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?
I represent a carpenter with an arthritic neck, back, and shoulder, carpal tunnel syndrome, and sleep apnea, who was awarded Social Security Disability (“SSD”) benefits yesterday. However, the decision approving the SSD benefits did so on grounds that were not entirely correct.
The claimant was 49 years and 10 months old at the time he became disabled. A “borderline” situation exists where the claimant is “within a few days to a few months of reaching an older age category. The claimant would have reached an older age category in two months when he became 50 years old. Under similar “borderline” circumstances, the courts have refused to apply the medical-vocational rules mechanically, and have applied the older age bracket. For example, in Davis v. Shalala, 883 F.Supp. 828, 838 (E.D.N.Y. (1995), the Court ruled that the claimant, who was three months shy of his 50 birthday, should have been treated as if he were in the 50 year old category.
If the claimant had been treated as a 50 year old, then even if he had a sedentary work capacity, the medical-vocational rules would have required that he be found disabled. The claimant’s arthritis specialist and his neurologist both said the claimant lacked a full time sedentary work capacity. While the Administrative Law Judge (“ALJ”) determined that the claimant had a full time sedentary work capacity, as noted above, applying the borderline case doctrine, the claimant should have been found disabled under the medical vocational rules.
For some reason, the ALJ did not apply the borderline case doctrine, and therefore, did not find the claimant disabled under the medical vocational rules. Instead, the ALJ required a hearing at which he called a vocational expert (“VE”) to testify. The VE testified that given the claimant’s vocational background and physical limitations, there were no jobs that he could perform, and the ALJ accepted that testimony to award SSD benefits.
Had the ALJ applied the borderline doctrine, which is contained in the hearing rules known as the HALLEX, then there would have been no need for a VE. In fact, there would have been no need for a hearing as the medical vocational rules required that the claimant be found disabled.
If you were denied Social Security Disability (“SSD”) benefits by an Administrative Law Judge (“ALJ”) in Jamaica, Queens, then you should be following the Padro v. Astrue, Civ. No. 11-1788 class action. The lawsuit alleges that ALJs David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”) deny SSD claims because they are biased against claimants. A copy of the Amended Complaint filed in Padro can be downloaded from the Resources tab on my web site.
Two of the named class action plaintiffs in Padro are my clients. Both of their claims were recently remanded for new hearings. It appears that the remands are a prelude to the class action being settled.
The U.S. Attorney’s office represents the Queens Five. Recently, the U.S. Attorney’s sent a letter to Roanne Mann, who is the Magistrate Judge assigned to the Padro case. The letter provided plaintiffs’ counsel with a proposed formal settlement agreement to review. The parties will file a status report with Magistrate Judge Mann on September 10, 2012.
In connection with the settlement, it appears that the Queens Five have already been sent for some retraining. Additionally, a new ALJ has been installed to replace Nisnewitz as the Chief ALJ.
Among other things, the Amended Complaint seeks new hearings for disability claimants whose applications were denied by the Queens Five during the “Class Period.” Hopefully, the settlement agreement will provide that relief. While the “Class Period” has not been disclosed, presumably it will cover thousands of previously denied applicants seeking SSD and Supplemental Security Income (“SSI”) benefits.
There are questions concerning the final settlement terms. What did or will comprise the retraining, and how will it differ from training previously received by the Queens Five? What happens if the retraining fails? What measures have been put in place to ensure that the Queens Five don’t revert to their old ways after retraining? If a claimant receives a decision from the Queens Five that makes the same type of mistakes that led to the class action, will the Appeals Council or other entity have the authority to take any corrective action?
When the court approves the final settlement agreement, I will make a copy available for downloading from the Resources tab on my web site. That order should contain information that identifies who is eligible to have their SSD and SSI claims reheard.
