I regularly write about situations where the State agency known as Disability Determination Services (“DDS”) wastes taxpayer time and money.
I need to address this topic again, only a week after I last did so.
A 61 year old former communications electrician supervisor, which the U.S. Department of Labor’s Dictionary of Occupational Titles describes as heavy work, asked me to handle his Social Security Disability (“SSD”) appeal last month. I immediately prepared and submitted an OTR , which was approved in less than a month.
The Administrative Law Judge (“ALJ”) promptly approved SSD benefits based upon the opinion of the DDS doctor, who said the claimant should avoid even mild exertion due to his ischemic heart disease. The ALJ’s rapid approval of the claimant’s SSD application based upon the opinion of the DDS’s own doctor shows that the State agency’s review was a complete waste of time, which then required the ALJ to review the claim a second time, thereby duplicating the resources needed to approve an obviously meritorious disability claim.
In my prior blog entry I explained how DDS fraud wastes taxpayer money by denying SSD applications after a claimant objects to a consultative examination (“CE”) by a DDS doctor. Here, the claimant attended the CE, the CE said the claimant should avoid even mild exertion that precludes any type of work, let alone the claimant’s past heavy work requiring lifting up to 100 pounds, yet the DDS still denied the SSD application.
The Social Security Administration (“SSA”) did away with the reconsideration step of the appeal process in New York and some other areas. Perhaps the SSA should also eliminate the initial decision making process by the DDS. The SSA could then use some of the savings to hire more ALJs, staff attorneys, and support staff to make the initial decisions.
Thursday, September 26, 2013
Thursday, September 19, 2013
Fraud In The Social Security Disability process
I represent a 49 year old delivery truck driver whose application for Social Security Disability (“SSD”) benefits was approved today by an Administrative Law Judge (“ALJ”) today without a hearing. The only problem is that the State agency (“DDS”), which makes the initial disability determination, should have approved the application without the need for an ALJ to review it.
The DDS denied the application because at least one of its employees, or IMA who has the contract from the DDS, committed fraud. The DDS told the claimant that a consultative examination (“CE”) was required. Most of the time, the DDS request for a CE is not actually required. Searching my blog will reveal many entries discussing how IMA, the service that performs New York CEs, sends claimants for CEs even though to do so is contrary to the Social Security rules and regulations . IMA is happy if DDS disregards the rules and regulations because it means it will earn more money. There is no credible way that the DDS can claim it is unaware that excessive CEs are being requested.
Claiming that a CE is needed when one it not required under the rules and regulations is wrong. Lying about the facts in order to have IMA do the CE is fraud.
According to a disability adjudicator/examiner named Antonio Rivera, a CE was required in my client’s case. That conclusion was wrong because under the circumstances the request for the CE was not authorized by the rules and regulations. However, Mr. Rivera then indicated that none of the claimant’s doctors were contacted to do the CE, as the rules and regulations require, because they do “not accept the state approved vendor fee.” That assertion was false.
If the DDS never contacted the treating doctors, then the DDS had no way of knowing that the treating sources would not accept the fee for performing the CE. Furthermore, there was no report of contact or letter in the claimant’s file showing that the DDS made any attempt to contact any of the claimant’s doctors by phone or in writing about doing a CE. Moreover, Rivera stated that the claimant refused to attend a CE, which was also untrue. To the contrary, the claimant advised the DDS, in writing, that he would attend a CE by a treating doctor in accordance with the Social Security rules and regulations.
Scheduling CEs when they are not needed or consistent with the rules and regulations is a waste of time and tax payer money. Are the DDS disability adjudicator/examiners required for undisclosed reasons to insist on CE’s when contrary to the rules and regulations? Do DDS disability adjudicator/examiners demand that CEs be done because it is easier for them to rubberstamp a CE conclusion instead of reviewing the entire medical file? Do DDS disability adjudicator/examiners insist that CEs be done because they assume that the opinions of treating doctors cannot be trusted, which contradicts the rules and regulations that require extra weight be given to treating doctors’ opinions?
Unnecessary CEs waste money in two ways. First, if they are performed, then they waste money by requiring payment for something that was not needed. Second, denying an application for refusing to attend an unlawful CE wastes the resources of the ALJ and hearing office that have to review the denied application, which should have been approved initially by the DDS.
The DDS denied the application because at least one of its employees, or IMA who has the contract from the DDS, committed fraud. The DDS told the claimant that a consultative examination (“CE”) was required. Most of the time, the DDS request for a CE is not actually required. Searching my blog will reveal many entries discussing how IMA, the service that performs New York CEs, sends claimants for CEs even though to do so is contrary to the Social Security rules and regulations . IMA is happy if DDS disregards the rules and regulations because it means it will earn more money. There is no credible way that the DDS can claim it is unaware that excessive CEs are being requested.
Claiming that a CE is needed when one it not required under the rules and regulations is wrong. Lying about the facts in order to have IMA do the CE is fraud.
According to a disability adjudicator/examiner named Antonio Rivera, a CE was required in my client’s case. That conclusion was wrong because under the circumstances the request for the CE was not authorized by the rules and regulations. However, Mr. Rivera then indicated that none of the claimant’s doctors were contacted to do the CE, as the rules and regulations require, because they do “not accept the state approved vendor fee.” That assertion was false.
