January 2014 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Friday, January 31st, 2014

Disabling Mitral Valve

According to the Mayo Clinic, mitral valve regurgitation happens when your heart’s mitral valve doesn’t close tightly, which allows blood to flow backward in your heart. When that happens blood can’t circulate efficiently, making you feel tired or out of breath.

Surgery is needed to repair or replace the valve for severe cases. The American Heart Association says that if left untreated, severe mitral valve regurgitation can cause abnormal heartbeats that may eventually become life-threatening.

I represent a 56 year old educator whose Social Security Disability (“SSD”) application was approved today by the State agency. The claimant had previously been denied SSD benefits. He retained me after learning that I was one of the two attorneys willing to submit an affidavit in support of the plaintiffs in the Padro class action. One can only wonder what the result would be if his new application were reviewed by one of the Padro ALJs.

Friday, January 31st, 2014

SSA Secret Rule

The primary evidence for establishing entitlement to Social Security Disability (“SSD”) benefits is a Medical Source Statement (“MSS”). An MSS summarizes the doctor’s medical findings and conclusions, including an opinion about the claimant’s functional abilities. Many administrative law judges (“ALJs”) used to accept an MSS to approve an SSD application.

Section 404.1512 of the Social Security (“SS”) regulations addresses the evidence that a claimant must furnish in order to establish entitlement to SSD benefits, but does not require treatment records. Similarly, the POMS list treatment notes as just one of the many types of evidence that may be submitted, but the POMS also does not provide that treatment notes are required. Nor is there any other written SS rule or regulation that requires the submission of treatment records.

About a year ago, there were discussions about how SS was implementing procedures to reduce the number of SSD applications that were being granted. Coincidentally, it was about that same time that the ALJ who had routinely accepted a MSS to approve an application stopped doing so unless treatment records were also obtained.

So although there is no written rule or regulation that requires treatment notes to establish entitlement to SSD benefits, it is pretty obvious that SS has instituted an unwritten policy to require treatment records. I represent a 50 year old librarian whose SSD application was approved today by an ALJ, but only after the ALJ insisted on receiving treatment records post hearing. Since the treatment records were silent on the issue of functional limitations, it appears that they are being required solely as a credibility test, to confirm that claimant are actually being treated.

Tuesday, January 28th, 2014

The Electronic Claims Analysis Tool (eCAT)

The electronic claims analysis tool (the “eCAT”) is an internet application that the Social Security Administration (“SSA”) uses. The purpose of the eCat is to document a disability adjudicator’s analysis to ensure that all SSA policies are considered during the disability adjudication process. The goal was to foster uniformity so applicants would be treated the same regardless of where they lived. The eCAT produces a Disability Determination Explanation that documents the detailed analysis and rationale for either allowing or denying a claim. The SSA has been using the eCAT nationwide since 2009.

In July 2011, the Office of the Inspector General (the “OIG”) issued a report on “The Effects of the Electronic Claims Analysis Tool.” The OIG noted that one of the SSA policies that the eCAT is designed to consider during the disability adjudication process is whether a consultative examination (“CE”) is needed to get more information about a claimant’s impairment(s) and level of functioning. If so, then the OIG stated that “the examiner should ask the treating sources to perform the examination.” The OIG cited POMS, DI 22510.010 as authority, but there are a slew of other regulations that also require that a treating source be used as the “preferred source” for conducting a CE. The OIG did note that some exceptions to the rule apply, such as where the treating source informed the DDS he/she did not want to perform CEs or did not respond to the request for evidence or answer whether he/she would be willing to perform a CE, if needed.

On March 20, 2013, during Congressional Hearings held by the Ways & Means Committee, the SSA testified that disability adjudicators are required to use eCAT, which is designed to aid in the documenting, analyzing, and adjudicating the disability claim according to SSA regulations. Thus, it is perfectly clear that the eCAT is supposed to ensure that disability adjudicators comply with SSA policies, in particular, asking treating sources to conduct CEs.

