The State agency regularly issues a partially favorable decision (“PFD”) when making initial determinations on Social Security Disability (“SSD”) applications. A PFD should almost always be appealed as this could result in the receipt of substantial additional benefits.
The first step in appealing is to check all the documents in the eFolder to see if there is a document explaining why a later onset date was chosen. Many times it seems that there is absolutely no reason for the delayed onset date, and that the SSA is simply trying to avoid having to pay additional benefits. Sometimes there is no document in the eFolder that provides a reason why the State agency issued the PFD. I received a fully favorable decision today from administrative law judge (“ALJ”) Seymour Rayner that illustrates this point.
The claimant’s alleged that she became disabled on February 1, 2011 (the “AOD”). The State agency’s said the claimant became on July 1, 2012 (the “EOD”).
The ALJ asked what evidence the State agency relied upon as the basis for the EOD. I stated that there was no medical record in the file that was created on July 1, 2012, or referred to that date, and that it appeared as if the State agency analyst arbitrarily plucked the EOD out of thin air because it failed to correspond to any evidence.
The ALJ then asked what evidence the claimant was relying upon to support the AOD. I stated that there were two medical reports from the claimant’s psychiatrist that supported the AOD, by describing why the claimant met the listed criteria for an anxiety disorder no later than the AOD. The claimant also testified that her anxiety did not change on or about the EOD, and had been the same level of severity since the AOD.
The ALJ agreed that because the claimant’s condition was the same at the AOD as it was at the EOD, the claimant’s onset appeal should be granted. As a result, the claimant received over half a year of additional benefits.
As a related matter, I submitted a fee agreement stating that, “If the Social Security Administration (“SSA”) decides the claim favorably at the initial, reconsideration or initial Administrative Law Judge (“ALJ”) hearing stage, then Claimant will pay Attorney a fee that is equal to the lesser of twenty-five (25%) of the past due benefits.” (emphasis added). The agreement has been approved countless times where an ALJ issued a favorable decision following a State agency partially favorable decision. ALJ Rayner incorrectly denied the fee agreement on the grounds that it “is only valid if the claim is favorably decided at the initial level.” I’d say that ALJ needs to learn how to use a dictionary, but who doesn’t know the meaning of the word “or”?
Saturday, January 11, 2014
Social Security in the News
By Susan Golden
There have been numerous stories in the news recently regarding people who are "scamming" the Social Security Disability system by being approved for benefits even though they are not disabled. The most recent such story involved retired policeman and fireman who were coached to fake mental illness. Unfortunately, these are the stories that make it to the news because they are sensational and unusual. On the other hand, stories do not get written about the hundreds of thousands of people who would give anything to continue working, but for various health reasons cannot. These are the people no one ever hears about, the people who can no longer work, who are struggling to make ends meet, but who are wrongly denied benefits by Social Security, because it happens all the time.
In reality, it is extremely difficult to get approved for Social Security Disability benefits. A claimant must have strong support from current treating doctors; without which it is almost impossible to get approved. Even with strong medical support, hundreds of thousands of people are denied benefits due to Social Security's incompetent and dishonest practices, which deprives thousands of deserving people out of benefits. Social Security inundates claimants with complicated paperwork, sends threatening letters to try to intimidate people, while making it virtually impossible to reach any representative by phone. They take months and months to process cases, normally with the excuse of being overworked and understaffed. Applications are lost, faxes are never received, phone calls never returned; that is if you can even get through at all. The excuses are endless.
Most people get denied at the initial application because the State Agency that reviews the applications usually use civil service clerks, not doctors or lawyers, to make the decisions. They constantly deny people wrongly for various reasons ranging from ignorance to downright stupidity. Once they deny the initial application, the claim has to be appealed and sent to the local hearing office, which wastes hundreds of thousands of dollars of tax payer money. Once at the hearing office, the application is reviewed and eventually a hearing is scheduled after a judge is assigned to the claim. It can take 6 months to a year before the application even gets reviewed, which is actually an improvement over the recent past. The outcome of the hearing depends largely on who the judge is.
