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Establishing An Onset Date

I represent a claimant who worked at the World Trade Complex and suffers from anxiety and post traumatic stress disorder, which commenced after the events of 9/11. The claimant’s mental impairments progressed to the point that he stopped working in January 2005, although he was unable to perform his duties for about a year before that date.

The claimant originally thought he had a neurologic as opposed to a psychological problem. Diagnostic testing was negative and a neurologist concluded the claimant had agoraphobia in 2004. In the interim, the claimant obtained anti-anxiety medication from his internist, but did not treat with a mental health professional until 2007.

There is a Social Security ruling that addresses the onset of a disability that is nontraumatic in origin. The Ruling provides that in disabilities of nontraumatic origin, the determination of onset involves consideration of the applicant’s allegations, work history, if any, and the medical and other evidence concerning impairment severity. The weight to be given any of the relevant evidence depends on the individual case. By establishing the claimant’s good work history, credibility, and retrospective medical opinion, the claimant was able to show that he was entitled to benefits before he started regular treatment with a psychologist.

Field Visit

Disability Insurance companies always insist on receiving extraneous information when evaluating an application for disability benefits. Sometimes they insist on tax and financial records even if the benefit is a fixed amount, completely independent of income. The insurance companies frequently demand monthly statements and certifications from the applicant’s doctors even if the doctors have made it clear that the medical condition at issue is permanent and progressive. The insurance companies cite to sections of the disability insurance policy in support of their right to compel applicants to complying with the information demands, even when admitting that the right to information does not mean that they should ask for the information.

The terms and conditions of a disability insurance policy provide a two-way street. When a disability insurer makes requests for information beyond completing the application forms, check to see that the request is encompassed by the policy. MetLife has been demanding monthly attending physician statements and financial statement from one of my clients. MetLife was unable to explain why they needed the information, but cited the policy sections that provided it with the right to the information and insisted on compliance with those terms. Additionally, MetLife requested that I allow one of its field investigators to interview my client. When I asked MetLife to cite the section of the policy that entitled it to a field interview, MetLife responded that field interviews were part of its standard practice and procedure.

My client suffers from bipolar disorder and anxiety. The thought of a field interview unnerved him greatly. Since MetLife had cited sections of the policy to demand compliance with their irrelevant financial and medical information requests, I cited the absence of a section of the policy permitting a filed interview to deny that request. MetLife has approved the claimant’s benefits, but it is possible that it would have arrived at a different conclusion if its field investigator had been allowed an interview.

Multiple Attorneys

Attorneys in Social Security Disability (“SSD”) cases can get paid either by fee agreement with a $5,300 cap, or by fee petition. Many attorneys opt for the fee agreement process because it is faster, even though it may mean receiving a smaller fee. If a claimant has been represented by more than one attorney, then each must submit a fee petition, unless one of the attorneys is not seeking a fee.

I took over another attorney’s SSD case when had to be taken to federal court. I succeeded is getting the case remanded, and then won the case it was heard by the Administrative Law Judge (“ALJ”) a second time. Before the hearing the ALJ asked if the prior attorney retained an interest in the case, and I told the ALJ that he did not, and that I had submitted a letter from the prior attorney confirming that. At the outset of the hearing, I then restated on the record that the prior attorney no longer represented the claimant and was not seeking a fee. Nonetheless, the ALJ approved the prior attorney’s fee agreement, which will probably result in a delay before the SSA releases the claimant’s benefits.

To avoid potential delays, even if the record also contains a letter from the withdrawing attorney, and even if the hearing transcript contains a representation that the withdrawing attorney is not seeking a fee, it cannot hurt to submit a new letter from the withdrawing attorney reiterating his intention to waive any request for legal fees.

Self Employment

A key issue in disability benefit determinations is a claimant’s credibility. Claims adjudicators are frequently skeptical about a claimant’s credibility is he or she was self employed. The claim adjudicator assumes that the applicant may be working off the books in some capacity.

I succeeded in obtaining disability benefits for a self employed claimant in only three months by submitting evidence from third parties to substantiate the claimant’s credibility. My client was a construction contractor who had operated his own business installing doors. I submitted letters from material suppliers and subcontractors attesting to the fact that they no longer engaged in business with my client.