Despite the aforementioned, in every Disability Determination Explanation that I have reviewed, the disability adjudicator has stated that a CE is needed, but has failed to ask the treating source to perform it, and no exception to the rule has applied. Is the eCAT designed poorly, or are disability adjudicators simply refusing to comply with the SSA policy and the eCAT? Since the SSA spent a lot of money on eCAT, you would think that it would be designed to ensure that a disability adjudicator complies with a simple and unambiguous policy – asking treating sources to perform CEs.

Monday, January 27th, 2014

If You Die Before Benefits Are Approved

The process for applying and receiving Social Security Disability (“SSD”) benefits is typically a protracted one. It is not unusual for claimant to die before the State agency makes an initial decision, or before an administrative law judge (“ALJ”) can hear the case. Unfortunately, this has happened to several of our clients recently. The question arises, what happens to an SSD claim if you die before benefits are approved?

A deceased claimant’s surviving family member may continue to pursue the disability claim for the benefit of the claimant’s estate, and can collect the benefits if approved. The Social Security Administration will determine the amount of benefits owed, and to whom they are payable. Spouses, children, and the deceased’s estate may be eligible to collect benefits.

The family member who continues an SSD claim will need to submit a copy of the claimant’s death certificate with a “substitution of party”substitution of party form. The surviving family members may be eligible for a continuing dependent’s benefit too. If there is no one eligible to receive the underpayment, it will be necessary to dismiss the disability claim.

Friday, January 24th, 2014

Media Deception

The media likes publishing sensational articles about disability fraud, such as the recent incident involving New York City police officers. The New York Times op-ed published an op-ed written by D. Randall Frye railing about the “fraudsters.” The Times failed to disclose that Frye is an Administrative Law Judge (“ALJ”) with an abnormally low approval rate for Social Security Disability (“SSD”) cases. According to DisabilityJudges.com, ALJ Frye approves 29% of his cases compared to the overall 57% average of the Charlotte hearing office that includes his decisions, which is twice as high.

Frye proclaims that he is, “more familiar than most people with the system.” If that is true, then why didn’t he provide a more accurate picture of “the system.” As an ALJ, especially the one who is the President of the Association of Administrative Law Judges, you would expect him to provide a neutral opinion that presents both sides of the story. Frye’s failure to do so evidences that he is not a neutral adjudicator, but rather perceives claimants as out to beat “the system,” which is substantiated by his low approval rate.

What Frye failed to disclose is that from 2010 to 2012, statistics not only show that fewer people are applying for disability benefits, but also that fewer people are being approved. That reflects a decrease of about 7%. Presumably the final 2013 statistics will continue the trend. ALJs have commented to me and my colleagues off-the-record that they have received directions that they must have stronger grounds to approve cases, and the Appeals Council is remanding more ALJ approvals for additional evidence.

Not only are fewer cases being granted, but it is taking longer to get them approved. I have discussed that the wait for a hearing on an SSD appeal can be avoided by asking an attorney advisor to consider issuing a fully favorable decision. However, the SSA issued a bulletin that now makes it virtually impossible for them to approve an OTR. As a result, I have stopped submitting OTRs, which I used to do on almost every case.

Tuesday, January 21st, 2014

CIGNA Reverses STD & LTD Decisions

I represent a former Senior Director of Program Management (“SDPM”) whose microvascular ischemia forced him to stop working when he was 62 years old. I was retained after CIGNA denied applications for short and long term disability benefits. CIGNA contended that the claimant had the ability to work as a SDPM because he could perform its physical demands. CIGNA had disregarded the fact that the treating cardiologist advised the claimant to stop working to avoid the effect that work stress had on the microvascular ischemia.

The issue that CIGNA failed to recognize is that in this type of situation, risk to health trumps ability to perform work. Courts have refused to allow administrators to deny benefits for future risk when such a denial would put claimants or others at risk, unless the policy at issue expressly denies coverage of such future risks. When assessing whether a future risk of harm or relapse constitutes a disability, the question is the probability of its future occurrence.

I secured a report from the treating cardiologist specifically explaining the substantial risk that continued work as an SDPM posed, including the family history of death from heart disease. I pointed out that CIGNA’s Policy does not exclude risk of future harm. To pre-empt an attempt to limit liability under a 24 month benefit cap for mental conditions, I cited case law where courts held that the stress resulting from the microvascular ischemia constituted a cardiological problem, not a psychological one.

