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SSA Notice of Awards

SSA Doctors

The State agency, also known as the Disability Determination Service, usually threatens that an application for disability benefits cannot be approved unless the claimant is examined by an agency doctor. Some of my earlier blogs have addressed the reasons why the regulations provide that the state agency’s threats are wrong.

I received two fully favorable decisions yesterday that reinforce the reasons why state agency medical exams are not mandatory in most circumstances. Each decision said that because there was no agency medical opinion, Ruling 96-6p did not apply. That Ruling addresses the weight to be accorded state agency medical opinions.

Ruling 96-6p does not mandate exams by state agency doctors. The two decisions approved disability benefits while explicitly referencing the absence of state agency medical exams. Thus, not only do the regulations explain why state agency medical exams are usually unnecessary, but there is no Ruling that requires them either.

Protective Filing Date

A protective filing date is the date when a person first contacts the Social Security Administration (the “SSA”) about filing for benefits, which may be used to establish an earlier application date than the date the SSA claims it received the signed application. An earlier application date can result in additional benefits.

On January 29, 2010, a fifty one year old former professional recruiter consulted me about filing for Social Security Disability (“SSD”) benefits. She told me that she became disabled on August 17, 2007, and that she first contacted the SSA about filing for SSD benefits well over a year ealier, but neither she nor the SSA had a record of that contact. Since it was the last business day of the month, I advised the claimant to call the SSA to request an appointment to file an application for SSD benefits. I told her to make sure that they would promise to send her a letter to confirm the appointment.

On March 23, 2010, I filed the claimant’s application SSD benefits by certified mail. Nonetheless, the SSA claimed that the claimant’s application was filed April 9, 2010, even though it had date stamped the application in its own file with a date of March 24, 2010.

An Administrative Law Judge (“ALJ”) was assigned the case to resolve the filing date. At the hearing, the claimant testified that she first contacted the SSA about applying for SSD benefits in January 2008, and then restarted the application process again in February of this year. I then produced a copy of a letter that the SSA sent in February this year about the claimant’s appointment for seeking SSD benefits.

The ALJ’s decision today found that the claimant had a protective filing date of February 1, 2010, which effectively is the same as a January 29, 2010 protective date because in either case February 2010 is the first month that counts towards the five month waiting period for SSD benefits to begin. This means that the claimant’s SSD benefits will begin as of July 2010; whereas, they would have begun October 2010 if April 9, 2010 had been used as the application date. Unfortunately, without written evidence of the 2008 contact, the ALJ would not accept an earlier protective filing date, which resulted in the loss of over a year of SSD benefits.

If you intend to file for SSD benefits and more than 17 months have elapsed since you became disabled, then you should ask the SSA to send a letter confirming that you inquired about SSD benefits, and send the SSA a confirmatory letter as well.

SSA Delays

Statistics from the Social Security Administration (“SSA”) state that the majority of Social Security Disability (“SSD”) claims are denied initially. The next step in the process is either reconsideration, or a hearing. In some places, such as New York, reconsideration has been eliminated, which is no real concern because few cases were approved at that stage. The newest SSA statistics state that it takes an average of 426 days to process a claim at the hearing level.

Given the time frames typically associated with SSD claims, it makes sense to pursue them as aggressively as possible as soon as possible. That is why I always try to obtain and submit multiple supporting medical opinions before the SSA makes its initial decision.

I represent a 47 year old former fire marshal and dispatcher whose SSD application was approved in three months after being considered at the initial stage. Among other things, I submitted reports from the physiatrist, internist, and podiatrist that explained why the claimant’s medical conditions prevented him from being able to perform the physical demands of any type of work.

While the claimant had severe injuries, he was under 50 years of age, which is a significant reason that leads to claims being denied initially. It is likely that the claimant’s SSD application may have been approved at the hearing stage if only one of his doctors’ supporting reports had been submitted. However, having submitted three supporting medical reports apparently explains why the claimant’s application was approved so quickly at the initial stage.

