One of the countless forms that the Social Security Administration (“SSA”) uses is SSA-821 “Work Activity Report.”. The SSA asks a claimant who is applying for Social Security Disability (“SSD”) benefits to complete form SSA-821 when it sees the claimant has income after the date when the SSD application says the claimant became disabled, known as the alleged onset date (the “AOD”).
Not all income after the AOD precludes receipt of SSD benefits. I represent a 60 year old extermination service salesperson whose SSD benefits were awarded today even though her form SSA-821 reflected two sources of income after the AOD. However, neither provided grounds to issue a partially favorable decision.
The first source of income represented accrued vacation time, while the second represented unused sick time. Both of those sources of income constitute passive income. A person can receive SSD benefits regardless of the amount of income they receive so long as it is passive income.
Friday, December 19, 2014
Binder & Binder Goes Bankrupt
The Wall Street Journal (“WSJ”) and Reuters reported that Binder & Binder filed for bankruptcy late yesterday. Those filings indicate that Binder plans to close offices and reduce its staff from about 1,000 to about 350. It remains to be seen how that reduced staff can handle Binder’s nearly 58,000 clients.
The WSJ has been critical of Binder & Binder for many years. While I was wary about the WSJ’s contention that Binder & Binder engaged in fraudulent conduct, I did suggest that when selecting a Social Security law firm, to make sure that an attorney would be the person representing you. Most of Binder & Binder’s employees are not attorneys, which, among other things, means your conversations may not be privileged.
The WSJ cited tougher scrutiny of disability claims, by Administrative Law Judges who are approving significantly fewer cases, as one of the main reasons for Binder’s problems. Tougher scrutiny created greater problems for Binder & Binder because the majority of its work is performed by non-attorney advocates. I agree with Troy Rosasco, another Social Security Disability attorney, who blogged:
In my opinion, this is a good example why Social Security disability representation should be left to smaller local law firms rather than mega-national corporations with non-attorney advocates. The Social Security Administration should rescind fee withholding for non-attorney advocates which are the steroids allowing Binder & Binder and similar corporations to grow exponentially.
It is clear that the Binder & Binder non-attorney advocate business model may now be imploding on a massive scale, and its reported 57,000 clients are possibly at risk.
massive scale, and its reported 57,000 clients are possibly at risk.
A large portion of Binder & Binder’s debt comes from their ubiquitous television advertisements. Binder might stop taking new cases and just work on the cases they already have, which would take two or three years for the majority of claims. Without the cost of advertising, Binder’s expenses would decrease significantly, and they would gradually lay off employees as the numbers of files decrease, while their income would probably stay about the same the same during the same time period.
The WSJ has been critical of Binder & Binder for many years. While I was wary about the WSJ’s contention that Binder & Binder engaged in fraudulent conduct, I did suggest that when selecting a Social Security law firm, to make sure that an attorney would be the person representing you. Most of Binder & Binder’s employees are not attorneys, which, among other things, means your conversations may not be privileged.
The WSJ cited tougher scrutiny of disability claims, by Administrative Law Judges who are approving significantly fewer cases, as one of the main reasons for Binder’s problems. Tougher scrutiny created greater problems for Binder & Binder because the majority of its work is performed by non-attorney advocates. I agree with Troy Rosasco, another Social Security Disability attorney, who blogged:
In my opinion, this is a good example why Social Security disability representation should be left to smaller local law firms rather than mega-national corporations with non-attorney advocates.
Monday, December 15, 2014
Sensorineural Deafness
Sensorineural deafness, the most common type of hearing loss, occurs either from damage to the inner ear, the auditory nerve that runs from the ear to the brain, or the brain. Leading causes are loud noises, diseases, aging, trauma, and genetics. Symptoms include imbalance, tinnitus, difficulty following conversations and higher pitched sounds.
When the labyrinthine-vestibular impairment causes loss of balance and tinnitus that is accompanied by severe hearing loss, the Social Security Administration (“SSA”) deems the condition to be disabling. To meet the applicable listing, caloric or other vestibular testing is needed to show the vestibular labyrinth disturbance, while audiometry is needed to show the hearing loss.
I represent a 50 year old carpenter with Meniere's Disease, who had to stop working because of his balance and hearing loss. He treated at the Veterans Administration (“VA”), which conducted the requisite testing to meet the listing. The VA physician wrote a narrative report explaining why the claimant met the listing, which was the basis for the SSA approval. Notably, there is a directive for the VA to help complete forms to obtain SSD benefits.
When the labyrinthine-vestibular impairment causes loss of balance and tinnitus that is accompanied by severe hearing loss, the Social Security Administration (“SSA”) deems the condition to be disabling. To meet the applicable listing, caloric or other vestibular testing is needed to show the vestibular labyrinth disturbance, while audiometry is needed to show the hearing loss.
I represent a 50 year old carpenter with Meniere's Disease, who had to stop working because of his balance and hearing loss. He treated at the Veterans Administration (“VA”), which conducted the requisite testing to meet the listing. The VA physician wrote a narrative report explaining why the claimant met the listing, which was the basis for the SSA approval. Notably, there is a directive for the VA to help complete forms to obtain SSD benefits.