In October of 2013, a class action law suit brought against 5 judges from the Queens hearing office accused of bias was "settled," supposedly in favor of the claimants. Some claimants’ cases have been tied up in court for over 5 years. These are people who are legitimately disabled, who cannot work and have been unable to collect disability, from a system that they paid into their entire lives. You don’t see anyone covering that story on the news? The settlement means nothing. It didn't get the claimants benefits, it didn't get them money, it didn't them anything except the promise of a new hearing with a different judge. The point of the class action law suit was to help and protect these claimants’ rights. It was supposed to guarantee them new hearings, with different judges than they had originally had, judges that were not biased against them. Instead, Social Security is still playing games with these people, stating they had 60 days from the receipt of notice of settlement, to request a change of judge rather than just assigning a new judge to them. Not surprisingly, many of these people never received the notice and didn't know about this 60 day rule. Why in the world would anyone want the same judge to decide their fate, a judge that humiliated and embarrassed them, a judge that was so rude and mean to them they felt ashamed of themselves? For every one person who tries to cheat the system, there are hundreds that deserve to be approved, and are wrongfully denied.These are the people that deserve to be in the news. The thousands of people that were denied benefits they deserved by old, biased judges who should have retired years ago, and because of another government system that doesn't work.
There have been numerous stories in the news recently regarding people who are "scamming" the Social Security Disability system by being approved for benefits even though they are not disabled. The most recent such story involved retired policeman and fireman who were coached to fake mental illness. Unfortunately, these are the stories that make it to the news because they are sensational and unusual. On the other hand, stories do not get written about the hundreds of thousands of people who would give anything to continue working, but for various health reasons cannot. These are the people no one ever hears about, the people who can no longer work, who are struggling to make ends meet, but who are wrongly denied benefits by Social Security, because it happens all the time.
In reality, it is extremely difficult to get approved for Social Security Disability benefits. A claimant must have strong support from current treating doctors; without which it is almost impossible to get approved. Even with strong medical support, hundreds of thousands of people are denied benefits due to Social Security's incompetent and dishonest practices, which deprives thousands of deserving people out of benefits. Social Security inundates claimants with complicated paperwork, sends threatening letters to try to intimidate people, while making it virtually impossible to reach any representative by phone. They take months and months to process cases, normally with the excuse of being overworked and understaffed. Applications are lost, faxes are never received, phone calls never returned; that is if you can even get through at all. The excuses are endless.
Most people get denied at the initial application because the State Agency that reviews the applications usually use civil service clerks, not doctors or lawyers, to make the decisions. They constantly deny people wrongly for various reasons ranging from ignorance to downright stupidity. Once they deny the initial application, the claim has to be appealed and sent to the local hearing office, which wastes hundreds of thousands of dollars of tax payer money. Once at the hearing office, the application is reviewed and eventually a hearing is scheduled after a judge is assigned to the claim. It can take 6 months to a year before the application even gets reviewed, which is actually an improvement over the recent past. The outcome of the hearing depends largely on who the judge is.
In October of 2013, a class action law suit brought against 5 judges from the Queens hearing office accused of bias was "settled," supposedly in favor of the claimants. Some claimants’ cases have been tied up in court for over 5 years. These are people who are legitimately disabled, who cannot work and have been unable to collect disability, from a system that they paid into their entire lives. You don’t see anyone covering that story on the news? The settlement means nothing. It didn't get the claimants benefits, it didn't get them money, it didn't them anything except the promise of a new hearing with a different judge. The point of the class action law suit was to help and protect these claimants’ rights. It was supposed to guarantee them new hearings, with different judges than they had originally had, judges that were not biased against them. Instead, Social Security is still playing games with these people, stating they had 60 days from the receipt of notice of settlement, to request a change of judge rather than just assigning a new judge to them. Not surprisingly, many of these people never received the notice and didn't know about this 60 day rule. Why in the world would anyone want the same judge to decide their fate, a judge that humiliated and embarrassed them, a judge that was so rude and mean to them they felt ashamed of themselves? For every one person who tries to cheat the system, there are hundreds that deserve to be approved, and are wrongfully denied.These are the people that deserve to be in the news. The thousands of people that were denied benefits they deserved by old, biased judges who should have retired years ago, and because of another government system that doesn't work.
Wednesday, January 8, 2014
Hoppenfeld Refused To Comply With Padro
If you read my blog, then you are aware of the Padro class action, which was settled last October. If your Social Security Disability (“SSD”) case was denied after January 1, 2008 by one of the Queens Five, which includes Administrative Law Judge (“ALJ”) Hoppenfeld, then Padro requires that you get a new hearing by an ALJ other than one of the Queens Five.
I represent a claimant, who received a notice as a member of the Padro class. In 2012, Hoppenfeld denied the claim in an extraordinarily biased and absurd decision, which the Appeals Council naturally rejected last July.
Because the case was assigned to Hoppenfeld, I filed a letter demanding that she recuse herself. Instead of complying with the law, Hoppenfeld scheduled a hearing. My messages to the Queens hearing office about the case still being assigned to Hoppenfeld have gone unreturned, but my client will be subjected to having to appear before Hoppenfeld again.
