A 56 year old former account executive with hypertrophic cardiomyopathy asked me to represent her after Sun Life denied her application for long term disability (“LTD”) benefits, even though Sun Life had approved her application for short term disability (“STD”) benefits. The only thing that had changed was that a Sun Life nurse said the claimant could work because she had 5 METS on a stress test.
I argued that Sun Life made diametrically opposed decisions without being able to identify any difference in the requirements for evaluating disability under the STD and LTD claims. Similarly, I pointed out that Sun Life made diametrically opposed decisions without being able to identify a single piece of medical evidence that showed the claimant’s medical condition had changed, let alone improved. To make sure there was no misinterpretation of the medical evidence, I obtained a report from the claimant’s cardiologist explaining how the objective medical evidence had not changed, and that there was no basis for equating 5 METS with the ability to work.
Unlike Reliance, CIGNA and Unum regularly do, particularly at this time of the year, Sun Life made the decision to overturn its denial without insisting on extensions. Claims handlers frequently delay approvals as a means of manipulating reserves to meet financial goals. Last month, when Sun Life wrote that it had the right to “toll” the time to render a decision, I responded by sending a letter that quoted the ERISA regulatory deadlines. Sun Life verbally approved the LTD claim before the deadline expired.
The State agency, also known as Disability Determination Services (“DDS”), which makes the initial decisions on Social Security Disability (“SSD”) applications, has a history of purging records from claimants’ files that support the disability claim. The problem is that you only learn about the purging after the DDS denies the application.
After the DDS denies an SSD application, the claim is transferred to the hearing office of the Social Security Administration (“SSA”). At that point, the file becomes accessible, but the file does not get completely “processed” for many months after that time.
Twice more within the last week I learned that the DDS purged supporting records. The DDS omitted records of a Nassau County claimant’s doctors, and in the other incident, the DDS omitted records from a Queen’s claimant’s doctors. The DDS’s pattern has continued where each time a submission is missing, it is always a report in which the treating physician provides a residual functional capacity assessment that precludes work.
The Nassau County claimant has severe physical and mental conditions. I submitted reports from three doctors that precluded her from being able to work, and records from a fourth. The Queens claimant has severe mental conditions. I submitted reports from her two doctors that precluded her from being able to work. Because these DDS purges have become routine, I kept copies of the Electronic Records Express receipt showing that the DDS have received all of the reports and records, which I included when I resubmitted the medical reports and records.
Do not assume that your medical evidence will be in the file just because you mailed in an SSA return envelope or have a fax confirmation. It is no accident that when the DDS excludes medical evidence those documents have always included functional assessments that preclude work. Always check, and then regularly recheck, the claim file to ensure that all submitted records have found their way into the official claim file.
I represent disabled claimants seeking benefits under group and individual disability insurance policies, and am writing in support of the proposed regulations by the Employee Benefits Security Administration to revise and strengthen the current rules for claims procedure for Plans providing Disability Benefits.
I am unaware of any rampant or systemic abuse by insurance companies reviewing claims under individual disability insurance policies. On the other hand, rampant and systemic abuse by insurance companies reviewing claims under group disability insurance policies is the rule. Ironically, ERISA, which was intended to benefit employees, has led to the disparate treatment. The primary culprit is discretionary clauses that grant an insurance company or administrator the unrestricted authority to determine eligibility for benefits and to interpret terms and provisions of the policy, contract or certificate.
Discretionary clauses place the employee at a disadvantage in any disagreement over the meaning of the insurance contract, usurp the role of the courts in deciding a matter of law, that is, the meaning of the contract, and exacerbate the insurer’s inherent conflict of interests in being both the entity that pays and decides what does or does not need to be paid. In other words, the insurance company profits increase when it denies and terminates claims. As noted by the Supreme Court in Metlife v. Glenn, 554 U.S. 105, 128 S.Ct. 2343 (2008), where an insurer both determines whether an employee is eligible for benefits and pays those benefits out of its own pocket, there is a conflict of interest. This conflict would be greatly mitigated by prohibiting discretionary clauses.