If the DDS never contacted the treating doctors, then the DDS had no way of knowing that the treating sources would not accept the fee for performing the CE. Furthermore, there was no report of contact or letter in the claimant’s file showing that the DDS made any attempt to contact any of the claimant’s doctors by phone or in writing about doing a CE. Moreover, Rivera stated that the claimant refused to attend a CE, which was also untrue. To the contrary, the claimant advised the DDS, in writing, that he would attend a CE by a treating doctor in accordance with the Social Security rules and regulations.
Scheduling CEs when they are not needed or consistent with the rules and regulations is a waste of time and tax payer money. Are the DDS disability adjudicator/examiners required for undisclosed reasons to insist on CE’s when contrary to the rules and regulations? Do DDS disability adjudicator/examiners demand that CEs be done because it is easier for them to rubberstamp a CE conclusion instead of reviewing the entire medical file? Do DDS disability adjudicator/examiners insist that CEs be done because they assume that the opinions of treating doctors cannot be trusted, which contradicts the rules and regulations that require extra weight be given to treating doctors’ opinions?
Unnecessary CEs waste money in two ways. First, if they are performed, then they waste money by requiring payment for something that was not needed. Second, denying an application for refusing to attend an unlawful CE wastes the resources of the ALJ and hearing office that have to review the denied application, which should have been approved initially by the DDS.
Friday, September 13, 2013
Medical Expert Interrogatories
“No news is good news.” That is the situation when an Administrative Law Judge (“ALJ”) fails to notify a Social Security Disability applicant about a response to interrogatories that the ALJ sent to a medical expert (ME”).
I represent a 59 year old assistant factory manager with neck and back problems, whose hearing was scheduled for next Monday, today being a Friday. On August 23, 2013, the ALJ sent interrogatories to an ME without notifying me or the claimant. I learned about the interrogatories while preparing for the hearing. I checked about a week later, and no responses were in the claimant’s efolder.
I had a similar situation last year with a different ALJ, and the day before the hearing the hearing assistant called my office to say the case was being granted. Not being provided with a copy of the interrogatory responses meant one of two things. Either the interrogatory responses supported a fully favorable decision, or the ALJ violated the procedural rules in the “HALLEX” that would provide concrete grounds for an appeal.
As noted above, the ALJ’s assistant notified us that she was approving SSD benefits and cancelling the hearing. Having seen that there were no interrogatory answers in the efolder, that news came as no surprise.
I represent a 59 year old assistant factory manager with neck and back problems, whose hearing was scheduled for next Monday, today being a Friday. On August 23, 2013, the ALJ sent interrogatories to an ME without notifying me or the claimant. I learned about the interrogatories while preparing for the hearing. I checked about a week later, and no responses were in the claimant’s efolder.
I had a similar situation last year with a different ALJ, and the day before the hearing the hearing assistant called my office to say the case was being granted. Not being provided with a copy of the interrogatory responses meant one of two things. Either the interrogatory responses supported a fully favorable decision, or the ALJ violated the procedural rules in the “HALLEX” that would provide concrete grounds for an appeal.
As noted above, the ALJ’s assistant notified us that she was approving SSD benefits and cancelling the hearing. Having seen that there were no interrogatory answers in the efolder, that news came as no surprise.
Saturday, August 31, 2013
Reviewing An Employer’s Work Description
The typical Long Term Disability (“LTD”) application has three forms; one for the claimant, one for the treating doctor, and one is for the employer. While the doctor’s form provides the medical information, the employer’s form provides the vocational information. The importance of the Employer’s form should not be overlooked because the vocational evidence is just as important as the medical evidence. It is especially easy to disregard the importance of the Employer’s form if the insurance company processing the LTD application sends it directly to the employer for completion.
I filed an LTD application with Guardian Life Insurance Company of America for a 55 year old floor trader who sustained left leg, right hand and arm injuries. The claimant stood virtually the entire day at work. However, when I asked for a copy of the Employer’s form from Guardian, the Human Resources manager indicated the job was sedentary. After notifying the discrepancy with the claimant, he obtained a letter from his direct supervisor attesting to the fact that the occupation required being on his feet most of the day, as well as a letter from the Human Resources manager that her error happened because she used the incorrect job description to complete the Employer’s form.
I received a letter today from Guardian approving the LTD application. There is a very good chance that the application may have been denied absent the correction to the vocational information provided by the Employer’s form.
I filed an LTD application with Guardian Life Insurance Company of America for a 55 year old floor trader who sustained left leg, right hand and arm injuries. The claimant stood virtually the entire day at work. However, when I asked for a copy of the Employer’s form from Guardian, the Human Resources manager indicated the job was sedentary. After notifying the discrepancy with the claimant, he obtained a letter from his direct supervisor attesting to the fact that the occupation required being on his feet most of the day, as well as a letter from the Human Resources manager that her error happened because she used the incorrect job description to complete the Employer’s form.
