't follow the rules.  Unfortunately, we have had claimants pass away, while waiting for a decision on their Social Security Disability claim.  And there are thousands of people across the country who are dying before their claims have been decided. 

We have a client who passed away almost four years ago.  He left behind a wife and two children.  He filed for Social Security Disability benefits on December 5, 2017.  His case, which was supposed to be expedited, went before Judge Carlton at the Bronx Hearing Office on April 12 2019, who erroneously denied the claim, and who took months to make the decision; September 26, 2019 to be exact.  We appealed his case to Federal Court.  On January 29, 2021, a Federal Court Judge made the decision to remand the case back to Judge Carlton for a new hearing.  We immediately sent a letter to Judge Carlton, reminding him the that the claimant had passed away, and that the case was supposed to be expedited, and asked that the hearing be scheduled right away.  The remanded hearing wasn't held until June 9, 2022.   At the hearing, we reminded Judge Carlton that there were no new records to submit because the claimant had passed away.

It's been well over four months since the hearing, and not only has the Judge not made a decision on the claim, he has not even LOOKED at the case since the hearing.  We have spoken to supervisors at the Bronx Hearing Office, mailed and faxed letters to the Chief Administrative Law Judge of the Bronx Hearing Office, and have had the claimant's wife call her local congressman's office.  There has been NO movement at all.  How is this even possible?  The answer is, there are no consequences or repercussions for Judge Carlton, the Bronx Hearing Office, or the SSA.  The way this case has been handled is a disgrace and a travesty.  And it's not the first one and it won't be the last.  No one deserves to be treated like this.  Is anyone listening??

 

 

Cost of Living Increase

It is almost that time of the year again when Social Security announces the cost of living adjustment ("COLA") to Social Security checks for 2023.  This year, due to inflation, those receiving Social Security benefits could see as much as an 8.7% increase to their Social Security checks.  Experts' predictions on the amount of the COLA have been fluctuating over the past several months, but one thing they all seem to agree on is that it will be one of the largest increases in more than 40 years.  It would also be the highest increase anyone currently receiving benefits has ever received.

Unconscionable Delays by ALJ

by Susan Golden

It is a well known fact that the process of applying for Social Security Disability ("SSD") benefits and waiting for a decision, can take months, or even years.  You cannot continue to work if you want to apply for SSD, yet, you're expected to live without income and wait, while the system slowly churns.

Social Security's excuse for their long delays  in processing a claim has always been that they are understaffed and backlogged.  While this in part may be true, the bulk of the delays seem to be due to a simple lack of caring. While there are many concerned and committed workers at the SSA, they seem to be more of a rarity, as a lot of the more experienced employees retire.  So many cases are delayed simply because a file sits on someone's desk for days, weeks and even months.

We represent a claimant who applied for  SSD benefits on December 5, 2017.  The claimant became unable to work a fulltime job on June 15, 2016, and contacted us in December of 2017, seeking our services. Unfortunately, he passed away 3 months before his initial hearing.  He left behind a wife and two children, who were his world.  Five months after his hearing, his claim was denied by ALJ John Carlton at the Bronx hearing office.  This is an unusually long period of time for a Judge to take to make a decision.

We appealed the claim at the Appeals Council ("AC") and it was denied three months later, in December of 2019.  We subsequently filed suit in Federal Court, and the case was remanded for another hearing. The order was signed and issued by Federal Court Judge Ronnie Abrams on July 6, 2021, and sent back to the AC to process and send back to the hearing office.

It then took the AC an unusually long six months to send a letter to AlJ Carlton, advising him that our claimant's case had been remanded for further proceedings.  Two weeks later, we sent a letter to ALJ Carlton, reminding him that the claim was supposed to be expedited, even though the AC didn’t treat it as such, and asked that the hearing be scheduled.

Our client's remanded hearing was held on June 8, 2022, six months after we requested ALJ Carlton to have the hearing scheduled, and almost a year after Judge Abrams issued her decision for a remand.

Four months have passed since the June 8th hearing, and ALJ Carlton has not made a decision.  In fact, he has not even looked at the case.  We have called the Bronx hearing office on a number of occasions to ask why this is so.  We were simply told the case is with the ALJ, and there is nothing they can do.  In the beginning of August, we sent a letter to ALJ Carlton, on behalf of our claimant's wife and children, asking him to please make a decision on the case, as there was no new evidence to submit since the claimant has been deceased since prior to the original hearing in April of 2019.

Regrettably, our request has fallen on deaf ears, and has been completely ignored.  Our claimant's wife is understandably angry and upset at the way her husband's case has been handled, and feels that their children deserve to be treated with dignity and respect.  The delays in this case have been unconscionable.

This week, we sent a letter to Chief Judge Selwyn S. Walters, at the Bronx hearing office, respectfully asking him to speak with ALJ Carlton, to avoid any further delays, and to ask him to make it a priority to make a decision on this case.