Discretionary clauses are unjust and contrary State laws because the deferential standard of review is opposed to the common law doctrine that ambiguities in insurance contracts are to be construed in favor of the insured. Moreover, discretionary clauses in insurance contracts are also misleading because policyholders may not understand from reading these clauses that they are giving up the right to a neutral, merits-based review of the insurer’s decisions and the meaning of the policy, and that the insurer as a practical matter could proceed with essentially absolute discretion as to what the policy means.
A disability or health insurance policy is a contract. The interpretation of a contract is a matter of law and ordinarily questions of law are for the judiciary to decide. In a court action on a contract, such as when an insured sues an insurer, a court looks at the question of law de novo, i.e., without regard for how the contract might have been initially interpreted by the insurer. However, when a discretionary clause is present, it largely usurps the role of the courts because they are required to give strong deference to the insurer’s interpretation of the contract and will only overturn the insurer’s view if the court finds the insurer’s decision was arbitrary and capricious. This leads insurers to deny and terminate claims that they know should be approved.
Insurance companies’ widespread abuse due to discretionary clauses prompted regulatory authorities to take action. In 2002, the National Association of Insurance Commissioners (the “NAIC”) issued a model act entitled “Prohibition on the Use of Discretionary Clauses” (the “Model Act”). When an insurance company issues a group disability policy, a discretionary clause grants the insurer or administrator the authority to determine eligibility for benefits and to interpret terms and provisions of the policy. The purpose of the Model Act is to prohibit clauses that purport to reserve discretion to the insurer to interpret the terms of a disability insurance policy.
The abuse of discretionary authority by the insurance industry became so widespread that the media covered the issue. On October 13, 2002, NBC Dateline did an expose called “Benefit of the Doubt”. The story described how Unum Provident, the largest disability insurance provider, had systematically manipulated and created evidence in order to create excuses to deny and terminate disability claims. On November 20, 2002, CBS 60 Minutes also did an expose on Unum called “Did Insurer Cheat Disabled Clients?” The 60 Minutes piece detailed how Unum forced doctors to manufacture evidence as a means to deny and terminate disability claims. The abuses by Unum resulted in the U.S. Department of Labor and 49 State Insurance Departments bringing an action against Unum that resulted in a regulatory settlement agreement. Among other things, Unum was forced to reassess hundreds of thousands of disability claims that it had denied or terminated. Since that time, a blind eye has been turned to the continued abuses by insurers of group disability policies subject to ERISA.
In what is already a contract of adhesion, i.e., one that a consumer has no choice but to accept, discretionary clauses skew the balance of power even further in favor of the insurer. In other words, the subscriber is at a severe disadvantage in any contest over questions of coverage, eligibility and interpretations and applications of the provisions of the contract for the simple reason that the insurer included a discretionary clause in the contract. However, if discretionary clauses are prohibited, then the courts apply the de novo standard of review, and are free to substitute their own judgment for that of the insurer. If a matter comes to court, the consumer faces a more level playing field, and is better protected.
What is perhaps most affected by the differing standards of review is the mindset of the insurers. Under the “arbitrary and capricious” standard of review, insurers believe that they can refuse to pay benefits regardless of the evidence employees submit, as long as the insurers pay their doctors to manufacture contradictory evidence. Insurers cannot do so if de novo standard of review applies, where a court determines which side’s conflicting evidence is better. In other words, simply requiring a level playing field would end most of the insurance industry’s abuse of disabled employees. My experience has shown that whenever a court rules that a de novo standard of review applies, the insurer immediately seeks to settle the case, which is a tacit admission that the insurer knew its decision was wrong.
The proposed regulations should be implemented, but an outright ban on discretionary clauses is needed.
I represent a 59 year old financial broker that Reliance found disabled under a group long term disability (“LTD”) policy today, which is governed by ERISA. The application was filed on September 16, 2015. Under ERISA, the insurer has 45 days to render a decision, which would have been October 31, 2015.
