Disability claims usually come down to a battle between your doctors and the those representing the insurance company or agency responsible for paying the disability benefits. Therefore, the more highly credentialed your doctors are, the less likely the chances are that your claim will be denied
A recent blog entry of mine described the case of a floor trader whose disability claim was based on uveitis. The claimant was treated by Michael Samson, who is widely renowned as one of the leading uveitis specialists in the United States. Unum approved long term disability after recognizing that it could not find a doctor capable of credibly contradicting Dr. Samson’s findings and conclusions.
Your doctor’s credentials can be just as important when seeking Social Security Disability (“SSD”) benefits. I represent a 47 year old school bus driver whose SSD application was approved in only two months. More to the point, the application was approved less than two weeks after submitting a form medical report from the claimant’s treating physician.
I have had many other older and less educated claimants with similar medical findings and conclusions whose applications were not approved until a hearing, or after an initial denial. The difference this time was that the treating physician made his credentials available. While other physicians may have credentials that are just as impressive, those facts are unknown to the analysts making the benefit determination. Therefore, when submitting medical evidence from a treating source, if at all possible, that doctor’s credentials should be provided.
Friday, November 14, 2008
Overpayment
When the Social Security Administration (the “SSA”) accuses people of improperly receiving benefits it is called an overpayment. Recently, I have been increasingly representing claimants that the SSA accuses of working for their self-employed spouses, which results in an overpayment of Social Security Disability (“SSD”) benefits.
The SSA found that one of my clients became disabled in 1992. In 2005, the claimant notified the SSA that he was going to work for his wife’s company, and asked the SSA to stop his SSD payments. Proof that no good deed goes unpunished, rather than thanking the claimant for telling the SSA to stop his SSD benefits, the SSA told him that he owed $40,000 in overpaid SSD benefits because he had been working for his wife’s company.
It seems that the SSA has an unwritten presumption that disability claimants work for their self-employed spouses. Based on pure speculation, the SSA asserted that the claimant had been working for his wife’s company. Despite dozens of attempts over two years the SSA never provided any evidence in response to my demand for proof that the claimant had been working for his wife.
The SSA has the burden of proving a claimant received an overpayment based on substantial evidence. Despite that burden and the absence of any evidence to support the overpayment allegation, the claimant was compelled to appear for a hearing. Yesterday, I received the hearing decision that ruled there was no overpayment based on the claimant’s tax returns and testimony.
Before contacting me, the claimant intended to see if he could negotiate a reduced overpayment. Although it took over two years, the claimant was well served contesting the overpayment.
The SSA found that one of my clients became disabled in 1992. In 2005, the claimant notified the SSA that he was going to work for his wife’s company, and asked the SSA to stop his SSD payments. Proof that no good deed goes unpunished, rather than thanking the claimant for telling the SSA to stop his SSD benefits, the SSA told him that he owed $40,000 in overpaid SSD benefits because he had been working for his wife’s company.
It seems that the SSA has an unwritten presumption that disability claimants work for their self-employed spouses. Based on pure speculation, the SSA asserted that the claimant had been working for his wife’s company. Despite dozens of attempts over two years the SSA never provided any evidence in response to my demand for proof that the claimant had been working for his wife.
The SSA has the burden of proving a claimant received an overpayment based on substantial evidence. Despite that burden and the absence of any evidence to support the overpayment allegation, the claimant was compelled to appear for a hearing. Yesterday, I received the hearing decision that ruled there was no overpayment based on the claimant’s tax returns and testimony.
Before contacting me, the claimant intended to see if he could negotiate a reduced overpayment. Although it took over two years, the claimant was well served contesting the overpayment.
Tuesday, November 4, 2008
Best Medical Evidence
The surest way to secure Social Security Disability (“SSD”) benefits and to avoid a hearing is to have a treating physician provide a report that explains why a claimant meets a “listed impairment”.
The Social Security Administration (“SSA”) describes impairments that are considered severe enough to prevent a person from working. If the claimant has such an impairment, the SSA will consider him or her disabled and entitled to SSD benefits. In other words, the SSA presumes that a claimant who is afflicted with a “listed” impairment is unable to work.
Late last year, I filed an application for SSD benefits for a 53 year old who last worked December 31, 2001. It is very difficult for a claimant to establish disability six years prior to the filing date. Nonetheless, the claimant’s application was approved without a hearing.
I was able to get the treating psychiatrist to provide reports explaining why the claimant met listing 12.04, which applies to bipolar and major depressive disorder. The SSA approved the SSD application based upon those reports. While the claimant may won benefits without the listing reports after a hearing, it is unlikely that the application would have been approved without the reports.