Podiatrists

Do not underestimate the importance of podiatrists.  when applying for Social Security Disability (“SSD”) benefits.  The Social Security regulations specifically state that podiatrists are acceptable medical sources for purposes of establishing impairments of the foot.  Claimants frequently overlook podiatrists with foot problems when they are not the primary impairment.

We represent a 56 year N.Y.P.D. detective from North Carolina who had been found disabled because he needed kidney dialysis.  After recovering from a kidney transplant, the Social Security Administration (“SSA”) conducted a hearing during a continuing disability review (“CDR”).  The SSA reinstated benefits yesterday.  However, the CDR found that the claimant was disabled based on the claimant’s foot problems from diabetes, not any renal impairment.

Regardless of whether a foot problem is your primary impairment, your podiatrist’s records and disability opinion should be sought.

CE Boondoggle Continues

Time to discuss again the needless demands the State agency makes for a Social Security Disability (“SSD”) claimant to attend a consultative examination (“CE”).

Since the last Century, virtually every CE notice I have received has violated the Social Security regulations.  Demanding a CE means the State agency refuses to believe what the treating doctors say.  The CEs have delayed claimants’ receipt of SSD benefits, wasted taxpayer money, and wasted the time of administrative law judges.  To make matters worse, the State agency has insisted on CEs throughout COVID.

I represent a 47 year old former clerk from Glen Cove with multiple sclerosis (“MS”), bladder cancer and depression.  Despite supportive reports and records from the claimant’s urologist, neurologist and psychiatrist, the State agency denied SSD benefits because the claimant, with a compromised immune system due to cancer, would not attend a CE.

The case was approved today without a hearing.  As soon as an attorney from the Social Security Administration received the case, it was approved OTR.  The four demands for the claimant to attend a CE obviously were unnecessary.

Does the State agency have an unwritten regulation that requires they insist that every claimant attend a CE?  Doubtful.  More likely, the State agency examiners are too lazy or too busy to read the file.  Therefore, the examiners want to disregard all the medical evidence in the file, and just want to rely on what the CE says.

SSA's Total Dysfunction

We are constantly asked why a case is denied, when it is so obvious that a claimant is disabled, which as defined by the Social Security Administration ("SSA") means you are unable to perform any job on a full-time basis.

A perfect example is a case where a claimant fell down an elevator shaft, and sustained numerous severe, life changing, injuries.  He was denied at the initial application, and at the reconsideration stage, and twice by the same ALJ, and twice by the Appeals Council, and his case was remanded three times by the Federal Courts, before it was finally approved 12 years after his accident.

There is nothing that can excuse our government's laziness, ignorance, or total disinterest in fixing the countless problems with the SSA, so that eligible workers do not have to have their lives ruined, while going through the process of applying for Social Security Disability benefits.

While an attorney cannot fix the problems with the SSA, retaining an attorney who specializes in SSD and disability law greatly improves your chances of being approved, and approved more quickly.  We have been handling disability claims with the SSA since the last Century, and know the system like the back of our hands.  We know what to focus on, and what is needed to obtain an approval.  We offer a free phone consultation during which we explain the entire process of filing for SSD benefits, and guide you with the type of support that is required from your doctors in order to have a successful claim.

 

 

Long Covid Approval

According to the CDC, 20% of the people who contract COVID end up with long COVID, and the distribution is notably high for those in the 50-59 age category.  Long COVID is no different from any other medical condition when it comes to eligibility for disability benefits.

We represent a 60 year old medical site manager from Riverhead who became unable to work due to long COVID.  Her symptoms were so severe that she was promptly approved for Social Security Disability after it was determined that she was incapable of resuming her job or any other occupation.  However, the claimant had a more difficult time maintaining long term disability (“LTD”) benefits from Unum.

Despite having many doctors who explained why the claimant’s numerous medical signs, tests and symptoms prevented her from working, Unum terminated the claimant’s LTD benefits shortly after approving them.  After we sued Unum, it immediately urged the court to mediate to avoid further litigation.  The claimant accepted Unum’s offer during mediation, and the case will settle.

 

SS Terminology

If you are planning on or have applied for Social Security Disability benefits, or Social Security Supplemental Insurance, it is good to be familiar with their terminology.  Understanding their terminology will ease some of the stress you feel while going through the process of applying for disability benefits.

Lack of Funding

Due to the continued lack of funding for the Social Security Administration, the agency continues to be understaffed, their systems are antiquated, and all of this gets passed on to the people trying to file claims for disability or retirement.  Even the Commissioner of Social Security acknowledges the ongoing problems at the agency, with no help in sight.

SS Benefits Increase for 2023

Last year, the cost of living adjustment ("COLA") for Social Security benefits was 5.9%, the highest increase since 1982.  The COLA for 2023 is expected to be the one of the highest yet, and could be around 10.5%.  This would affect anyone collecting disability or retirement benefits from Social Security.

