Reliance Approves LTD After Deadline

I represent a 59 year old financial broker that Reliance found disabled under a group long term disability (“LTD”) policy today, which is governed by ERISA. The application was filed on September 16, 2015. Under ERISA, the insurer has 45 days to render a decision, which would have been October 31, 2015. 

On November 2, 2015, when I notified Reliance about the deadline elapsing, Reliance claimed that the deadline had not passed because the unit making the decision said it did not receive the application until October 16, 2015. After I responded that I had a fax confirmation that Reliance received the application on September 16, 2015, Reliance advised me that it would make its decision that week. At week’s end, I was told the claim had been recommended for approval, which a manager had to accept. That acceptance came today. 

I doubt that the decision would have been received by today if I had not raised the ERISA deadline, which can adversely affect the claim fiduciary. For example, in New York, if an appeal deadline is ignored, a claimant could deem the decision to be denied, which ultimately can lead to a more favorable standard of review being applied. Claims handlers usually have caseloads that are too heavy to manage properly, which results in delays. Claims handlers are also frequently told by managers to delay approvals as a means of manipulating reserves to meet financial goals. Letting a claim handler know that you are aware of the ERISA deadlines may help focus attention on your claim in order to receive a timely decision.

Approval for Toll Collector

I represent a former toll collector who was injured when she was hit by a car at work. Despite submitting dozens of pages of treatment records, extensive diagnostic test reports, and disability reports from her neurologist, rheumatologist, two orthopedists, cardiologist, and internist, it still took over seven months to receive the approval. 

The Social Security Administration’s own statistics reveal the increasing delays for making any decisions, regardless of the severity of the disabling condition. Even in the most well delineated and supported cases, a claimant should not anticipate receiving a decision in less than half a year.

The Consequences of SSD Delays

The current processing time for the average hearing office has increased to 511 days, almost 100 days more than it was a year ago, and almost 200 days longer than it was at the end of 2011. Every day, we have to tell our clients with cases pending at the hearing office that there is no change in their status, that their case is not only still pending at the hearing office, but has not even been looked at yet. Many of these clients have already been waiting more than a year since their appeal was filed, more than 2 years since their application was filed. I have to tell new clients that the average waiting time for a decision at the initial application stage is almost a year, and if denied, like most cases are the first time, they will have to wait at least another year and a half before their case may be processed. These people are not malingerers, or trying to cheat they system. Unlike what the media would have you believe, it is extremely difficult to get approved for Social Security Disability (“SSD”), and almost impossible to "beat" the system. Instead, the media should be focusing on why the Social Security Administration (“SSA”) continues to get away with fraud, with absolutely no consequences. 

We represented a 50 year old former Steamfitter for SSD benefits. He suffered from osteoarthritis in his knees, back and hands. He had sarcoidosis; lost his vision in one eye; had almost no vision in the other; could not close his hands; he looked like death, and the ALJ even made comments about the claimant’s appearance on the record during the September 21, 2015 hearing. 

Our client had strong support from all his doctors, who each completed Residual Functional Capacity (“RFC”) assessments, as well as letters from two specialists concluding the claimant met a listed impairment, and hundreds of pages of treatment notes. In the recent past, our client would have been approved without a hearing. However, the system has become so dysfunctional that our client was forced to attend a hearing, after a 17 month wait, and even then, the judge asked for more records from the treating doctors, which delayed the decision even longer. As of today, 42 days after his hearing, his case is still pending a decision. 

We learned today that our client passed away this morning. This is the third time in the past year that one of our clients passed away while awaiting a decision. When will the Social Security Administration do something so that people who have worked their entire lives do not have to become homeless and have their health needlessly deteriorate while waiting to be approved for SSD benefits to which they are patently entitled. The consequence of SSA's unconscionable delays is that more claimants are dying while they wait for SSD.

Acupuncture

According to the Mayo Clinic, acupuncture involves the insertion of extremely thin needles through your skin at strategic points on your body, which is most commonly used to treat pain. A report from an acupuncturist who is not a physician can help support an application for Social Security Disability (“SSD”) benefits by providing evidence concerning the severity of a medical condition.

I represent a 60 year old former social worker with orthopedic and mental impairments whose SSD application was approved in only four months yesterday. The notable difference between this and other cases with claimants who have similar conditions is that reports were submitted from an acupuncturist, physical therapist, and Rolfer in addition to supporting reports from physicians. 

Social Security Ruling 06-03p requires that reports from non-physicians be given some weight regarding how the severity of impairments affect a claimant’s ability to work if an acceptable medical source has already established the claimant has a medically determinable condition. Submitting the additional records and reports from the acupuncturist, physical therapist, and Rolfer explain the relatively rapid approval.

Bilateral Manual Dexterity

The Social Security Administration (“SSA”) seems to be giving greater emphasis recently to that part of Ruling 96-8p, which concerns the use of hands. That Ruling states in relevant part, “Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity;” and “Any significant manipulative limitation of an individual's ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base.” 

Lately, I noticed that vocational experts (“VE”) at hearings have been testifying that claimants who lack bilateral manual dexterity are precluded from performing full time gainful activity. Today, I learned that the SSA approved disability benefits for one of my clients, who is a 55 year old former administrative assistant with bilateral carpal tunnel syndrome, and cervical radiculopathy just a couple of months after the application was filed. 

The relatively rapid approval seems consistent with the recent VE testimony concerning bilateral manual dexterity. Applicants should take care to obtain reports that detail the functional limitations and restrictions in the use of their hands.

SSD Waiting Times

For the last couple of decades, I would advise new social security disability clients to expect it to take about six to seven months to receive the initial decision in the application process. However, waiting times at all stages of the application process have been steadily increasing. 

I represent a 56 year old former cafeteria worker with orthopedic and emotional problems whose SSD benefits were approved today. It took almost nine months, a nearly 50% increase in time, to get the decision, even though there were no novel or unusual medical or vocational issues. 

There is no indication that the number of people processing SSD claims has been reduced, or that the number of applications has recently increased. To the contrary, the number of claim filed has been decreasing since the middle of 2010. The question is why is it taking longer to get decisions? 

It appears that the delays are intentional. The government’s own statistics, show that approval rates have decreased from 63% to 45%. There have been Congressional hearings to investigate fraudulent disability applicants. How about Congressional hearings to investigate the delays.

Good News?

Like the Seinfeld or Superman Bizarro World, sometimes good news is bad news and vice versa. For example, the big rise in today’s stock market was attributed to worsening economic news. Moreover, MetLife approved a disability income policy application today for one of my client’s; however, counterintuitively, the approval may not be good news. 

MetLife has agreed to pay my client benefits under the policy through December 23, 2015. When a disability policy application is approved, the insurer usually pays through the date of the current monthly period. MetLife neglected to say what happens as of December 24, 2015. 

Does MetLife’s ambiguous letter mean that it found the claimant is disabled, and will re-evaluate updated evidence in a couple of months? MetLife’s ambiguous letter could just as easily mean that it found the claimant will no longer be disabled as of December 24, 2015. As noted above, since insurers usually only pay benefits through the date of the approval, it appears that the more pessimistic alternative is likely. 

Rather than taking the wait and see approach, I have demanded that MetLife clarify the ambiguity. Because this application was under an individual disability policy, ERISA does not apply. Therefore, the claimant does not need to waste his time appealing the December 24, 2015 decision with MetLife, and can immediately file a complaint in State court.