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Medical Expert Interrogatories

In Social Security Disability (“SSD”) cases, an Administrative Law Judge (“ALJ”) can submit questions, called interrogatories, to a Medical Expert (“ME”). After the ME responds to the interrogatories, the ALJ must provide a copy of the response to the claimant and the representative and notify them of the right to comment, submit further relevant evidence, propose additional interrogatories to the ME, and request a supplemental hearing with opportunity to question the ME at the supplemental hearing. The ALJ is also required to provide the claimant and the representative with the opportunity to review the ME’s response before the ALJ makes it an exhibit, unless the evidence supports a fully favorable decision.

I took over the SSD case of a 46 year old former police officer, now residing in Las Vegas, from another attorney after her application had been denied and she was scheduled for a hearing. While preparing the claimant for her testimony about a week before the hearing, I learned that the ALJ had received responses to ME interrogatories.

Because I had not been notified about interrogatories being submitted or responses received, it left only one of two possibilities. First, it could and should have meant that the interrogatory responses supported a fully favorable decision. Alternatively, it could have meant that the ALJ violated the procedural rules discussed above, which would provide concrete grounds for an appeal. Fortunately for the claimant, just a couple of hours before she was due to fly to New York for her hearing, the ALJ’s assistant notified us that he was approving SSD benefits and cancelling the hearing.

Patchogue Ineptitude

When applying for Social Security Disability Benefits, there are multiple forms that require the claimant’s signature. As of 2010, the Social Security Administration (“SSA”) requires you to file an original signature, or as SSA refers to it, a “wet” signature, for forms SSA 16 and SSA 827. I submit all the paperwork on your behalf. I fax your entire application to your local/field SSA office, and mail your original signatures on the SSA 16 and SSA 827. I use this same process with each and every claim I submit to field offices located throughout the country. The process works smoothly, that is except for the field office located in Patchogue.

Very simply, all the local office has to do is open the mail that I sent them, take out the original documents that are enclosed, and associate them with the application that I faxed. The faxed documents have a cover letter explaining that while I am faxing all of the attached forms, I am also mailing the original SSA 16 and SSA 827. Incredibly, each and every time we mail the original documents to Patchogue, they claim to never receive them. Is it possible that the USPS has a vendetta against the Patchogue office that results in mail being lost? I don’t think so. No other office anywhere in the country has a problem with receiving my mail, and associating the documents with claim files.

Continuing problems with Patchogue has forced me to contact the Social Security Public Affairs Branch on numerous occasions to assist getting the applications processed. Not surprisingly, shortly after I contacted Public Affairs, I received the “filing” receipt from the Patchogue office, which means they were able to find the forms they claimed to never have received, and process the claimant’s application.

Beware when dealing with the incompetents at the Patchogue field office. I now ask my clients to sign the SSA 16 and SSA 827 in duplicate when they live within the Patchogue office’s jurisdiction because I know that Patchogue will claim they never received them. It is noteworthy that Patchogue claims never to have received mail I sent them even when it was sent certified. In fact, it happened so many times that I stopped sending certified mail to Patchogue because it served no purpose. To avoid delays due to Patchogue’s incompetence, make sure you sign extra copies of forms SSA 16 and SSA 827.

Emphasizing Work History

When applying for Social Security Disability (“SSD”) benefits, you are only required to provide information about the work you did during the last 15 years. However, that does not necessarily mean that you should restrict yourself to that time period. The longer your work history, the more you want to consider providing your entire work history.

An important aspect of an SSD claim is the determination of whether your statements about your inability to work due to your symptoms is credible. One way to bolster your credibility is by demonstrating that you have a good work ethic. The courts have consistently held that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability, especially when it is with the same employer, and it justifies the inference that the claimant stopped working for the reasons provided.

I represent a 55 year old field technician who worked for Verizon for over 30 years. I submitted papers arguing that there was no need for a hearing to assess the claimant’s credibility because his strong work history with the same employer was objective evidence establishing his credibility. His SSD application was approved today. When discussing the claimant’s credibility, the decision took special “note that the claimant has an excellent work history, having worked for Verizon for over 30 years.”

Reopening Disability Applications

An application for disability benefits can be reopened for good cause. If a prior application is reopened, then the earlier filing date is used to calculate benefits, which can result in additional benefits being awarded.

I represent a claimant who became disabled on June 10, 2009. I filed her application for Social Security Disability (“SSD”) benefits on June 28, 2011. While reviewing the claimant’s efolder, I learned that the claimant had filed an application on her own on December 8, 2009, which she had forgotten about. I made a motion to reopen that application.