Nurse Practitioners

At the same time Social Security decodified the treating physician rule, it also named a nurse practitioner (“NP”) or any advanced practice nurse (“APN”) as an acceptable medical source (“AMS”).  The amendment placed the opinion of such nurses on equal footing with physicians.  Among other things, the effect of the amendment meant that when a claimant was primarily treated by an NP or APN, the claimant no  longer needed to get the nurse’s reports co-signed by a physician, and an Administrative Law Judge could no longer disregard the nurse’s opinion.

We represent a 55 year old Park Attendant from Massapequa with mental impairments who was approved for Social Security Disability (“SSD”) benefits today.  Social Security had been vacillating about approving SSD benefits, apparently because the primary treating opinion was from a psychiatric nurse practitioner (“PNP”).

Social Security’s website states that mental health records are confidential, and do not need to be provided.  However, shortly after we submitted the PNP’s extensive progress notes, it seemed Social Security recognized the persuasiveness of the PNP’s opinion, and found the claimant disabled.

When applying for SSD benefits, it is beneficial to have an experienced disability attorney handle your claim.  We offer a free phone consultation, and have offices located on Long Island in Nassau and Suffolk counties.

 

 

 

 

Treating Source Still Prevails

While the treating physician rule was decodified, courts in the Second Circuit continue to highlight the importance of the treating physician's opinion.

Administrative Law judge Schriver approved the claimant’s benefits back to 2015 today, after he found the treating rheumatologist’s opinion somewhat persuasive concerning the severity of the claimant’s fibromyalgia.

Our client is glad that we never gave up on her and is ecstatic that her benefits were approved back to 2015.  Please call our office for a free phone consultation if you are planning on applying for Social Security Disability benefits.  Our offices are located on Long Island in both Nassau and Suffolk counties.

Living with Long COVID

COVID has been with us for over 2 years. Many of us have had COVID and recovered. We were able to return to work and resume our lives. But for millions of people, that isn't their story. Their story is that they suffer from Long COVID, struggling to get through each day, and unable to work. The government has recognized Long COVID as a disabling condition, and wants employers to offer different options and or accommodations for people with Long COVID.

IMA & DDS

The questionable relationship between IMA and the State agency  continues, without any meaningful oversight.  It seems nobody is concerned about the thousands of unnecessary exams.

We were retained by a 55 year old pharmacy tech from West Babylon with progressive orthopedic impairments following a motor vehicle accident, after her Social Security Disability (“SSD”) application was denied.  As usual, the claimant was sent a letter stating that it was “necessary for” her to be examined by an unnamed doctor from IMA Disability Services.

In light of the persistent COVID-19 pandemic, we advised the State agency that it was more important now than ever to comply with the regulation concerning a consultative examination (“CE”).  After all, according to Social Security’s website, they continue to conduct many hearings by telephone due to COVID-19.  We advised the State agency to make a decision because the claimant was not willing to postpone a CE with IMA.  Additionally, we advised the State agency that whatever information it believed was needed from IMA, could be requested from the claimant’s medical sources, who are the preferred source pursuant to the regulations.

The claimant did not attend a CE with IMA.  We received a Notice of Award today for the claimant, who provided all her medical records and reports from her doctors.  The State agency’s motivation for disregarding the CE regulations remains unclear.  However, it is clear that the State agency’s letters asserting the IMA CEs are “necessary” is untrue.  The claimant’s application should never have been denied in the first place.

 

Hartford Loses Again

Last month’s post, briefly discussed McQuillin v. Hartford, which the Second Circuit issued following an oral argument that sharply criticized Hartford.  The decision also decisively rejected Hartford’s argument that it did not have to decide if a claimant is entitled to receive long term disability (“LTD”) benefits in 45 days.

Despite being trounced by the Second Circuit panel at oral argument and in its decision, Hartford decided to file a forty-two (42) page petition in support of a rehearing.  The Second Circuit saw fit to respond to Hartford’s petition in only a couple of sentences:

Appellee Hartford Life and Accident Insurance Company, filed a petition for rehearing en banc.  The active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.

 

 

Long COVID Strugglers

Almost all of us either had COVID, or know someone who has contracted it.  Most people recover and are able to resume their normal lives.  However, a growing number of people are left with debilitating symptoms months after they have had the virus.  The medical community is advising people with long COVID to rest as much as they can, as they believe that is the best medicine to regain their health.  There are a myriad of long COVID symptoms, some of which are severe fatigue, memory and cognitive problems, pain and general malaise.  Even the slightest exertion seems to aggravate these symptoms.

At present, Social Security Disability seems to be the only answer, but waiting for a decision can take months, if not years.  Hopefully, the Social Security Administration can make some long overdue changes to the program that would help these long COVID strugglers, as well as anyone else who is unable to work a full-time job due to a medical illness, so they can receive disability benefits and Medicare in a more timely manner.