Please contact our office if you would like more information about the impending settlement to see if you will be eligible for a new hearing. If you are notified that you fall within the class and are entitled to a new hearing, consider hiring us to represent you even if you had another attorney previously. Troy Rosasco and I were the only two attorneys who submitted affidavits on behalf of the plaintiffs in the class action, and we have been instrumental in fighting for our clients before the Queens Five for bias for over a decade.
A 49 year old business owner asked me to take over his Social Security Disability (“SSD”) case from Binder & Binder because he said they failed to service his claim properly. He also complained that he kept getting assigned new “advocates” at Binder & Binder, who were not attorneys, and they never returned his calls on a timely basis. I regularly am asked to take over cases from people who are being represented by Binder & Binder.
Binder & Binder attracts thousands of clients by spending millions of dollars on television advertising. They may have won more cases than anyone, but they have also lost more. They run their SSD practice as a business; they don’t call themselves a law firm, and experience has shown that you will have difficulty speaking with an attorney.
When I was the Senior Litigator at Binder & Binder, some clients complained that they never even had the opportunity to speak with an attorney until a few minutes before their hearing. I get my clients through referrals, and every one of them is important to me. People retain me because they know they are not a statistic in a mass production business. I run my practice as a profession, I operate a law firm, and you will be able to speak with me, and as a lawyer, your communications with me are privileged.
The Social Security Administration (the “SSA”) has taken various steps to try to reduce the backlog of disability claimants who are waiting for their hearings. Among other things, the SSA now provides online access for attorneys to the eFolders of their clients, whose cases are pending at the hearing offices. EFolder access was intended to save time and money, which it frequently does. However, I have found that evidence that I have submitted fails to find its way into the eFolder way too often.
On a weekly basis, either I have to resubmit records after reviewing an eFolder and learning that a document is missing, or I receive a call from the SSA asking me to resubmit a record that I referenced in another document that managed to make its way into the eFolder. Curiously, it is typically the most salient and supportive documents that fail to find their way into claimants’ files.
On August 13th, in preparation for a hearing on August 20th, I reviewed the eFolder, only to learn that a report from the claimant’s treating eye specialist was missing. I had already submitted the report twice; the second after a prior eFolder review had also revealed that the report was missing. The case was an onset appeal covering the April 10, 2011 to September 1, 2011 time period. The partially favorable decision was based upon a DDS doctor, who said the claimant met a listing based upon a letter from the eye doctor. However, the eye doctor did not say the claimant became disabled as of September 1, 2011; to the contrary, as stated in the missing letter, the eye doctor stated that the claimant became disabled as of March 2011.
I resubmitted the missing report again, and also pointed out that the DDS analyst who denied the case, stated that the claimant became disabled as of September 2011 because that is when the claimant met a listing. I explained that even if true, a claimant does not need to meet a listing in order to be entitled to disability benefits, and that the eye doctor made it clear that the claimant worked beyond her capacity to do so.
The final sentence of my letter was that, “I suspect that if the ALJ had seen the attached that a hearing probably would have been unnecessary.” Apparently, the ALJ agreed because yesterday, I was notified that the claimant’s hearing was cancelled because her onset appeal was being approved.
The eFolder has been a positive step for the SSA. For example, it avoids attorneys having to go to hearing offices to view files, saves the SSA from scheduling and supervising the folder reviews, reduces evidence getting placed into wrong folders, and allows more than one person to access a claimant’s file simultaneously. However, vigilance is still required to ensure that the submitted evidence becomes an exhibit after the eFolder is assembled.
Last May, I filed an application for Social Security Disability (“SSD”) benefits for a 48 year old steamfitter. Three weeks ago, I received a letter from the State agency stating that it was “necessary” for my client to be examined by IMA Disability Services (“IMA”). The letter further stated that my client “must keep this appointment at the time and date indicated.” The State agency should be barred from using the words “must” and “necessary,“ which mislead claimants into believing that they are required to attend the IMA consultative examination (“CE”).