On The Record Requests

One way to avoid hearing delays after a Social Security Disability (“SSD”) claim has been denied is to file a request for a fully favorable decision on the record (“OTR”). The OTR summarizes the medical and vocation evidence, and explains why the rules and regulations show that a hearing is not needed.

A strong argument for having an OTR approved is that disability is required under a Medical-Vocational Rule. I represent a 52 year old former quality control engineer whose OTR was approved in less than two months. I submitted a report from the claimant’s physiatrist, as well as the treating chiropractor, that he claimant was unable to perform sedentary work. The OTR pointed out that even if the claimant were capable of sedentary work, in light of the claimant’s adverse vocational factors, he would have to be found disabled pursuant to Medical – Vocational Rule 201.14.

The Attorney Advisor’s opinion accepted the argument for the application of Rule 201.14, and approved the OTR. As a result, the claimant did not have to wait for a hearing, which typically takes well over a year. For most SSD claimants, receiving the SSD benefits sooner is important because cash flow becomes a problem when they no longer have a steady income.

Dialysis & Disability

Kidneys filter waste, excess fluid, and toxins from the blood. When a person’s kidneys stop working fatigue commonly occurs. As the kidney failure progresses the fatigue may prevent a person from working on a full time basis, which could support a claim for disability benefits.

There are two ways for a person with failing kidneys to establish entitlement to Social Security Disability (“SSD”) benefits. A claimant can show that the resulting fatigue prevents them from being able to perform the physical demands of work during an eight hour work day. Alternatively, a claimant can establish that they meet the “listing” criteria for chronic renal disease if the condition requires dialysis.

I represent a former police officer from Queens whose SSD application was approved today without a hearing. The senior staff attorney said he had no problem approving the on-the-record (“OTR”) request I had submitted because there was evidence both that the claimant lacked the ability to work a full day, and met the renal disease listing criteria. The staff attorney contacted me though because he needed an explanation for the officer’s income after his disability onset, for which I supplied a statement that it represented sick time.

Using both methods for establishing disability and offering to assist the staff attorney overcome any issues he perceived enabled the officer to avoid a protracted wait of months if not years for a hearing. Moreover, a hearing did not necessarily guaranty that the SSD application would be approved.

Disability Opinions & Medical Tests

Claimants are frequently surprised when their disability claims are denied even though their doctors provided a letter stating that claimant was disabled or was unable to work. A conclusory disability statement by a physician is rarely sufficient by itself to justify a finding of disability.

I represent a former police officer who had been seeing an orthopedist who stated the officer should refrain from working. The Social Security Administration (“SSA”) denied the officer’s application for Social Security Disability (“SSD”) benefits even though there were diagnostic tests showing significant cervical spine abnormalities.

In preparing the officer’s appeal, I obtained detailed functional assessments from the treating pain management specialist and neurosurgeon. Both of the specialists’ reports identified the clinical examination and diagnostic test findings that limited the officer’s ability to perform physical work demands.

I received a fully favorable decision today from the SSA. The decision cited the findings and conclusions of the officer’s pain management specialist and neurosurgeon, but not the treating orthopedist.

LTD and SSD

Most group long term disability (“LTD”) plans require claimants to apply for Social Security Disability (“SSD”) benefits. Most LTD plans reduce your LTD benefits by the amount of your SSD benefits. Even though your LTD plan may have an easier definition of disability to meet than SSD, the former can help establish entitlement to the latter in some circumstances.

I represent a 61 year old former newspaper machinist whose LTD plan required him to file for SSD benefits. The LTD plan defined being disabled as being unable to do your last occupation. A machinist is classified as “medium” work, meaning it required being able to lift and carry up to 50 pounds. The LTD plan concluded that the machinist’s knee and back problems prevented him from being able to perform his occupation.