The Social Security Administration (“SSA”) describes impairments that are considered severe enough to prevent a person from working. If the claimant has such an impairment, the SSA will consider him or her disabled and entitled to SSD benefits. In other words, the SSA presumes that a claimant who is afflicted with a “listed” impairment is unable to work.
Late last year, I filed an application for SSD benefits for a 53 year old who last worked December 31, 2001. It is very difficult for a claimant to establish disability six years prior to the filing date. Nonetheless, the claimant’s application was approved without a hearing.
I was able to get the treating psychiatrist to provide reports explaining why the claimant met listing 12.04, which applies to bipolar and major depressive disorder. The SSA approved the SSD application based upon those reports. While the claimant may won benefits without the listing reports after a hearing, it is unlikely that the application would have been approved without the reports.
Monday, November 3, 2008
Appeals Council Remand
I received an order today from the Social Security Administration Appeals Council today remanding a partially favorable decision from an Administrative Law Judge (the “ALJ”). My client was reluctant to appeal because he was also concerned about the decision being reversed and because the ALJ said my client was not entitled to any more benefits.
I explained to my client that there were several grounds for reversing the ALJ’s decision, and that receipt of additional benefits was dependent on just one of those grounds being accepted. Moreover, I advised my client that it was exceedingly rare for the Appeals Council to convert a partially favorable decision into an unfavorable one totally denying benefits.
Once the claimant understood why the ALJ’s decision was faulty, and that his approved benefits were not really at risk, the claimant decided to appeal the decision. Now that the Appeals Council has remanded the matter, there is a very good chance that the claimant will receive additional benefits. A claimant should ask his or her attorney for a detailed explanation if a hearing decision is not fully favorable, and should seek a second opinion if the attorney does not think there are grounds for an appeal.
I explained to my client that there were several grounds for reversing the ALJ’s decision, and that receipt of additional benefits was dependent on just one of those grounds being accepted. Moreover, I advised my client that it was exceedingly rare for the Appeals Council to convert a partially favorable decision into an unfavorable one totally denying benefits.
Once the claimant understood why the ALJ’s decision was faulty, and that his approved benefits were not really at risk, the claimant decided to appeal the decision. Now that the Appeals Council has remanded the matter, there is a very good chance that the claimant will receive additional benefits. A claimant should ask his or her attorney for a detailed explanation if a hearing decision is not fully favorable, and should seek a second opinion if the attorney does not think there are grounds for an appeal.
Thursday, October 30, 2008
Applicaiton Filing Date
There are many reasons why a person may submit more than one application for disability benefits from the Social Security Administration (the “SSA”). If the reason was misinformation from the SSA, then you need to make sure that a subsequent application is deemed filed as of the date of the prior application to ensure that retroactive benefits are not lost.
I represent a 29 year old who injured his back and left upper extremity in a forklift accident. He applied for Social Security Disability (“SSD”) benefits because his annual earnings statement from the SSA stated that he had enough work credits to receive them. However, the claimant’s SSD application was then denied on the grounds that he lacked sufficient work credits.
The claimant subsequently filed an application for Supplemental Security Income (“SSI”) benefits, which was approved. I successfully argued that the SSI application had to be back dated because the SSA’s earnings statement misled the claimant into filing an application for SSD benefits. I successfully argued that the date of the claimant’s SSD application be used as a protective filing date for his SSI application by citing the SSI regulations, 20 C.F.R. §§416.350, 416.351, and POMS SI 00601.027.
I represent a 29 year old who injured his back and left upper extremity in a forklift accident. He applied for Social Security Disability (“SSD”) benefits because his annual earnings statement from the SSA stated that he had enough work credits to receive them. However, the claimant’s SSD application was then denied on the grounds that he lacked sufficient work credits.
The claimant subsequently filed an application for Supplemental Security Income (“SSI”) benefits, which was approved. I successfully argued that the SSI application had to be back dated because the SSA’s earnings statement misled the claimant into filing an application for SSD benefits. I successfully argued that the date of the claimant’s SSD application be used as a protective filing date for his SSI application by citing the SSI regulations, 20 C.F.R. §§416.350, 416.351, and POMS SI 00601.027.
Social Security Files
A person seeking Social Security Disability (“SSD”) benefits has a right to see his or her entire file, and that right should always be exercised before a hearing. Normally, the reason for reviewing the file is to see what harmful records are in it in order to prepare a rebuttal. However, every once in a while there is a positive surprise.
