When the Appeals Council vacates a Social Security claim, the remand order tells the Administrative Law Judge (“ALJ”) what to do, which is almost invariably to reevaluate the evidence and hold a new hearing. I was able to avoid having a 30 year old client attend a second hearing by submitting on-the-record (“OTR”) request that the ALJ granted. The OTR argued that the claimant became disabled before he turned 22, and thus was entitled to disabled child’s benefits.
The Remand Order stated that the ALJ failed to evaluate the testimony of the claimant and his mother adequately. I explained that the claimant and his mother had already testified fully, and there was nothing new to add at a hearing. The ALJ agreed that he simply had to re-evaluate the testimony under the guidelines of the Social Security regulations, case law, and ruling, and that additional testimony was not required.
The Remand Order also stated that the ALJ did not analyze the claimant’s residual functional capacity (“RFC”) properly. In issuing his partially favorable decision after the first hearing, the ALJ determined that the claimant became disabled in 2004, so I maintained that any new medical evidence would be irrelevant. Furthermore, I pointed out that all evidence predating 2004 had already been submitted. The ALJ agreed that he simply had to re-evaluate the claimant’s RFC under the guidelines of the Social Security regulations and rulings.
I had previously secured and submitted a retrospective opinion that the claimant became disabled prior to his 22nd birthday, which was unrebutted. Since there was no evidence that the opinion was based upon any unacceptable clinical diagnostic technique, and there was no overwhelmingly compelling non-medical evidence to the contrary, I argued that there could be no “substantial evidence” to reject the retrospective opinion. The ALJ accepted that argument, and approved the OTR.
Saturday, April 25, 2009
Wednesday, April 8, 2009
NYCERS Disability Retirement
A former Assistant Resident Buildings Superintendent who worked for the New York City Housing Authority retained me after NYCERS denied his application for disability retirement benefits under Article 15. NYCERS denied the application even though the claimant submitted reports from several treating doctors that stated he was unable to work. I learned today that NYCERS approved the new application that I put together for the claimant. Why did NYCERS effectively reverse its decision?
The prior application had been summarily denied based upon the conclusion of the NYCERS Medical Board, even though the Board’s examination findings were consistent with the findings of the claimant’s treating doctors. The new application demonstrated how the medical findings and conclusions precluded the claimant from performing his specific work duties and demands, which the Medical Board was unable to rebut.
The application showed how the City’s job description would be classified in the Dictionary of Occupational Titles (the “DOT)”, and that according to the DOT, among other things, a Building Superintendent required lifting up to 20 pounds and standing and walking for at least 6 hours during an 8 hour work day. I then obtained functional assessments from the treating doctors that demonstrated the claimant lacked the capacity to perform the duties and physical demands of a Building Superintendent.
The decisions of the Federal Social Security Administration (the “SSA”) and New York State Workers Compensation Board (the “WC”), which approved the claimant’s applications for benefits, while not binding were certainly persuasive. The WC standard for disability is essentially the same as NYCERS, that is, WC required demonstrating the claimant’s inability to work as a building superintendent. To receive benefits from the SSA, the claimant had to show he was not only unable to work as a building superintendent, but also that he could not even perform sedentary work. Since none of the medical evidence submitted to NYCERS revealed any improvement, I argued it would be incongruous for both the SSA and WC to determine that the claimant is unable to work as an assistant building superintendent, especially since NYCERS had even more supportive medical evidence than either of those other two agencies.
The prior application had been summarily denied based upon the conclusion of the NYCERS Medical Board, even though the Board’s examination findings were consistent with the findings of the claimant’s treating doctors. The new application demonstrated how the medical findings and conclusions precluded the claimant from performing his specific work duties and demands, which the Medical Board was unable to rebut.
The application showed how the City’s job description would be classified in the Dictionary of Occupational Titles (the “DOT)”, and that according to the DOT, among other things, a Building Superintendent required lifting up to 20 pounds and standing and walking for at least 6 hours during an 8 hour work day. I then obtained functional assessments from the treating doctors that demonstrated the claimant lacked the capacity to perform the duties and physical demands of a Building Superintendent.
