When applying for Social Security Disability (“SSD”) benefits, the Social Security Administration (the “SSA”) virtually always sends a notice stating that the claimant has to be examined by one of its doctors for a Consultative Examination (“CE”). Almost without exception, the CE concludes that the claimant is capable of working, and therefore, the SSA denies the SSD application.
What most applicants don’t realize is that the rules and regulations severely restrict the circumstances where the SSA can require a CE. For example, POMS DI 57540.020 requires the SSA to identify the “essential evidence missing from the file,” and then to request it from the treating source. Similarly, Social Security regulation 20 C.F.R. § 404.1512(f), states that a CE is appropriate only if information the SSA “need(s) is not readily available from the records of your medical treatment source, or we are unable to seek clarification from your medical source;” and 20 C.F.R. § 404.1519a(a)(1) requires the SSA to seek the information from the claimant’s treating source before resorting to a CE. There are many other rules, regulations, and federal court decisions that provide the same.
I always insist that the SSA comply with the rules and regulations regarding CEs. I offer to provide any medical evidence the SSA can specify, and to facilitate a CE by the claimant’s treating doctor. The absence of the CE by the SSA prevents negative evidence from making its way into the file, which delays the application’s approval. I represent a former school superintendent whose SSD application was approved today in only four months. Had I allowed the CE to proceed, then the SSA would have required a hearing to weigh the conflicting opinions.
Tuesday, October 13, 2009
Saturday, October 10, 2009
Atypical Parkinson’s
Patients with atypical parkinsonism have some features of Parkinson's Disease (“PD”) such as tremors at rest, slowness of movement, stiffness, unsteadiness and freezing while walking). However, symptoms of atypical parkinsonism result not only from loss of cells of the substantia nigra as in classic PD, but also from degeneration of cells in other areas of the nervous system. Older patients are more severely affected by atypical parkinsonism and PD in general.
When applying for Social Security Disability ("SSD") benefits based on atypical parkinsonism, the Medical-Vocational rules should always be reviewed because the claimant is likely to be older than 50. I represent a 59 year old women who taught school for the last 15 years of her career. According to the Dictionary of Occupational Titles, teaching is light work, which means it is done primarily while standing and walking. A person who is at least 50 years old, and has only performed light work during the past 15 years must be found disabled under Medical-Vocational Rule 201.04 in the absence of transferable skills – even if capable of performing full time sedentary work.
I was able to have the claimant’s SSD application approved without a hearing, which likely would have required an additional 1.5 to 2 years, by demonstrating how the claimant met Medical-Vocational Rule 201.04. Arguments supporting disability based on the Medical-Vocational Rules or a listed impairment should always be highlighted as they are often screened for quick approval.
When applying for Social Security Disability ("SSD") benefits based on atypical parkinsonism, the Medical-Vocational rules should always be reviewed because the claimant is likely to be older than 50. I represent a 59 year old women who taught school for the last 15 years of her career. According to the Dictionary of Occupational Titles, teaching is light work, which means it is done primarily while standing and walking. A person who is at least 50 years old, and has only performed light work during the past 15 years must be found disabled under Medical-Vocational Rule 201.04 in the absence of transferable skills – even if capable of performing full time sedentary work.
I was able to have the claimant’s SSD application approved without a hearing, which likely would have required an additional 1.5 to 2 years, by demonstrating how the claimant met Medical-Vocational Rule 201.04. Arguments supporting disability based on the Medical-Vocational Rules or a listed impairment should always be highlighted as they are often screened for quick approval.
Tuesday, October 6, 2009
Chondromalacia
You don’t have to be elderly to have disabling arthritis. Chondromalacia is essentially arthritis of the knee. I represent a 39 year old former press operator whose Social Security Disability (“SSD”) benefits were approved without a hearing.
The claimant retained me after he filed his application for SSD benefits. His application was denied in August on the grounds that the medical evidence failed to show a condition that would prevent him from doing sedentary work. Sedentary work requires lifting 10 pounds, walking and standing about 2 hours a work day, and sitting the remainder of the time.