On November 2, 2015, when I notified Reliance about the deadline elapsing, Reliance claimed that the deadline had not passed because the unit making the decision said it did not receive the application until October 16, 2015. After I responded that I had a fax confirmation that Reliance received the application on September 16, 2015, Reliance advised me that it would make its decision that week. At week’s end, I was told the claim had been recommended for approval, which a manager had to accept. That acceptance came today.
I doubt that the decision would have been received by today if I had not raised the ERISA deadline, which can adversely affect the claim fiduciary. For example, in New York, if an appeal deadline is ignored, a claimant could deem the decision to be denied, which ultimately can lead to a more favorable standard of review being applied. Claims handlers usually have caseloads that are too heavy to manage properly, which results in delays. Claims handlers are also frequently told by managers to delay approvals as a means of manipulating reserves to meet financial goals. Letting a claim handler know that you are aware of the ERISA deadlines may help focus attention on your claim in order to receive a timely decision.
I represent a former toll collector who was injured when she was hit by a car at work. Despite submitting dozens of pages of treatment records, extensive diagnostic test reports, and disability reports from her neurologist, rheumatologist, two orthopedists, cardiologist, and internist, it still took over seven months to receive the approval.
The Social Security Administration’s own statistics reveal the increasing delays for making any decisions, regardless of the severity of the disabling condition. Even in the most well delineated and supported cases, a claimant should not anticipate receiving a decision in less than half a year.
The current processing time for the average hearing office has increased to 511 days, almost 100 days more than it was a year ago, and almost 200 days longer than it was at the end of 2011. Every day, we have to tell our clients with cases pending at the hearing office that there is no change in their status, that their case is not only still pending at the hearing office, but has not even been looked at yet. Many of these clients have already been waiting more than a year since their appeal was filed, more than 2 years since their application was filed. I have to tell new clients that the average waiting time for a decision at the initial application stage is almost a year, and if denied, like most cases are the first time, they will have to wait at least another year and a half before their case may be processed. These people are not malingerers, or trying to cheat they system. Unlike what the media would have you believe, it is extremely difficult to get approved for Social Security Disability (“SSD”), and almost impossible to “beat” the system. Instead, the media should be focusing on why the Social Security Administration (“SSA”) continues to get away with fraud, with absolutely no consequences.
We represented a 50 year old former Steamfitter for SSD benefits. He suffered from osteoarthritis in his knees, back and hands. He had sarcoidosis; lost his vision in one eye; had almost no vision in the other; could not close his hands; he looked like death, and the ALJ even made comments about the claimant’s appearance on the record during the September 21, 2015 hearing.
Our client had strong support from all his doctors, who each completed Residual Functional Capacity (“RFC”) assessments, as well as letters from two specialists concluding the claimant met a listed impairment, and hundreds of pages of treatment notes. In the recent past, our client would have been approved without a hearing. However, the system has become so dysfunctional that our client was forced to attend a hearing, after a 17 month wait, and even then, the judge asked for more records from the treating doctors, which delayed the decision even longer. As of today, 42 days after his hearing, his case is still pending a decision.
We learned today that our client passed away this morning. This is the third time in the past year that one of our clients passed away while awaiting a decision. When will the Social Security Administration do something so that people who have worked their entire lives do not have to become homeless and have their health needlessly deteriorate while waiting to be approved for SSD benefits to which they are patently entitled. The consequence of SSA’s unconscionable delays is that more claimants are dying while they wait for SSD.
According to the Mayo Clinic, acupuncture involves the insertion of extremely thin needles through your skin at strategic points on your body, which is most commonly used to treat pain. A report from an acupuncturist who is not a physician can help support an application for Social Security Disability (“SSD”) benefits by providing evidence concerning the severity of a medical condition.
I represent a 60 year old former social worker with orthopedic and mental impairments whose SSD application was approved in only four months yesterday. The notable difference between this and other cases with claimants who have similar conditions is that reports were submitted from an acupuncturist, physical therapist, and Rolfer in addition to supporting reports from physicians.