The decisions of the Federal Social Security Administration (the “SSA”) and New York State Workers Compensation Board (the “WC”), which approved the claimant’s applications for benefits, while not binding were certainly persuasive. The WC standard for disability is essentially the same as NYCERS, that is, WC required demonstrating the claimant’s inability to work as a building superintendent. To receive benefits from the SSA, the claimant had to show he was not only unable to work as a building superintendent, but also that he could not even perform sedentary work. Since none of the medical evidence submitted to NYCERS revealed any improvement, I argued it would be incongruous for both the SSA and WC to determine that the claimant is unable to work as an assistant building superintendent, especially since NYCERS had even more supportive medical evidence than either of those other two agencies.
Saturday, April 4, 2009
Submitting Medical Records
Timing can be everything. When applying for Social Security Disability (“SSD”) benefits, it can make a critical difference when medical records and reports are submitted. I represent an electrician whose SSD application illustrates this point.
I obtained reports from the electrician’s orthopedist, physical therapist, and neurosurgeon. The orthopedist and physical therapist treated the claimant more frequently than the neurosurgeon. While the reports of the orthopedist and physical therapist were good, the report of the neurosurgeon was great. Since there was no question regarding the diagnosis, only the severity of the claimant’s condition, I only submitted the neurosurgeon’s report.
The claimant never saw a Social Security Administration (“SSA”) doctor, and his other doctors confirmed that they never provided any records to the SSA. The SSD application was approved yesterday in just two months' times based solely on the records and report from the neurosurgeon.
While the reports and records from the orthopedist and physical therapist were good, had they been submitted they would have watered down the strength of the neurosurgeon’s opinion. Therefore, while I have little doubt that the electrician’s application would have eventually been approved, I suspect that it would have been denied initially if all of the medical evidence would have been submitted simultaneously.
I obtained reports from the electrician’s orthopedist, physical therapist, and neurosurgeon. The orthopedist and physical therapist treated the claimant more frequently than the neurosurgeon. While the reports of the orthopedist and physical therapist were good, the report of the neurosurgeon was great. Since there was no question regarding the diagnosis, only the severity of the claimant’s condition, I only submitted the neurosurgeon’s report.
The claimant never saw a Social Security Administration (“SSA”) doctor, and his other doctors confirmed that they never provided any records to the SSA. The SSD application was approved yesterday in just two months' times based solely on the records and report from the neurosurgeon.
While the reports and records from the orthopedist and physical therapist were good, had they been submitted they would have watered down the strength of the neurosurgeon’s opinion. Therefore, while I have little doubt that the electrician’s application would have eventually been approved, I suspect that it would have been denied initially if all of the medical evidence would have been submitted simultaneously.
Friday, April 3, 2009
CIGNA Ordered To Pay For Its Actions
I recently blogged about Alfano v. CIGNA, where District Court Judge Gerard Lynch, who President Obama has selected to move up to the Second Circuit, reversed CIGNA’s termination of my client’s long term disability (“LTD”) benefits. The decision required CIGNA to pay $89,837.29 in past due benefits. Today, Judge Lynch ordered CIGNA to pay attorney fees, interest, and costs.
In awarding attorney fees, Judge Lynch said that “there was no sound basis for CIGNA’s termination of [LTD] benefits,” and the award was needed to deter “an incentive for potential defendants to deny even meritorious claims.” Judge Lynch added that the ABC News’ “Good Morning America” News expose, which can be seen on the internet at http://abcnews.go.com/GMA/story?id=5257491&page=1, is a reminder “that abuse exists and needs to be deterred.” Judge Lynch noted that my client showed “a clear entitlement to long-term disability benefits under the Plan,” and that “CIGNA attempted to defend a denial of benefits that, in the end, simply was not justified.” Consequently, Judge Lynch found that I was entitled to charge $450 an hour for my legal services, for a total of $105, 840.00.
Judge Lynch also awarded interest on the $89,837.29 in past due LTD benefits, holding that it was necessary to compensate the claimant adequately. The decision explained that: "as CIGNA had no sound basis for concluding that plaintiff’s condition – which it once recognized as sufficiently disabling to give rise to long-term disability benefits – had improved. CIGNA’s baseless conclusion
that its termination of plaintiff’s benefits was justified permitted it the unfair use of money that should have been paid to plaintiff long ago." Therefore, Judge Lynch ruled that my client was entitled to 9% interest from October 27, 2005 when CIGNA stopped paying LTD benefits through January 30, 2009, when judgment was entered. The interest amounts to $26,749.05.
Finally, Judge Lynch also awarded costs for service and filing fees, travel, postage and copying disbursements, and deposition costs, for a total of $1,576,76.
The good news from the client's perspective is that after I receive the attorney fee award, the claimant will be reimbursed the contingency legal fee.