Friday, January 17th, 2014

Disabling Sleep Apnea

According to the National Institute of Health, sleep apnea is a chronic disorder where you have pauses in breathing while you sleep that can last from a few seconds to minutes. They may occur 30 times or more an hour. Sleep apnea disrupts your sleep, which makes you tired during the day. According to the American Sleep Apnea Association, left untreated, sleep apnea can have serious and life-shortening consequences, including: high blood pressure, heart disease, stroke, automobile accidents caused by falling asleep at the wheel, diabetes, and depression.

Sleep apnea can also render you disabled from working. I represent a 55 year old mechanic with sleep apnea, whose Social Security Disability application was approved today less than four months after I filed it. A polysomnogram provided objective diagnostic evidence to support the sleep specialist’s opinion that the claimant could not work due to sleep apnea. The doctor explained that the resultant fatigue caused the claimant’s restrictions and limitations, which precluded even a full range of sedentary work.

Tuesday, January 14th, 2014

Padro Settlement Agreement A Joke

Padro v. Astrue, Commissioner of Social
Security, Civ. No. 11-1788 (E.D.N.Y.) was a class action brought by
claimants whose applications for disability benefits from Social Security were
denied by one of five Administrative Law Judges (“ALJs”) at the Queens Office
of Disability Adjudication and Review: ALJ Michael D. “Manuel” Cofresi,
Seymour Fier, Marilyn P. Hoppenfeld, Hazel C. Strauss, and Hearing Office Chief
David Z. Nisnewitz (the “Queens Five”). The Court approved the settlement
agreement in that action on October 18, 2013.

Under the terms of the settlement,
a class member whose claim for disability benefits was denied from January 1,
2008 through October 18, 2013 is entitled to a new hearing before an ALJ other
than a Queens Five ALJ. I represent a claimant, whose Social Security
Disability application was denied by ALJ Hoppenfeld on March 15, 2012.
The Appeals Council remanded the matter back to ALJ Hoppenfeld on July
18, 2013.

ALJ Hoppenfeld refused to recuse herself.
Her assistant confirmed that my client’s case would not been reassigned
to a non-Queens Five ALJ. The
entire purpose of the Padro
settlement agreement was to prevent a claimant from having to be subjected to a
second hearing before a Queens Five ALJ, which includes Hoppenfeld. Since
I assumed there must be a mistake, I contacted Susan L. Beller, who
supposedly is responsible for overseeing Padro
claims.

Beller stated that my
client’s hearing would not be reassigned because he was not eligible according
to the HALLEX. Beller failed to
identify the specific HALLEX number that she claimed applied, but quoted the
following:

1. Retrospective Relief
A class
member eligible for retrospective relief is a claimant who received an
unfavorable or partially favorable decision on a disability claim – including
age 18 disability redeterminations and Continuing Disability Reviews (CDR) –
from any of the five named ALJs between January 1, 2008 and October 18, 2013,
with certain exceptions described below.
A claimant is not eligible for retrospective relief if:
· A United States District Court affirmed the ALJ decision, and the claimant
did not have a motion to alter or amend the Court’s judgment pending as of the
date the settlement becomes effective; or
· A United States District Court remanded the claim in an order that expressly
declined to reassign the remanded claim to a different ALJ, and the claimant
did not have a motion to alter or amend the Court’s judgment pending as of the
date the settlement becomes effective; or
· the claimant was already found eligible for all benefits for which he or she
could be eligible based on the claim decided by one of the named ALJs; or
· the claimant already received a new decision on his or her claim by an ALJ
who is not a named ALJ; or
· the claim decided by a named ALJ is pending with a different ALJ (other than
one of the ALJs named above) at the time the claimant requests relief.

Beller’s response proves
that the Queens hearing office is treating the Padro settlement agreement as a joke.