If you received a Padro notice at any time, make sure that you are not scheduled to appear before one of the Queens Five for your new hearing
I represent a claimant, who received a notice as a member of the Padro class. In 2012, Hoppenfeld denied the claim in an extraordinarily biased and absurd decision, which the Appeals Council naturally rejected last July.
Because the case was assigned to Hoppenfeld, I filed a letter demanding that she recuse herself. Instead of complying with the law, Hoppenfeld scheduled a hearing. My messages to the Queens hearing office about the case still being assigned to Hoppenfeld have gone unreturned, but my client will be subjected to having to appear before Hoppenfeld again.
If you received a Padro notice at any time, make sure that you are not scheduled to appear before one of the Queens Five for your new hearing
Thursday, December 19, 2013
CIGNA Loses Standard of Review Motion
A federal court applies one of two standards of review when deciding whether a plaintiff’s disability benefits under a group insurance policy or pension were properly denied or terminated. Under a de novo standard of review, no deference is given to the defendant’s decision, and the court is free to substitute its own judgment for that of the insurer. Under an arbitrary and capricious standard of review, the deck is stacked against the plaintiff, who basically must show that the defendant’s decision was irrational, let alone wrong.
An arbitrary and capricious standard applies when the disability plan’s sponsor has delegated discretionary authority to the plan’s claim administrator. Most disability insurance companies have severely abused discretionary clauses. Consequently, many states have enacted laws prohibiting their use.
CIGNA was forced into a Regulatory Settlement Agreement (“RSA"), (which can be found on the Cigna tab located at the top of our home page), because it so pervasively abused discretionary clauses. Despite the RSA, CIGNA continues to do everything within its power to argue that the deferential arbitrary and capricious standard applies when cases are appealed to federal court. CIGNA knows it can win a lawsuit even if it made the wrong decision if the arbitrary and capricious standard is applied.
Judge Joseph Bianco ruled today that CIGNA’s decision to terminate long term disability (“LTD”) benefits would be reviewed de novo.
Over the course of several years, the claimant made many requests for all plan documents from CIGNA, which repeatedly confirmed that the group insurance policy was the only plan document. CIGNA admitted that the policy did not grant it discretionary authority. Years later, after CIGNA terminated the claimant’s LTD benefits, the day before the initial conference in the lawsuit, CIGNA suddenly produced a certificate of insurance with discretionary language. CIGNA was unable to explain to the Magistrate Judge why the Certificate had not previously been produced, but CIGNA assured the Magistrate Judge that all plan documents had now been produced.
A few months after producing the Certificate, CIGNA produced a document called Appointment of Claim Fiduciary (“ACF”), which also contained discretionary language. CIGNA claimed that both the Certificate and ACF provided it with discretionary authority. For the reasons set forth in Barbu v. Cigna, 2:12 cv-01629-JFB-WDW (E.D.N.Y. Dec. 19, 2013), (which can be found on the Cigna tab located at the top of our home page), the Court disagreed.
An arbitrary and capricious standard applies when the disability plan’s sponsor has delegated discretionary authority to the plan’s claim administrator. Most disability insurance companies have severely abused discretionary clauses. Consequently, many states have enacted laws prohibiting their use.
CIGNA was forced into a Regulatory Settlement Agreement (“RSA"), (which can be found on the Cigna tab located at the top of our home page), because it so pervasively abused discretionary clauses. Despite the RSA, CIGNA continues to do everything within its power to argue that the deferential arbitrary and capricious standard applies when cases are appealed to federal court. CIGNA knows it can win a lawsuit even if it made the wrong decision if the arbitrary and capricious standard is applied.
Judge Joseph Bianco ruled today that CIGNA’s decision to terminate long term disability (“LTD”) benefits would be reviewed de novo.
Over the course of several years, the claimant made many requests for all plan documents from CIGNA, which repeatedly confirmed that the group insurance policy was the only plan document. CIGNA admitted that the policy did not grant it discretionary authority. Years later, after CIGNA terminated the claimant’s LTD benefits, the day before the initial conference in the lawsuit, CIGNA suddenly produced a certificate of insurance with discretionary language. CIGNA was unable to explain to the Magistrate Judge why the Certificate had not previously been produced, but CIGNA assured the Magistrate Judge that all plan documents had now been produced.
A few months after producing the Certificate, CIGNA produced a document called Appointment of Claim Fiduciary (“ACF”), which also contained discretionary language. CIGNA claimed that both the Certificate and ACF provided it with discretionary authority. For the reasons set forth in Barbu v. Cigna, 2:12 cv-01629-JFB-WDW (E.D.N.Y. Dec. 19, 2013), (which can be found on the Cigna tab located at the top of our home page), the Court disagreed.
