ALJ Carlton Reversed Again

Administrative Law Judge (“ALJ”) John Carlton  denies most cases Social Security Disability (“SSD”) cases because he bases his decisions on his interpretation of the medical data, instead of the interpretation of physicians, as the law requires.

We represent a 56 year old claimant from Bay Shore with hip problems, who worked for over 30 years as a truck driver,  warehouseman, and police officer.  ALJ Carlton, who was not qualified to interpret an x-ray, decided that the claimant only became disabled on the date the claimant’s hip x-ray demonstrated arthritis and degenerative changes.  You do not have to be a physician to realize that degenerative changes cannot possibly occur overnight.  Notably, we represented another claimant in Vellone v. Saul, 2021 WL 2801138 (S.D.N.Y. 07/06/2021) where the court reversed ALJ Carlton’s decision because, once again, he decided to play doctor, and relied on his interpretation of the medical evidence to reject the treating doctor’s opinion that the plaintiff’s hip and back pain precluded working.

In the present instance, ALJ Carlton never explained how the claimant’s hip problems suddenly went from not even being severe, to limiting the claimant to light work, on April 13, 2019.  Upon appealing the case to federal court, we sent a short letter to counsel for the Social Security Administration (“SSA”).  Based upon that letter, the SSA agreed that ALJ Carlton’s decision was indefensible, and voluntarily remanded the claim.

On remand, the case was reassigned to ALJ Alan Berkowitz.  Today, ALJ Berkowitz issued a fully favorable decision, and awarded the claimant SSD benefits, without even holding a hearing.

Hartford Breached Its Fiduciary Duty

Hartford Life, as claims administrator of a long term disability (“LTD”) plan, relies on claim procedures, which the Second Circuit found violated ERISA’s regulations.  Hartford argued that its procedures, which it called “protocols,” entitled Hartford to take more than 45 days to decide if a claimant is entitled to receive benefits.  Hartford admitted that it routinely applies the protocols.  One protocol is Hartford’s appeals department remanding administrative appeals to Hartford’s claims department.  Another protocol is arguing that COVID entitles Hartford to an extension of time.

Since Hartford admitted that it regularly employs the protocols as a general matter, we asserted a cause of action for breach of fiduciary duty, and as relief, asked that Hartford be removed as the Plan’s claim administrator.  Hartford asked the Court to dismiss the breach of fiduciary duty claims.  On January 13, 2023, Magistrate Judge (“MJ”) Arlene Lindsay rejected Hartford’s request.  However, MJ Lindsay indicated that since the breach of fiduciary claims may subject Hartford to a class action, within 30 days, she wanted to be notified of the steps the plaintiff will take towards serving as an adequate representative.

In compliance with MJ Lindsay’s order, we served interrogatories on Hartford that seek the identities of past and present participants of the LTD Plan, since each of those individuals is a potential plaintiff.  The interrogatories also seek the identities of past and present participants of other disability plans where Hartford has or may apply its protocols because each of those individuals also has a potential breach of fiduciary duty claim against Hartford.

Feel free to contact us if Hartford is your LTD claim administrator, and you have questions about the way your claim has been handled. We can be reached at (888) 572-0861.

 

 

 

Excuses Excuses

By Susan Golden

The number one question we get everyday is, "How long will it take to get a decision on my claim?"  The answer is, "Be prepared for the long haul."  Why is that?  As soon as we file a social security disability ("SSD") claim with our client's local Social Security Administration ("SSA") office, the excuses and delays begin.  Popular excuses from the local offices include: "We don't have all the paperwork;" "The file must be sitting on someone's desk;" "We're backlogged;" "The person handling the case is out;" and "We don't know why it hasn't been processed yet, everything we need is here!"

After your local SSA office processes the claim, they send it to the State agency, where the claim is reviewed.  Everything is done electronically, so the file should be transferred quickly to the State agency, and include everything submitted to the Local SSA office, such as your application and our letters of representation.  However, depending on the local office, it can take weeks, sometimes months, to get the file transferred, and even then, the State agency claims documents are  missing.

Your file has been transferred to the State agency!  Great, now things will start moving.  Hold on, let's not get ahead of ourselves.  The State agency is full of their own excuses and delay tactics.  In fact, they are masters at it.  They constantly complain that they don't have enough information from the claimant's treating doctors, even though we have submitted exactly what they are asking for!  They mislabel documents in the file, and are too lazy to look through them, because if they did, then they would realize that the file does indeed have exactly what they are asking for.   They don't look at a file for months, and then all of a sudden they complain the records we have submitted are "stale," when we had submitted them in a timely manner.  Luckily, we know how to play their game, and call them out on their delay tactics.

I could go on and on, but don't have enough space or time, but you get the picture.  If you need to apply for SSD, you should make certain that you retain an experienced disability attorney.  We have over three decades of experience, and know the SSA system inside and out.  Please feel free to call our office for a free phone consultation.  We have offices in Nassau and Suffolk counties on Long Island.