I represent a 38 year old police officer who was just approved for Social Security Disability (“SSD”) benefits. Like many police officers that I have represented, the claimant suffered orthopedic injuries while working as a police officer that rendered him disabled. Unlike my representation of other police officers seeking SSD benefits, the claimant was approved in less than three months without being asked to attend a consultative examination (“CE”).
The claimant’s physiatrist and arthritis specialist provided supporting records and reports. However, that alone is not usually sufficient to avoid being directed to attend a CE. I ascribe the anomaly to the fact that in the recent past the claimant had been receiving pain management from a physician who has performed CEs for Social Security in connection with SSD applications. If I’m right, this raises two implications.
The first implication is that Social Security presumes that treating doctors lack credibility. Despite my submitting supporting medical records and reports when applying for SSD benefits, Social Security virtually always asks that my clients attend a CE to be performed by one of their doctors. In other words, it is presumed that a treating source’s opinion cannot be relied upon. That implicit assumption runs counter to the Social Security rules and regulations that require greater weight to be given to treating sources, because their opinions are supposed to be considered more reliable.
The second implication that is raised is whether one should consider seeking treatment from a doctor who also works for the CE provider, which in New York is usually Industrial Medicine Associates (“IMA”). While experience indicates that the doctors who work for IMA may lack the qualifications of a claimant’s other treating doctors, it appears that Social Security will give undue weight to the doctor who also works for IMA. While the IMA doctor probably will not improve a claimant’s treatment, it apparently could expedite the receipt of SSD benefits.
Thursday, January 12, 2012
Thursday, January 5, 2012
Kienbock's Disease
Kienbock's disease is avascular necrosis of the carpal lunate. Avascular necrosis, which is also known as osteonecrosis, is a disease where bone dies from lack of blood supply. Kienbock's disease is most commonly observed in patients from 20 to 40 years of age, and has a predilection for the right hand in persons engaging in manual labor. According to Northwestern Health Sciences University, Kienbock's disease results in progressive pain, swelling, and disability.
I represent a 50 year old carpenter whose application for Social Security Disability benefits was approved today because his Kienbock's disease had become disabling. As usual, the claimant was ordered to go to “IMA Disability Services”, which I explained was unnecessary. The case law makes clear that a carpenter has no transferable skills. Without being about to use his dominant hand due to Kienbock's disease, the claimant obviously could no longer perform has past relevant manual labor. Under the medical-vocational rules, the claimant had to be found disabled even if he were physically capable of sedentary work.
I represent a 50 year old carpenter whose application for Social Security Disability benefits was approved today because his Kienbock's disease had become disabling. As usual, the claimant was ordered to go to “IMA Disability Services”, which I explained was unnecessary. The case law makes clear that a carpenter has no transferable skills. Without being about to use his dominant hand due to Kienbock's disease, the claimant obviously could no longer perform has past relevant manual labor. Under the medical-vocational rules, the claimant had to be found disabled even if he were physically capable of sedentary work.
Wednesday, January 4, 2012
Patchogue Incompetence
Delays in processing Social Security Disability claims are so rampant that they have resulted in Congressional hearings. The delays are not necessarily due to under staffing as much as they are due to incompetent staffing. The claims processing at the Patchogue field office has been worse in our experience compared to other local field offices.
Over the years, my office has consistently experienced more problems with the Patchogue field office than any other local field office. It defies credibility that Patchogue regularly claims it cannot find documents that I have submitted by certified mail and fax with a confirmation of receipt. The two most recent examples of Patchogue’s ineptitude came to light yesterday.
The first case concerns an application that I filed on May 5, 2011. When I did not receive a decision, I faxed a letter to Patchogue on November 14, 2011, advising that it had been over six months since I filed the claimant’s application, and asked when I could expect to receive a decision. Because Patchogue failed to respond, my office called yesterday, and was told by a Ms. Peterson that the claimant’s application had been denied in October, but that I wasn’t told because they did not have written notice that the claimant had appointed me as his representative. However, even if that were true, which it is not, Ms. Peterson failed to explain why she failed to send a copy of the denial notice to the claimant.