The Social Security Administration (“SSA”) medical-vocational rules provide that a 60 year old claimant without transferable skills is disabled even if capable of sedentary or light work, which require lifting up to 10 and 20 pounds respectively. Medical records and reports specifically devised by the LTD plan to determine if the claimant could work as a machinist were submitted to the SSA. The SSA quickly approved the machinist’s SSD benefits today. It appears that the SSA accepted the LTD evidence and determination that the claimant could not perform medium work, which then required finding the claimant disabled under the SSA medical-vocational rules.

CIGNA Sued For Surveillance

In Tennessee, CIGNA terminated the long term disability (“LTD”) benefits of an anesthesiologist with Complex Regional Pain Syndrome after being required to attend a functional capacity evaluation (“FCE”) by a physical therapist. The anesthesiologist sued CIGNA and its private investigator for invasion of privacy and civil conspiracy. A Tennessee court refused to dismiss the claims.

The anesthesiologist contended that the videotaping of her FCE unreasonably intruded on her right to seclusion. She argued that her case was analogous to the situation involving intrusion into private medical situations. The relevant case law holds that whether an intrusion would be offensive to persons of ordinary sensibilities is a question for the fact-finder. The court ruled that the case comes down to a question of reasonableness, and that a jury will determine whether the anesthesiologist’s privacy was invaded by considering the degree, context, circumstances, motives, and setting surrounding the intrusion.

CIGNA and the investigator also moved for summary judgment to dismiss the civil conspiracy claim on the grounds that because the anesthesiologist could not establish her underlying claim for invasion of privacy she could not establish a conspiracy to invade the anesthesiologist’s privacy. However, the court concluded that a jury could find that the anesthesiologist’s privacy was invaded.
CIGNA’s then argued that the conspiracy claim had to be rejected because there was no evidence that CIGNA or the investigator knew the FCE clinic had uncovered windows, and that the investigator “simply got lucky” when he went to there and was able to film the anesthesiologist. The court also rejected that argument finding that it overlooked that CIGNA ordered the surveillance, scheduled it for when the FCE was to take place, identified the location for the FCE, and fully or reasonably expected that the FCE would be filmed by the investigator. Thus, the court also held that the conspiracy claim would have to be decided by the jury.

Attorney Advisors

One way to avoid the long wait for a hearing on your Social Security Disability (“SSD”) appeal is to ask an attorney advisor to consider issuing a fully favorable decision. Since an attorney advisor, who is a staff attorney at the hearing office, looks at claimant files before an administrative law judge (“ALJ”) does, asking the attorney to issue a favorable decision is even more expeditious than asking an ALJ to do so.

An attorney advisor can approve an SSD application based on new evidence, or any error indicating that a fully favorable decision should be issued. The attorney advisor can request additional evidence or schedule a conference with the parties, although the latter is rare.

I received a fully favorable decision today from an attorney advisor for a 57 year old former sewing machine operator based on a Findings Integrated Template (“FIT”) that I submitted three months earlier. A FIT is essentially a fill in the blank form that the Social Security Administration (“SSA”) uses to facilitate issuing favorable decisions by converting the proposed FIT decision submitted by the claimant’s attorney into the attorney advisor’s decision. Thus, instead of having to wait one to two years for a hearing, the proposed FIT decision and use of the attorney advisor enabled the claimant to be approved for SSD benefits in only three months.

The SSA regulation authorizing attorney advisor decisions is set to expire August 10, 2011.

Social Security Doctors

When filing for Social Security Disability (“SSD”) benefits, the Social Security Administration (“SSA”) usually asks claimants to be examined by one of its doctors in what is referred to as a consultative examination (“CE”). The SSA leads claimants to believe that their SSD application will be denied if they refuse to attend the CE.

The SSA rules and regulations actually provide for relatively few situations where a CE would be appropriate. In general, if a CE is actually needed, then it is supposed to be performed by a treating doctor. Nonetheless, in almost every case, claimants are sent letters telling them that they must go to a CE by an unnamed doctor.

