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Hearing Wait Gets Worse

According to statistics provided by the Social Security Administration (“SSA”), there has been a steep increase in the amount of time hearing offices take to process disability claims. It now takes about 450 days on average for a claimant to get a hearing, which is about 100 days longer compared to 2012.

An SSA audit from November stated that the hearing backlog is nearing a million cases. One cause is that the SSA changed the rules late last year to make it more difficult for attorney advisors to issue favorable decisions. The SSA seems to attribute the increasing delays to budgetary problems.

Internists’ Disability Opinions

The Social Security Administration (“SSA”) gives greater weight to the disability opinion of a specialist than an internist, who frequently is considered to be a generalist. Many people do not even think to ask their internists to complete reports to support their disability application, which is a mistake.

An internist can be the most appropriate physician to provide a disability opinion in many circumstances. For example, when a claimant has multiple, different types of impairments your internist is probably the best person to ask for an opinion as the physician most knowledgeable about all of your medical problems. An internist is also usually responsible for continuing care after other specialists have completed their job, such as a surgeon who may only follow up once after the operation.

The SSA approved two cases this week based on the medical information that internists provided. One claimant was a 54 year old home health aide with orthopedic impairments, diabetes, and carpal tunnel syndrome, while the other was a 44 year old nurse with orthopedic problems and anxiety. Each internist gave functional assessments and narrative information that explained why the claimants lacked the ability to work on a full time basis.

Binder & Binder Goes Bankrupt

The Wall Street Journal (“WSJ”) and Reuters reported that Binder & Binder filed for bankruptcy late yesterday. Those filings indicate that Binder plans to close offices and reduce its staff from about 1,000 to about 350. It remains to be seen how that reduced staff can handle Binder’s nearly 58,000 clients.

The WSJ has been critical of Binder & Binder for many years. While I was wary about the WSJ’s contention that Binder & Binder engaged in fraudulent conduct, I did suggest that when selecting a Social Security law firm, to make sure that an attorney would be the person representing you. Most of Binder & Binder’s employees are not attorneys, which, among other things, means your conversations may not be privileged.

The WSJ cited tougher scrutiny of disability claims, by Administrative Law Judges who are approving significantly fewer cases, as one of the main reasons for Binder’s problems. Tougher scrutiny created greater problems for Binder & Binder because the majority of its work is performed by non-attorney advocates. I agree with Troy Rosasco, another Social Security Disability attorney, who blogged:

In my opinion, this is a good example why Social Security disability representation should be left to smaller local law firms rather than mega-national corporations with non-attorney advocates. The Social Security Administration should rescind fee withholding for non-attorney advocates which are the steroids allowing Binder & Binder and similar corporations to grow exponentially.

It is clear that the Binder & Binder non-attorney advocate business model may now be imploding on a massive scale, and its reported 57,000 clients are possibly at risk. massive scale, and its reported 57,000 clients are possibly at risk.

A large portion of Binder & Binder’s debt comes from their ubiquitous television advertisements. Binder might stop taking new cases and just work on the cases they already have, which would take two or three years for the majority of claims. Without the cost of advertising, Binder’s expenses would decrease significantly, and they would gradually lay off employees as the numbers of files decrease, while their income would probably stay about the same the same during the same time period.

SSA Form 821

One of the countless forms that the Social Security Administration (“SSA”) uses is SSA-821 “Work Activity Report.”. The SSA asks a claimant who is applying for Social Security Disability (“SSD”) benefits to complete form SSA-821 when it sees the claimant has income after the date when the SSD application says the claimant became disabled, known as the alleged onset date (the “AOD”).

Not all income after the AOD precludes receipt of SSD benefits. I represent a 60 year old extermination service salesperson whose SSD benefits were awarded today even though her form SSA-821 reflected two sources of income after the AOD. However, neither provided grounds to issue a partially favorable decision.

The first source of income represented accrued vacation time, while the second represented unused sick time. Both of those sources of income constitute passive income. A person can receive SSD benefits regardless of the amount of income they receive so long as it is passive income.