The claimant’s application package was sent by certified mail, and included form SSA-1696, which is written notice that I was the claimant’s representative. Additionally, we provided Patchogue with a copy of a letter dated May 17, 2011 that Mr. Grabiner, the District Manager of the Patchogue office, sent to me confirming that Patchogue had “received written notice that [the claimant] has appointed you to act as the representative in connection with this claim.”
Not surprisingly, neither Ms. Peterson, Mr. Grabiner, nor anyone else at Patchogue, was able to explain the error. Nor was anyone at Patchogue able to explain why they failed to respond to my November 14, 2011 letter, or phone calls regarding the same. Needless to say, due to Patchogue’s blunder the processing of the claimant’s application will be much delayed.
The second case involves an application that I had filed with Patchogue by mail and fax on October 27, 2011. Because I had not heard anything from Patchogue in response to the application, I had my assistant call them on December 15, 2011. Patchogue told my assistant that they were still “loading” applications from September, and to give them some time.
After discovering Patchogue’s incompetence with the first case discussed above yesterday, I directed my office to follow up on this other case immediately. Not surprisingly, Patchogue said that they did not have the application, and the representative transferred the call to the supervisor. My office left several messages and sent faxes, but the supervisor has failed to call back. Thus, another claimant will have to endure delays on their application due to Patchogue's failure to process an application properly or expeditiously.
Over the years, my office has consistently experienced more problems with the Patchogue field office than any other local field office. It defies credibility that Patchogue regularly claims it cannot find documents that I have submitted by certified mail and fax with a confirmation of receipt. The two most recent examples of Patchogue’s ineptitude came to light yesterday.
The first case concerns an application that I filed on May 5, 2011. When I did not receive a decision, I faxed a letter to Patchogue on November 14, 2011, advising that it had been over six months since I filed the claimant’s application, and asked when I could expect to receive a decision. Because Patchogue failed to respond, my office called yesterday, and was told by a Ms. Peterson that the claimant’s application had been denied in October, but that I wasn’t told because they did not have written notice that the claimant had appointed me as his representative. However, even if that were true, which it is not, Ms. Peterson failed to explain why she failed to send a copy of the denial notice to the claimant.
The claimant’s application package was sent by certified mail, and included form SSA-1696, which is written notice that I was the claimant’s representative. Additionally, we provided Patchogue with a copy of a letter dated May 17, 2011 that Mr. Grabiner, the District Manager of the Patchogue office, sent to me confirming that Patchogue had “received written notice that [the claimant] has appointed you to act as the representative in connection with this claim.”
Not surprisingly, neither Ms. Peterson, Mr. Grabiner, nor anyone else at Patchogue, was able to explain the error. Nor was anyone at Patchogue able to explain why they failed to respond to my November 14, 2011 letter, or phone calls regarding the same. Needless to say, due to Patchogue’s blunder the processing of the claimant’s application will be much delayed.
The second case involves an application that I had filed with Patchogue by mail and fax on October 27, 2011. Because I had not heard anything from Patchogue in response to the application, I had my assistant call them on December 15, 2011. Patchogue told my assistant that they were still “loading” applications from September, and to give them some time.
After discovering Patchogue’s incompetence with the first case discussed above yesterday, I directed my office to follow up on this other case immediately. Not surprisingly, Patchogue said that they did not have the application, and the representative transferred the call to the supervisor. My office left several messages and sent faxes, but the supervisor has failed to call back. Thus, another claimant will have to endure delays on their application due to Patchogue's failure to process an application properly or expeditiously.
Wednesday, December 28, 2011
Appeals Council Doltishness
When an obviously wrong decision by a Social Security Administrative Law Judge (“ALJ”) is appealed to the Appeals Council you would expect its Administrative Appeals Judges (“AAJs”) to correct it. Unfortunately, the AAJs too frequently fail to rectify the ALJ’s errors.