I represent a 59 year old teacher who was told that she must attend a CE by Industrial Medicine Associates (“IMA”). After I sent a detailed letter explaining why the rules and regulations showed that such a request was inappropriate, the CE demand was withdrawn, and she received a check for SSD benefits today.

The state agency, which requests the CEs, and IMA, have both told me that CEs are routinely scheduled on every case. I represent a former nurse whose SSD benefits were also approved today, and she was never sent a notice to attend a CE. Therefore, it cannot be said that SSA policy requires a CE in every case.

While there are some circumstances when a CE is needed, since the CE reports normally indicate that the claimant is not disabled, a CE by a non-treating doctor should be attended only if the request is authorized under the SSA rules and regulations.

Unum Reverses Termination

I represent a former advertising executive whose long term disability (“LTD”) benefits were terminated by Unum after its in house psychiatrist rejected the opinion of the claimant’s treating psychologist. Unum had repeatedly approved LTD benefits based upon the treating psychologoist’s summary narrative reports and responses to Unum’s form questionnaires. Unum terminated benefits after its psychiatrist issued a medical report that concluded the claimant was no longer disabled.

The report from Unum’s psychiatrist set forth eight reasons why the claimant was not disabled. Fortunately, the treating psychologist continued to support the claimant’s inability to work, and provided a detailed report that rebutted each of the eight reasons espoused by Unum’s psychiatrist. Without being able to rely on the report of its psychiatrist any longer, Unum reinstated the claimant’s LTD benefits.

LTD insurance companies always defer to their doctors’ opinions. Therefore, in order to succeed in reversing an adverse determination, you need to ensure that the treating doctors specifically address and rebut each of the contentions that the insurer relied on to rationalize its denial or termination.

Electronic Records Express

Applications for Social Security Disability (“SSD”) benefits can now be filed on the internet, as can all subsequent documents through Electronic Records Express (“ERE”). When using ERE, you receive a receipt that confirms the date and time of the filing. Unfortunately, the ERE receipt fails to ensure that the records you submit will be seen by an Administrative Law Judge (“ALJ”) .

The last two weeks I had three hearings with two ALJs from the Brooklyn hearing office. I submitted on the record requests (“OTRs”) to have the applications approved without the need for a hearing, and received ERE receipts for the OTRs.

Last week, the first ALJ said that the OTRs were not associated with the files until the morning of the hearings, and he would have approved them if he had seen them earlier. Today, the second ALJ said he never saw the OTR, even though he said the ERE receipt that I showed him was in order. Additionally, after the hearing office sent me a CD Rom copy of the file last month, I had refaxed the OTR a second time after discovering that it was omitted from the file. The ALJ also said that had he seen the OTR he would have approved it.

ERE cannot be relied upon to guaranty that your OTR or medical records will be placed into the hearing file. To make certain that the ALJ will review the documents you submit you still need to call the ALJ’s assistant to ensure that they are associated with the proper file.

Multiple Impairments

Unlike some disability programs, you can receive Social Security Disability (“SSD”) benefits if the combined effect of all your impairments renders you disabled, even if no single impairment is disabling by itself. I received a notice of award today for a 61 year old former school clerk that illustrates this point.

The claimant’s SSD benefits were approved four months after her application was filed, which is fairly quick. I submitted reports from four of the claimant’s treating physicians that each addressed different impairments. The oral surgeon’s report addressed TMJ, the pain management specialist’s addressed cervical radiculopathy and headaches, the psychiatrist’s addressed mental disorders, and the orthopedist’s addressed herniated cervical discs and carpal tunnel syndrome.

Although the restrictions and limitations that each impairment caused may have been borderline, the combined effect of all of the impairments showed that the claimant was unable to perform any type of work on a full time basis. While the claimant may ultimately have succeeded in obtaining SSD benefits based upon only one doctor’s report, it is highly unlikely that the claimant’s application would have been approved in only four months if all four of the physicians’ reports had not been submitted. The goal in every case should not merely be winning, but winning as quickly as possible.

