Getting SSD Even If You Can Work

Receiving Social Security Disability (“SSD”) benefits is dependent upon the interaction between medical and vocational evidence. There are circumstances where a person can receive SSD benefits even if physically able to work, because of adverse vocational factors.

I represent a 57 year old who immigrated here from Haiti after graduating high school, and spent his last 26 years working for New York City as an automobile mechanic. The claimant was treated by an orthopedic surgeon for knee, bilateral shoulder and lumbar back injuries. The doctor said that the claimant could do some sedentary work, but his findings and conclusions showed the Plaintiff lacked the ability to perform a full range of sedentary work. Nonetheless, I was able to get the claimant’s application approved without a hearing based on the vocational evidence.

If the relevant past work of a person over the age of 55 was not sedentary, and there are no skills that are transferable to sedentary work, then that person is entitled to SSD benefits even if physically capable of sedentary work. I provided the hearing office with case law holding that there are no transferable skills for an automobile mechanic, which is medium to heavy work. Therefore, even if the medical evidence were interpreted as showing the claimant had a sedentary work ability, I had demonstrated that the claimant would still be entitled to SSD benefits. An attorney advisor agreed, and issued a fully favorable decision approving the claimant’s application without having to wait for a hearing.

Settling With CIGNA

Like many insurance companies, CIGNA’s initial decisions to terminate long term disability (“LTD”) benefits can be quite indefensible. Unfortunately, most people are unable to persuade CIGNA to reverse an adverse decision, and need an attorney’s assistance.

I was retained by a former paramedic officer from Arizona to represent him in connection with his LTD claim with CIGNA. After discussing the claim with the representative who terminated the LTD benefits, I was advised that CIGNA would not reverse its decision. Therefore, my client asked me to file a lawsuit against CIGNA.

The medical and vocational evidence weighed heavily in favor of finding that the claimant remained disabled under CIGNA’s policy, and I drafted a 33 page Complaint. However, before filing the action, I provided a copy of the Complaint to a senior level CIGNA representative to review. While initially believing that CIGNA’s decision appeared appropriate, after discussing the Complaint with me and considering the Complaint in full detail, the senior representative decided to reverse CIGNA’s decision to terminate benefits.

If I had litigated the case, as requested by the claimant, I am confident that the court would have reversed CIGNA’s decision, which could have resulted in a substantial amount of additional attorney fees. However, by persuading the claimant to consider allowing CIGNA to review the Complaint before actually filing suit it resulted in his LTD benefits being restored more quickly.

It obviously makes sense to retain an attorney experienced in disability litigation when seeking LTD benefits. Familiarity with the minutia of the legal issues relating to claims involving LTD benefits enabled me to persuade CIGNA to reverse its decision without having to litigate, which enabled the claimant to receive his benefits much sooner than he expected.

Health Insurance For Children

For many disabled parents, the loss of working income makes it difficulty to afford health insurance for children. After a year long court battle to recover child’s benefits in connection with a Social Security Disability case, I received a Notice of Award for child’s benefits that included a note about insurance for children through the Children’s Health Insurance Program (“CHIP”).

Each State’s CHIP provides health insurance to uninsured, low-income children 18 years of age or younger, including those who are homeless. You can call 1-877-KIDS-NOW (1-877-543-7669) to find out how to apply, or go to http://cms.hhs.gov/schip for more information.

Avoiding An Improper Consultative Exam

In the vast majority of cases, the Social Security Administration (“SSA”) insists that disability claimants attend a consultative examination (“CE”), which is performed by a doctor selected by the SSA. However, the SSA rules and regulations require that the claimant’s treating doctor perform a CE subject to a few exceptions. The exception that the SSA usually relies upon as grounds for a CE is that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies. Before the SSA or an Administrative Law Judge (“ALJ”) can ask a claimant to attend a CE by a non-treating doctor on the grounds that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies, the ALJ must first recontact the treating doctor to explain the perceived conflict, gap or inconsistency.

I represent a former police officer whose arthritis specialist and orthopedist provided reports describing why their patient’s condition prevented him from working in any capacity. ALJ Weiss insisted that the officer attend a CE by an “independent” orthopedist because of alleged conflicts and inconsistencies in the medical reports, but I insisted that the ALJ first recontact the treating doctors in accordance with the regulations. ALJ Weiss then denied the officer’s application on the grounds that the officer lacked good cause for refusing to attend the CE.