 

 

 

 

Adversarial ALJs

An administrative law judge (“ALJ”) is required to adjudicate your Social Security Disability (“SSD”) claim in a neutral manner.  That means an ALJ has a legal duty to treat your claim in a non-adversarial manner.  If an ALJ acts in a way that reflects unfairness, bias, or discrimination, they should be held accountable for failing to fulfill their duties with fairness and impartiality.

If each time you submit evidence, the ALJ seeks to obtain contradictory medical and or vocational evidence, especially post hearing, to rebut your evidence, then the ALJ is probably acting in an adversarial manner.  It is improper for the ALJ to assume that the medical and vocational evidence you submit is suspect because the ALJ is required to adjudicate claims neutrally.  Therefore, when the ALJ seeks to rebut your evidence, especially if done more than once with, e.g., post hearing interrogatories or supplemental hearings with new experts, you should file a complaint against that ALJ, pursuant to Social Security Ruling 13-1p.

One way to hold the ALJ accountable is by filing a complaint with the Division of Quality Service (“DQS”), to determine if the ALJ should be disciplined.  The DQS is responsible for receiving, tracking, and monitoring complaints that it receives.  That tracking will also help support the complaints of other SSD applicants who were subjected to similar unfair treatment by the ALJ.

If you want the DQS to review or investigate the ALJ, you must file a written  complaint, that must be received within 180 days of the wrongful action.  The complaint should contain specific information about the ALJ’s conduct.  Your attorney can file the complaint on your behalf.

 

 

2d Circuit Reverses LTD Dismissal

The Second Circuit issued McQuillin v. Hartford today, which reversed the decision of U.S. District Court Judge Seybert.  A copy of the decision can be found under the Resources tab on my website.  Judge Seybert had granted Hartford’s motion to dismiss based on a purported failure to exhaust administrative remedies.

The Second Circuit held that ERISA requires a decision on the merits within 45 days.  Since Hartford failed to do so, or to identify “special circumstances” for an extension, within 45 days, the Second Circuit ruled that Mr. McQuillin had exhausted his administrative remedies.  Thus, the Second Circuit remanded the case back to Judge Seybert so Mr. McQuillin can now receive his day court.

Lupus Anticoagulant

Lupus Anticoagulants are a type of protein antibody called antiphospholipids.  These proteins react to phospholipids, which are fat molecules in your blood cells that can stop your cells from working properly.  The problem with these antiphospholipids is that they can cause blood clots in your lungs, legs, heart and brain.

We represent a 59 year old security guard with Lupus Anticoagulant from Syosset whose Social Security Disability (“SSD”) application was approved today.  The claimant could not sit, stand or walk for more than 10 minutes without his legs swelling, despite being medicated with blood thinners. Consequently, the claimant has to spend as much time elevating his legs to reduce swelling, as he does sitting, standing or walking, which a vocational expert testified precluded all work.

Our office offers free phone consultations if you are thinking about applying for disability and want to retain an attorney who specializes in disability.   We have offices located in Nassau and Suffolk counties on Long Island.

Consultative Exams

The State agency continues to send claimant’s letters stating that they “need” to, and “must,” be examined by Social Security doctors.  They don’t.  I have regularly posted about why the DDS letters are misleading and inaccurate.

Once again, I represent a claimant, this one an attorney from Hewlett with cardiovascular and mental impairments, to whom the State agency sent repeated letters insisting that he attend a consultative examination (“CE”).  Because of COVID, he wanted his doctor to perform the CE, which is what the regulations actually require.

The claimant was awarded Social Security Disability (“SSD”) benefits without the need for a hearing.  Obviously, it was not necessary that he attend a CE in order to be eligible to receive SSD benefits.

The analysts at the State agency like to harass and threaten people.  If you don't have a disability attorney representing you who is experienced with dealing with these analysts, you will have a very difficult time doing so on your own, not to mention the stress and heartache it will cause you.  We have over 35 years of experience representing disabled workers.  You can call our office for a free phone consultation.  Our offices are conveniently located in both Nassau and Suffolk counties on Long Island.

45 Days Means 45 Days

Long term disability (“LTD”) insurers have made it a habit of taking too much time to decide if  claimants are entitled to benefits. Don’t let it happen to you.

A claimant with cardiovascular impairments from Huntington retained us after Lincoln Life denied his LTD application. We appealed.

LTD claims are governed by a federal law called ERISA. After an appeal, ERISA requires the insurance company to decide if a claimant will receive benefits, or request an extension of time, within 45 days. If the insurance company fails to do so, then its decision will be deemed denied.

When Lincoln Life failed to decide the claimant’s appeal in 45 days, we sued in federal court.  Afterwards, Lincoln Life continued to add documents to the claim file that, not surprisingly, were adverse to the claimant’s application.

We filed a motion to preclude Lincoln Life from including the belatedly created documents from the administrative file record that the district court judge will review when deciding if the claimant is entitled to LTD benefits. Magistrate Judge Locke granted the motion, and his decision can be found with the Court Decisions under the Resources tab on our website.

