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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.