Last month, I received a fully favorable decision for a Social Security Disability (“SSD”) application. However, that decision was not actually fully favorable because it did not address my motion to reopen. Therefore, I submitted a request that the decision be reopened and amended to address the prior application. Today, I received a reopened and revised decision to reflect the December 8, 2009 application date. As a result, the claimant will receive an additional 18 months of SSD benefits.

What is NY Waiting For?

In 2002, as amended in 2004, the National Association of Insurance Commissioners issued a model act entitled “Prohibition on the Use of Discretionary Clauses” (the “Model Act”). When an insurance company issues a group disability policy, a discretionary clause grants the insurer or administrator the authority to determine eligibility for benefits and to interpret terms and provisions of the policy. The purpose of the Model Act is to prohibit clauses that purport to reserve discretion to the insurer to interpret the terms of a disability insurance policy.

On March 27, 2006, New York State Insurance Department issued Circular Letter no. 8 that adopted the Model Act. However, the insurance industry pressured the Insurance Department into withdrawing the Model Act just three months later in Circular Letter No. 14 on June 29, 2006. In Letter No. 14, the Insurance Department stated that because it believed that the use of discretionary clauses are contrary to the State insurance laws, it was “drafting regulations that would prohibit the use of discretionary clauses in all new and existing accident and health insurance policies, life insurance policies, annuity contracts and subscriber contracts upon renewal, modification, alteration or amendment on or after the effective date of the regulation.” To date, no such regulations exist.

Discretionary clauses place the insured at a disadvantage when litigation ensues over the meaning of the insurance contract because they commandeer much of the judge’s authority in deciding the case, and foster the insurer’s inherent conflict of interests in being both the entity that pays and the entity that decides what does or does not need to be paid. Where an insurer both determines whether an employee is eligible for benefits and pays those benefits out of its own pocket, there is a conflict of interest. A discretionary clause requires the court to defer to the insurer’s interpretation of the contract and will only overturn the insurer’s position if the court finds it was arbitrary and capricious. As the New York Insurance Department said when it originally banned discretionary clauses in 2006, where the clauses are present, “policies, contracts and certificates may be rendered illusory by nullifying the insurer’s responsibility to pay.”

Discretionary clauses unreasonably skew the balance of power further in favor of the insurer. The insurer knows it can win a lawsuit even if it made the wrong decision under a deferential standard. If discretionary clauses are prohibited, the court applies a de novo standard of review and is free to substitute its own judgment for that of the insurer, which levels the playing field.

Illinois is one of the States that has adopted the Model Act. Barrett v. Life Insurance Company of North America, a CIGNA company, was issued on June 14, 2012. Based on the Illinois law that adopted the Model Act, the court ruled that, “review will be de novo rather than measured against an arbitrary-and-capricious yardstick.” How long must New Yorkers wait for similar protection?

When Objective Evidence Isn’t Enough

When applying for Social Security Disability (“SSD”) benefits, a request for a fully favorable decision on the record (“OTR”) will be granted if the claim is sufficiently supported by objective evidence. If not, then a hearing is needed so the Administrative Law Judge (“ALJ”) can assess the testimonial and non-medical evidence, and the emphasis at the hearing should be on that evidence.

I represented a 49 year old sanitation worker at a hearing after his OTR was denied. There were three points that I emphasized at the hearing; none of which concerned the medical evidence.

First, that the claimant performed unskilled work because that is all he is capable of, having attended special education from kindergarten through high school due to reading and comprehension problems that the school system considered “severe disabilities.” Second, the claimant, who worked for a New York State municipality, was found disabled under the New York State Retirement and Workers Compensation Systems. While those disability determinations were not binding on the ALJ, they certainly were in a better position to determine if the claimant could do his past work than the ALJ. Third, the claimant had been earning $70,000 annually. Therefore, I argued that it made no sense to contend that the claimant stopped working and was faking his disability so he could get about $1,887 a month in SSD benefits, which was less than a third of what he earned.

While the claimant’s OTR was denied, his SSD benefits were approved after the hearing. The only difference was the delving into the non-medical evidence. The only time it makes sense to focus on the objective evidence is when you are dealing with an ALJ who is known to deny well supported claims. In those instances, clearly describing the supporting objective on the record should improve the chances of a remand, since the Appeals Council seems to review hearing testimony closer than the documentary evidence.