Last month, I submitted an on-the-record (“OTR”) request for a fully favorable decision. After establishing that chondromalacia is a medially determinable condition, I demonstrated that it reduced the claimant’s functionality to the extent that sedentary work was not possible. The key was securing work assessments from three physicians, two orthopedists and an arthritis specialist, showing that the claimant could not lift 10 pounds, walk and stand for 2 hours a work day, and sit the remainder of the day.
Simply having one physician’s assessment may have sufficed after a hearing to obtain the claimant’s SSD benefits, but probably would not have been enough evidence to succeed via OTR. By successfully using the OTR process, the claimant will not have to wait 18 to 24 months before his hearing would be rescheduled.
The claimant retained me after he filed his application for SSD benefits. His application was denied in August on the grounds that the medical evidence failed to show a condition that would prevent him from doing sedentary work. Sedentary work requires lifting 10 pounds, walking and standing about 2 hours a work day, and sitting the remainder of the time.
Last month, I submitted an on-the-record (“OTR”) request for a fully favorable decision. After establishing that chondromalacia is a medially determinable condition, I demonstrated that it reduced the claimant’s functionality to the extent that sedentary work was not possible. The key was securing work assessments from three physicians, two orthopedists and an arthritis specialist, showing that the claimant could not lift 10 pounds, walk and stand for 2 hours a work day, and sit the remainder of the day.
Simply having one physician’s assessment may have sufficed after a hearing to obtain the claimant’s SSD benefits, but probably would not have been enough evidence to succeed via OTR. By successfully using the OTR process, the claimant will not have to wait 18 to 24 months before his hearing would be rescheduled.
Saturday, October 3, 2009
Subpoena The SSA Doctor
When you apply for Social Security Disability or Supplemental Security Income benefits, the Social Security Administration ("SSA") will tell you to see its doctor. The SSA calls its doctor a Consultative Examiner ("CE").
Most of the time the actual exam by the CE is cursory, contains findings that simply are made up, and indicates the claimant can work. The SSA then ignores what the treating doctor says and relies on the CE report to deny the application for disability benefits.
In New York, after the initial denial, the Administrative Law Judge ("ALJ") assigned to your case sends you a hearing notice. Among other things, the notice says you have the right to ask the ALJ to issue a subpoena for people or documents. The SSA regulations and case law provide you with the right to cross examine your CE.
Always request that the ALJ subpoena your CE. The CE will not be able to support most of the findings and conclusions in the CE report. Furthermore, if the ALJ refuses to issue the subpoena, then that denial of due process provides automatic grounds for a new hearing if the ALJ denies your claim. I just received a decision from the Appeals Council that rejected an ALJ's unfavorable decision for that very reason.
Most of the time the actual exam by the CE is cursory, contains findings that simply are made up, and indicates the claimant can work. The SSA then ignores what the treating doctor says and relies on the CE report to deny the application for disability benefits.
In New York, after the initial denial, the Administrative Law Judge ("ALJ") assigned to your case sends you a hearing notice. Among other things, the notice says you have the right to ask the ALJ to issue a subpoena for people or documents. The SSA regulations and case law provide you with the right to cross examine your CE.
Always request that the ALJ subpoena your CE. The CE will not be able to support most of the findings and conclusions in the CE report. Furthermore, if the ALJ refuses to issue the subpoena, then that denial of due process provides automatic grounds for a new hearing if the ALJ denies your claim. I just received a decision from the Appeals Council that rejected an ALJ's unfavorable decision for that very reason.
Friday, September 25, 2009
ALJ Nisenewitz: Stupid or Biased?
Administrative Law Judge David Nisnewitz (“ALJ”) denied a fibromyalgia claimant’s application for the second time. The first time the Appeals Council rejected the ALJ’s denial because there was no medical evidence contradicting the opinion of the treating rheumatologist. This time, the ALJ relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though a federal court previously told the ALJ that the testimony of an ME, the lone dissenting physician, “does not constitute substantial evidence to overcome the opinions of the treating physician” that the claimant is disabled.