I received a decision by AAJs Barbara Johnson and Louann Igasaki that, rather than rectifying the error by ALJ Seymour Fier, who is one of the ALJ’s being sued in a class action for anti-claimant bias, actually compounds the ALJ’s error. Even though all three physicians stated that the claimant lacked a sedentary work capacity, Fier stated the claimant had a sedentary work capacity until March 2008 because the claimant was “working” until that date. Fier omitted from his decision that the claimant’s “working” in 2007 and 2008 only amounted to $1,725.28 and $4,233.00 respectively, which does not come close to approaching substantial gainful activity (“SGA”), and certainly fails to demonstrate the claimant had anything close to the ability to work on a sustained full time basis.
The case law and regulations are absolutely clear that a person is allowed to work without it affecting their right to SSD benefits as long as the work does not constitute SGA. To make matters even worse, even if the work had been SGA, Fier failed to consider whether the work constituted an unsuccessful work attempt or trial work period. The Appeals Council disregarded the case law and regulations, and affirmed the ALJ’s decision that the claimant had a sedentary work capacity. But that was not even their real error.
The claimant was over 55 years old at the time he became disabled. I advised the Appeals Council that ALJ Fier ruled that the claimant had no transferable skills, which was based on the testimony of the Vocational Expert (“VE”). Absolute proof that ALJ Fier concluded the claimant had no transferable skills was his applying Medical Vocational Rule 201.28, which is used when a claimant has no transferable skills. ALJ Fier mistakenly thought the claimant was under 50 years of age, and by applying Rule 201.28 would be able to deny benefits.
Because the claimant was over 55 years of age, ALJ Fier should have applied Rule 201.06. However, it makes no difference whether ALJ Fier’s applying Rule 201.28 was an attempt to deny SSD benefits consistent with his anti-claimant bias, or was a “clerical error” as AAJs Johnson and Igasaki claimed.
The claimant was over 55 years of age and had no transferable skills, and therefore, the medical vocational rules required that he be found disabled. Johnson and Igasaki claimed that a clerical error regarding the claimant’s age caused ALJ Fier to apply Rule 201.28. However, Fier’s clerical error regarding the claimant’s age had nothing to do with Fier’s conclusion that the claimant lacked transferable skills. Not surprisingly, Johnson and Igasaki failed to mention that there was any clerical error regarding the finding that the claimant lacked transferable skills.
Instead of correcting ALJ Fier’s obvious error, Johnson and Igasaki compounded it by issuing an order remanding the case for a VE to determine if the claimant had transferable skills – even though that was already done at the previous hearing, and even though Fier had already determined that the claimant lacked transferable skills. AAJs Johnson and Igasaki inexplicably ordered that another ALJ be assigned to the case.
I received a decision by AAJs Barbara Johnson and Louann Igasaki that, rather than rectifying the error by ALJ Seymour Fier, who is one of the ALJ’s being sued in a class action for anti-claimant bias, actually compounds the ALJ’s error. Even though all three physicians stated that the claimant lacked a sedentary work capacity, Fier stated the claimant had a sedentary work capacity until March 2008 because the claimant was “working” until that date. Fier omitted from his decision that the claimant’s “working” in 2007 and 2008 only amounted to $1,725.28 and $4,233.00 respectively, which does not come close to approaching substantial gainful activity (“SGA”), and certainly fails to demonstrate the claimant had anything close to the ability to work on a sustained full time basis.
The case law and regulations are absolutely clear that a person is allowed to work without it affecting their right to SSD benefits as long as the work does not constitute SGA. To make matters even worse, even if the work had been SGA, Fier failed to consider whether the work constituted an unsuccessful work attempt or trial work period. The Appeals Council disregarded the case law and regulations, and affirmed the ALJ’s decision that the claimant had a sedentary work capacity. But that was not even their real error.
The claimant was over 55 years old at the time he became disabled. I advised the Appeals Council that ALJ Fier ruled that the claimant had no transferable skills, which was based on the testimony of the Vocational Expert (“VE”). Absolute proof that ALJ Fier concluded the claimant had no transferable skills was his applying Medical Vocational Rule 201.28, which is used when a claimant has no transferable skills. ALJ Fier mistakenly thought the claimant was under 50 years of age, and by applying Rule 201.28 would be able to deny benefits.