Social Security Ruling 06-03p requires that reports from non-physicians be given some weight regarding how the severity of impairments affect a claimant’s ability to work if an acceptable medical source has already established the claimant has a medically determinable condition. Submitting the additional records and reports from the acupuncturist, physical therapist, and Rolfer explain the relatively rapid approval.
The Social Security Administration (“SSA”) seems to be giving greater emphasis recently to that part of Ruling 96-8p, which concerns the use of hands. That Ruling states in relevant part, “Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity;” and “Any significant manipulative limitation of an individual’s ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base.”
Lately, I noticed that vocational experts (“VE”) at hearings have been testifying that claimants who lack bilateral manual dexterity are precluded from performing full time gainful activity. Today, I learned that the SSA approved disability benefits for one of my clients, who is a 55 year old former administrative assistant with bilateral carpal tunnel syndrome, and cervical radiculopathy just a couple of months after the application was filed.
The relatively rapid approval seems consistent with the recent VE testimony concerning bilateral manual dexterity. Applicants should take care to obtain reports that detail the functional limitations and restrictions in the use of their hands.
For the last couple of decades, I would advise new social security disability clients to expect it to take about six to seven months to receive the initial decision in the application process. However, waiting times at all stages of the application process have been steadily increasing.
I represent a 56 year old former cafeteria worker with orthopedic and emotional problems whose SSD benefits were approved today. It took almost nine months, a nearly 50% increase in time, to get the decision, even though there were no novel or unusual medical or vocational issues.
There is no indication that the number of people processing SSD claims has been reduced, or that the number of applications has recently increased. To the contrary, the number of claim filed has been decreasing since the middle of 2010. The question is why is it taking longer to get decisions?
It appears that the delays are intentional. The government’s own statistics, show that approval rates have decreased from 63% to 45%. There have been Congressional hearings to investigate fraudulent disability applicants. How about Congressional hearings to investigate the delays.
Like the Seinfeld or Superman Bizarro World, sometimes good news is bad news and vice versa. For example, the big rise in today’s stock market was attributed to worsening economic news. Moreover, MetLife approved a disability income policy application today for one of my client’s; however, counterintuitively, the approval may not be good news.
MetLife has agreed to pay my client benefits under the policy through December 23, 2015. When a disability policy application is approved, the insurer usually pays through the date of the current monthly period. MetLife neglected to say what happens as of December 24, 2015.
Does MetLife’s ambiguous letter mean that it found the claimant is disabled, and will re-evaluate updated evidence in a couple of months? MetLife’s ambiguous letter could just as easily mean that it found the claimant will no longer be disabled as of December 24, 2015. As noted above, since insurers usually only pay benefits through the date of the approval, it appears that the more pessimistic alternative is likely.
Rather than taking the wait and see approach, I have demanded that MetLife clarify the ambiguity. Because this application was under an individual disability policy, ERISA does not apply. Therefore, the claimant does not need to waste his time appealing the December 24, 2015 decision with MetLife, and can immediately file a complaint in State court.
A few years ago, the Social Security Administration (“SSA”) began a program using the misnomer “quality” review. This program uses an imbalanced approach that only considers decisions where Administrative Law Judges (“ALJ”) approve disability benefits, so the program’s alleged of purpose of seeking greater consistency is fallacious.
I have had several more cases pulled for quality review in just the past few weeks. Not surprisingly, all were approvals. Today, yet another fully favorable ALJ decision was approved, and immediately pulled for quality review. There was an overabundance of medical and vocational evidence supporting the ALJ’s decision, including operative reports, multiple functional assessments, an FCE, and contemporaneous clinical records.
Hypocritically, the SSA failed to conduct a quality review on the State agency decision that had previously denied the claimant’s Social Security Disability (“SSD”) application. The State agency ignored: (a) the conclusions of the treating sources in favor of her own non-medical opinion; (b) the claimant’s subjective complaints even though typical for someone with the claimant’s medical conditions; (c) the requirements for sedentary and light work. The State agency simply denied the application because the claimant properly refused to attend an unnecessary consultative examination (“CE”) that would have violated the Social Security rules and regulations.