Beller
conspicuously failed to say which of the five exceptions applied because she
knows that none of them do. Beller knows that this case was never in
federal court so the first two exceptions cannot possibly apply. Beller
knows that the claimant’s benefits have not been approved so the third
exception cannot possibly apply. Beller knows that no ALJ has heard the
case other than Hoppenfeld so the fourth exception cannot possibly apply.
Beller knows that the claim is pending with Hoppenfeld so the fifth and
final exception cannot possibly apply.

Perhaps more importantly, the relevant source is the settlement
agreement, not the HALLEX. Section IIIA1(a)-(d) of the settlement
agreement covers exceptions to its application, but Beller failed to say which
supposedly applies to the claimant. Section
IIIA2 of the settlement agreement states in relevant part: “If a claim to be
readjudicated has been remanded by the Appeals Council and is pending before a
Named ALJ at the time of the Class member’s request for readjudication, the
claim shall be reassigned.” That is exactly my client’s situation.
The first sentence of the letter I emailed Beller stated: “I represent
[claimant], whose Social Security Disability application was denied by
Administrative Law Judge (“ALJ”) Hoppenfeld on March 15, 2012. The
Appeals Council remanded the matter back to ALJ Hoppenfeld on July 18, 2013.“

It is patently obvious that the Queens hearing office continues to
operate in bad faith. I have also
sought help from the New York Regional hearing office and the Appeals Council,
but my client’s matter has not been reassigned, which raises the question whether any
part of the Agency is taking the Padro
settlement agreement seriously.

Please note that claimants will not be entitled to
reassignment unless they affirmatively request it within 60 days of receiving
the final Padro notice. I do not understand why that was
requirement allowed in the settlement agreement because why would anyone choose to have a
second hearing with a Queens Five ALJ?
It seems that Social Security is hoping that claimants either will not
receive their Padro notice, or will not understand that they need to insist
that a non-Queens Five ALJ hear their new hearing.

Saturday, January 11th, 2014

Appealing Partially Favorable Decisions

The State agency regularly issues a partially favorable decision (“PFD”) when making initial determinations on Social Security Disability (“SSD”) applications. A PFD should almost always be appealed as this could result in the receipt of substantial additional benefits.

The first step in appealing is to check all the documents in the eFolder to see if there is a document explaining why a later onset date was chosen. Many times it seems that there is absolutely no reason for the delayed onset date, and that the SSA is simply trying to avoid having to pay additional benefits. Sometimes there is no document in the eFolder that provides a reason why the State agency issued the PFD. I received a fully favorable decision today from administrative law judge (“ALJ”) Seymour Rayner that illustrates this point.

The claimant’s alleged that she became disabled on February 1, 2011 (the “AOD”). The State agency’s said the claimant became on July 1, 2012 (the “EOD”).
The ALJ asked what evidence the State agency relied upon as the basis for the EOD. I stated that there was no medical record in the file that was created on July 1, 2012, or referred to that date, and that it appeared as if the State agency analyst arbitrarily plucked the EOD out of thin air because it failed to correspond to any evidence.

The ALJ then asked what evidence the claimant was relying upon to support the AOD. I stated that there were two medical reports from the claimant’s psychiatrist that supported the AOD, by describing why the claimant met the listed criteria for an anxiety disorder no later than the AOD. The claimant also testified that her anxiety did not change on or about the EOD, and had been the same level of severity since the AOD.

The ALJ agreed that because the claimant’s condition was the same at the AOD as it was at the EOD, the claimant’s onset appeal should be granted. As a result, the claimant received over half a year of additional benefits.

As a related matter, I submitted a fee agreement stating that, “If the Social Security Administration (“SSA”) decides the claim favorably at the initial, reconsideration or initial Administrative Law Judge (“ALJ”) hearing stage, then Claimant will pay Attorney a fee that is equal to the lesser of twenty-five (25%) of the past due benefits.” (emphasis added). The agreement has been approved countless times where an ALJ issued a favorable decision following a State agency partially favorable decision. ALJ Rayner incorrectly denied the fee agreement on the grounds that it “is only valid if the claim is favorably decided at the initial level.” I’d say that ALJ needs to learn how to use a dictionary, but who doesn’t know the meaning of the word “or”?