Dementia
Dementia is a permanent loss of brain function that affects memory, thinking, language, judgment, and behavior. Dementia is not a disease, but rather, it is a group of symptoms that are caused by various diseases or conditions.
When dementia is caused by a series of small strokes it is known as multi-infarct dementia or vascular dementia. The symptoms of vascular dementia include: confusion; difficulty with attention and concentration; diminished ability to organize thoughts or actions, and to analyze a situation, develop an effective plan and communicate that plan to others; memory loss; unsteady gait; incontinence; and depression.
I represent a 54 year old financial operations consultant with progressive dementia, paresthesias, decreased strength and memory, antalgic gait, headaches and some orthopedic and vision problem as well. The treating cardiologist diagnosed the claimant with vascular dementia from cerebrovascular disease, which was verified by a brain MRI, CT scan, and EP study.
The Social Security Administration found the claimant was disabled today, and therefore, entitled to disability benefits. No hearing was required. A hearing was avoided because the hearing office staff had specified additional evidence that they felt was needed to make a decision, which was promptly supplied. It is vital that the hearing office personnel know that they can rely on your representative whenever it comes to any request for information.
When dementia is caused by a series of small strokes it is known as multi-infarct dementia or vascular dementia. The symptoms of vascular dementia include: confusion; difficulty with attention and concentration; diminished ability to organize thoughts or actions, and to analyze a situation, develop an effective plan and communicate that plan to others; memory loss; unsteady gait; incontinence; and depression.
I represent a 54 year old financial operations consultant with progressive dementia, paresthesias, decreased strength and memory, antalgic gait, headaches and some orthopedic and vision problem as well. The treating cardiologist diagnosed the claimant with vascular dementia from cerebrovascular disease, which was verified by a brain MRI, CT scan, and EP study.
The Social Security Administration found the claimant was disabled today, and therefore, entitled to disability benefits. No hearing was required. A hearing was avoided because the hearing office staff had specified additional evidence that they felt was needed to make a decision, which was promptly supplied. It is vital that the hearing office personnel know that they can rely on your representative whenever it comes to any request for information.
Wednesday, December 10, 2014
CIGNA Says Claimant Cannot Do Any Work
Last August, a U.S. District Court reversed CIGNA’s termination [Federal Court Reverses CIGNA] of long term disability (“LTD”) benefits. The court found that CIGNA had failed to identify any evidence that the claimant’s condition improved to justify terminating LTD benefits. However, the Court ruled that while the claimant had proven that he was disabled under the LTD policy’s “regular occupation” period, CIGNA had to be given the opportunity to determine if the claimant were disabled under the policy’s subsequent “any occupation” period.
As more than four months had elapsed, and CIGNA still had not rendered a decision, I faxed a letter warning that I would file a new action unless I received CIGNA’s decision by the end of the week. The following day, I was advised that CIGNA would find the claimant unable to perform any occupation, and was approving continuing LTD benefits. As a result, in addition to LTD benefits, my client will also receive coverage under health, life, and dental policies. It seems to me that CIGNA could save a significant amount of money in administering LTD claims and in attorney fees if it would pay patently supported claims.
As more than four months had elapsed, and CIGNA still had not rendered a decision, I faxed a letter warning that I would file a new action unless I received CIGNA’s decision by the end of the week. The following day, I was advised that CIGNA would find the claimant unable to perform any occupation, and was approving continuing LTD benefits. As a result, in addition to LTD benefits, my client will also receive coverage under health, life, and dental policies. It seems to me that CIGNA could save a significant amount of money in administering LTD claims and in attorney fees if it would pay patently supported claims.
Saturday, December 6, 2014
Biased SSA Review Policy
A few years ago, the Social Security Administration (“SSA”) created the Division of Quality (“DQ”) and Quality Review Branch (“QRB”), which has increased the number of Administrative Law Judge (“ALJ”) decisions that the Appeals Council reviews on its “own motion.” The ostensible purpose of the DQ was to ensure greater consistency among ALJ decisions. However, as more time progresses, it has become apparent that the true purpose is to try to reduce the number of ALJ decisions that get approved.
My experience and that of my colleagues has been that the DQ has only reviewed clients’ ALJ decisions that have approved disability benefits. Several ALJs have told me that since the DQ was formed, the SSA has been demanding greater justification for approving disability claims, and statistics corroborate that ALJs have been pressured into significantly decreasing their approval rates during the same time period.
The problem is that the SSA is supposed to be a neutral and non-adversarial agency. The DQ should be checking to see that ALJ decisions denying disability benefits are supportable with the same frequency that it checks ALJ decisions approving disability benefits. This lack of mutuality simply amplifies the cynicism about a claimant’s increasing difficulty of receiving a full and fair hearing process.