Because the claimant was over 55 years of age, ALJ Fier should have applied Rule 201.06. However, it makes no difference whether ALJ Fier’s applying Rule 201.28 was an attempt to deny SSD benefits consistent with his anti-claimant bias, or was a “clerical error” as AAJs Johnson and Igasaki claimed.
The claimant was over 55 years of age and had no transferable skills, and therefore, the medical vocational rules required that he be found disabled. Johnson and Igasaki claimed that a clerical error regarding the claimant’s age caused ALJ Fier to apply Rule 201.28. However, Fier’s clerical error regarding the claimant’s age had nothing to do with Fier’s conclusion that the claimant lacked transferable skills. Not surprisingly, Johnson and Igasaki failed to mention that there was any clerical error regarding the finding that the claimant lacked transferable skills.
Instead of correcting ALJ Fier’s obvious error, Johnson and Igasaki compounded it by issuing an order remanding the case for a VE to determine if the claimant had transferable skills – even though that was already done at the previous hearing, and even though Fier had already determined that the claimant lacked transferable skills. AAJs Johnson and Igasaki inexplicably ordered that another ALJ be assigned to the case.
Friday, December 23, 2011
Binder and Binder
The Wall Street Journal wrote an article yesterday that was highly critical of Binder and Binder. The article discusses how Tom Coburn, the Senator from Oklahoma, who is the top Republican on a subcommittee on Social Security, said Binder & Binder's practices were "potentially fraudulent" and raised questions on how many disability beneficiaries "are potentially improperly receiving benefits."
I doubt the charges that Binder & Binder engaged in fraudulent conduct since that implies they were knowingly and intentionally deceiving the Social Security Administration. It is much more likely that any alleged problems stemmed from Binder & Binder's practice of using non-attorney representatives to handle most of the work when processing Social Security Disability ("SSD") claims. It should be readily obvious that a claim will be handled more carefully, timely, and in compliance with applicable rules and regulations when the claim is handled by an attorney as opposed to a lay person. Binder & Binder is not alone in that respect.
As the Wall Street Journal pointed out, other large companies have tried to mimic Binder & Binder's volume business model. There are nationwide companies that Long Term Disability insurance companies tell people to use that handle SSD claims in a manner akin to Binder & Binder. Claimants should think twice before using the services of those large companies because they perceive the insurance companies as their clients.
When deciding who to chose to represent you for your SSD application, make sure that an attorney is the person who will handle every phase of your claim.
I doubt the charges that Binder & Binder engaged in fraudulent conduct since that implies they were knowingly and intentionally deceiving the Social Security Administration. It is much more likely that any alleged problems stemmed from Binder & Binder's practice of using non-attorney representatives to handle most of the work when processing Social Security Disability ("SSD") claims. It should be readily obvious that a claim will be handled more carefully, timely, and in compliance with applicable rules and regulations when the claim is handled by an attorney as opposed to a lay person. Binder & Binder is not alone in that respect.
As the Wall Street Journal pointed out, other large companies have tried to mimic Binder & Binder's volume business model. There are nationwide companies that Long Term Disability insurance companies tell people to use that handle SSD claims in a manner akin to Binder & Binder. Claimants should think twice before using the services of those large companies because they perceive the insurance companies as their clients.
When deciding who to chose to represent you for your SSD application, make sure that an attorney is the person who will handle every phase of your claim.
Thursday, December 8, 2011
NYCERS Disability Pension
I represent a 48 year old hospital executive whose application for disability retirement benefits under Article 15 of the Retirement and Social Security Law was recommended by the Medical Board four months after it was filed. To qualify for a disability pension, an applicant has to show that he or she is permanently incapacitated from performing his or her regular job duties. This showing requires linking the medical evidence to the vocational evidence.