In awarding attorney fees, Judge Lynch said that “there was no sound basis for CIGNA’s termination of [LTD] benefits,” and the award was needed to deter “an incentive for potential defendants to deny even meritorious claims.” Judge Lynch added that the ABC News’ “Good Morning America” News expose, which can be seen on the internet at http://abcnews.go.com/GMA/story?id=5257491&page=1, is a reminder “that abuse exists and needs to be deterred.” Judge Lynch noted that my client showed “a clear entitlement to long-term disability benefits under the Plan,” and that “CIGNA attempted to defend a denial of benefits that, in the end, simply was not justified.” Consequently, Judge Lynch found that I was entitled to charge $450 an hour for my legal services, for a total of $105, 840.00.
Judge Lynch also awarded interest on the $89,837.29 in past due LTD benefits, holding that it was necessary to compensate the claimant adequately. The decision explained that: "as CIGNA had no sound basis for concluding that plaintiff’s condition – which it once recognized as sufficiently disabling to give rise to long-term disability benefits – had improved. CIGNA’s baseless conclusion
that its termination of plaintiff’s benefits was justified permitted it the unfair use of money that should have been paid to plaintiff long ago." Therefore, Judge Lynch ruled that my client was entitled to 9% interest from October 27, 2005 when CIGNA stopped paying LTD benefits through January 30, 2009, when judgment was entered. The interest amounts to $26,749.05.
Finally, Judge Lynch also awarded costs for service and filing fees, travel, postage and copying disbursements, and deposition costs, for a total of $1,576,76.
The good news from the client's perspective is that after I receive the attorney fee award, the claimant will be reimbursed the contingency legal fee.
Friday, March 27, 2009
Oops, CIGNA’s Done It Again
Yet another court has found that CIGNA’s terminating long term disability (“LTD”) benefits was so patently without merit that interest and attorney’s fees were awarded. CIGNA’s wrongful LTD termination and denials have become so rampant that ABC News’ Good Morning America did an expose on it. http://abcnews.go.com/Video/playerIndex?id=4724275
The facts of Gordon v. Northwest Airlines, Inc. Long-Term Disability Income Plan, which was decided a couple of weeks ago, mirror those of Alfano v. CIGNA Life Ins. Co. of New York, the case that I won a couple of months earlier. Gordon highlighted that this was not the first case where CIGNA mischaracterized medical records and erroneously asserted that a claimant’s doctor supported the claimant’s ability to sedentary work. Gordon is yet another example of CIGNA’s history of biased claims administration that, under the Supreme Court’s Metlife v. Glenn decision, requires ruling in favor of LTD claimants in closer cases.
In both Alfano and Gordon, CIGNA asked the treating doctors to complete a Physical Abilities Assessment (“PAA”), and each doctor concluded the claimant was limited to sitting less than 2.5 hours during an 8 hour day. Gordon declared that CIGNA’s conclusion that the PAA showed Gordon could do sedentary work was “manifestly false” and based “on an obvious misinterpretation,” and “simply mischaracterized” the PAA. Gordon explained that “Common sense dictates that that someone who cannot walk, sit, or stand more than 2.5 hours per day cannot do sedentary work.”
Similarly, in both Alfano and Gordon, CIGNA terminated LTD benefits based upon transferable skill analysis (“TSA”) that was based on the PAA. Gordon held that “the TSA does not explain how Gordon can do sedentary or light-duty work if he is limited to occasional sitting, standing and walking.”
Gordon ruled the claimant was entitled to interest and attorney fees because CIGNA’s “behavior toward Gordon in this case was not that of a fiduciary acting in his interests and the interests of plan participants. Rather, [CIGNA] acted like a company that first decided to deny Gordon's claim and then went looking for evidence to justify that decision. CIGNA “egregiously mischaracterized the PAA, both internally and to Gordon, to support its conclusion that Gordon could do sedentary work.” Moreover, Gordon found that the CIGNA’s medical review “were so cursory as to amount to mere rubber stamping.” Once again, those are the same allegations that the claimant made in Alfano that the court accepted.
CIGNA was required to pay attorney fees because, “The evidence in the record is overwhelming that Gordon is incapable of earning a living. Rather than view the record through the eyes of a fiduciary, [CIGNA] bent over backwards to find an excuse-any excuse-to deny benefits to Gordon.” Gordon is yet another example that illustrates CIGNA’s practice and pattern of knowingly and wrongfully terminating LTD benefits. The Court awarded attorney's fees because it held that by relying on the PAA and TSA to conclude that Gordon could work, CIGNA “acted not as a fiduciary, but as an adversary.”