Dementia

Dementia is a permanent loss of brain function that affects memory, thinking, language, judgment, and behavior. Dementia is not a disease, but rather, it is a group of symptoms that are caused by various diseases or conditions.

When dementia is caused by a series of small strokes it is known as multi-infarct dementia or vascular dementia. The symptoms of vascular dementia include: confusion; difficulty with attention and concentration; diminished ability to organize thoughts or actions, and to analyze a situation, develop an effective plan and communicate that plan to others; memory loss; unsteady gait; incontinence; and depression.

I represent a 54 year old financial operations consultant with progressive dementia, paresthesias, decreased strength and memory, antalgic gait, headaches and some orthopedic and vision problem as well. The treating cardiologist diagnosed the claimant with vascular dementia from cerebrovascular disease, which was verified by a brain MRI, CT scan, and EP study.

The Social Security Administration found the claimant was disabled today, and therefore, entitled to disability benefits. No hearing was required. A hearing was avoided because the hearing office staff had specified additional evidence that they felt was needed to make a decision, which was promptly supplied. It is vital that the hearing office personnel know that they can rely on your representative whenever it comes to any request for information.

Sensorineural Deafness

Sensorineural deafness, the most common type of hearing loss, occurs either from damage to the inner ear, the auditory nerve that runs from the ear to the brain, or the brain. Leading causes are loud noises, diseases, aging, trauma, and genetics. Symptoms include imbalance, tinnitus, difficulty following conversations and higher pitched sounds.

When the labyrinthine-vestibular impairment causes loss of balance and tinnitus that is accompanied by severe hearing loss, the Social Security Administration (“SSA”) deems the condition to be disabling. To meet the applicable listing, caloric or other vestibular testing is needed to show the vestibular labyrinth disturbance, while audiometry is needed to show the hearing loss.

I represent a 50 year old carpenter with Meniere’s Disease, who had to stop working because of his balance and hearing loss. He treated at the Veterans Administration (“VA”), which conducted the requisite testing to meet the listing. The VA physician wrote a narrative report explaining why the claimant met the listing, which was the basis for the SSA approval. Notably, there is a directive for the VA to help complete forms to obtain SSD benefits.

CIGNA Says Claimant Cannot Do Any Work

Last August, a U.S. District Court reversed CIGNA’s termination [Federal Court Reverses CIGNA] of long term disability (“LTD”) benefits. The court found that CIGNA had failed to identify any evidence that the claimant’s condition improved to justify terminating LTD benefits. However, the Court ruled that while the claimant had proven that he was disabled under the LTD policy’s “regular occupation” period, CIGNA had to be given the opportunity to determine if the claimant were disabled under the policy’s subsequent “any occupation” period.

As more than four months had elapsed, and CIGNA still had not rendered a decision, I faxed a letter warning that I would file a new action unless I received CIGNA’s decision by the end of the week. The following day, I was advised that CIGNA would find the claimant unable to perform any occupation, and was approving continuing LTD benefits. As a result, in addition to LTD benefits, my client will also receive coverage under health, life, and dental policies. It seems to me that CIGNA could save a significant amount of money in administering LTD claims and in attorney fees if it would pay patently supported claims.

Biased SSA Review Policy

A few years ago, the Social Security Administration (“SSA”) created the Division of Quality (“DQ”) and Quality Review Branch (“QRB”), which has increased the number of Administrative Law Judge (“ALJ”) decisions that the Appeals Council reviews on its “own motion.” The ostensible purpose of the DQ was to ensure greater consistency among ALJ decisions. However, as more time progresses, it has become apparent that the true purpose is to try to reduce the number of ALJ decisions that get approved.

My experience and that of my colleagues has been that the DQ has only reviewed clients’ ALJ decisions that have approved disability benefits. Several ALJs have told me that since the DQ was formed, the SSA has been demanding greater justification for approving disability claims, and statistics corroborate that ALJs have been pressured into significantly decreasing their approval rates during the same time period.

