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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.