November 2013 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Tuesday, November 26th, 2013

Common Sense

Multiple Sclerosis (“MS”) is a chronic and often disabling disease. When seeking Social Security Disability (“SSD”) benefits based on MS, the strongest evidence is that which shows the claimant meets the MS MS “listing.” If you establish that you meet the criteria of 11.09 for MS, then you are presumed to be disabled, and no further medical or vocational development is required to establish entitlement to SSD benefits. The listing opinion should come from the treating neurologist.

Because the symptoms of MS frequently wax and wane with remissions, it is sometimes difficult to get SSD approved, even with a supporting listing opinion. I was retained by a 48 year old Printer Graphic Designer after his SSD application had been denied twice on the grounds that he could do sedentary work. The claimant had been earning over $120,000 annually.

I filed papers contending that a hearing was not needed to evaluate the claimant’s credibility because the only issue was whether he was exaggerating his claim that he lacks the ability to perform sedentary work in order to receive SSD benefits equal to an eighth of his working income. It was common sense that the claimant would have continued to work if he could. The Administrative Law Judge agreed, and approved SSD benefits today.

Wednesday, November 20th, 2013

Pre-onset Medical Evidence

Disability applications require applicants to provide a date when they could no longer work. The claimant has the burden of proving that he or she became unable to work as of the onset date due to medical reasons. However, just because medical evidence may predate the relevant disability onset date, does not mean that the evidence is irrelevant.

Medical records and reports that predate the disability onset can be used to establish disability as of the onset date, and thereafter. If the claimant’s post onset symptoms relate to the pre onset condition, then the records should be relevant to show that the severity of the condition progressed. While this may seem obvious, I had a Social Security Disability (“SSD”) claim denied by an Administrative Law Judge (“ALJ”) from Queens who asserted that medical evidence predating the onset date was irrelevant. That case was eventually reversed in the claimants’ favor.

I represent a claimant whose SSD application was approved by an ALJ from Jericho today, but only after providing pre onset medical evidence. Due to lack of medical insurance, the claimant had relatively little post onset medical evidence. However, medical records shortly before the onset included diagnostic testing that clearly established a progressive medical condition. The ALJ relied on the diagnostic testing in order to establish the onset date, as well as subsequent symptoms that supported continuing disability.

Friday, November 15th, 2013

Aetna Reverses LTD Termination

I represent a former marketing sales manager with narcolepsy and Chronic Fatigue Syndrome (“CFS”) whose LTD benefits were terminated after she attended an independent medical exam (“IME”). Disability insurers usually ask claimants to attend an IME when all of the evidence submitted supports entitlement to benefits.

Insurers pay for an IME in order to manufacture contradictory evidence when all the evidence shows a claimant cannot work. When an insurer makes the commitment to incur the expense of an IME it normally means that it has already decided to terminate the claim. In the absence of evidence showing that the claimant’s medical condition has improved, the insurer knows that it must pay an IME to support the termination, which typically involves the IME doctor claiming that the objective evidence does not support the treating experts’ restrictions and limitations.

Insurers will claim that an IME is needed to clarify the medical restrictions and limitations even where the treating experts provide very detailed functionality assessments. The insurers will simply fail to provide any reason for requesting the IME, which proves that there is no legitimate reason for the IME, other than to create a written report to support the predetermined financial incentive to terminate the claim.

IMEs are not “independent” in the sense of unbiased, or fair and equitable. The purpose of an insurer’s IME is to have the claimant examined by a doctor who is in the pocket of the insurance industry for the purpose of agreeing with all internally provided medical reviews supporting non-payment of claims. Insurers argue that “independent” means an examination by a physician who never examined the claimant. Notably, a CIGNA managing agent recently testified that an IME is only independent if hired by CIGNA – and that doctors hired by a plaintiff who never examined the plaintiff are not independent.

Because insurers paying a lot of money for an IME, they rely solely on the IME, and give no consideration to the claimant’s treatment records and medical restrictions and limitations from the treating physicians that preclude work. If that were not the case, then insurers would have to pay disability benefits when the evidence supports continued disability without requiring an IME.

The primary problem with Aetna’s termination was that it ignored all of the evidence in favor of the IME. Besides the fact that Aetna’s own in house doctor said that the IME should be performed by a sleep specialist, the IME was performed by a neurologist, with no narcolepsy or CFS experience, which focused on the claimant’s physical capabilities and memory, but disregarded the narcolepsy and CFS. Significantly, the IME stated the claimant could work in an occupation that was “well supervised.” I obtained a detailed vocational evaluation which stated that all of the occupations Aetna said the claimant could do required the ability to work independently, complete deadlines and handle many tasks at one time, and none of those occupations were well supervised. Confronted with concrete evidence undermining the premise for the termination, Aetna reversed its decision.