The problem is that the SSA is supposed to be a neutral and non-adversarial agency. The DQ should be checking to see that ALJ decisions denying disability benefits are supportable with the same frequency that it checks ALJ decisions approving disability benefits. This lack of mutuality simply amplifies the cynicism about a claimant’s increasing difficulty of receiving a full and fair hearing process.

Videotaping IMEs

For decades, long term disability (“LTD”) insurance companies have routinely videotaped disability claimants both at and away from their homes, engaged in daily activities. The LTD insurers use the surreptitious surveillance to rebut the claimants’ claims of physical or mental limitations caused by their disabling condition.

Courts have admitted the surveillance videotape based on the LTD insurers’ argument that if claimants are telling the truth about their medical conditions, then they should have nothing to hide. Conversely, if claimants are being dishonest, then the videotape is evidence exposing the dishonesty.

There are now small high-definition cameras that are relatively inexpensive that make it easy to conceal videotaping. Disability claimants could and should use these types of cameras to take surveillance videotape when the LTD insurers requires them to submit to a so-called “independent medical examination” (“IME”), which everyone knows is anything but independent. Claimants could use the surveillance to rebut the validity of the assertions made by the insurer’s IME physicians.

Since LTD insurers extensively embrace the use of surveillance videotaping of claimants, it would be hypocritical for the insurers to object to claimants using surveillance videotape of IME doctors. If the LTD insurers argue that they need videotape surveillance because there are dishonest people who commit fraud to reap the monetary gain from disability benefits, then the insurers have to concede that there are also dishonest people who commit fraud to reap the monetary benefit from conducting disability IMEs.

A boilerplate clause in virtually every group LTD policy is the right of the insurer to conduct a medical exam of the claimant, the so-called IME. My experience has been that the insurer IME are doctors, usually with subpar credentials, who have had little success in making a living practicing medicine, and therefore need IME income. These doctors know that if they want to continue to have their income supplemented by IMEs, then they need to deliver reports that the insurers will like; otherwise, they will not receive repeat business.

I have been unable to locate any rule, regulation, or statute that prohibits videotaping an LTD IME. In fact, every time I advise an LTD insurer that my client will videotape an IME, to which they always object, the LTD insurer has been unable to identify any law or contractual provision that would prohibit videotaping an LTD IME. Therefore, since courts have routinely accepted surveillance of disability claimants as evidence submitted by LTD insurers, courts should accept surveillance of IME doctors as evidence submitted by LTD claimants.

There is no reason why a court should reject videotape evidence that shows an LTD IME did not tell the truth, or failed to do what the IME report claimed was done. Inconsistencies between an IME report and IME videotape are no different than inconsistencies between what a disability claimant claims and surveillance videotape purportedly reveals.

Unum Agrees Claimant Can’t Do Any Work

I represent a securities trader with psoriatic arthritis, whose long term disability (“LTD”) benefits Unum was looking to terminate after the definition of disability in its policy changed from own occupation to any occupation in October 2014. As far back as January 2014, Unum had been asking for medical evidence to support the change in definition, which I had been opposing as being premature.

Unum found that the evidence I submitted supported that my client’s condition prevents him from being able to perform any relevant occupation. Consequently, Unum approved making continued LTD benefits.

In its approval letter, Unum asked to be advised if my client’s contact information changed. I have instructed Unum countless times that it may not contact my client directly. Therefore, there is no need for Unum to be advised of any such change. What Unum is not saying is that it wants to know if my client relocates in case it wants to pay for surveillance as a means to terminate his LTD benefits, since the medical evidence does not provide a basis for doing so.

Remand Reversal

Administrative Law Judge (“ALJ”) Bruce MacDougall has retired from the Jericho Social Security hearing office. He had denied the Social Security Disability (“SSD”) application of one of my clients with numerous orthopedic and neurologic impairments, by rejecting the opinions of the treating orthopedist and pain management specialist, even though the opinions were objectively supported.