After filing a complaint in federal court, the SSA admitted that the officer had good cause for refusing to attend the “independent” CE, and that it was improper to penalize the officer for refusing to attend it. The SSA asked the officer to remand the case, and would require the ALJ to recontact the treating doctors to clarify or provide additional information to resolve the perceived conflicts and inconsistencies in their reports. The SSA also agreed that the Appeals Council remand order will direct the ALJ to issue a decision on the merits of the case even if the officer refuses to attend an independent CE without good cause.

The SSA’s remand offer confirms that a treating source is the preferred source for performing a CE. The SSA’s remand offer also confirms that it cannot ask an “independent” doctor to perform a CE unless the treating source is given the chance to explain any alleged conflict, gap or inconsistency. Finally, the SSA’s remand offer shows that a claimant has good cause, and cannot be penalized, for refusing to attend a CE that fails to comply with the SSA’s rules and regulations.

Multiple Sclerosis

The best type of evidence for a Social Security Disability (“SSD”) claim is evidence that shows the claimant meets a “listed impairment.” If the criteria of a “listing” are met the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

Multiple Sclerosis (“MS”) is typically treated by a neurologist. Therefore, when applying for SSD benefits based upon MS, the best type of evidence would be an opinion from a neurologist that the claimant meets the criteria under the 11.09 listing for MS.

I represent a 53 year old former secretary and bookkeeper for her husband’s business whose SSD application was approved yesterday, just one month after I submitted a narrative report from her neurologist explaining why the 11.09 criteria were met. The claimant was not even asked to be examined by a Social Security doctor.

The rapid approval was undoubtedly due to the listing opinion from the neurologist. The first thing I always do when analyzing a claim is to determine whether the claimant’s condition can meet or equal a listing, and then securing the necessary records and reports from the treating doctor. If a hearing has already been scheduled, showing that a claimant meets a listing is important because it makes it significantly more difficult for an Administrative Law Judge to deny the claim, or for the denial to be sustained on appeal.

Protective Filing Dates

When filing a Social Security Disability (“SSD”) application, it is possible to be awarded up to twelve months of retroactive benefits. Since there is a full five month waiting period for SSD benefits, a claimant will not lose potential SSD benefits as long as the application is filed seventeen months after the onset of the disability.

For a variety of reasons many people do not file SSD applications immediately after their disability onset. If there is a possibility of filing an application and the 17 month mark is approaching, the safe thing to do is to seek a protective filing date.

A protective filing date is the date a claimant first contacts the Social Security about filing for SSD benefits. The protective filing date can be used to establish an earlier application date than the date when Social Security actually receives the signed application. A protective filing date can be established by calling the Social Security Administration’s toll free number - 800-772-1213, which eventually leads to a live operator who will take the application. The SSA usually follows up with a letter confirming an appointment. Even if the appointment is cancelled, the letters serves as proof for a protective filing date.

It is important to retain the SSA letter. I received a fully favorable on the record decision today that did not provide the protective filing date. I had reminded the claimant of the importance of the letter, but he misplaced the letter, resulting in a loss of a month’s benefits.

SSD Delays

Delays are commonplace when applying for Social Security Disability (“SSD”) benefits. Those delays frequently create “dire need” situations, such as being unable to afford medications, medical treatment, utilities, rent, or mortgage costs. Fortunately, the Social Security Program Operations Manual System permits expediting a claim when dire need circumstances exist.

I advise my clients to write me a letter explaining why their need exceeds that of other claimants, who may be able to pay for their health and housing. I suggest that they provide copies of eviction papers or past dues notices that substantiate their claims. I then provide the letter to the SSA describing how their delays have exacerbated the claimant’s dire need, and cite the relevant rules pertaining to expediting such claims.

I represent a 52 year old teacher who had to apply for food stamps while awaiting a decision on her SSD application. The SSA local office lost the application and demanded a new one. After showing proof that I had submitted the application, I sent a copy of the claimant’s letter stating that she had been approved for food stamps, and asked that the case be expedited as a dire need situation without having to submit a new application. The claimant was approved today for SSD benefits just one month after the dire need letter was submitted.