Updating Opinions

Waiting times for Social Security Disability (“SSD”) hearings are notorious.  A consequence of the delays is that by the time your hearing comes around, the evidence that you obtained, often at significant expense, has become “stale.”

The prolonged wait for a hearing creates a dilemma.  You must submit supportive medical opinions at the initial and reconsideration stages of the administrative review to have any chance of your application being approved.  Moreover, frequently an opinion will be found more persuasive the closer in time it is given to the onset of the disability.  However, if your claim is denied at those stages, the opinion will be considered too old to establish ongoing disability by the time you appear for a hearing.

A medical opinion is usually submitted in the form of a narrative report or a medical source statement.  Physicians and other medical sources often charge a fee for providing their opinion, which they perceive as being extraneous to their treating you.  The expense of updating a medical opinion can be reduced without having to pay for a second narrative report or medical source statement.

We represent a 50 year old from St. Albans with musculoskeletal and urological impairments, who had worked as a police officer.  Besides paying out of pocket for medical treatment, the claimant had paid for medical reports to submit in connection with her SSD application.  At the hearing, the administrative law judge, familiar with my practice, stated that she would accept a note from the claimant’s doctor stating that the restrictions and limitations in the previously submitted reports had not changed.  Experience has shown that physicians rarely charge for such a note.

If you are thinking about applying for disability, you should contact an experienced disability attorney to discuss your potential claim for SSD benefits.  We offer a free phone consultation, and we are available 5 days a week to take your calls.  Our offices are located in both Nassau and Suffolk counties on Long Island.

SS Approves Long COVID

Long COVID has affected numerous, otherwise healthy people.  For people with Long COVID, their lives have been completely upended.  They suffer from persistent symptoms, some of which may include brain fog, fatigue, headaches, dizziness and shortness of breath.

I represent a 62 year old Muti-Site manager of medical facilities from Riverhead, who contracted COVID 19 in March of 2020.  She attempted to return to work, assuming that her symptoms would get better, but they didn't.  She had to stop working, and was eventually diagnosed with Long COVID.  She continues to suffer from cognitive problems, severe fatigue and pain.

Social Security initially denied her claim for Social Security Disability ("SSD") benefits.  However, we appealed, and she was approved at the second step in the SSD application process, i.e., Reconsideration.  This case helps set a precedent for Long COVID sufferers, especially for those seeking long term disability ("LTD") benefits.  LTD insurers are fervently denying Long Covid claims because their underwriters failed to account for them. However, when you are approved for SSD, you are found incapable of working at any full time job. That may not be binding on LTD insurers, but it is persuasive if the LTD claim needs to be appealed to federal court.

 

 

 

 

 

Compassionate Allowance

Social Security's Compassionate Allowances Program allows for a quick approval for people who have a critically severe illness, such as Stage 4 cancer or a brain disorder.  When an application for Social Security Disability ("SSD") benefits is filed as a Compassionate Allowance claim, the local office is supposed to determine if the claim satisfies the criteria for a compassionate allowance.  If it does, the local office is supposed to send the claim to the State agency as a flagged claim.  The analyst at the State agency assigned to the case is supposed to expedite the claim, so instead of taking months or years to make a decision, the claimant can expect a decision within a matter of a few short weeks.

We represent two claimants with Stage 4 cancers, who were approved within weeks of filing their application.  We knew when we took their cases, we would not be collecting a fee because our fee is a percentage of a claimant's past due benefits, and there would be no past due benefits because their claims would be approved so quickly.  We could have told the claimants to apply on their own, knowing they would be approved right away, like some other lawyers would have done.  But we are not those kinds of attorneys.  We wanted to take the burden of applying for SSD off their shoulders and their families', and help in any way we could.  The last thing they needed was to be stressed and worried about applying for SSD.

 

SSD and Retirement

One of the most common questions we get asked from clients and potential clients is what happens to my Social Security Disability ("SSD") benefits when I reach my full retirement age ("FRA").  The simple answer is that when you reach your FRA, which is between 66 and 67 years old depending on when you were born, your SSD benefits automatically convert to retirement benefits.  The amount will most likely stay the same, but it cannot be less than what you were already getting for SSD.

Consistency and Persuasiveness

When the Social Security Administration (“SSA”) evaluates medical opinions, the two most important factors are supportability and consistency.  The more consistent a medical opinion is with the evidence from other medical sources and nonmedical sources, the more persuasive the medical opinion will be.  Evidence from nonmedical sources should not be overlooked.

We represent a 47 year old nurse from Bethpage with polycythemia and mental impairments.  In connection with the claimant’s Social Security Disability (“SSD”) application, we submitted letters from his friends and relatives, which described their observations about the way his impairments progressively restricted his ability to function.  The administrative law judge (“ALJ”) found their opinions “somewhat persuasive” because they were consistent with the treatment reports of the claimant’s treating sources.