The Appeals Council agreed that the ALJ failed to provide good reasons for rejecting the treating doctors’ opinions, and remanded. Among other things, the Appeals Council ruled that the ALJ failed to identify any evidence to support his conclusion that the claimant could sit on a “regular and continuing basis” for an 8 hour, five day a week, basis. Consequently, the Appeals Council rejected the ALJ’s decision, ordered a new hearing.

A new ALJ heard the case on remand. As there was no evidence to contradict the opinions of the treating doctors, a vocational expert (“VE”) was asked if the claimant could work based upon the functional findings of the treating doctors. The VE concluded that the opinions of the treating doctors precluded even sedentary work. Accordingly, the claimant’s SSD application was approved.

The remand was relatively simple because there was a great deal of work put into the papers submitted to the Appeal Council. I always prepare my appeal to the Appeals Council as if I were submitting a summary judgment brief in federal court. If the Appeals Council rejects the appeal, I incorporate my Appeals Council comments into the federal court complaint. Fortunately, the new ALJ essentially accepted the arguments made to the Appeals Council, which served as the basis for the remand, obviating the need to proceed to federal court.

Pseudarthrosis

Pseudarthrosis, which is commonly referred to as a nonunion or false joint, is a bone fracture that will not mend because the body perceives bone fragments as separate bones and does not attempt to unite them. Pseudarthrosis occurs from inadequate healing after the fracture, and can result from a failed attempt of spinal fusion. Pain recurs in a very similar location to that before surgery.

I represent a 42 year old grocery store manager with back problems. The State agency denied his Social Security Disability (“SSD”) application even though diagnostic testing revealed lumbar radiculopathy. However, weeks after I submitted a report from the treating spine specialist diagnosing the claimant with pseudarthrosis, his SSD benefits were approved.

Proper Hearing Notice

A colleague stated that, for the second time in two weeks, the Jericho Social Security hearing office added an expert witness just one week before the hearing. He wanted to know if there was a basis for objecting to the short notice. The answer is yes.

Under the Social Security regulations, 20 CFR § 404.938, a hearing notice must be sent at least 20 days before the hearing, and must state if the appearance of any witness is scheduled to be made in person, by video teleconferencing, or by telephone. Furthermore, HALLEX I-2-3-15D requires the notice to include the proper names of expert witnesses.

A hearing notice is defective if it failed to identify the name of a medical or vocational expert at least 20 days before the hearing. The notice would be defective even if it indicated that an expert would appear, but failed to identify the proper name of the expert. For example, a notice that states that the hearing will include testimony from the name of a company that provides vocational services without specifying the individual from that company is defective.

There are two choices when the hearing notice is defective. You can waive the right to receive a proper notice of hearing at least 20 days before the hearing. Alternatively, you can insist that an amended notice of hearing be mailed to include the proper name of the expert, and that notice must be provide at least 20 days notice.

Video Taping Consultative Examination

For virtually every Social Security Disability (“SSD”) claim, the State Agency sends letters to claimants telling them that they have to attend a consultative examination (“CE”). In New York, the State Agency contracted with Industrial Medicine Associates (“IMA”) to perform the CEs.

There is no Social Security ruling, regulation, statute, guideline, POMS, HALLEX, or case law that precludes an SSD claimant from video recording his or her CE. To the contrary, video taping an IMA CE is consistent with the SSA tape recording experts and witnesses at hearings. Notably, section 137 of the Workers’ Compensation law specifies that a claimant has the “right to video tape or otherwise record” an examination.

One of my clients appeared at IMA for his CE. However, the IMA office manager refused to allow the CE to proceed because the claimant wanted to video tape it. The IMA office manager stated that they had the “discretion” to refuse to be video taped. When the claimant asserted his right to videotape the CE, the office manager told him to leave.