The State agency lied and said that it did not contact a treating doctor because there was none, which is patently belied by the medical reports in the SSA file, as well as the claimant’s application. Each treating doctor was ready, willing, and able to perform the CE. The State agency also lied by claiming that there was no indication there was opinion evidence from any source, which is also belied by the medical reports in the SSA file. To make matters even worse, the State agency expunged critical and supportive evidence from the claim file.
I advised the SSA that it was incumbent upon it to conduct an investigation into the State agency’s misconduct. Instead of investigating the State agency’s decision denying SSD benefits where evidence of improper processing was presented, the SSA investigated the ALJ’s decision approving SSD benefits where there is no evidence of improper processing. So much for caring about the consistency and quality of decision.
More than one Social Security Administrative Law Judge (“ALJ”) has told me in recent months that they have been instructed to insist on having contemporaneous treatment records to support the opinions of claimants’ doctors. That requirement lacks a legal basis for several reasons.
ALJs seem to have no problem accepting the opinions of non-examining doctors even though they have no treatment records to support their opinions. The Social Security rules specify that treating doctors should be contacted if it is believed that their opinions lack support, and a doctor can provide a narrative report as an answer. That only makes sense because the purpose of treatment records is to provide a reminder to the doctor of something he or she may want to remember, not to serve as comprehensive medical evidence in a legal proceeding. The Social Security rules even recognize that contemporaneous records may not be available, e.g., when dealing with an onset date, and that other types of evidence, such as claimant testimony, can provide the requisite evidence.
ALJs and the State agency have been instructed to insist on more evidence to support a case in order to reduce the number of disability claims getting approved. Contemporaneous records are even being required in compassionate allowance cases. And both ALJs and State agency clerks have been insisting that claimants provide their psychotherapy notes.
Mental health notes have been privileged from disclosure to ensure that proper treatment can be obtained. Social Security has a Fact Sheet for Mental Health Care Professionals that states, “Social Security recognizes the sensitivity and extra legal protections that concern psychotherapy notes (also called “process” or “session” notes) and does not need the notes.” This proves that the demand for actual psychotherapy notes is designed to avoid approving disability benefits. According to the Fact Sheet, a letter from the mental health provider identifying the claimant’s diagnosis and prognosis, prescribed medication, session times, the modalities and frequencies of treatment, results of any clinical tests, and summary of the functional status, treatment plan, and symptoms is all that is needed.
I have discussed the important role that vocational evidence plays in a Social Security Disability (“SSD”) case many times. I represent a 57 year old with knee, back, and foot problems whose SSD application was approved today five months after it was filed.
The claimant’s medical conditions are not uncommon. Therefore, the question arises as to why his SSD application was approved without ever being denied, especially in this environment where the SSA is trying to increase the number of applications it denies. For example, in 2009, Administrative Law Judges approved 63% of their cases, whereas now they are only approving 45%, and rumor has it that their goal is to reduce that even lower to 33%.
While many claimants may have knee, back, and foot problems, very few have a work history limited to unskilled heavy work, which requires lifting up to a 100 pounds. Under the grid rules, a person who is over 55 whose past relevant work is unskilled and heavy, should be found disabled. In other words, SSD claimants with the identical medical conditions with the same level of severity, but who are younger or had a skilled or less strenuous work history, probably would not have been approved.
The importance of a treating doctor testifying at a Social Security Disability (“SSD”) hearing before an Administrative Law Judge (“ALJ”) cannot be overstated. The law requires an ALJ to give more weight to the opinion of a treating doctor than a Social Security doctor unless the former’s opinion is contradicted by other evidence or lacks sufficient support.