The ALJ found the opinions of the state agency medical consultants regarding the claimant’s physical and mental functioning abilities “not Persuasive” because additional evidence was provided after their reviews. The ALJ found the opinion of the treating physician to be the most persuasive because, among other things, it was the most consistent with the record as a whole.

Providing detailed descriptions from third parties concerning how a claimant’s affect their ability to do things, and how their behavior has evolved, adds strength to the argument that the treating doctor’s opinion should be considered persuasive.

If you are planning on applying for Social Security Disability benefits, it is in your best interest to retain an attorney who specializes in disability.  Please call our office for a free phone consultation.  Our offices are conveniently located in both Nassau and Suffolk counties on Long Island.

 

Multiple Sclerosis

MS is a chronic neurological and eventually disabling disease that attacks the brain, spinal cord, and optic nerves. Symptoms include overwhelming fatigue, pain, numbness, and poor coordination.

The Social Security Administration (“SSA”) made it near impossible to meet the listing for MS.  Consequently, the key to obtaining benefits is explaining why the symptoms from MS credibly result in functional limitations that preclude the ability to perform full time work consistently.

I represent a 41 year old from Oceanside with MS who worked as a property manager.  The objective diagnostic tests established the MS diagnosis, which explained the presence of her symptoms.  However, the State agency denied her SSD application because it refused to believe that the claimant’s symptoms were severe enough to preclude all work.

The claimant had a hearing with ALJ Berkowitz, who immediately zoned in on the obvious.  The claimant had been earning around $200,000 annually, and the ALJ asked the claimant if she knew how much SSD she would receive.  Common sense dictated that the claimant would not forgo a job that she held for over two decades because she wanted to receive SSD benefits equal to less than 20% of her former income, and that provided credible support for the severity of her symptoms.

It seemed clear to the ALJ that the claimant was unable to work, and entitled to SSD benefits.  It seems incomprehensible that it wasn’t equally evident to the State agency that the claimant could not work on a full time basis.

Wasteful & Inequitable CEs

We represent a 53 year old business owner from New Rochelle with physical and mental impairments, whose Social Security Disability (“SSD”) application was approved today.  Last month, the claimant was warned that his failure to attend a consultative examination (“CE”) with IMA could result in his application being denied.  Due to COVID I had advised the claimant not to attend the CE.  It seemed hypocritical to me that Social Security district and hearing offices were closed due to COVID, yet the State agency wanted claimants to be physically examined at IMA offices.

Three non-for-profit institutions just published a position paper about their investigation into CEs that IMA performs.  The position paper discusses the various complaints that I have been posting about for many years now.  The position paper can be found on my Resources tab, and I would encourage anyone applying for SSD benefits to read it

Overwhelming Opinions

For various reasons, OTR decisions are written far less frequently compared to past years.  If a claimant is under 50 years old, and does not meet a listing or compassionate allowance , it is highly unlikely that an OTR will now be approved.  Today represents an exception to the recent rule.

We represent a 46 year old teacher who applied for Social Security Disability (“SSD”) benefits over a year ago due to orthopedic and mental impairments.  Even though the claimant submitted well over 1,000 pages of medical records and reports, the State agency denied her SSD application because she refused to attend a consultative examination because of COVID-19 concerns.

Even before the ALJ could review the file, the National center pulled her file and approved SSD benefits.  What made this case different is that we were able to obtain supporting functional assessments from nine (9) medical sources representing different medical specialties.  While so many reports may seem like gilding the lily, that is what it takes these days for a younger person to obtain an OTR decision.  T. Cotman, the State agency reviewer, obviously had a strong anti-claimant bias to have denied the claimant’s SSD application.

Applying for SSD can be overwhelming, time consuming, and frustrating.  While you might think it should be obvious that your medical condition(s) render you disabled, and that you should be approved for SSD benefits, you cannot assume you will be approved. It is in your best interest to retain an attorney who specializes in disability.  The road to being approved for SSD is not a straight one, and you would need an attorney to navigate it for you, to get the outcome you deserve.  If you are thinking about applying for SSD, you can call our offices for a free phone consultation.  Our offices are located on Long Island in both Nassau and Suffolk counties.

 

 

 

 

 

 

 

 

 

Multiple Impairments

When applying for disability benefits, Social Security must determine if the combined effect of all your impairments renders you disabled, regardless of whether any impairment individually would.  We filed an application last September for a 60 year old project manager from Medford that illustrates this point.

The claimant’s case was initially denied, even though we submitted strong evidence that her cervical spine impairment made desk work near impossible.  However, shortly after we submitted evidence demonstrating that claimant’s hip problems limited her ability to stand and walk, which is required by work that is not sedentary, disability benefits were approved.

Claimants frequently neglect to provide information about medical problems because it is not the main issue.  However, any impairment that results in any limitation can be important.