Saturday, January 11th, 2014

Social Security in the News

By Susan Golden

There have been numerous stories in the news recently regarding people who are “scamming” the Social Security Disability system by being approved for benefits even though they are not disabled. The most recent such story involved retired policeman and fireman who were coached to fake mental illness. Unfortunately, these are the stories that make it to the news because they are sensational and unusual. On the other hand, stories do not get written about the hundreds of thousands of people who would give anything to continue working, but for various health reasons cannot. These are the people no one ever hears about, the people who can no longer work, who are struggling to make ends meet, but who are wrongly denied benefits by Social Security, because it happens all the time.

In reality, it is extremely difficult to get approved for Social Security Disability benefits. A claimant must have strong support from current treating doctors; without which it is almost impossible to get approved. Even with strong medical support, hundreds of thousands of people are denied benefits due to Social Security’s incompetent and dishonest practices, which deprives thousands of deserving people out of benefits. Social Security inundates claimants with complicated paperwork, sends threatening letters to try to intimidate people, while making it virtually impossible to reach any representative by phone. They take months and months to process cases, normally with the excuse of being overworked and understaffed. Applications are lost, faxes are never received, phone calls never returned; that is if you can even get through at all. The excuses are endless.

Most people get denied at the initial application because the State Agency that reviews the applications usually use civil service clerks, not doctors or lawyers, to make the decisions. They constantly deny people wrongly for various reasons ranging from ignorance to downright stupidity. Once they deny the initial application, the claim has to be appealed and sent to the local hearing office, which wastes hundreds of thousands of dollars of tax payer money. Once at the hearing office, the application is reviewed and eventually a hearing is scheduled after a judge is assigned to the claim. It can take 6 months to a year before the application even gets reviewed, which is actually an improvement over the recent past. The outcome of the hearing depends largely on who the judge is.

In October of 2013, a class action law suit brought against 5 judges from the Queens hearing office accused of bias was “settled,” supposedly in favor of the claimants. Some claimants’ cases have been tied up in court for over 5 years. These are people who are legitimately disabled, who cannot work and have been unable to collect disability, from a system that they paid into their entire lives. You don’t see anyone covering that story on the news? The settlement means nothing. It didn’t get the claimants benefits, it didn’t get them money, it didn’t them anything except the promise of a new hearing with a different judge. The point of the class action law suit was to help and protect these claimants’ rights. It was supposed to guarantee them new hearings, with different judges than they had originally had, judges that were not biased against them. Instead, Social Security is still playing games with these people, stating they had 60 days from the receipt of notice of settlement, to request a change of judge rather than just assigning a new judge to them. Not surprisingly, many of these people never received the notice and didn’t know about this 60 day rule. Why in the world would anyone want the same judge to decide their fate, a judge that humiliated and embarrassed them, a judge that was so rude and mean to them they felt ashamed of themselves? For every one person who tries to cheat the system, there are hundreds that deserve to be approved, and are wrongfully denied.These are the people that deserve to be in the news. The thousands of people that were denied benefits they deserved by old, biased judges who should have retired years ago, and because of another government system that doesn’t work.

Wednesday, January 8th, 2014

Hoppenfeld Refused To Comply With Padro

If you read my blog, then you are aware of the Padro class action, which was settled last October. If your Social Security Disability (“SSD”) case was denied after January 1, 2008 by one of the Queens Five, which includes Administrative Law Judge (“ALJ”) Hoppenfeld, then Padro requires that you get a new hearing by an ALJ other than one of the Queens Five.

I represent a claimant, who received a notice as a member of the Padro class. In 2012, Hoppenfeld denied the claim in an extraordinarily biased and absurd decision, which the Appeals Council naturally rejected last July.

Because the case was assigned to Hoppenfeld, I filed a letter demanding that she recuse herself. Instead of complying with the law, Hoppenfeld scheduled a hearing. My messages to the Queens hearing office about the case still being assigned to Hoppenfeld have gone unreturned, but my client will be subjected to having to appear before Hoppenfeld again.

If you received a Padro notice at any time, make sure that you are not scheduled to appear before one of the Queens Five for your new hearing

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