The ALJ has a duty to develop the record. If an ALJ believes a treating doctor’s opinion is contradicted by other evidence or lacks sufficient support, then the ALJ must ask the doctor to explain the apparent discrepancy. ALJs rarely fulfill that duty. However, when a treating doctor attends a hearing, it becomes unavoidable for the ALJ to ask the doctor to any explain any perceived problem with his opinion. Once the treating doctor explains the basis of the disability opinion, it becomes virtually impossible for the ALJ to reject it.
I represent a 54 year old former professional gambler with neck and back problems whose SSD application was approved today. At the hearing, the ALJ indicated that there was insufficient evidence to explain why the claimant was disabled. The claimant’s neurosurgeon testified about the reasons why the claimant was unable to work on a sustained basis. The ALJ gave the neurosurgeon’s opinion great weight, and approved the SSD application.
During the past couple of years, the SSA has significantly increased the number of times that it has medical and vocational experts appear by telephone to testify. The SSA even promulgated new regulations to allow ALJs to receive expert testimony telephonically.
The SSA should clarify the rules to specify that ALJs should also receive testimony from treating doctors telephonically. In workers compensation cases, treating doctors have been deposed by telephone for decades. There is absolutely no reason why treating doctors should be precluded from testifying telephonically in SSD cases.
Claimants who apply for Social Security Disability (“SSD”) benefits in New York virtually always received letters from the Office of Temporary & Disability Assistance, Division of Disability Determinations, i.e., the State agency, telling them that they have to be examined by a doctor from IMA Disability Services (“IMA”).
The State agency approved the SSD application today of a 37 year old woman with mental impairments who had worked as a personal banker. Previously though, on May 11, June 15, June 30, July 14, and July 15, 2015, the State agency sent letters stating that it was “necessary” for the claimant, that is, the claimant “must keep” the appointment to be examined by two doctors from IMA.
For years I have been asking if the State agency’s insisting on IMA exams were a boondoggle. The question remains: Why are millions of dollars being spent on unnecessary exams?
A few days ago, I wrote about intentional delays in the Social Security Disability (“SSD”) process. The Social Security Administration (“SSA”) claims that delays are caused by budgetary problems. Last December, the average wait for a hearing was 450 days.
I filed an SSD application for a 55 year old floor trader with hand and arm injuries on December 4, 2012. It took the State agency almost a year to deny the application initially, which was on November 8, 2013. I requested a hearing that same day. The claimant had to wait until April 4, 2015, 17 seventeen months for a hearing, well over the 450 day average.
The good news is that the claimant’s SSD application was approved today. The bad news is that it took over five months, another 157 days, to get the hearing decision from the Administrative Law judge. The actual cause of the delays is unknown. Regardless of whether the delays are intentional or inevitable, they are unacceptable.
State agencies make the initial determination whether to approve Social Security Disability (“SSD”) benefits. Periodically, the Social Security Administration (“SSA”) has always conducted “Quality Assurance” reviews to make sure each State agency is making disability determinations that are in line with federal policies and standards. The frequency of those reviews has greatly increased in recent years, which has added to the already unacceptable delays in paying SSD benefits.
The reviewed cases are supposed to be selected randomly from all of the cases that were decided by the State agency, including decisions awarding benefits and decisions denying benefits. However, while I have had many approved applications reviewed, I have never had a denied application selected for review. The SSA claims that only about 1% of claims are chosen for review. While that may have been true once, during the last couple of years I have had four or five times that number “randomly” pulled, and all those claims were ones that the State agency had approved.
Since the only cases that are being randomly selected are approvals, the true reason for the reviews cannot be to make sure the State agency is making disability determinations in line with federal policies and standards. The true reason must be that the SSA is trying to ferret out claims that can be rejected, and to delay the payment of SSD benefits.
The initial medical decision in Social Security Disability (“SSD”) cases has been delegated to state agencies, which in New York State is the Office of Temporary Disability Assistance (the “OTDA”). The OTDA goes to great lengths to ensure that SSD claimants get denied.