The facts of Gordon v. Northwest Airlines, Inc. Long-Term Disability Income Plan, which was decided a couple of weeks ago, mirror those of Alfano v. CIGNA Life Ins. Co. of New York, the case that I won a couple of months earlier. Gordon highlighted that this was not the first case where CIGNA mischaracterized medical records and erroneously asserted that a claimant’s doctor supported the claimant’s ability to sedentary work. Gordon is yet another example of CIGNA’s history of biased claims administration that, under the Supreme Court’s Metlife v. Glenn decision, requires ruling in favor of LTD claimants in closer cases.
In both Alfano and Gordon, CIGNA asked the treating doctors to complete a Physical Abilities Assessment (“PAA”), and each doctor concluded the claimant was limited to sitting less than 2.5 hours during an 8 hour day. Gordon declared that CIGNA’s conclusion that the PAA showed Gordon could do sedentary work was “manifestly false” and based “on an obvious misinterpretation,” and “simply mischaracterized” the PAA. Gordon explained that “Common sense dictates that that someone who cannot walk, sit, or stand more than 2.5 hours per day cannot do sedentary work.”
Similarly, in both Alfano and Gordon, CIGNA terminated LTD benefits based upon transferable skill analysis (“TSA”) that was based on the PAA. Gordon held that “the TSA does not explain how Gordon can do sedentary or light-duty work if he is limited to occasional sitting, standing and walking.”
Gordon ruled the claimant was entitled to interest and attorney fees because CIGNA’s “behavior toward Gordon in this case was not that of a fiduciary acting in his interests and the interests of plan participants. Rather, [CIGNA] acted like a company that first decided to deny Gordon's claim and then went looking for evidence to justify that decision. CIGNA “egregiously mischaracterized the PAA, both internally and to Gordon, to support its conclusion that Gordon could do sedentary work.” Moreover, Gordon found that the CIGNA’s medical review “were so cursory as to amount to mere rubber stamping.” Once again, those are the same allegations that the claimant made in Alfano that the court accepted.
CIGNA was required to pay attorney fees because, “The evidence in the record is overwhelming that Gordon is incapable of earning a living. Rather than view the record through the eyes of a fiduciary, [CIGNA] bent over backwards to find an excuse-any excuse-to deny benefits to Gordon.” Gordon is yet another example that illustrates CIGNA’s practice and pattern of knowingly and wrongfully terminating LTD benefits. The Court awarded attorney's fees because it held that by relying on the PAA and TSA to conclude that Gordon could work, CIGNA “acted not as a fiduciary, but as an adversary.”
Wednesday, March 25, 2009
Hearing Office Attorneys
It frequently helps to know the staff attorneys at the Social Security hearing offices. They can provide invaluable assistance regarding both procedural and substantive matters. I had a phone call today that illustrates how staff attorneys can help on both matters.
I called a staff attorney at the Jericho hearing office regarding an administrative remand of a Social Security Disability (“SSD”) case that had been returned to the hearing office. I wanted to learn what documentation existed from the State agency’s apparently second unfavorable decision. The staff attorney did not know, but referred me to a senior staff attorney for additional information. However, before transferring me, the staff attorney wanted to discuss a Supplemental Security Income (“SSI”) case.
Last week, an Administrative Law Judge's assistant called me to discuss avoiding a hearing on the SSI case by agreeing to accept a September 2007 onset date, which was when the claimant started treating with a neurologist. I stated that I had requested an on-the-record (“OTR”) request for a March 2007 onset, which was the onset date provided by the claimant’s pain management doctor. The staff attorney stated that when he reviewed the file, he came up with an April 2007 onset, and that the September 2007 onset came from another staff attorney who conducted a quick review prior to next week’s hearing. After a brief discussion, and review of the relevant report, the staff attorney said that he would approve the OTR, and prepare a fully favorable decision with a March 2007 onset date. Therefore, I was able to avoid next week’s hearing.
As for the SSD case, the senior staff attorney explained that the State agency has a fairly high approval rate for the new administrative remand program, and that my case may have been sent back for a hearing because only a partially favorable decision could have been made. The senior staff attorney said that, for example, a partially favorable decision could only be made if there was a request to reopen another application. It just so happens that the State agency commented that it was unable to locate the claimant’s prior application, which I asked be reopened. Thus, it is likely that the State agency sent the case back for a hearing only because it was unable to evaluate the claimant’s request to reopen his prior application, which would explain why I found no adverse review in the file.
