SSD Approved In 3 Months
I represent a 58 year old former auto mechanic and deliveryman with cervical radiculopathy, whose application for Social Security Disability (“SSD”) benefits was approved in three months. As I have done in other cases, I supplied functionality reports and treatment records. What was different this time? Really nothing. Perhaps it was a need to make a year end quota. Or maybe it was just a Christmas gift.
Social Security Myth
Today’s Newsday had an article entitled “Beware of Bad Tips on Savings for Retirement.” One of the myths addressed was that you can take early Social Security retirement when you turn 62 years old, and still get full benefits later.
Some people take early retirement because they want to start receiving monthly payments immediately. The article points out that by doing so, you receive 25% less than if you wait until full retirement age, and 75-80% less than if you wait until age 70. The implication is that it usually makes more sense to avoid taking early Social Security retirement.
The decision about whether to accept early retirement is simpler if you are receiving monthly Social Security Disability (“SSD”) benefits. The SSD helps stave off having to take early retirement, which eventually leads to larger retirement benefits.
Subpoena Leads to SSD Award for Rheumatoid Arthritis
The Social Security Administration (“SSA”) recognizes that rheumatoid arthritis can be a crippling disease, as an afflicted claimant can be found presumptively disabled under listing 14.09 if the criteria are met. If a listing is not met, then a hearing is typically required.
I represent a 48 year old former dental hygienist who was scheduled for a hearing after an on-the-record (“OTR”) was denied. The typical wait for a hearing is many months, and can even be over a year. One should never be satisfied with simply waiting for the arrival of the hearing date.
I seek updated medical records and reports for most Administrative Law Judges (“ALJs”) if an OTR is denied. For those ALJs who are well known for taking excessive amounts of time before scheduling a hearing, it makes no sense to request updated records after an OTR denial because by the time the hearing arrives they will claim that the medical records are stale, and need to be updated again.
The dental hygienist had to go live in a nursing home because of her rheumatoid arthritis. After an OTR was rejected, I sought updated medical records from the nursing home. However, the nursing home refused to provide any records. Fortunately, the ALJ granted my request to subpoena the nursing home records, which totaled nearly 700 pages of objective clinical findings and diagnostic tests that support the functional less than sedentary functional assessments of the treating doctors that had been submitted previously.
Among other things, the nursing home records showed that since the claimant had been admitted, via stretcher, she had needed a wheelchair to get around, even needed assistance to use it, could not get in and out of bed without help, was incontinent, totally dependent on others for personal hygiene, including toileting, and could not even feed herself. Based on those records, I suggested that a hearing was not needed. The ALJ agreed.
Another CE Problem
I have written dozens of times about the problems posed when Social Security schedules a Consultative Examination (“CE”) with a non-treating doctor. I had a hearing yesterday in Queens that illustrates one such problem.
I was representing a 37 year old former EMT who sustained serious back and knee injuries after a series of motor vehicle accidents. The medical records and the reports of the claimant’s neurologist repeatedly demonstrated that the claimant met the listing criteria for a spinal disorder. However, the medical expert at the hearing questioned whether the listing was met because the report of the one time CE by a non-treating doctor contained some contrary findings.
Aberrant findings from a single CE report, from a doctor who is not a neurologist, should not suffice to contradict the longitudinal and consistent medical findings of a neurologist regarding a neurological disorder. Furthermore, the claimant was prepared to testify that the CE findings were fraudulent in that the CE did not actually test what the report claimed was tested.
Fortunately, the medical expert testified that while the claimant did not meet the spinal disorder listing, he equaled it in severity. However, another medical expert or Administrative Law Judge may have concluded that the CE findings prevented the listing from being met or equaled. According to the regulations, there was no valid ground for the claimant to have been asked to have a CE with a non-treating doctor. Had the claimant refused to attend the CE, there would have been no evidence to contradict the claimant’s meeting a listing, and he could have avoided the need and wait for a hearing.
CIGNA Bad Faith Affirmed
Yesterday, the Seventh Circuit Court of Appeals affirmed that CIGNA acted in bad faith when it rejected a long term disability (“LTD”) claimant’s award of Social Security Disability (“SSD”) benefits. The decision, entitled Raybourne v. CIGNA Life Insurance Company of New York, can be found at http://courtlistener.com/ca7/5atS/edward-raybourne-v-cigna-life-insu/.