Thursday, December 5, 2013
Prudential Cancels IME
Disability insurance companies make it a habit of asserting rights under group disability insurance policies that do not exist, such as interviews by investigators when only medical exams are allowed.
Prudential cancelled a demand that my client attend a so-called independent medical examination (“IME”) after I insisted that my client be allowed to videotape it. Prudential asked for the IME because I submitted reports form treating physicians and diagnostic test data that all show she remained disabled – there was no change, let alone improvement, in her medical conditions.
As an initial matter, I objected to the location of the IME. I explained that because my client’s condition makes travel difficult, if Prudential insisted on an IME, then it should be located within a 10-mile radius of her residence. She lives in Queens which is jam packed with health care professionals. There was no excuse for requiring my client to travel a further distance as there are countless physicians who work where she resides. There certainly was no reason to make my client travel across two counties, over 20 miles, to see a doctor who practiced medicine in a specialty that was unrelated to her disability. While Prudential might have the right under the policy to an IME, it does not have the right to schedule an IME at an unreasonable location.
Regardless of the unreasonable location of the IME, I stated that my client would attempt to comply. However, I warned Prudential that because they scheduled the IME at an unreasonable location, there was a very good chance that she would not be able to remain for its duration, which is why I suggested having the IME at a closer location. Prudential seemed to think scheduling an unreasonable IME was not a problem because they offered transportation. I explained that offering transportation was irrelevant because I had informed Prudential that the claimant would appear with a witness who would drive her. More importantly, the fact that Prudential would provide transportation would not reduce the amount of time that it would take to get to the unreasonable location of the IME. Furthermore, Prudential’s statement that the driver could stop so the claimant could stand and stretch was irrelevant because she needs to lie down, not stand up, to relieve her pain.
Prudential canceled the IME because I stated that the claimant’s witness would videotape it, to which they objected. In half a dozen letters, I stated that there was absolutely nothing in the Group Policy that forbids videotaping an IME. Each time I told Prudential that if they disagreed to send me a copy of that part of the Policy that they claimed forbids it. They never did, which was an admission that no such provision existed. I explained to Prudential that the fact that the IME doctor did not want the IME videotaped was irrelevant to the terms and conditions of the Group Policy, and that they were breaching the Policy by imposing a condition that did not exist in it. I made it clear that I did not refuse to allow my client to attend the IME with her companion. To the contrary, I repeatedly told Prudential that both the claimant and her witness would attend the IME, even though they had scheduled it in an unreasonable manner so as to inconvenience her. Faced with admitting there was nothing in the Policy prohibiting a claimant from videotaping the IME, Prudential chose to cancel it.
Prudential cancelled a demand that my client attend a so-called independent medical examination (“IME”) after I insisted that my client be allowed to videotape it. Prudential asked for the IME because I submitted reports form treating physicians and diagnostic test data that all show she remained disabled – there was no change, let alone improvement, in her medical conditions.
As an initial matter, I objected to the location of the IME. I explained that because my client’s condition makes travel difficult, if Prudential insisted on an IME, then it should be located within a 10-mile radius of her residence. She lives in Queens which is jam packed with health care professionals. There was no excuse for requiring my client to travel a further distance as there are countless physicians who work where she resides. There certainly was no reason to make my client travel across two counties, over 20 miles, to see a doctor who practiced medicine in a specialty that was unrelated to her disability. While Prudential might have the right under the policy to an IME, it does not have the right to schedule an IME at an unreasonable location.
Regardless of the unreasonable location of the IME, I stated that my client would attempt to comply. However, I warned Prudential that because they scheduled the IME at an unreasonable location, there was a very good chance that she would not be able to remain for its duration, which is why I suggested having the IME at a closer location. Prudential seemed to think scheduling an unreasonable IME was not a problem because they offered transportation. I explained that offering transportation was irrelevant because I had informed Prudential that the claimant would appear with a witness who would drive her. More importantly, the fact that Prudential would provide transportation would not reduce the amount of time that it would take to get to the unreasonable location of the IME. Furthermore, Prudential’s statement that the driver could stop so the claimant could stand and stretch was irrelevant because she needs to lie down, not stand up, to relieve her pain.