Even in cases where the medical evidence is strong, applications of self employment are usually denied because testimony is deemed necessary to evaluate the contention that the claimant is no longer working. However, the letters supplied by the client’s former business contacts supplanted the need for live testimony, which saved the claimant months, if not years, of waiting time.

Special Accommodations

If a claimant seeking Social Security Disability (“SSD”) benefits is unable to past work, then the Social Security Administration (“SSA”) has the burden of proving the claimant can do other work. The burden of proof shift can be critical to the outcome of an SSD claim.

I represent a claimant whose past occupation was working at the Postal Service under a handicapped program. Under that program, the claimant did not perform his occupation as it is normally done in the national economy. To the contrary, the claimant worked with special accommodations and extra supervision. The SSA agreed that the claimant was unable to do his pat work as it is normally done in the national economy, and therefore, had to prove that the claimant could do other work.

The claimant’s treating pulmonologist, arthritis specialist, and chiropractor opined that the claimant lacked the ability to perform sedentary work. Their opinions were supported by EMG and MRIs. The claimant’s psychologist concluded the claimant lacked the ability to perform simple work on a sustained basis, which was based on a battery of psychological testing. On the other hand, the government’s evidence consisted of a review of only some of the claimant’s medical records. The Administrative Law Judge (“ALJ”) concluded that SSA’s medical review was insufficient to prove the claimant could do other work in light of the other medical evidence, and approved SSD benefits.

If the claimant’s past work did not involve special accommodations, then the ALJ would have needed to determine if the claimant were able to do his past work. In making that determination, the ALJ could have concluded that the claimant’s medical evidence was not sufficient to support his burden of proving that he was unable to do his past work.

Multiple Disability Benefits

It is not uncommon for a person to be entitled to more than one type of disability benefit. Facts can be established in one context that can have important ramifications in connection with related disability claims. A perfect example involves a client who has claims under a group long term disability (“LTD”) plan and New York State Disability Law (“DBL”).

Four months after the claimant stopped working on the Stock Exchange because of his medical condition, he made an attempt to return to work that lasted eight days. The LTD carrier, Unum, argued that it was entitled to withhold four months of benefits on the grounds that the claimant supposedly resumed working for more than 30 days. Unum insisted that the claimant worked for more than 30 days even after being provided with a letter from the Stock Exchange proving that the claimant only accessed the building for eight days.

Unum was also the insurance company that was responsible for paying the claimant’s DBL benefits. In connection with the DBL claim, another department at Unum admitted that the claimant had only resumed working for 8 days. Confronted with its own company’s admission Unum’s LTD department was forced to concede that the claimant did not resume working for over 30 days, and finally agreed not to withhold the extra four months of benefits.

Clarifying Objective Evidence

A common basis for denying disability claims is a purported lack of objective medical evidence. The trouble is that claims adjudicators simply disregard how policies, plans or regulations define objective evidence.

I represent a 43 year old insurance claims representative who was initially denied her Social Security Disability (“SSD”) benefits on the grounds that she failed to produce medical evidence to substantiate her claim. However, nothing could have been further from the truth.

The claimant had a serious back injury, and treated with, among other physicians, a spine specialist, who finally determined that absent surgery he could not help her any further. The disability examined who denied the claim asserted that while the diagnostic testing supported the claimant’s SSD application, the spine specialist’s opinion was based on the claimant’s subjective medical complaints.

As an initial matter, the diagnostic evidence should have sufficed. MRI reports revealed a herniated disc at the L5-S1 level causing a mass effect on the S1 nerve root, and a herniated disc at the C5-6 level flattening the spinal cord, and an EMG/NCV was consistent with L5 radiculopathy. Perhaps more importantly, there were significant objective clinical findings that were overlooked. Specifically, the spine specialist’s report identified the objective clinical examination findings of decreased range of motion, paraspinous tenderness and muscle spasm, and sensory loss at the L4-5 level. I cited case law that held that the aforementioned findings constituted “objective medical findings”.

Treating doctors are in the best position to evaluate a claimant’s functional limitations because of their first hand longitudinal treatment history. Nonetheless, claims adjudicators frequently reject the opinions of the treating doctors because they purportedly base their opinions on their patients’ subjective complaints. Therefore, it is necessary to point out of all of the objective clinical findings and not only the test data when arguing that a treating doctor’s opinion should be credited.