I sent the State agency a letter detailing the many reasons why I objected to the IMA CE. I never received a response from the State agency regarding my objections. Today, I received a fee check for the claimant, which means that the State agency approved the SSD application. As I had contended in my objections, the IMA CE was not actually necessary.
The Office of Medical and Vocational Expertise (“OMVE”) provides expert advice and supports the disability determinations process of the Social Security Administration (“SSA”). The OMVE oversees medical, psychological, and vocational experts who assist the various units within the SSA that can approve Social Security Disability (“SSD”) benefits.
The SSD backlogs at the hearing offices have led them to refer cases to the OMVE for an expedited review, which could include additional evidence development. I have had an increasing number of claims transferred to the OMVE this year, which is part of the SSA’s attempt to reduce backlogs. The transfers have always involved older applicants.
Upon transfer, the OMVE asks for additional evidence. I try to provide something new to help the OMVE justify an approval. The Baltimore OMVE approved a case today for a 56 year old former warehouse stock clerk after I submitted a report from the claimant’s podiatrist. I had already submitted reports from the claimant’s neurologist, orthopedist, and chiropractor.
The OMVE has approved about the half of my cases transferred to it. I have not submitted additional evidence each time. However, each time that I have submitted new evidence, the OMVE has approved the claim.
In his recent op ed, “We need to rethink disability policy,” Charles Lane parrots Conservative attacks on Social Security Disability (“SSD”).
Among other things, Mr. Lane wrote that SSD applications have increased because “laid off workers turn to disability when unemployment benefits run out.” Commissioner Michael Astrue, who was appointed by President George W. Bush, made the same offensive statement last year in the Newsday article “Soc. Sec. disability in peril” [News, Aug. 22]. The article discussed how the SSD program is in financial trouble as aging baby boomers and laid-off workers file large numbers of claims.
Mr. Lane concedes that some of the increase in SSD applications is due to the aging of the population. One should expect disability claims to increase as more people near retirement age, since older workers are more likely to have medical problems that render them unable to work. However, Mr. Lane ignores the obvious; that SSD applications have increased in large part because the population has increased. Furthermore, he overlooks that many laid-off workers were allowed to work with special accommodations, especially those who had developed good will with their employers over many years.
The crux of Mr. Lane’s editorial is that our SSD policy must change because it provides too much incentive for people not to work. He states that the average monthly SSD benefit is $1,100, or $13,200 a year. According to the U.S. Dept. of Health & Human Services, the poverty level for a family of three is $19,090. According to the U.S. Dept. of Labor, the minimum wage is $7.25 an hour, which translates into an annual salary of $15,080 for someone who works a 40 hour week. According to U.S. Today, the average median income last year was about $50,000. It hardly seems that SSD policy is creating an incentive for people to feign that they are incapable of working.
Many people who consult with me about potential Social Security Disability (“SSD”) benefits are surprised to learn that they do not need to be disabled and out of work for a year before applying. While the regulations do say that you need a medical condition that has lasted for at least 12 months in a row to become eligible for SSD benefits, they also say that you can qualify for SSD benefits if you have a medical condition that can be expected to last for 12 months.
It frequently makes sense to file for SSD benefits before you have been unable to work for 12 months, especially since the initial decision by the State agency usually takes at least half a year. I represent a 52 year old bus driver whose application was approved today. The claimant had applied on March 12, 2012, claiming that he became disabled on September 19, 2011, less than 6 months after his medical condition disabled him.
I took the case over from another attorney in late June after the application was denied. Upon receiving access to the claimant’s efolder, I corrected erroneous vocational information in it, and requested medical reports, which I submitted last month. The application was approved today, 11 months after his condition became disabling, based upon an on-the-record request I filed for a fully favorable decision.
If the claimant had waited 12 months before filing his SSD application, that is September 2012, then he probably would not receive a decision until March 2013 at the earliest. Cash flow was extremely problematical for the claimant so the relatively quick approval was important.