Prudential canceled the IME because I stated that the claimant’s witness would videotape it, to which they objected. In half a dozen letters, I stated that there was absolutely nothing in the Group Policy that forbids videotaping an IME. Each time I told Prudential that if they disagreed to send me a copy of that part of the Policy that they claimed forbids it. They never did, which was an admission that no such provision existed. I explained to Prudential that the fact that the IME doctor did not want the IME videotaped was irrelevant to the terms and conditions of the Group Policy, and that they were breaching the Policy by imposing a condition that did not exist in it. I made it clear that I did not refuse to allow my client to attend the IME with her companion. To the contrary, I repeatedly told Prudential that both the claimant and her witness would attend the IME, even though they had scheduled it in an unreasonable manner so as to inconvenience her. Faced with admitting there was nothing in the Policy prohibiting a claimant from videotaping the IME, Prudential chose to cancel it.
Wednesday, December 4, 2013
Disability And Work History
A claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. The underlying premise is that a person with a good work ethic would continue to work if possible. The courts have repeatedly held that a claimant’s long and honorable work history justifies the inference that when a claimant is telling the truth when he says he stopped working because of a disability.
The presumption of credibility is even stronger where a claimant has a long work history with the same employer because this indicates the claimant liked the work and the employer liked claimant. The presumptions regarding an applicant’s credibility must be considered from the outset in the Social Security Disability (“SSD”) context. An SSD application only seeks the claimant’s work history for the last 15 years because after that time it is presumed that any acquired work skills will be stale. If the claimant has a strong work history beyond the 15 year period, then it should be stressed to support credibility, even though the history will be irrelevant to transferability of acquired work skills.
I represent a 48 year old who drove a truck for Pepsi for over a quarter of a century. He had to stop working due to back problems. His SSD application was approved today without a hearing. Many other claimants under 50 years of age with similar back problems have been required to proceed to a hearing. The difference here is that the claimant’s work history provided objective evidence that rendered his subjective complaints credible.
The presumption of credibility is even stronger where a claimant has a long work history with the same employer because this indicates the claimant liked the work and the employer liked claimant. The presumptions regarding an applicant’s credibility must be considered from the outset in the Social Security Disability (“SSD”) context. An SSD application only seeks the claimant’s work history for the last 15 years because after that time it is presumed that any acquired work skills will be stale. If the claimant has a strong work history beyond the 15 year period, then it should be stressed to support credibility, even though the history will be irrelevant to transferability of acquired work skills.
I represent a 48 year old who drove a truck for Pepsi for over a quarter of a century. He had to stop working due to back problems. His SSD application was approved today without a hearing. Many other claimants under 50 years of age with similar back problems have been required to proceed to a hearing. The difference here is that the claimant’s work history provided objective evidence that rendered his subjective complaints credible.
Cirrhosis
According to WebMD, Cirrhosis is a slowly progressing disease in which healthy liver tissue is replaced with scar tissue, eventually preventing the liver from functioning properly. Symptoms and its complications often include: fluid buildup in abdomen called “ascites,” fatigue, weight loss and muscle wasting, belly pain, frequent infections, and confusion. Cirrhosis is the 12th leading cause of death by disease.
A 45 year old, who worked as a roofer for over 25 years, retained me after his Social Security Disability (“SSD””) application was denied, based on the vague opinions of the Social Security doctors. I worked with the claimant to get a functionality opinion from his board certified gastroenterologist to explain why the claimant’s liver problem rendered him incapable of working.
I prepared an OTR that argued the gastroenterologist’s disability opinion was entitled to controlling weight. The objective evidence for the cirrhosis diagnosis was abundant: a hospitalization for paracentesis to remove ascites; CT testing revealing pelvic ascites; and spleen scan and abdominal sonogram that confirmed the cirrhosis, hepatomegaly, and significant liver fibrosis. In light of the clear objective evidence supporting the diagnosis, the only issue was the severity of the condition.
In addition to the weight favoring a treating doctor’s opinion, I contended that the claimant’s work history supported the credibility of his complaints. The Administrative Law Judge agreed, approved the OTR, and canceled the hearing.
A 45 year old, who worked as a roofer for over 25 years, retained me after his Social Security Disability (“SSD””) application was denied, based on the vague opinions of the Social Security doctors. I worked with the claimant to get a functionality opinion from his board certified gastroenterologist to explain why the claimant’s liver problem rendered him incapable of working.
I prepared an OTR that argued the gastroenterologist’s disability opinion was entitled to controlling weight. The objective evidence for the cirrhosis diagnosis was abundant: a hospitalization for paracentesis to remove ascites; CT testing revealing pelvic ascites; and spleen scan and abdominal sonogram that confirmed the cirrhosis, hepatomegaly, and significant liver fibrosis. In light of the clear objective evidence supporting the diagnosis, the only issue was the severity of the condition.
In addition to the weight favoring a treating doctor’s opinion, I contended that the claimant’s work history supported the credibility of his complaints. The Administrative Law Judge agreed, approved the OTR, and canceled the hearing.
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