As part of its practice and pattern for wrongfully denying and terminating LTD claims, CIGNA supports a finding of disability before the Social Security Administration (“SSA”) when it financially benefits CIGNA, and then disregards the SSA’s finding of disability when it disadvantages CIGNA. The Seventh Circuit said CIGNA did so in order to harass its opponent instead of acting in good faith.
The Court ruled that CIGNA’s professed reasons for rejecting the SSA’s awarding of SSD benefits were arbitrary and capricious. First, CIGNA claimed that its definition of disability was different from the SSA definition of disability. The Court rejected that argument, ruling that the two definitions are “functionally equivalent.” CIGNA’s termination and denial letters fail to draw any meaningful distinction between the two standards, and instead, dogmatically assert in conclusory language that the standards are different. With Raybourne, CIGNA can no longer do so.
Next, CIGNA argued that the SSA applied the SSD regulations, including treating physician rule that requires giving greater weight to the opinion of the claimant’s physicians, do not apply to LTD claims governed under ERISA. The Court rejected that argument on the grounds that the regulations with treating physician rule “was not determinative to the disability finding.” Rather, the Court said the SSA decision was based on the claimant’s need for narcotic pain medications, compliance with medical treatment, willingness to undergo surgery, good work history, and credibility.
Third, the Court said that CIGNA’s failure to explain why it rejected the SSA’s final decision, which found the claimant to be disabled, as opposed to the SSA’s earlier decision, which did not, was evidence that CIGNA had a “predisposition to reject the claim regardless of the facts.” This is an argument that I have regularly made about CIGNA, and Raybourne provides added evidence demonstrating CIGNA’s history for biased claim adjudication.
CIGNA’s final argument was that the SSA made its decision without having a report by a CIGNA doctor who reviewed the medical records. The Court concluded that CIGNA did not make its report available to the SSA because CIGNA wanted the SSA to award SSD benefits, thereby allowing CIGNA to reduce its LTD payments by the amount of the SSD benefits. The Court found that CIGNA then relied on its doctor’s report after the SSD award in order to terminate LTD benefits; that is, only when it became financially advantageous for CIGNA. The Court held that CIGNA’s selecting its one doctor’s opinion over all of the contrary evidence was arbitrary and irrational.
Walking Time Bomb
You may be found disabled, and entitled to Social Security Disability (“SSD”) benefits, even if you have the physical and mental ability to work. I was retained by a 43 year old truck driver after his claim was denied. The treating cardiologists said the claimant could not do sedentary work.
During the claimant’s hearing, the Administrative Law Judge (“ALJ”) expressed difficulty understanding why the claimant could not work. I explained that even if the claimant had a capacity to do sedentary work, he would still have to be considered disabled because his cardiac condition makes him a virtual walking time bomb. The ALJ agreed that the argument made sense, but lacked medical documentation.
After the hearing, I promptly obtained and submitted a report from the claimant’s cardiologist, which stated that either two hours of physical exertion at the sedentary level, or emotional stress, could precipitate another heart attack. In other words, there was medical evidence to support my contention that the claimant was a walking time bomb. In approving SSD benefits, the ALJ even referred to the claimant as a walking time bomb.
The ALJ’s decision was not an isolated one. I found many SSD cases, including one involving the identical cardiac conditions that my client had, where the federal courts ruled the claimants were disabled because their impairments created a risk of death.
Three Heads Are Better Than One
A former office manager asked me to represent her shortly before her Social Security Disability hearing. Her application had been denied on the grounds that her condition was not severe enough to keep her from working. In denying the application, the State agency conceded that the claimant was afflicted with severe anemia, arthritic knee, back, wrist, and elbow, carpal tunnel syndrome, cardiovascular problem problems, and depression.
When I reviewed the claim file, I found that each of the claimant’s medical conditions was fully documented. There was no dispute that the claimant suffered from any of the diagnoses. The State agency merely resorted to its default position that the medical conditions were not severe enough to preclude work. The State agency usually resorts to its default position where there are medical records without any opinion regarding the effect of the medical conditions upon the claimant’s ability to function.