Because the claimant video taped the IMA office manager saying that they had the “discretion” to refuse to be video taped, and telling him to leave, it is undeniable that IMA, not my client, refused to proceed with the CE. That videotape will prove that any assertion by the State agency that the claimant “failed to cooperate” is a lie, as he was ready, willing, and able to examined.

Antiphospholipid Syndrome

I have recently taken on several disability clients afflicted with Antiphospholipid Syndrome. According to the Mayo Clinic, Antiphospholipid Syndrome is an incurable condition that occurs when your immune system mistakenly attacks some of the normal proteins in your blood, which can cause blood clots, stroke, headaches, rashes, cardiovascular disease, and memory loss.

I represent a 62 year old bookkeeper with Antiphospholipid Syndrome, whose Social Security Disability (“SSD”) application was approved today after just three months. Having obtained the documentation establishing the diagnosis of Antiphospholipid Syndrome, it was not difficult showing the claimant’s entitlement to SSD benefits, even though her past work sedentary.

In order to reduce the claimant’s risk of a clot in her legs, her doctor advised her to elevate them frequently above the height of her heart. As sedentary work cannot be performed properly with elevated legs, whether lying down or reclining in a chair, the claimant had to be found disabled.

Non-Hodgkin’s Lymphoma

Non-Hodgkin’s Lymphoma is cancer that originates in your lymphatic system, which is the disease-fighting network that is spread throughout your body. According to the National Cancer Institute, there are over 70,000 new cases of Non-Hodgkin’s Lymphoma each year in the U.S. Typical symptoms include: swollen lymph nodes; abdominal pain or swelling; chest pain, coughing, or trouble breathing; fatigue; fever; night sweats; and weight loss.

Like any medical condition, a person with Non-Hodgkin’s Lymphoma can establish disability by showing that it, or its treatment, prevents then from having the functional capacity to work. A person with Non-Hodgkin’s Lymphoma can also establish disability by showing that a listing is met.

I represent a 46 year old teacher with Non-Hodgkin’s Lymphoma whose Social Security Disability application was approved in two months. The only explanation for the rapid approval is that Social Security determined the claimant met the applicable listing, 13.05.

SSA Still Not Using eCAT Properly

The Social Security Administration (“SSA”) has been using the electronic claims analysis tool (“eCAT”) to document a disability adjudicator’s analysis since 2009. The goal was to foster uniformity so that applicants would be treated the same regardless of where they lived, and to ensure that all SSA policies are considered during the disability adjudication process.

The eCAT produces a Disability Determination Explanation (“DDE”) that documents the detailed analysis and rationale for either allowing or denying a claim. The DDEs of my claimants repeatedly show that the eCAT is failing to ensure the SSA policy of asking treating sources to conduct a consultative examination (“CE”) is being followed.

I represent a 50 year old landscaper with cervical radiculopathy, diabetic neuropathy, and arthritic knees, whose Social Security Disability application was approved today without a hearing by an Administrative Law Judge (“ALJ”) after a State agency examiner named Davidson, who used the eCAT to create the DDE, had denied the application. Davidson denied the SSD application solely because the claimant refused to attend an unnecessary CE that would have violated the Social Security rules and regulations. In the DDE, Davidson misrepresented that she contacted a treating doctor who refused to accept the State approved fee for performing the CE. The truth was that each treating doctor was ready, willing, and able to perform the CE.

To compound matters even further, Davidson also expunged critical evidence from the file that supported the claimant’s application. In the Residual Functional Capacity (“RFC”) section of the DDE, Davidson also misrepresented that no RFC assessments are associated with the claim, yet Davidson even admitted in the Record Source Statement section of the DDE report that one of the claimant’s dual board certified specialists in Pain Medicine and Physical Medicine and Rehabilitation concluded the claimant was limited to sitting 2 hours, and standing/walking less than 1 hour.

The ALJ approved the claimant’s SSD application based on the RFC provided by the claimant’s treating physician. If Davidson had followed the goal of the eCAT, and had complied with the SSA policy of asking treating doctors to perform CEs, then the time and resources of the SSA would have been preserved, and the claimant would have received his approval sooner. The State agency needs to be made accountable for habitually ignoring the purpose of the eCAT.