I represent 50 year old woman who stopped working as an accounting payroll clerk because of lumbar disc herniations and shoulder impairments. Her claim had been denied initially because the opinions of her arthritis specialist and physiatrist were rejected. Upon reviewing the file, I learned that each doctor had been asked to complete a form DDD-3883, which is given to treating doctors. A treating doctor’s opinion is supposed to be given controlling weight if it is well supported by clinical and diagnostic evidence.
The DDD-3883 requires, among other things, that the doctor identify the clinical findings and diagnostic tests that support his or her conclusions, which the arthritis specialist and physiatrist did. Moreover, both the arthritis specialist and physiatrist concluded that the claimant lacked the ability to perform the demands of sedentary work.
At the hearing, I argued that if the claim were denied, then it would require a determination that the form DDD-3883 was inadequate despite the fact that it provided the requisite evidence for according the opinions controlling weight. Although not mentioned in the written decision, the ALJ mentioned that it was a good point.
I represent 50 year old woman who stopped working as an accounting payroll clerk because of lumbar disc herniations and shoulder impairments. Her claim had been denied initially because the opinions of her arthritis specialist and physiatrist were rejected. Upon reviewing the file, I learned that each doctor had been asked to complete a form DDD-3883, which is given to treating doctors. A treating doctor’s opinion is supposed to be given controlling weight if it is well supported by clinical and diagnostic evidence.
The DDD-3883 requires, among other things, that the doctor identify the clinical findings and diagnostic tests that support his or her conclusions, which the arthritis specialist and physiatrist did. Moreover, both the arthritis specialist and physiatrist concluded that the claimant lacked the ability to perform the demands of sedentary work.
At the hearing, I argued that if the claim were denied, then it would require a determination that the form DDD-3883 was inadequate despite the fact that it provided the requisite evidence for according the opinions controlling weight. Although not mentioned in the written decision, the ALJ mentioned that it was a good point.
Friday, October 24, 2008
Representing Yourself
When applying for disability benefits, a claimant is not required to be represented by an attorney. Statistics show that claimants who are represented by attorneys have their applications approved more often, and usually sooner, than claimants who represent themselves. Therefore, a claimant has to decide whether the cost of an attorney outweighs the increased chance of being denied without one.
I represent a 55 year old woman who spent the last twenty years working as a customer service representative with a utility, where she earned a substantial salary. She retained me after her Social Security Disability (“SSD”) application was denied. Her benefits were approved yesterday. There were several things that I did to improve her claim on appeal.
I obtained records and functional assessments from the claimant’s family doctor and chiropractor. The SSA had ignored the family doctor and chiropractor because they were not a specialist and medical doctor respectively. However, under the regulations their opinions had to be given weight, and their opinions corroborated the findings and conclusions of the treating doctors. I advised the claimant to see an arthritis specialist, and it turned out that his opinion also corroborated the findings and conclusions of the treating doctors. Thus, there were now six medical opinions that supported the claimant’s inability to perform sedentary work. I also cited the case law and regulations that required special treatment for the claimant in light of her age. During the application process, the claimant turned 55, which placed her in another category from a vocational perspective that made it easier for a finding of disability.
It is highly unlikely that the claimant’s medical and vocational history would have been fully developed if she had represented herself, which would have increased the chances of her application being denied again. It is possible that the claimant’s application may eventually have been remanded and reversed, but that process could have taken years.
I represent a 55 year old woman who spent the last twenty years working as a customer service representative with a utility, where she earned a substantial salary. She retained me after her Social Security Disability (“SSD”) application was denied. Her benefits were approved yesterday. There were several things that I did to improve her claim on appeal.
I obtained records and functional assessments from the claimant’s family doctor and chiropractor. The SSA had ignored the family doctor and chiropractor because they were not a specialist and medical doctor respectively. However, under the regulations their opinions had to be given weight, and their opinions corroborated the findings and conclusions of the treating doctors. I advised the claimant to see an arthritis specialist, and it turned out that his opinion also corroborated the findings and conclusions of the treating doctors. Thus, there were now six medical opinions that supported the claimant’s inability to perform sedentary work. I also cited the case law and regulations that required special treatment for the claimant in light of her age. During the application process, the claimant turned 55, which placed her in another category from a vocational perspective that made it easier for a finding of disability.
It is highly unlikely that the claimant’s medical and vocational history would have been fully developed if she had represented herself, which would have increased the chances of her application being denied again. It is possible that the claimant’s application may eventually have been remanded and reversed, but that process could have taken years.
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