It typically takes the Social Security Administration (the “SSA”) over a year to schedule a hearing with an Administrative Law Judge (“ALJ”) after a disability claim has been denied. However, there is a regulation that allows an attorney advisor to approve a disability claim without having to wait for a hearing with an ALJ. The regulation, 20 C.F.R. § 404.942, was due to expire August 10, 2011, but earlier this month the SSA extended the program to August 13, 2013.
A 49 year old teleconference specialist retained me after his disability application was denied last February. On March 4, 2011, I received a copy of the claim file after the local Social Security office transferred the case to the Jericho hearing office. On April 1, 2011, I submitted a request for a fully favorable decision on-the-record (“OTR”). Today, I received a fully favorable decision today from an attorney advisor.
By using the prehearing process with the attorney advisor, the claimant’s application was approved in two months instead of having to wait over a year just to receive a hearing with an ALJ. The expedited receipt of benefits not only helped the claimant’s cash flow, but also resulted in his paying a smaller attorney fee.
Using the prehearing process with the attorney advisors at the Queens hearing office is even more important. As discussed in the New York Times and in my prior blog entries, a class action was brought accusing Queens ALJs David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss, who have low approval rates, with bias against claimants (the “Queens Five”). Not only can an attorney advisor expedite the processing of a disability claim in Queens, it can also avoid having to deal with the Queens Five.
Friday, April 29, 2011
Tuesday, April 26, 2011
Disability Redefined
I brought an action against Guardian Life Insurance of America seeking long term disability (“LTD”) benefits on behalf of a woman with rheumatoid arthritis, fibromyalgia, and chronic fatigue syndrome. Guardian agreed to reinstate my client’s LTD benefits. What made this case somewhat unusual is how Guardian’s policy defined disability.
Like most group LTD plans and policies, the Guardian policy defined disability for the first 24 months as being unable to perform your own occupation. However, while most LTD plans define disability as being unable to perform any other occupation thereafter, the Guardian policy defined disability as being unable to perform at least two of six activities of living (“ADLs”).
The significance of the Guardian definition is that after the own occupation period it placed more emphasis on vocational expertise than usual. Whereas an LTD claim typically revolves around a battle of medical experts, here the focus centered on the findings and opinions of vocational experts. I have no doubt that Guardian would not have reinstated my client’s benefits if she had not retained a vocational expert to rebut the opinions of Guardian’s vocational expert.
The main issue in every LTD case is what does the medical and vocational evidence provide. Unfortunately, I have found that the vocational aspects of LTD claims are frequently given too little attention or are overlooked altogether. That simply cannot be the case in any instance where an LTD plan or policy defines disability based on ability to perform ADLs.
Like most group LTD plans and policies, the Guardian policy defined disability for the first 24 months as being unable to perform your own occupation. However, while most LTD plans define disability as being unable to perform any other occupation thereafter, the Guardian policy defined disability as being unable to perform at least two of six activities of living (“ADLs”).
The significance of the Guardian definition is that after the own occupation period it placed more emphasis on vocational expertise than usual. Whereas an LTD claim typically revolves around a battle of medical experts, here the focus centered on the findings and opinions of vocational experts. I have no doubt that Guardian would not have reinstated my client’s benefits if she had not retained a vocational expert to rebut the opinions of Guardian’s vocational expert.
The main issue in every LTD case is what does the medical and vocational evidence provide. Unfortunately, I have found that the vocational aspects of LTD claims are frequently given too little attention or are overlooked altogether. That simply cannot be the case in any instance where an LTD plan or policy defines disability based on ability to perform ADLs.
Saturday, April 23, 2011
Consultative Examinations
If you apply for Social Security Disability (“SSD”) benefits in the New York metropolitan area, you will probably be sent to a doctor from Industrial Medicine Associates for a consultative examination (“CE”). Although the regulations actually provide very limited circumstances when a CE is appropriate, Social Security requires them in the vast majority of cases. CE’s are a single exam, and as the courts have ruled, provide opinions that are vague.
A CE’s opinion is usually unreliable compared to a treating doctor’s opinion. A CE frequently takes insufficient time to perform an adequate exam. Many claimants have testified that their CE lasted less than five minutes, and one examiner was even removed from CE eligibility after admitting he lacked the time to perform valid exams.
I represent a former dry wall apprentice, janitor-custodian, and tow truck operator whose on-the-record request for a fully favorable decision (“OTR”) was approved today by an Attorney Advisor. In granting the OTR, the Attorney Advisor explained that he gave less weight to the CE’s opinion because it was based on only one exam, and was vague.
The five Queens Administrative Law Judges (the “Queens Five”) who are the subject of the class action alleging that they are biased against claimants, constantly deny claims by elevating the opinions of CEs over treating physicians. If an Attorney Advisor understands that it is improper to give greater weight to a CE than a treating physician, then shouldn’t the Queens Five be able to understand that too, especially since their decisions have been rejected by federal court judges for that very reason?