I represent a 50 year old with scleroderma, sarcoidosis, Raynaud’s Disease, arthritic knees, back and hands, left leg nerve damage, and a blind right eye. He earned over $100,000 annually working as a steamfitter for 31 years, which required lifting up to 100 pounds. Common sense tells you that anyone who worked that long at that job, earning that amount of money, stopped only because he was no longer able to continue.
You might think that the OTDA lacks common sense because it denied the claimant SSD benefits. However, a review of the Social Security Administration (“SSA”) claim file reveals that the OTDA acted in bad faith, and actually committed fraud, in order to deny the SSD application.
Last August, the OTDA told the claimant that he had to go to a consultative exam (“CE”) for sarcoidosis that would have required him to travel over 3 hours and 140 miles from his home. The claimant lives in eastern Suffolk County, and the CE was scheduled in Poughkeepsie, NY in Duchess County. In other words, the OTDA was telling the claimant to travel across Suffolk County, and the Nassau, Queens, Bronx, Westchester, and Putnam Counties to get to the CE in Duchess County. That CE demand was beyond reasonable, and could only have been made in bad faith.
After I brought the unreasonableness of the CE location to the OTDA’s attention, it rescheduled the CE, but did so at the same location, which it did three days later, and then about four weeks later. The OTDA refused to send the claimant a notice that rescheduled the sarcoidosis CE at a reasonable location, although it managed to schedule a psychiatric CE nearby his home, which the claimant attended. However, the claimant never alleged that he had any mental impairment of any type.
The OTDA denied the claimant’s SSD application on the grounds that the claimant did not attend the CE. While scheduling the CE over 3 hours and 140 miles from the claimant’s home was malevolent, a review of the SSA claim file shows that the OTDA’s conduct was even worse.
When scheduling a CE, the OTDA is required by law to ask a treating doctor to perform it. An OTDA disability examiner named Y. Ellison-Nixon claimed that a treating doctor was asked to perform the CE, but that the doctor “does not accept the state approved vendor fee.” Ellison-Nixon lied. The claimant has over a half dozen medical specialists, and the OTDA never asked any of them to perform a CE, let alone asked any of them if they would do so for a specific fee. Ellison-Nixon committed fraud, that is, knowingly doing or saying something that is false, in order to evade the legal obligation to ask a treating doctor, as the preferred source, to perform the CE. While the Social Security hearing office will undoubtedly reverse the OTDA denial on appeal, the claimant’s SSD benefits should not have been delayed. This is precisely the type of incident that should be reported to the SSA Inspector General.
In some disability cases, the Social Security Administration (“SSA”) may ask one of its doctors, referred to as a Medical Expert (“ME”), to provide written answers to written questions, which are referred to as interrogatories. When an Administrative Law Judge (“ALJ”) receives an ME’s interrogatory responses, the ALJ must “proffer” the evidence to the disability claimant’s attorney. The purpose of the proffer is to provide the opportunity to object to, comment on, or refute the proffered evidence, submit written questions to the ME, or insist on the opportunity to cross-examine the ME.
I represent a 49 year old former typist seeking Social Security Disability (“SSD”) benefits. Prior to the hearing, the ALJ received interrogatory responses from an ME; however, the ALJ never proffered them to me in accordance with the SSA Hearing, Appeals, and Litigation Law Manual (“HALLEX”). I learned about the interrogatories when reviewing the SSA eFolder for the claimant.
The interrogatories provided for a less than sedentary work capacity, which corroborated the opinions of the claimant’s doctors that the claimant was disabled. A vocational expert (“VE”) at the hearing testified that based upon the interrogatory answers, the claimant was not capable of working.
The failure to follow proffer procedures raises two concerns. First, since all of the medical opinions supported the claimant’s entitlement to SSD benefits, why was a hearing needed? Because the ALJ did not proffer the evidence, did not approve SSD benefits without the need for hearing, and believed that testimony from a VE was needed, I had to assume that the ALJ would not accept the ME’s opinion. Second, if the responses had been unfavorable for the claimant, then the hearing would have deprived the claimant of due process.