The ALJ knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion. Therefore, how is it possible to explain the ALJ’s repeating the same mistake? What possible excuse did the ALJ have for repeating his error, especially since he was reminded in, not one, not two, but three letters that he had been admonished previously for improperly rejecting the opinion of the treating physician in favor of the ME?
The American Heritage Dictionary defines “stupid” as slow to apprehend or dumb, and “bias” as a preference that inhibits impartial judgment. Did the ALJ fail to realize that he was repeating his mistake, despite being reminded in the three letters that elevating an ME’s opinion over a treating physician’s opinion was improper? If so, then it would seem that the ALJ was slow to apprehend the issue, which is the American Heritage Dictionary definition for “stupid”.
Alternatively, the ALJ could have realized that he was repeating his mistake. If so, then it would seem that his preference for denying disability claims inhibited his impartial judgment, which is the American Heritage Dictionary definition for bias. Notably, in a recent Michigan case, another ALJ was accused of bias because his approval rate for disability cases was 41% and 28% in 2005 and 2006. In contrast, it appears that ALJ Nisnewitz’s approval rate was 35% for 2005 and 25% for 2006. The Michigan court also noted there was no evidence of inappropriate comments or animus by the ALJ. On the other hand, Judge Irizarry found ALJ Nisnewitz has displayed both.
It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility. Despite a court stating that investigating ALJ bias allegations would be appropriate on remand in another case, the SSA has refused to fulfill its duty to investigate the allegations. Instead, the SSA speciously claims that the court directed it to comply with a FOIA request, which simply was not the case.
The ALJ knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion. Therefore, how is it possible to explain the ALJ’s repeating the same mistake? What possible excuse did the ALJ have for repeating his error, especially since he was reminded in, not one, not two, but three letters that he had been admonished previously for improperly rejecting the opinion of the treating physician in favor of the ME?
The American Heritage Dictionary defines “stupid” as slow to apprehend or dumb, and “bias” as a preference that inhibits impartial judgment. Did the ALJ fail to realize that he was repeating his mistake, despite being reminded in the three letters that elevating an ME’s opinion over a treating physician’s opinion was improper? If so, then it would seem that the ALJ was slow to apprehend the issue, which is the American Heritage Dictionary definition for “stupid”.
Alternatively, the ALJ could have realized that he was repeating his mistake. If so, then it would seem that his preference for denying disability claims inhibited his impartial judgment, which is the American Heritage Dictionary definition for bias. Notably, in a recent Michigan case, another ALJ was accused of bias because his approval rate for disability cases was 41% and 28% in 2005 and 2006. In contrast, it appears that ALJ Nisnewitz’s approval rate was 35% for 2005 and 25% for 2006. The Michigan court also noted there was no evidence of inappropriate comments or animus by the ALJ. On the other hand, Judge Irizarry found ALJ Nisnewitz has displayed both.
It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility. Despite a court stating that investigating ALJ bias allegations would be appropriate on remand in another case, the SSA has refused to fulfill its duty to investigate the allegations. Instead, the SSA speciously claims that the court directed it to comply with a FOIA request, which simply was not the case.
Prudential Reverses Fibromyalgia STD & LTD Denial
I represent a former banker afflicted with fibromyalgia whose short term disability (“STD”) and long term disability (“LTD”) claims had been denied by Prudential Insurance Company of America. Prudential had based its decision to terminate STD benefits and deny LTD benefits on a so-called independent medical examination (“IME”) by a rheumatologist who does not regularly treat fibromyalgia.
The IME admitted the claimant has fibromyalgia; admitted that fibromyalgia is a pain syndrome, admitted that no objective testing exists for fibromyalgia; admitted that the claimant has a global pain syndrome; admitted that the pain is difficult to measure; and admitted that the claimant’s treatment is appropriate. The only difference between the opinions of Dr. Jason Faller, the claimant’s treating rheumatologist, and the IME, was that the IME stated that because the claimant’s pain was difficult to measure, she had no functional limitation. While the IME may have had difficulty measuring the claimant’s pain, Dr. Faller, as the claimant’s long time treating doctor, did not.