My experience and that of my colleagues has been that the DQ has only reviewed clients’ ALJ decisions that have approved disability benefits. Several ALJs have told me that since the DQ was formed, the SSA has been demanding greater justification for approving disability claims, and statistics corroborate that ALJs have been pressured into significantly decreasing their approval rates during the same time period.
The problem is that the SSA is supposed to be a neutral and non-adversarial agency. The DQ should be checking to see that ALJ decisions denying disability benefits are supportable with the same frequency that it checks ALJ decisions approving disability benefits. This lack of mutuality simply amplifies the cynicism about a claimant’s increasing difficulty of receiving a full and fair hearing process.
Friday, November 21, 2014
Videotaping IMEs
For decades, long term disability (“LTD”) insurance companies have routinely videotaped disability claimants both at and away from their homes, engaged in daily activities. The LTD insurers use the surreptitious surveillance to rebut the claimants’ claims of physical or mental limitations caused by their disabling condition.
Courts have admitted the surveillance videotape based on the LTD insurers’ argument that if claimants are telling the truth about their medical conditions, then they should have nothing to hide. Conversely, if claimants are being dishonest, then the videotape is evidence exposing the dishonesty.
There are now small high-definition cameras that are relatively inexpensive that make it easy to conceal videotaping. Disability claimants could and should use these types of cameras to take surveillance videotape when the LTD insurers requires them to submit to a so-called "independent medical examination" (“IME”), which everyone knows is anything but independent. Claimants could use the surveillance to rebut the validity of the assertions made by the insurer’s IME physicians.
Since LTD insurers extensively embrace the use of surveillance videotaping of claimants, it would be hypocritical for the insurers to object to claimants using surveillance videotape of IME doctors. If the LTD insurers argue that they need videotape surveillance because there are dishonest people who commit fraud to reap the monetary gain from disability benefits, then the insurers have to concede that there are also dishonest people who commit fraud to reap the monetary benefit from conducting disability IMEs.
A boilerplate clause in virtually every group LTD policy is the right of the insurer to conduct a medical exam of the claimant, the so-called IME. My experience has been that the insurer IME are doctors, usually with subpar credentials, who have had little success in making a living practicing medicine, and therefore need IME income. These doctors know that if they want to continue to have their income supplemented by IMEs, then they need to deliver reports that the insurers will like; otherwise, they will not receive repeat business.
I have been unable to locate any rule, regulation, or statute that prohibits videotaping an LTD IME. In fact, every time I advise an LTD insurer that my client will videotape an IME, to which they always object, the LTD insurer has been unable to identify any law or contractual provision that would prohibit videotaping an LTD IME. Therefore, since courts have routinely accepted surveillance of disability claimants as evidence submitted by LTD insurers, courts should accept surveillance of IME doctors as evidence submitted by LTD claimants.
There is no reason why a court should reject videotape evidence that shows an LTD IME did not tell the truth, or failed to do what the IME report claimed was done. Inconsistencies between an IME report and IME videotape are no different than inconsistencies between what a disability claimant claims and surveillance videotape purportedly reveals.
Courts have admitted the surveillance videotape based on the LTD insurers’ argument that if claimants are telling the truth about their medical conditions, then they should have nothing to hide. Conversely, if claimants are being dishonest, then the videotape is evidence exposing the dishonesty.
There are now small high-definition cameras that are relatively inexpensive that make it easy to conceal videotaping. Disability claimants could and should use these types of cameras to take surveillance videotape when the LTD insurers requires them to submit to a so-called "independent medical examination" (“IME”), which everyone knows is anything but independent. Claimants could use the surveillance to rebut the validity of the assertions made by the insurer’s IME physicians.
Since LTD insurers extensively embrace the use of surveillance videotaping of claimants, it would be hypocritical for the insurers to object to claimants using surveillance videotape of IME doctors. If the LTD insurers argue that they need videotape surveillance because there are dishonest people who commit fraud to reap the monetary gain from disability benefits, then the insurers have to concede that there are also dishonest people who commit fraud to reap the monetary benefit from conducting disability IMEs.
A boilerplate clause in virtually every group LTD policy is the right of the insurer to conduct a medical exam of the claimant, the so-called IME. My experience has been that the insurer IME are doctors, usually with subpar credentials, who have had little success in making a living practicing medicine, and therefore need IME income. These doctors know that if they want to continue to have their income supplemented by IMEs, then they need to deliver reports that the insurers will like; otherwise, they will not receive repeat business.
I have been unable to locate any rule, regulation, or statute that prohibits videotaping an LTD IME. In fact, every time I advise an LTD insurer that my client will videotape an IME, to which they always object, the LTD insurer has been unable to identify any law or contractual provision that would prohibit videotaping an LTD IME. Therefore, since courts have routinely accepted surveillance of disability claimants as evidence submitted by LTD insurers, courts should accept surveillance of IME doctors as evidence submitted by LTD claimants.
There is no reason why a court should reject videotape evidence that shows an LTD IME did not tell the truth, or failed to do what the IME report claimed was done. Inconsistencies between an IME report and IME videotape are no different than inconsistencies between what a disability claimant claims and surveillance videotape purportedly reveals.
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