A CE’s opinion is usually unreliable compared to a treating doctor’s opinion. A CE frequently takes insufficient time to perform an adequate exam. Many claimants have testified that their CE lasted less than five minutes, and one examiner was even removed from CE eligibility after admitting he lacked the time to perform valid exams.
I represent a former dry wall apprentice, janitor-custodian, and tow truck operator whose on-the-record request for a fully favorable decision (“OTR”) was approved today by an Attorney Advisor. In granting the OTR, the Attorney Advisor explained that he gave less weight to the CE’s opinion because it was based on only one exam, and was vague.
The five Queens Administrative Law Judges (the “Queens Five”) who are the subject of the class action alleging that they are biased against claimants, constantly deny claims by elevating the opinions of CEs over treating physicians. If an Attorney Advisor understands that it is improper to give greater weight to a CE than a treating physician, then shouldn’t the Queens Five be able to understand that too, especially since their decisions have been rejected by federal court judges for that very reason?
Friday, April 22, 2011
Evidence of Hoppenfeld Bias
Recent blog entries have discussed the class action lawsuit that was filed earlier this month that accuses Administrative Law Judges (“ALJs”) Marilyn P. Hoppenfeld, David Nisnewtz, Michael D. Cofresi, Seymour Fier, and Hazel C. Strauss (the “Queens Five”) of bias against disability claimants. The New York Times first reported news of the class action. In the Resources section of my website, iwantmydisability.com, a copy of the New York Times article can be viewed, and a copy of the class action complaint that was filed in federal court can be downloaded.
A common tactic the Queens Five use to deny disability claims is using “medical experts” to testify at hearings. These doctors only review the records of claimants; they never examine the claimants. The Queens Five deny disability claims by accepting the medical experts’ opinions, who testify claimants can work, in favor of the treating doctors’ opinions, who conclude the claimants cannot work.
When I attend hearings at the neighboring hearing offices in Jericho and Brooklyn, it is the exception if the ALJs use medical experts. The opposite is true when I appear in Queens. In fact, I had one case recently where ALJ Nisnewitz required three medical experts as well as a vocational expert to testify. However, ALJ Hoppenfeld just provided an even more interesting example of how medical experts are misused.
During a hearing a couple of months ago, a claimant asked for an adjournment so that she could retain an attorney. Hoppenfeld had scheduled the original hearing without any type of expert. However, without any explanation, after learning that the claimant retained me, Hoppenfeld suddenly saw a need for, not one, but two medical experts. Additionally, Hoppenfeld also suddenly found a need for a vocational expert to testify. Nothing changed after the claimant’s hearing. The only thing that is different is that Hoppenfeld now knows that I am representing the claimant.
When Hoppenfeld was holding a hearing with a pro se claimant, she apparently was not worried about denying the claim even though the evidence would not support that decision. However, now that Hoppenfeld knows an attorney will be present, it seems that she recognizes that she has to concoct evidence through medical and vocational expert testimony to deny the claimant’s application.
A common tactic the Queens Five use to deny disability claims is using “medical experts” to testify at hearings. These doctors only review the records of claimants; they never examine the claimants. The Queens Five deny disability claims by accepting the medical experts’ opinions, who testify claimants can work, in favor of the treating doctors’ opinions, who conclude the claimants cannot work.
When I attend hearings at the neighboring hearing offices in Jericho and Brooklyn, it is the exception if the ALJs use medical experts. The opposite is true when I appear in Queens. In fact, I had one case recently where ALJ Nisnewitz required three medical experts as well as a vocational expert to testify. However, ALJ Hoppenfeld just provided an even more interesting example of how medical experts are misused.
During a hearing a couple of months ago, a claimant asked for an adjournment so that she could retain an attorney. Hoppenfeld had scheduled the original hearing without any type of expert. However, without any explanation, after learning that the claimant retained me, Hoppenfeld suddenly saw a need for, not one, but two medical experts. Additionally, Hoppenfeld also suddenly found a need for a vocational expert to testify. Nothing changed after the claimant’s hearing. The only thing that is different is that Hoppenfeld now knows that I am representing the claimant.
When Hoppenfeld was holding a hearing with a pro se claimant, she apparently was not worried about denying the claim even though the evidence would not support that decision. However, now that Hoppenfeld knows an attorney will be present, it seems that she recognizes that she has to concoct evidence through medical and vocational expert testimony to deny the claimant’s application.
Thursday, April 21, 2011
ALJ Nisnewitz Rejected Again
Another U.S. District Court Judge, Denis Hurley, has rejected the decision of Administrative Law Judge (“ALJ”) David Nisnewitz that denied Social Security Disability benefits. In Day v. Astrue, once again, ALJ Nisnewitz relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though federal court judges have previously told the ALJ that the testimony of an ME “does not constitute substantial evidence to overcome the opinions of the treating physician” that the claimant is disabled.