The decision of the State agency was disturbing here because it had asked the claimant’s hematologist to describe the claimant’s functionality, and he stated that the claimant could not perform sedentary work. The State agency examiner, who was not a doctor, named M. Jackson, stated that the claimant could do sedentary work. However, M. Jackson blatantly lied, and represented that the hematologist’s “conclusions about the claimant’s limitations or restrictions [were not] significantly different from your findings.” If that were true, then M. Jackson would have had to approve the application.
On appeal, I obtained reports from the claimant’s rheumatologist and pain management specialist. Each of those physicians also concluded that the claimant lacked ability to perform the demands of sedentary work. Since they say that two heads are better than one, it follows that three heads are even better. I suspect that if the claimant had submitted the analytic medical opinions at the State agency level, then M. Jackson would have been unable to ignore all three treating opinions.
We lost power as a result of Hurricane Sandy and the Noreaster, making communications difficult, and preventing faxes from being received. Full power has now been restored. Thank you for your patience during the past two weeks.
Appeals Council Remands
If an Administrative Law Judge (“ALJ”) denies your case, you can request Appeals Council review in 60 days by completing and submitting form HA-520. You can submit new evidence, and explain the reasons why the ALJ erred. The Appeals Council can approve benefits, which is rare, decide not to review your appeal, or send your claim back to the ALJ for another hearing. What should you do if your claim is remanded to the ALJ?
I received two Appeals Council remands this week. While the factual circumstances and legal issues were very different, in each case, the Appeals Council recommended that a Vocational Expert (“VE”) testify. orders Most Appeals Council remand orders direct the ALJ either to reconsider the same evidence, or to obtain new evidence. Regardless of what the remand order actually states, you should always submit additional evidence. I am advising the claimants to retain their own VE so they can provide reports to their ALJs.
I advise claimants to use VEs who testify for Social Security as this will expedite the appeal process. A VE report can be expensive, but is normally costs less than the amount of a month’s estimated Social Security Disability benefits. Additionally, retaining a VE prevents an ALJ who is predisposed to deny a claim from cherry picking a pet VE whom the ALJ knows will testify adversely.
Social Security & The Presidential Election
Raising the retirement age for Social Security has an obvious impact on those seeking disability benefits.
The Republican position is to increase the retirement age. Mitt Romney stated that the retirement age should be “slowly increased to account for increases in longevity,” while Paul Ryan said we should, “Slowly raise the retirement age over time.” Minority Leader, John Boehner said that A Republican-held Congress would look to raise the retirement age to 70, and the Heritage Foundation, a research and educational institution whose mission is to formulate and promote conservative public policies, believes that the retirement ages must be increased. While giving a speech at the American Enterprise Institute, another conservative think tank, Chris Christie said, “You are going to have to raise the retirement age for Social Security! Whoa! I just said it and I am still standing here. I did not vaporize into the carpeting.”
Barack Obama said he is opposed to raising the retirement age. Previously, Barack Obama said he favored applying the Social Security payroll tax to wages above $250,000, which is now limited to wages below $110,100.
Becoming disabled is neither a Democratic or Republican problem, nor a Conservative or Liberal problem. Disability crosses all party lines. Nonetheless, there was little attention paid to the issue during the debates. Regardless of whether you favor raising the retirement age, increasing taxes or cutting benefits in order shore up the Social Security program, insist that candidates explain how they intend to stabilize Social Security to ensure that benefits will be there when you need them.
SSD Claimants Need To Review Their Efolders
I represent a 49 year old nurse, whose Social Security Disability (“SSD”) application was approved today. The good news is that a Senior Staff Attorney at the hearing office approved the OTR that I submitted, so the claimant will receive SSD benefits without having to attend a hearing. The bad news is that the claimant’s application had been denied by the State Agency because it had purged the disability reports of the claimant’s two medical specialists from the file.
The reports of the claimant’s pain management specialist and family doctor each prepared detailed reports explaining why the claimant’s fibromyalgia was disabling. Both reports stated that the claimant met the American College of Rheumatology criteria for fibromyalgia, and identified the clinical signs that support the diagnosis. Both reports provided for a less than sedentary work capacity, and concluded that the claimant could not work because she was completely disabled due to severe pain.