Retaining a disability attorney should be a top priority if you are planning on applying for Social Security Disability benefits.  Applying for SSD requires strategy and expert knowledge of what is needed to be approved.   It is not a simple process, and can be very stressful, especially when you are suffering from medical problems.   We can take that burden off of your shoulders.  You can call our office for a free phone consultation.  We have offices located in Nassau and Suffolk counties on Long Island.

Growing Dire Need

The Social Security Administration's ("SSA") local offices will be reopening their doors to the public beginning in April.   While this is good news, the SSA expects that the local office will be inundated with people who have not been able to get any help since March 2020, when the offices shut down to the public.  The local offices also expect to have even longer wait times compared to their usual long wait time, to speak to a representative. To add insult to injury, the SSA has been experiencing daily issues with their phones while they update their phone system.

The backlog in disability claims has grown exponentially since the offices shut down.  The backlog is mainly at the State agencies, who review and make the initial decisions on disability claims.  This backlog has left claimants, who have been unable to work and have no income, waiting for months, sometimes years, for a decision.  Many of them are losing their homes, losing their health insurance, and in some cases, passing away before a decision is even made on their claim.

It is important to note that spouses and children of deceased workers, who had enough work credits before they passed away to be entitled to benefits, may be eligible to collect Survivor and/or Widow benefits under their loved one's Social Security Number.

The National 800 number for the SSA is (800) 772-1213.  You can also call your local office, whose representatives are usually more knowledgeable than the reps that answer the national number.  You can find your local office's phone number using the Social Security Office Locator tool on their website, which  asks for your zip code to determine which local office would handle your questions.

Treating CE

The Social Security Administration (“SSA”) usually asks a claimant to have a consultative examination (“CE”) when applying for Social Security Disability (“SSD”) benefits.  According to the SSA regulations, a claimant’s medical source is the preferred source to do the CE.

We represent a 54 year old production coordinator and warehouseman with knee impairments, whose SSD application was approved today.  Because of his knee problems, the only possible category of work the claimant could perform would be sedentary work. If the claimant were limited to sedentary work, then under the Grid rules, the claimant still would have to be found disabled if he lacked transferable skills.

The SSA asked the claimant to attend a CE, which was performed by the claimant’s orthopedist.  The orthopedist completed SSA’s form DDD-3883, and the information provided would preclude even sedentary work, which meant that it was not even necessary to determine if the claimant had transferable skills.  The SSD application was approved shortly after the CE report was submitted.

 

Long Covid Financial Duress

It's been 2 years since COVID took over our lives.  If you were lucky, you didn't get COVID, or at least you recovered from it fairly quickly without any lingering effects.  But millions of people in this country have long COVID, a condition which can cause any number of lingering symptoms.

COVID does not discriminate against age, race, economic or political status, or gender.  COVID affects previously healthy individuals as well as people with underlying health conditions.  Some people with severe symptoms can barely get out of bed each day, let alone work a full-time job.

The financial duress caused by long COVID is unimaginable.  So many of these people were unable to return to their job, and cannot work at all.  Their only option, if they are fortunate enough to be eligible, is to apply for Social Security Disability benefits, Long Term Disability Insurance benefits through their job, or through a private disability policy.  Yet , despite all the medical data available from reliable sources, people afflicted with long COVID are being denied disability benefits, even with their doctors' support.

Hard working people just like you and me are being denied benefits.  Shouldn't they be compensated when they are struck down by an illness that renders them unable to work?  The insurance companies and the Social Security Administration need to wake up, and help these people instead of denying them.  Who knows, maybe in a few years they will recover so they can return to work.  But right now, as much as they want to and need to, they cannot.

Instead of receiving the benefits to help them through their medical condition, people with Long COVID are losing their health insurance, their homes, and their dignity.  These people need financial assistance now.  The insurance companies and the SSA need to follow the science, and follow what the medical experts are saying.  They cannot continue to bury their heads in the sand.

By Susan Golden

Aid for Long COVID?

Help for people with long term COVID might be coming from a surprising place.  Senator Tim Kaine, who suffers from mild long COVID symptoms, has introduced a bill into the Senate that could potentially help people who suffer from long term COVID receive help.  THe bill is entitled the Comprehensive Access to Resources and Education (CARE) for Long COVID Act.  According to this article, one review estimates that more than half of COVID survivors experience lingering symptoms, including neurological, cardiovascular, respiratory, and mental health symptoms, months after their initial infection.

 

Federal Court Remand

We appealed the decision of an administrative law judge (“ALJ”) that denied Social Security Disability (“SSD”) benefits to a 35 year old teacher from Brooklyn with mental impairments.  The ALJ accepted the opinions of consultative psychologists after a single examination over my client's long time treating psychiatrists.

We argued that the ALJ erred in elevating the consultative psychologists’ opinions over the treating psychiatrists, and by interpreting the mental health records herself.  District Court Judge Chen agreed, and reversed the ALJ’s decision.