Prudential said that the only evidence of functional impairment was the claimant’s self-reported statements, but failed to identify what else could possibly exist other than Dr. Faller’s finding of severe trigger points. The IME had asserted that the claimant’s complaints were inconsistent with range of motion findings, and that absent atrophy, neurological abnormalities and decreased range of motion, the claimant could not be functionally impaired.
In a very abbreviated nutshell, I pointed out that Social Security Disability cases held that “decreased range of motion and/or sensory impairments are not symptoms of fibromyalgia, and the absence of these non-symptoms thus does not reflect on the presence or severity of fibromyalgia.” Prudential implicitly conceded that while no diagnostic test is applicable for fibromyalgia, making it difficult to measure pain in these individuals, the person in the best position to measure the claimant’s pain was Dr. Faller who had examined her many times over many years. Accordingly, Prudential approved both STD and LTD benefits for the claimant
The IME admitted the claimant has fibromyalgia; admitted that fibromyalgia is a pain syndrome, admitted that no objective testing exists for fibromyalgia; admitted that the claimant has a global pain syndrome; admitted that the pain is difficult to measure; and admitted that the claimant’s treatment is appropriate. The only difference between the opinions of Dr. Jason Faller, the claimant’s treating rheumatologist, and the IME, was that the IME stated that because the claimant’s pain was difficult to measure, she had no functional limitation. While the IME may have had difficulty measuring the claimant’s pain, Dr. Faller, as the claimant’s long time treating doctor, did not.
Prudential said that the only evidence of functional impairment was the claimant’s self-reported statements, but failed to identify what else could possibly exist other than Dr. Faller’s finding of severe trigger points. The IME had asserted that the claimant’s complaints were inconsistent with range of motion findings, and that absent atrophy, neurological abnormalities and decreased range of motion, the claimant could not be functionally impaired.
In a very abbreviated nutshell, I pointed out that Social Security Disability cases held that “decreased range of motion and/or sensory impairments are not symptoms of fibromyalgia, and the absence of these non-symptoms thus does not reflect on the presence or severity of fibromyalgia.” Prudential implicitly conceded that while no diagnostic test is applicable for fibromyalgia, making it difficult to measure pain in these individuals, the person in the best position to measure the claimant’s pain was Dr. Faller who had examined her many times over many years. Accordingly, Prudential approved both STD and LTD benefits for the claimant
Wednesday, September 9, 2009
LTD & Health Insurance
Some companies provide their employees with group disability and health coverage. Frequently, the long term disability (“LTD”) and the health insurance plans are linked so that if you become disabled under the LTD plan your premium is waived under the health plan. Thus, your health insurance continues while you are disabled. A problem arises when the LTD insurance company wrongfully terminates or denies LTD benefits, which results in a loss of health care coverage.
When you eventually succeed in securing your LTD benefits, you should not forget to seek reimbursement for your health care expenses. Any money paid toward COBRA or for other health insurance premiums should be sought. Similarly, if health insurance lapsed because the premium could not be afforded, your out of pocket costs should be sought. You should not have to pay any more than you would have if your health insurance was not wrongfully terminated or denied.
Sometimes other employee benefits are also linked to your LTD plan. When seeking LTD benefits always make sure that you have copies of a Summary Plan Description for each group benefit plan that covered you while working.
When you eventually succeed in securing your LTD benefits, you should not forget to seek reimbursement for your health care expenses. Any money paid toward COBRA or for other health insurance premiums should be sought. Similarly, if health insurance lapsed because the premium could not be afforded, your out of pocket costs should be sought. You should not have to pay any more than you would have if your health insurance was not wrongfully terminated or denied.
Sometimes other employee benefits are also linked to your LTD plan. When seeking LTD benefits always make sure that you have copies of a Summary Plan Description for each group benefit plan that covered you while working.
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