When a Social Security hearing office receives a disability appeal, it sends the claimant form HA-L2, which is a Request for Hearing Acknowledgment Letter. At the bottom of the first page of Form HA-L2 in bold face type is the (800) 269-0271 telephone number for the Inspector General’s Fraud Hotline, in case you “Suspect Social Security Fraud.” Presumably, that warning is designed to intimidate claimants.
In all my years representing Social Security Disability (“SSD”) claimants, I can think of only one instance of a claimant attempting to perpetrate a fraud. On the other hand, on a seemingly weekly basis, I find the Disability Determination Services (“DDS”) and its contractor, IMA, committing fraud. Claimants and their advocates should call the Inspector General’s Fraud Hotline when DDS or IMA fraud is suspected.
One of my client’s eFolder became accessible today. A review of the eFolder revealed several instances of fraud by the DDS and IMA.
First, a DDS examiner named V. Kumar wrote that the claimant’s doctors refused to perform a consultative examination (“CE”) for the state approved vendor fee. That was a lie. Neither Kumar nor anybody else from the DDS ever contacted any of the claimant’s doctors to ask them if they would perform a CE, let alone ask them if they would perform a CE for any particular fee. What makes Kumar’s fraudulent misrepresentation especially appalling is that I had sent a letter about the CE, which stated:
“the treating physicians are ready, willing, and able to perform a CE, but you have not asked them to perform a CE. I have spoken with the claimant who has agreed to pay any difference between what you are willing to pay and the amount the treating doctor would charge. Therefore, do not falsely claim that a treating source refused to do the CE because of the fee involved.”
If you have a case that is pending at a hearing office, I would suggest reviewing the eCAT report to see what the DDS examiner wrote.
The second fraudulent assertion that Kumar made was that the CE was needed because there was insufficient evidence to evaluate the claim. The file contains over a hundred pages of treatment records, functionality opinions, and diagnostic testing. To compound matters, I sent a detailed seven page single spaced letter to the DDS, asking them to identify any additional medical evidence that they claimed was needed to evaluate the claim. As always, instead of specifying a single piece of medical evidence they purportedly needed, the DDS simply sent a second CE notice, despite my having sent them that detailed letter, which among other things stated:
“In order for me to have the chance to obtain the information that you claim you need, you need to clarify precisely what information you are seeking. Simply resending a notice with a new CE date fails to fulfill your responsibility to develop the record, and shows that you lack any valid reason for the CE.”
Kumar’s third fraudulent misrepresentation was that stating “No RFC /MRFC assessments are associated with this claim.” Contrary to Kumar’s unambiguous statement, the eFolder contained, not one, but two, Residual Functional Capacity (“RFC”) assessments. In fact, the RFC from the claimant’s orthopedist appears in the eFolder twice. There was also an RFC from the claimant’s cardiologist. It was impossible for Kumar to have missed all three reports when reviewing the claimant’s file. Nonetheless, Kumar stated in no uncertain terms that no RFC assessment was in the eFolder.
The fourth instance of fraud also concerns the CE. Kumar wrote that the claimant missed both CE appointments. As discussed below, that statement is demonstrably false. However, giving Kumar the benefit of the doubt, it is possible that Kumar was provided with the false information by IMA.
In the eFolder is form DDD-4184, entitled CE Appointment Notice History. The form DDD-4184 states that the claimant did not keep the appointment for the CE. It is unclear who prepared form DDD-4184, but it is clear that whoever did so, committed fraud. The claimant has photographs of him entering the IMA offices. The claimant also has videotape of him inside the IMA offices, being told to leave by IMA. It is a blatant and undeniable lie that the claimant did not keep the appointment.
As stated in prior posts, I would advise claimants to videotape their CE. There is nothing in the Social Security statute, regulations, POMS, HALLEX, or case law that precludes videotaping a CE. Furthermore, I secured a copy of the contract that IMA has with the DDS, and there is nothing in it that prohibits videotaping a CE.