The State agency, as it has done on previous occasions, mysteriously excluded the treating doctors’ reports from the claimant’s file. Curiously, it seems that whenever a submitted document is missing from a claimant’s folder while being reviewed by the State agency, the document is always one that includes a doctor’s opinion that a claimant lacks the functional capacity to work.
Once a State agency denial is appealed to the Social Security Administration (“SSA”) hearing office, I can access the efolder. When I reviewed the nurse’s efolder and learned the disability reports were missing, I immediately resubmitted them, together with the Electronic Records Express receipt for showing that the State agency had received those reports on July 12, 2011 at 3:51 and 3:55 PM EST. Fortunately, the SSA Staff Attorney then approved the SSD application promptly without the need for a hearing, after I supplied him with an updated report that he had requested. Unfortunately, the State agency unnecessarily delayed the approval of the claimant’s benefits for a year.
Firefighter Awarded SSD
I represent a 51 year old firefighter with pulmonary problems whose Social Security Disability (“SSD”) application was approved today. I had submitted the medical report from the New York City Medical Board that concluded the claimant was disabled from working as a firefighter. While not binding, the decision of another agency must be considered and given weight under the Social Security rules.
The Fire Department is obviously better equipped to determine if a firefighter is fit for duty, and its disability determination decision is usually accepted by Social Security Administrative Law Judges (“ALJs”). However, firefighters also have to prove that they cannot perform other work to receive SSD benefits. That is why it may be advisable to submit not only the Fire Department notice approving disability retirement, but also the Medical Board report discussing the medical reasons that support the disability retirement.
In this case, the ALJ cited the Medical Board as evidence supporting the firefighter’s entitlement to SSD benefits. As the claimant was over 50 years of age, based on the applicable medical-vocational rule, the firefighter only needed to show that he could not perform light work, which is more strenuous than sedentary work, to receive SSD benefits.
The treating pulmonologist concluded that the claimant lacked even a sedentary work capacity. The ALJ accepted the opinion of the treating pulmonologist in large part because it was consistent with the findings of the Fire Department Medical Board. There are circumstances where a City Medical Board report could serve as the basis for an ALJ to deny SSD benefits, so consult an attorney before doing so.
Obesity & Disability
According to the Mayo Clinic, obesity, which is an excessive amount of body fat, increases your risk of diseases and health problems. The National Institutes of Health (“NIH”) established medical guidelines that classify overweight and obesity in adults according to Body Mass Index (“BMI”). A BMI of 30.0 or above is considered obese.
The Social Security Administration (“SSA”) recognizes that obesity is a condition that can contribute to disability. The SSA used to have a listing for obesity, but it was eliminated in 1999. However, the SSA rules still accept that the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately.
I represent a pizza deliveryman who became unable to work when he was 51 due primarily to knee problems. The claimant’s orthopedist concluded that the knee problems were severe enough to prevent the claimant from working. The Administrative Law Judge (“ALJ”) noted that the claimant’s BMI was 30.4, and determined that he was disabled.
In arriving at his conclusion, the ALJ noted that an obese person with arthritis may have more pain and limitation than if he was not obese. Additionally, the ALJ stated that obesity may limit a person’s ability to sustain activity on a regular and continuing basis on a 8 hour, 5 day week, basis. In short, while the SSA may not find a claimant disabled due solely to obesity, obesity should strengthen many disability claims that are based upon musculoskeletal, respiratory, and cardiovascular impairments.
Videotaping IMA Consultative Examinations
An Administrative Law Judge issued a favorable decision today that approved the Social Security Disability (“SSD”) application of my client, a former firefighter, without requiring a hearing.
The State agency had denied the claimant’s SSD application on the fraudulent grounds that the claimant had failed to be examined by its doctors from Industrial Medicine Associates (“IMA”). That assertion was untrue. The claimant was ready, willing, and able, to be examined by IMA, and appeared at IMA’s office at the designated date and time for his consultative examination (“CE”). However, IMA refused to proceed with the CE because the claimant brought a camera to videotape the CE. In other words, it was IMA, not the claimant, who refused to proceed with the CE.