Supplemental Hearing Cancelled

I represent a 46 year old delivery driver with neck, back, shoulder, and knee problems, who submitted reports from several of his doctors that provided for a very restrictive functional capacity. The administrative law judge (“ALJ”) said that he wanted a supplemental hearing after a consultative examination (“CE”) because he could not understand the basis for the restrictions. I objected to the CE on the grounds that the ALJ was obligated to contact the treating doctors if he believed the restrictions were inconsistent with the medical records.

After receiving additional treatment records, the ALJ cancelled the supplemental hearing and CE. The treatment records did provide a wealth of contemporaneous objective and subjective evidence regarding the claimant’s condition. However, the treatment records did not provide functional limitations, which treatment records rarely if ever do.

The purpose of treatment records is to provide information that the doctor may want to remember at the next exam; not to provide evidence of functional restrictions and limitations for legal proceedings. The Social Security Administration (“SSA”) knows that, which is why it uses forms such as DDD-3883 and HA-1151 to obtain restrictions and limitations from treating doctors. The problem is that ALJs are requiring that treatment records to serve as evidence to support a doctor’s functionality assessment, which is absurd because treatment records serve a completely different purpose.

Physicians do not record all of their observations when taking exam notes, especially ones that have been made before or for which reminding is not needed. If a patient sees a doctor for back pain, the doctor is unlikely to write in that date’s notes that the patient’s back was sore or stiff. However, some ALJs would deny benefits on the grounds that the clinical findings supposedly are inconsistent with the functional restrictions. Asking the treating doctor to harmonize the alleged inconsistency prevents an ALJ from improperly rejecting a treating doctor’s opinion.

Establishing Mental Disability

The Social Security Administration (“SSA”) uses the same process for evaluating disability regardless of whether the cause is mental or physical. In short, the SSA determines whether or not the limitations from mental impairments result in a functional capacity to work.

The problem establishing mental, as opposed to physical, disability is that the doctors treating the problem usually refuse to disclose their treatment records as confidential and privileged. Even though no rule or regulation specifies that treatment records are required, the SSA rarely approves disability benefits now without them. One way to avoid this predicament is to show the claimant meets a listing through a treating doctor’s narrative report.

If a claimant meets the requirements of a mental listing, then he or she is presumed entitled to disability benefits. Even if a claimant has severe mental illness symptoms, unless they preclude or make it difficult to perform cognitive tasks and get along with others, he or she will not be granted disability. A narrative report explaining why a claimant meets the criteria of a listing should suffice to demonstrate the claimant’s presumptive disability due to the inability to perform the basic mental demands of work.

A 46 year old telecom worker retained me after her application for Social Security Disability (“SSD”) benefits was denied. I obtained a report from the claimant’s psychologist explaining why she met the criteria of the listing for affective disorders. She was awarded SSD benefits based largely on the listing letter.

Passive Income

You can receive Social Security Disability (“SSD”) benefits and still receive income from other sources. If the income is passive, such as money from investments, there are no limits to how much you can receive. There are limits only if the income is from your work activity.

SSD benefits are often held up because the Social Security Administration believes claimants are working. If a claimant explains that income is from rental property, the SSA requires a hearing to take sworn testimony that the claimant is not doing any physical work for the property. If a claimant explains that income is from their former business, then SSA will want letters from former suppliers that the claimant no longer works there, or proof of the business being closed.

I represent a 55 year old lab technician with cervical and lumbar radiculopathy and carpal tunnel syndrome whose SSD benefits were held up because of “earnings” after her disability onset. The amount of the “earnings” greatly exceeded substantial gainful activity limits. The source of the earnings was an insurance company, which we were able to show represented benefits paid under a group disability plan through work. This shows that as long as the income was passive, a claimant is entitled to SSD benefits regardless of the amount of the passive income.