The claimant sustained injuries when hit by a car at work. The medical evidence from the claimant’s orthopedists, internists, and physiatrist provided the clinical findings to support their opinions regarding the claimant’s restrictions and limitations. The clinical findings and opinions were further corroborated by diagnostic tests, hospital records, and medication prescribed. Additionally, I explained how the Social Security Disability and Workers Compensation reports and awards substantiated the NYCERS claim.
Once the functional capacity was objectively supported, I established the claimant’s work duties through Department of Labor publications and a vocational evaluation. The key was demonstrating how the claimant’s restrictions and limitations precluded her from performing the work duties and physical requirements identified in the publications and vocational evaluation, as that showed a permanent incapacity from performing regular job duties.
It is always possible that the claimant may eventually have been approved for a disability pension without the vocational evidence. However, the claimant’s chances of succeeding, and doing so initially, certainly improved by addressing the vocational as well as the medical evidence.
The claimant sustained injuries when hit by a car at work. The medical evidence from the claimant’s orthopedists, internists, and physiatrist provided the clinical findings to support their opinions regarding the claimant’s restrictions and limitations. The clinical findings and opinions were further corroborated by diagnostic tests, hospital records, and medication prescribed. Additionally, I explained how the Social Security Disability and Workers Compensation reports and awards substantiated the NYCERS claim.
Once the functional capacity was objectively supported, I established the claimant’s work duties through Department of Labor publications and a vocational evaluation. The key was demonstrating how the claimant’s restrictions and limitations precluded her from performing the work duties and physical requirements identified in the publications and vocational evaluation, as that showed a permanent incapacity from performing regular job duties.
It is always possible that the claimant may eventually have been approved for a disability pension without the vocational evidence. However, the claimant’s chances of succeeding, and doing so initially, certainly improved by addressing the vocational as well as the medical evidence.
Saturday, December 3, 2011
Can You Receive SSD If You Have Income?
I received a decision today from Administrative Law Judge (“ALJ”) Seymour Rayner that approved Social Security Disability (“SSD”) benefits for the owner of a home improvement business. ALJ Rayner readily accepted that the claimant was disabled from his past work as a carpenter due to various cardiovascular related impairments. However, ALJ Rayner required a supplemental hearing to determine whether the claimant’s income as business owner precluded the receipt of SSD benefits.
Experience has shown that there is a presumption that self employed SSD claimants are working off the books. In this particular case, the disability examiner explicitly told the claimant that he would never receive SSD benefits because the examiner believed the claimant was still working.
Passive income does not prevent a claimant from receiving SSD benefits. For example, workers compensation or private disability benefits are not an automatic bar to receiving SSD benefits. Accessing an individual retirement account or tapping funds from other non-work sources such as investment income, rental property, annuities or earned interest, will not prevent entitlement to SSD benefits.
I provided ALJ Rayner with the claimant’s business records. There was no documentary evidence that the claimant was performing work or services of any kind. The claimant was simply taking periodic payments from the business as profits. In other words, the money that the claimant was getting from his business was passive income, and was no different than profits from selling stocks or bonds.
There are many ways to establish that income received is not the type that would preclude receiving SSD benefits. Simply because a Social Security representative says you cannot get SSD because you have income is not necessarily true.
Experience has shown that there is a presumption that self employed SSD claimants are working off the books. In this particular case, the disability examiner explicitly told the claimant that he would never receive SSD benefits because the examiner believed the claimant was still working.
Passive income does not prevent a claimant from receiving SSD benefits. For example, workers compensation or private disability benefits are not an automatic bar to receiving SSD benefits. Accessing an individual retirement account or tapping funds from other non-work sources such as investment income, rental property, annuities or earned interest, will not prevent entitlement to SSD benefits.
I provided ALJ Rayner with the claimant’s business records. There was no documentary evidence that the claimant was performing work or services of any kind. The claimant was simply taking periodic payments from the business as profits. In other words, the money that the claimant was getting from his business was passive income, and was no different than profits from selling stocks or bonds.
There are many ways to establish that income received is not the type that would preclude receiving SSD benefits. Simply because a Social Security representative says you cannot get SSD because you have income is not necessarily true.
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