There is no rule, regulation, statute, guideline, or case law that precludes an SSD claimant from recording his or her CE. There have been countless times where IMA doctors have been banned from performing CE’s, or their opinions have been rejected, after substantial evidence or cross examinations showed they falsified CE findings. If IMA doctors perform CEs in accordance with the regulations, then they should have nothing to hide, and should have no problem with the videotaping. Videotaping an IMA CE is consistent with the SSA recording experts and witnesses at hearings. IMA has a protracted history of acting improperly. Read some of my prior entries on this topic: 11/22/10, 6/6/12, 5/17/12, 10/5/11, 6/29/12, 6/16/12, 3/8/10, 8/31/12, 8/11/08, 4/21/10, 6/4/12, 9/8/10, 8/16/12.
IMA has a contract with New York State to perform CEs, for which it gets paid a ton of taxpayer money. Medical Experts at hearings are videotaped, and IMA has no excuse or legal authority to justify its refusal to have its doctors videotaped while performing a CE ordered and paid for by New York State. Perhaps if IMA refuses to perform a large number of CEs when claimants try to videotape them, the State will terminate or refuse to renew its contract with IMA.
Biased Hoppenfeld Decision Reversed
In my September 23, 2011 blog entry, I discussed how a Social Security Disability (“SSD”) case that I had before Administrative Law Judge (“ALJ”) Marilyn P. Hoppenfeld mirrored the allegations in the Padro v. Astrue class action lawsuit. The Amended Complaint in Padro, which can be downloaded from my web page’s Resources tab, alleges that Hazel C. Strauss, David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, and Hoppenfeld, are the ALJs from Queens (the “Queens Five”) who are biased against claimants.
The first two plaintiffs named in the Amended Complaint are my clients. Each had their Social Security Disability (“SSD”) application denied by one of the Queens Five. Each case has now been remanded. Each has now been approved without a hearing.
The claimant filed her SSD application in 2003. Because of ALJ Hoppenfeld’s bias, the claimant had to wait many extra years to get her past due benefits, upon which she will receive no interest. The cost to the Social Security Administration was needlessly excessive as ALJ Hoppenfeld required countless hearings and experts. Hoppenfeld’s actions were a waste of tax dollars.
Hopefully, Padro will result in many claimants whose applications were denied by the Queens Five, including ALJ Hoppenfeld, receiving new hearings. Please contact our office if you would like more information about the Padro ALJ bias class action.
Ileocolic Resection is the removal of the end of the small bowel and beginning of the colon with the two ends being joined back together. It can be required for a variety of reasons, including Crohn’s Disease.
I have a client whose ileocolic resection left her with chronic diarrhea that would occur without warning. As a result, the claimant said she needed constant bathroom access, which her gastroenterologist confirmed. Furthermore, her gastroenterologist stated that the claimant would need half hour bathroom breaks multiple times a day at work, and that her condition would cause her to miss more than three days of work each month.
The claimant’s application for Social Security Disability (“SSD”) benefits was approved today without a hearing. It is somewhat unusual for a claimant with a “non-exertional” impairment to have an SSD application approved without a hearing. A non-exertional impairment is one that does not affect the person’s ability to sit, stand, walk, lift, carry, push, or pull.
A case involving a non-exertional impairment is more difficult to establish than an exertional impairment that affects a person’s strength, that is, the person’s ability to sit, stand, walk, lift, carry, push, or pull. Sometimes it may be necessary to obtain a vocational assessment to establish disability based upon a non-exertional impairment.
If you are unable to work due to a medical condition, even though you have no problem sitting, standing, walking, lifting, carrying, pushing, or pulling, then you would be well advised to consult with an attorney experienced in handling disability matters.
ALJ Bias Overcome
Padro v. Astrue is the class action filed against Hazel C. Strauss, David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, and Marilyn P. Hoppenfeld, who are Social Security Administration Administrative Law Judges (“ALJs”) from Queens (the “Queens Five”). The Padro Amended Complaint, which can be downloaded from my web page’s Resources tab, alleges that the Queens Five are biased against claimants.