I called a staff attorney at the Jericho hearing office regarding an administrative remand of a Social Security Disability (“SSD”) case that had been returned to the hearing office. I wanted to learn what documentation existed from the State agency’s apparently second unfavorable decision. The staff attorney did not know, but referred me to a senior staff attorney for additional information. However, before transferring me, the staff attorney wanted to discuss a Supplemental Security Income (“SSI”) case.
Last week, an Administrative Law Judge's assistant called me to discuss avoiding a hearing on the SSI case by agreeing to accept a September 2007 onset date, which was when the claimant started treating with a neurologist. I stated that I had requested an on-the-record (“OTR”) request for a March 2007 onset, which was the onset date provided by the claimant’s pain management doctor. The staff attorney stated that when he reviewed the file, he came up with an April 2007 onset, and that the September 2007 onset came from another staff attorney who conducted a quick review prior to next week’s hearing. After a brief discussion, and review of the relevant report, the staff attorney said that he would approve the OTR, and prepare a fully favorable decision with a March 2007 onset date. Therefore, I was able to avoid next week’s hearing.
As for the SSD case, the senior staff attorney explained that the State agency has a fairly high approval rate for the new administrative remand program, and that my case may have been sent back for a hearing because only a partially favorable decision could have been made. The senior staff attorney said that, for example, a partially favorable decision could only be made if there was a request to reopen another application. It just so happens that the State agency commented that it was unable to locate the claimant’s prior application, which I asked be reopened. Thus, it is likely that the State agency sent the case back for a hearing only because it was unable to evaluate the claimant’s request to reopen his prior application, which would explain why I found no adverse review in the file.
Wednesday, March 18, 2009
Hearing Notice
The rules require an Administrative Law Judge ("ALJ") to schedule a hearing on at least 20 days notice to a Social Security Disability ("SSD") claimant. The purpose of the rule is to ensure that the claimant has time to make final preparations for the hearing.
It is extremely difficult to make final preparations in less than 20 days. ALJ's typically take one to two years to schedule a case for a hearing. If the claimant appears for a hearing and the treating doctors' records and reports are more than a couple of months old, then the ALJ complains that the evidence is stale. Therefore, it makes no sense to make final preparations for a hearing until receiving the hearing notice.
I recently received a call from an ALJ's assistant to schedule a hearing in 17 days. I immediately asked the ALJ to issue subpoenas for medical records that the claimant was unable to secure because he lacked the means to pay for them. After I submitted several letters, the subpoenas were issued just a couple of days before the hearing.
The day before the hearing, the ALJ's assistant confirmed that while no records had been obtained in response to the subpoenas, the ALJ intended to proceed with the hearing. I warned that if the ALJ intended to deny the claim, then I would not waive my objection to the short notice because the denial would be based on an incomplete record. The ALJ said the claimant could return for a second hearing, but I advised that my client only left his home once or twice a month because of his disability. The ALJ then said the additional evidence could be sent to the medical expert after the hearing, but I objected since that would deprive me of the right to cross examine the medical expert. The ALJ adjourned the hearing.
It is extremely difficult to make final preparations in less than 20 days. ALJ's typically take one to two years to schedule a case for a hearing. If the claimant appears for a hearing and the treating doctors' records and reports are more than a couple of months old, then the ALJ complains that the evidence is stale. Therefore, it makes no sense to make final preparations for a hearing until receiving the hearing notice.
I recently received a call from an ALJ's assistant to schedule a hearing in 17 days. I immediately asked the ALJ to issue subpoenas for medical records that the claimant was unable to secure because he lacked the means to pay for them. After I submitted several letters, the subpoenas were issued just a couple of days before the hearing.
The day before the hearing, the ALJ's assistant confirmed that while no records had been obtained in response to the subpoenas, the ALJ intended to proceed with the hearing. I warned that if the ALJ intended to deny the claim, then I would not waive my objection to the short notice because the denial would be based on an incomplete record. The ALJ said the claimant could return for a second hearing, but I advised that my client only left his home once or twice a month because of his disability. The ALJ then said the additional evidence could be sent to the medical expert after the hearing, but I objected since that would deprive me of the right to cross examine the medical expert. The ALJ adjourned the hearing.
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