Judge Chen also ruled that the ALJ erred when rejecting the treating doctors opinions because they purportedly were inconsistent with their treatment notes.  Judge Chen explained that the ALJ should have requested more information from the doctors to reconcile any alleged inconsistency.

Our client originally filed for SSD on her own, with the help of her father, in 2016.  After her initial denial, her father sought us out and retained us to represent his daughter for SSD benefits.  He assisted in providing us with supportive evidence, and even testified on his daughter's behalf at her hearing.  But since the ALJ elevated her own opinion over the opinions of our client's treating doctors, and erroneously denied our client's SSD claim, we filed suit in Federal Court.  Our client would never have gotten this far had she not retained us, and with Judge Chen's acknowledgement of the ALJ's errors, we look forward to a new hearing and a new decision.

If you have already filed on your own for SSD benefits, you can still call our office for a free phone consultation in order for us to assess your disability claim and potentially represent you going forward with your SSD case.  We have offices located on Long Island in both Nassau and Suffolk counties.

 

Nystagmus

Nystagmus is a condition where the eyes move rapidly and uncontrollably, that causes reduced vision and depth perception, and can affect balance and coordination.  The involuntary eye movements, which can occur from side to side, up and down, or in a circular pattern, prevent the eyes steadily viewing objects.  People with nystagmus hold their heads in unusual positions to compensate for the condition.  Fatigue and stress can make nystagmus even worse. Even disregarding the effect that fatigue and stress has on nystagmus, nystagmus can be disabling.

We represent a claimant with nystagmus from West Hempstead, who had to prove that he was disabled before he turned 22 years old.  There was evidence that the claimant’s visual acuity with glasses was 20-200 after he turned 22, which meets a listing.  However, records before he turned 22 were sparse because his treating doctor had retired.

At the hearing, a medical expert (“ME”) testified that while it was unclear if the claimant met a listing before he was 22, his ability to see was  definitely equal to 20-200 or worse before he turned 22.  The ME explained that the claimant’s borderline visual acuity was exacerbated by the nystagmus because it required the claimant to look at odd angles as opposed to straight ahead, and objects would not remain still.

After hearing the ME’s testimony, the administrative law judge (“ALJ”) agreed that it would be unnecessary to ask the vocational expert to testify, which meant that the ALJ intended to approve the claimant’s benefits.

The claimant originally applied on his own, and was denied.  He retained us after the denial, and we made certain to obtain all the medical evidence that we needed to get his claim approved.  If you are planning on applying for Social Security Disability, it is in your best interest to hire an attorney who specializes in disability claims.   My office offers a free phone consultation and has offices conveniently located on Long Island in both Nassau and Suffolk counties.

SSD Wait Times Increase

This pandemic has taken a toll on so many people, but none so much as the disabled.   We have always told our clients, whether we are applying for Social Security Disability ("SSD") benefits or Supplemental Security Insurance ("SSI") benefits, that the wait time from the initial application to the initial decision can easily take half a year.  Last year, there was a significant decrease in the number of people applying for SSD or SSI benefits; due in large part to the fact that the local Social Security offices have been closed to the public since March 2020, due to Covid.  Many people who would have gone into a local Social Security office to file an application have yet to file, even though they are in dire need of benefits.  That is why it is so tragic that there are close to one million people waiting for a decision for their initial application or reconsideration.

Increase in Benefits

In a time where everything seems to be going wrong, something actually went right.  This year, people with disabilities who receive benefits from the Social Security Administration ("SSA"), will see a 5.9% increase in their checks, starting this month.  This is the largest annual increase to the cost of living adjustments ("COLA") since 1982.   Beneficiary's will receive a letter in the mail from the SSA, and can also check the amount of their increase through their online account at ssa.gov.

Objective Medical Evidence Remains Key

People usually seek disability benefits because their symptoms are too severe for them to work.  As a result, these disability claims require adjudicators to make credibility determinations.  When it comes to Social Security Disability (“SSD”) benefits, an administrative law judge (“ALJ”) frequently has to make that determination.

We represent a 55 year old claimant from St. Albans who worked as a mail processor and home health aide with musculoskeletal impairments.  I supplied the ALJ with legal opinions where the vocational experts testified those occupations provided no transferable skills.  As a result, the Medical-Vocational Rule required finding the claimant disabled if she were limited to sedentary work.

I had previously filed a report from the claimant’s orthopedist, who provided less than sedentary functional assessments.  Moreover, I had filed an EMG report that revealed chronic L5-S1 and C5-C6 radiculopathies, and eight (8) MRI reports revealing serious impairments in the thoracic, cervical and lumbar spine, both shoulders and elbows, and the right knee.  That wealth of objective diagnostic test data is uncommon.

In light of the quantity and quality of the test reports, and the fact that the claimant had a 35 year work history, the case seemed ripe for an on-the-record (“OTR”) decision.  Both of those factors strongly support a claimant’s credibility.  ALJ Crawley agreed, and approved the OTR, which eliminated the claimant’s need to attend a hearing.