Liver Cancer

The Social Security Disability (“SSD”) application process is usually a lengthy one. However, if you have a critical condition that requires an immediate decision you may be eligible to request a Compassionate Allowance, which is designed to reduce the time between applying and receiving benefits. Compassionate Allowances are an expedited way for the Social Security Administration (“SSA”) to identify medical conditions that invariably qualify for SSD benefits based on minimal objective medical information.

I represent a 58 year old plumber diagnosed with live cancer, which is one of the diseases included on the Compassionate Allowance list. Others on the list include cancers, lymphomas, mesothelioma, Creutzfeldt-Jakob Disease, Lesch-Nyhan Syndrome, spinal or brain injuries, early onset Alzheimer’s Disease and some types of dementia. To avoid any potential delay, the application and report regarding liver cancer were faxed, mailed, and followed up almost on a daily basis to ensure that everything was received and being immediately processed as a Compassionate Allowance. The claimant’s SSD benefits, as well as his children’s benefits, were approved today, three weeks after the application was filed.

The SSA can deny a request for a Compassionate Allowance just like any other SSD claim. Similarly, the SSA can lose evidence submitted on a Compassionate Allowance claim, or have it fall through the bureaucratic cracks like thousands of other SSD claims. While an attorney should not be required to obtain SSD benefits ultimately for a condition on the Compassionate Allowance list, if time is a concern, then an attorney can help ensure that the SSD application, along with any Child’s Benefits application, will be expeditiously and properly processed as a Compassionate Allowance.

Unum Approves Fibromyalgia Claim

Several years ago I was able to get Unum to approve long term disability (“LTD”) benefits for a woman who worked for Keyspan when her claim was reviewed under the Reassessment Settlement Agreement. Towards the end of last year, Unum started to re-evaluate her claim, which included a field visit interview, even though the identical questions had already been answered in response to questionnaires Unum sent, and new medical records, even though her treating doctor said that the claimant’s condition had not improved.

The claimant was disabled by fibromyalgia, which was being treated by a rheumatologist. Courts recognize that a rheumatologist is the appropriate specialist to treat fibromyalgia. I provided reports from the rheumatologist that showed the claimant’s condition had not changed since Unum had approved LTD benefits. Nonetheless, Unum insisted on receiving reports from the claimant’s internist and chiropractor, who were not treating fibromyalgia.

I sent Unum letters stating that records from doctors other than the rheumatologist showed that Unum was either failing to understand the nature of the claimant’s disability or that it was not proceeding in good faith. However, because Unum stopped paying LTD benefits during its re-evaluation, to expedite a decision, I allowed Unum to receive reports from the claimant’s other doctors, but not before ensuring that they understood the type of responses that Unum would seize upon to terminate benefits. Although records from her other doctors were irrelevant because they were not treating fibromyalgia, Unum restored the LTD benefits only after receiving their reports.

Fortunately, because the claimant had discussed the situation with her other doctors, even though their reports were not actually relevant, they did not contradict the information provided by the rheumatologist. I have no doubt that if a report from one of the other doctors was inconsistent with the rheumatologist’s report, then Unum would have terminated the claimant’s LTD benefits. Unfortunately, when dealing with disability insurance companies, you have to be very careful, even with evidence that is not actually relevant.

Comorbid Conditions

When applying for long term disability (“LTD”) benefits no single medical condition necessarily needs to be disabling. I represent a 41 year old former Insurance Company Vice President whose LTD benefits Lincoln Financial Group approved on appeal today after supplying evidence of a second medical condition.

The claimant came to me after Lincoln had rejected her LTD application, which was based upon her neck impairments. On appeal, besides revealing the flaws with the way Lincoln reviewed the claimant’s cervical problems, I also notified Lincoln that the claimant was being treated for Chronic Fatigue Syndrome (“CFS”). The report from the rheumatologist treating the CFS indicated that the claimant could not work full time due solely to the CFS, just as the claimant’s orthopedist and pain management specialist both concluded that the claimant could not work full time due to her neck problems.