ALJ Nisnewitz knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion, yet he insists on repeating the same mistake. What possible excuse could ALJ Nisnewitz offer for repeating the same errors over and over?
The American Heritage Dictionary defines “bias” as a preference that inhibits impartial judgment. Since ALJ Nisnewitz has a history of repeatedly making the same mistakes, it is logical to conclude that his preference for denying disability claims inhibits his impartial judgment.
In my September 29, 2009 blog entry, I wrote, “It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility.” As noted in my recent blog entries, a class action lawsuit was filed this month accusing ALJ Nisnewtz and ALJs Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”) of bias against claimants. As a result of the class action, the Social Security Administration will not be able to evade its responsibility for investigating the bias of the Queens Five.
ALJ Nisnewitz knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion, yet he insists on repeating the same mistake. What possible excuse could ALJ Nisnewitz offer for repeating the same errors over and over?
The American Heritage Dictionary defines “bias” as a preference that inhibits impartial judgment. Since ALJ Nisnewitz has a history of repeatedly making the same mistakes, it is logical to conclude that his preference for denying disability claims inhibits his impartial judgment.
In my September 29, 2009 blog entry, I wrote, “It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility.” As noted in my recent blog entries, a class action lawsuit was filed this month accusing ALJ Nisnewtz and ALJs Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”) of bias against claimants. As a result of the class action, the Social Security Administration will not be able to evade its responsibility for investigating the bias of the Queens Five.
Friday, April 15, 2011
Working And SSD
After your Social Security Disability (“SSD”) application is approved you might be able to work without losing your benefits. A trial work period (“TWP”) allows you to test your ability to work for at least nine months without losing benefits, regardless of how much you earn, as long as your condition has not improved.
The first 36 months after the TWP ends is the re-entitlement period, during which SSD benefits can be reinstated without filing for a new period of disability. You can receive full SSD benefits for two additional months, the grace period, regardless of how much you earn.
The Appeals Council reviews SSD claims that Administrative Law Judges have denied. The Appeals Council rarely approves SSD claims, and Appeals Council allowances comprise only 0.1% of all approvals. Today, I received an Appeals Council approval for a 52 year old former youth coordinator, who had received a partially favorable decision.
The claimant returned to work for eleven months after he stopped working due to neck, knee, and back problems. The Appeals Council found that the claimant’s medical condition had not improved during those eleven months, even though he had resumed working. After applying the nine month TWP and two month grace period the Appeals Council ruled that there would be no break in the claimant’s SSD benefits.
The first 36 months after the TWP ends is the re-entitlement period, during which SSD benefits can be reinstated without filing for a new period of disability. You can receive full SSD benefits for two additional months, the grace period, regardless of how much you earn.
The Appeals Council reviews SSD claims that Administrative Law Judges have denied. The Appeals Council rarely approves SSD claims, and Appeals Council allowances comprise only 0.1% of all approvals. Today, I received an Appeals Council approval for a 52 year old former youth coordinator, who had received a partially favorable decision.
The claimant returned to work for eleven months after he stopped working due to neck, knee, and back problems. The Appeals Council found that the claimant’s medical condition had not improved during those eleven months, even though he had resumed working. After applying the nine month TWP and two month grace period the Appeals Council ruled that there would be no break in the claimant’s SSD benefits.
ALJ Bias Class Action
Last Wednesday, I wrote about the class action lawsuit filed against Administrative Law Judges (“ALJs”) David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”). If you are interested in the details of that lawsuit, I have added a link under my website’s Resources tab so you can read the actual complaint that was filed in court.
It should be noted that the lawsuit excludes three other ALJs in Queens hearing office: Margaret Pecoraro, Sol Wieselthier and Gal Lahat. There is a consensus that none of these three ALJs have exhibited the pattern and practice of anti-claimant bias that the Queens Five have demonstrated.
One of the goals of the class action lawsuit is to annul the decisions of the Queens Five that denied claims of disability claimants, and to provide new hearings before ALJs other than the Queens Five. If your disability claim has been denied in whole or part by one of the Queens Five, then you should consider contacting the attorneys representing the plaintiffs to ensure your inclusion in the potential class.
It should be noted that the lawsuit excludes three other ALJs in Queens hearing office: Margaret Pecoraro, Sol Wieselthier and Gal Lahat. There is a consensus that none of these three ALJs have exhibited the pattern and practice of anti-claimant bias that the Queens Five have demonstrated.
One of the goals of the class action lawsuit is to annul the decisions of the Queens Five that denied claims of disability claimants, and to provide new hearings before ALJs other than the Queens Five. If your disability claim has been denied in whole or part by one of the Queens Five, then you should consider contacting the attorneys representing the plaintiffs to ensure your inclusion in the potential class.
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