I received a letter today from Guardian approving the LTD application. There is a very good chance that the application may have been denied absent the correction to the vocational information provided by the Employer’s form.
Friday, August 30, 2013
Podiatrists
The Social Security regulations specifically state that podiatrists are acceptable medical sources for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle. Nonetheless, claimants often overlook podiatrists when seeking Social Security Disability (“SSD”) benefits.
I have stated in the past not to underestimate the importance of podiatrists when applying for disability benefits, which some claimants apparently do because foot problems are not the primary impairment. When a foot problem is the primary problem, the treating podiatrist’s opinion is paramount.
I represent a 48 year former warehouse worker whose suffered injuries in a vehicular accident. His main injury was to his left foot, although he also sustained severe neck and back injuries. His SSD application was approved today. While the claimant submitted a report from his neurologist explaining how his neck and back injuries prevented him from working, the Administrative Law Judge gave greater emphasis to the opinion of the claimant’s podiatrist.
If you have a foot injury, regardless of whether its your primary problem, your podiatrist’s records and disability opinion should be sought.
I have stated in the past not to underestimate the importance of podiatrists when applying for disability benefits, which some claimants apparently do because foot problems are not the primary impairment. When a foot problem is the primary problem, the treating podiatrist’s opinion is paramount.
I represent a 48 year former warehouse worker whose suffered injuries in a vehicular accident. His main injury was to his left foot, although he also sustained severe neck and back injuries. His SSD application was approved today. While the claimant submitted a report from his neurologist explaining how his neck and back injuries prevented him from working, the Administrative Law Judge gave greater emphasis to the opinion of the claimant’s podiatrist.
If you have a foot injury, regardless of whether its your primary problem, your podiatrist’s records and disability opinion should be sought.
Wednesday, August 21, 2013
Off Task
I received an interesting fully favorable decision today for a 49 year old former fire fighter with pulmonary problems that originated from 9/11 related exposure.
The claimant’s breathing problems resulted in sleeping problems, which caused the claimant to sleep during the day. Furthermore, the claimant’s medications exacerbated the claimant’s daytime somnolence. As a result, the Administrative Law Judge (“ALJ”) found that the claimant would be off task at least 20% of the work day.
I researched the various Social Security rules and regulations, but did not find anything regarding being off task and disability. However, a review of the case law revealed dozens of cases where vocational experts unanimously testified that a person would be disabled from substantial gainful activity if off task 20% of the time.
Many symptoms, such as pain, fatigue, or mental disorders causing a lack of focus and concentration, can effect a person’s ability to stay on task. Medical opinions regarding the percentage of time that impairments cause claimants to be off task should be incorporate into functional assessments. Not only can an opinion supporting a claimant’s inability to stay on task provide positive evidence to support a claim, but it can also provide ammunition to cross examine an unsupportive vocational expert.
The claimant’s breathing problems resulted in sleeping problems, which caused the claimant to sleep during the day. Furthermore, the claimant’s medications exacerbated the claimant’s daytime somnolence. As a result, the Administrative Law Judge (“ALJ”) found that the claimant would be off task at least 20% of the work day.
I researched the various Social Security rules and regulations, but did not find anything regarding being off task and disability. However, a review of the case law revealed dozens of cases where vocational experts unanimously testified that a person would be disabled from substantial gainful activity if off task 20% of the time.
Many symptoms, such as pain, fatigue, or mental disorders causing a lack of focus and concentration, can effect a person’s ability to stay on task. Medical opinions regarding the percentage of time that impairments cause claimants to be off task should be incorporate into functional assessments. Not only can an opinion supporting a claimant’s inability to stay on task provide positive evidence to support a claim, but it can also provide ammunition to cross examine an unsupportive vocational expert.
Monday, August 19, 2013
Social Security Reconsideration
In most States, if your application for Social Security Disability (“SSD”) is denied, the first appeal you can file is a Request for Reconsideration. Seeking reconsideration only requires you to complete a short form concerning any changes in your health, and any work you have done since you filed your SDD application. Like the first level of review, reconsideration decisions are made by a claims examiner from the State Disability Determination Services (“DDS”).
New York is one of the States where reconsideration of an SSD claim denied for medical reasons has been eliminated. Most reconsiderations are denied; about 85% of cases. Criticism about reconsideration being a rubberstamping formality led to its elimination in some states.
I represent a 49 year old electrician whose SSD application was approved by the New Jersey DDS. What makes the reconsideration approval especially rare, is that no additional medical evidence was submitted. This indicates that the DDS recognized its original decision was seriously flawed. While the decision saved Social Security resources by reducing the hearing office caseload, one wonders why the application was not approved form the outset.
New York is one of the States where reconsideration of an SSD claim denied for medical reasons has been eliminated. Most reconsiderations are denied; about 85% of cases. Criticism about reconsideration being a rubberstamping formality led to its elimination in some states.
I represent a 49 year old electrician whose SSD application was approved by the New Jersey DDS. What makes the reconsideration approval especially rare, is that no additional medical evidence was submitted. This indicates that the DDS recognized its original decision was seriously flawed. While the decision saved Social Security resources by reducing the hearing office caseload, one wonders why the application was not approved form the outset.
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