One of plaintiffs named in the Padro Amended Complaint is my client. She applied for Social Security Disability (“SSD”) benefits in April 2006. ALJ Nisnewitz denied the application in July 2007, but the Appeals Council remanded the case back to him in February 2009. In September 2009, ALJ Nisnewitz denied the application again, and the Appeals Council refused to review the claim, so I appealed to federal court.
The federal district court judge, Dora Irizarry, rejected Nisnewitz’s decision for many of the reasons asserted against him in the Padro bias class action. In fact, Judge Irizarry complained about Nisnewitz’s “contentiousness,” and ordered that the case be heard by a different ALJ.
The claim that Nisnewitz denied twice was approved today by another ALJ – without a hearing. However, because of ALJ Nisnewitz’s bias, the claimant had to wait three times as long as it should have taken the claimant to get her past due benefits. In the interim, she received no interest, and the cost to the SSA was needlessly excessive, as ALJ Nisnewitz required extra hearings and experts. Nisnewitz’s actions were a waste of tax dollars.
Padro is in the process of being settled. The settlement should result in many claimants whose applications were denied by the Queens Five receiving new hearings. Please contact our office if you would like more information about the Padro ALJ bias class action.
Updating Medical Evidence
A State agency makes the initial decision whether or not to approve an application for Social Security Disability (“SSD”) benefits. If the State agency denies the application, then the next step in New York is to request a hearing before an Administrative Law Judge (“ALJ”) at the Office of Disability Adjudication and Review (“ODAR”).
After ODAR receives an appeal, it sends the claimant an introductory letter that discusses the procedures at the hearing level. One of the things that the introductory letter advises the claimant is that additional evidence should be provided. Typically, the letter will state, “Giving us evidence early can often help us review your case sooner.”
I represent a 48 year old truck driver whose SSD application was denied by the State agency, and I requested a hearing on July 23, 2012. On August 25, 2012, I submitted a new report from the claimant’s orthopedist, which contained information similar to a report that I had previously submitted from the orthopedist. A week later, a decision was made to approve the claim.
It is possible that the claimant’s SSD application eventually would have been approved even if the second report from the orthopedist had not been submitted. However, submitting the new report acted as a trigger for the claim file to be reviewed, which resulted in an approval without a hearing. Even if additional medical evidence appears cumulative, it should be provided to the ODAR.
Should I Take Early Retirement?
People who cannot work, who are approaching or have reached age 62, regularly contact me to ask if they should take early retirement from Social Security. If the medical reason why you cannot work is not life threatening, then it usually makes sense to avoid early retirement. However, rather than comparing the benefits of early versus normal Social Security retirement, you should consider the possibility of Social Security Disability (”SSD”) if a medical condition prevents you from working.
If you are found disabled, your SSD benefits should be paid at the higher “full retirement age” rate, instead of the discounted “early retirement” rate. I have found that when people pursue SSD and early retirement, the SSD application tends to be denied, which is why I usually advice against seeking the latter. Moreover, when both benefits are sought, the applications take much longer than usual to get processed.
IMA Disability Services
After you apply for Social Security Disability (“SSD”) benefits in New York, you will be sent a letter from the Office of Temporary and Disability Assistance (“OTDA”), or will receive a call from IMA Disability Services, telling you that you “must” be examined by an IMA doctor. Sometimes, IMA will even say that your application will be denied if you do not go to the exam. For some reason, the IMA appointments are automatically scheduled without any investigation as to whether or not they are really needed.
I represent a 50 year old nurse whose SSD application was approved today, even though she had previously received a letter from OTDA telling her that it was “necessary” for IMA to examine her, and that she “must” attend the appointment. Why are claimants told to to go the IMA when the rules and regulations clearly state that the treating physicians are the preferred sources for exams? Why are claimants told they have to go to IMA exams in virtually every case when it is not true? The answer may have nothing to do with a claimant’s medical evidence.
The OTDA pays IMA a great deal of money for examining claimants, which money comes from our taxes. The fact that the OTDA automatically pays for IMA exams that are not necessary means that tax revenues are being wasted. Even if an exam were actually necessary, the why doesn’t the OTDA ask the claimants’ doctors to do the exam, especially since many would do so without requiring payment from the OTDA; that is, without cost to the taxpayer? How much do taxpayers pay IMA annually for unnecessary exams?