It should have been obvious that if the claimant’s neck impairments and CFS independently rendered the claimant incapable of working, that the combination of the two certainly did. Lincoln’s approval letter did not specify the reason why it reversed its decision and decided to approve LTD benefits. The major difference between what the claimant submitted when applying, and what I supplied when appealing, was the evidence regarding the CFS. Therefore, it would seem most likely that it was the claimant’s comorbid condition that resulted in the approval.

“Partially Favorable” Decisions

The Social Security Administration (“SSA”) sometimes approves Social Security Disability (“SSD”) benefits with an onset date after the one in the claimant’s application. The belated approval is called a partially favorable decision. A claimant can appeal the partially favorable decision, and receive monthly SSD benefits in the interim.

I represent a former interior designer who became disabled in November 2008, and who just received a partially favorable decision from Administrative Law Judge (“ALJ”) David Nisnewitz that approved SSD benefits as of April 2009. As usual, because all of the treating physicians supported the claimant’s application, Nisnewitz had half a dozen medical and vocational experts testify in order to create evidence to deny the application. However, the last expert to testify was a psychologist named Sharon Grand who stated the claimant met a listing for depression, which prevented the ALJ from denying the case.

As is his custom, ALJ Nisnewitz ignored the overwhelming objective and subjective evidence that supported the claimant’s disability from November 2008 through April 2009. Instead, again as is his practice and pattern, Nisnewitz simply accepted the opinions of medical experts who never examined the claimant over those of the treating physicians, despite the fact that courts have repeatedly told the ALJ that it is improper for him to do so.

Since claimants can receive SSD benefits pending an appeal of a partially favorable decision, there is no reason to waive the additional benefits that they might be entitled to receive. Claimants should promptly appeal such a decision, which could provide additional benefits, such as child’s benefits too.

Income Doesn’t Bar Disability Benefits

Receiving an income does not automatically preclude receiving Social Security Disability (“SSD”) benefits. The test is whether you are engaging in work that involves significant physical or mental activity for pay or hopefully for profit, which excludes any type of passive investment income.

Since entitlement to SSD benefits does not include a financial need requirement, receiving loans or gifts of money from friends or relative is not an issue. There may be circumstances where a claimant receives money through a family run business while alleging that he or she was not working at the business. In these situations the Social Security Administration presumes that the claimant is working rather than receiving a gift.

On numerous occasions I have represented a claimant who continued to receive money through a family run business after the time when the claimant alleged that he or she stopped working there. The question is how do you prove that the money the claimant received from the family business was not for engaging in work that involved significant physical or mental activity.

I represent a 39 year old woman who worked at her father’s company as a secretary because she was unable to work elsewhere due to her reflex sympathetic dystrophy (“RSD”). Her RSD eventually became so severe that she was unable even to work with all of the accommodations at her father’s business. However, in order to maintain her health insurance, the claimant’s father continued to keep her on the payroll.

I submitted third party evidence to substantiate the fact that the claimant had not been working. Today, I received a fully favorable decision from Administrative Law Judge Ronald Waldman who concluded that the claimant’s 2008 and 2009 income was not substantial because she had not actually worked.

Celiac Disease

Bloomberg News just reported that environmental influences have apparently caused a fivefold rise in Celiac disease during the last 30 years. People with Celiac disease have a problem digesting gluten, which is a protein in staple foods like bread, crackers, and pasta. Fatigue is a common symptom of Celiac disease.

The fatigue from Celiac disease can become severe enough to prevent you from working a complete day. If so, you could be eligible for disability benefits the same way that being afflicted with Chronic Fatigue Syndrome or any other disease resulting in fatigue could render you eligible.

Celiac disease is frequently associated with other autoimmune disorders that also contribute to one’s inability to work. Therefore, even subsisting on a gluten-free diet may not improve one’s functionality sufficient to work a complete day at work. One of my clients was approved for disability benefits due to fatigue and weakness from Celiac disease and myasthenia gravis.