March 2015 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Tuesday, March 24th, 2015

New IMA Fraud & Worse

Industrial Medicine Associates (“IMA”) (“IMA”) has a contract to perform consultative examinations (“CE”s) for Social Security Disability (“SSD”) claimants. The IMA CE’s engages in numerous questionable activities, including its fraudulent releases, violating the law by failing to notify attorneys of CEs, fraudulently claiming that CE are needed when they are not, and making fraudulent findings. Searching my blog will reveal countless additional examples of IMA misconduct.

As stated in my blog entry from October 5, 2012, because of IMA’s dishonesty, I advise my clients to videotape CEs by IMA:

“There is no rule, regulation, statute, guideline, or case law that precludes an SSD claimant from recording his or her CE. There have been countless times where IMA doctors have been banned from performing CE’s, or their opinions have been rejected, after substantial evidence or cross examinations showed they falsified CE findings. If IMA doctors perform CEs in accordance with the regulations, then they should have nothing to hide, and should have no problem with the videotaping. Videotaping an IMA CE is consistent with the SSA recording experts and witnesses at hearings. IMA has a protracted history of acting improperly. Read some of my prior entries on this topic: 11/22/10, 6/6/12, 5/17/12, 10/5/11, 6/29/12, 6/16/12,3/8/10, 8/31/12, 8/11/08, 4/21/10, 6/4/12, 9/8/10, 8/16/12. IMA has a contract with New Industrial Medicines Associates (“IMA”) York State to perform CEs, for which it gets paid a ton of taxpayer money. Medical Experts at hearings are videotaped, and IMA has no excuse or legal authority to justify its refusal to have its doctors videotaped while performing a CE ordered and paid for by New York State. Perhaps if IMA refuses to perform a large number of CEs when claimants try to videotape them, the State will terminate or refuse to renew its contract with IMA”

I previously pointed out that the Workers’ Compensation law specifies that a claimant has the “right to video tape or otherwise record” an examination. IMA does workers comp exams just as they do CEs. IMA told one of my clients yesterday that they could not record the CE, and pointed to a new sign that says, “To maintain client confidentiality, video and/or audio recording is absolutely prohibited anywhere in this facility.” In small print below, the sign adds, “This policy does not apply to Workers Compensations exams.”

The new sign admits that IMA is failing to maintain client confidentiality when it performs workers compensation exams. The governing agency should investigate IMA’s admission. Furthermore, IMA failed to explain how an SSD claimant’s recording their own exam can breach the claimant’s confidentiality. Moreover, IMA has refused to provide any explanation for its disparate treatment of disability claimants.

Most importantly, it seems to me that since IMA’s contract for providing CEs does not state that they can prohibit videotaping, their conduct constitutes a breach of contract. Even if IMA were to renegotiate its contract to allow it to refuse videorecording, it does not trump a claimant’s right to record their own exam. That is why IMA claims that its “policy” is prohibit videorecording, because there is no law that enables it to do so.

In April 2009, the New York State Inspector General and the Inspector General of the Office of the State Comptroller reviewed the contract that the Office of Temporary and Disability Assistance (“OTDA”) gave for performing CEs. The report addressed the allegations of Diagnostic Health Services that OTDA blatantly favored IMA in providing services. The IMA contract costs taxpayers about $20 million dollars for CEs in Bronx, Queens, Nassau and Suffolk. When will the State investigate IMA’s conduct?

Wednesday, March 18th, 2015

Mental Health Records

Under Federal law, you have a right to a copy of your mental health records. The only exception is if having that access may cause you to harm yourself or others. Psychotherapy notes can be withheld as long as they are kept separate from the your medical chart.

Federal law requires your psychiatrist to provide a copy of the medical chart, which should include documents reporting the medical and physical presentation and history, symptoms, diagnosis, testing, treatment, etc., together with any psychiatric notes included with those documents.

There are Federal and State regulations to compel your doctor to provide your mental health records if needed. For example, because the Social Security Administration (“SSA”) is directing Administrative Law Judges (“ALJ’s”) to require contemporaneous records even if treating doctors provide narrative summaries, disability claimants need their mental health records.

The problem is that invoking procedures to compel your doctors to produce records can cause them to terminate you as patients. Therefore, the better practice is to give an ALJ a copy of the written request for your records, which was ignored or denied, and then ask the ALJ to subpoena the records. By having the SSA pressuring your doctor to disclose the records instead of yourself, you decrease the chances that your doctor will terminate you as a patient.

I represent a 49 year old teacher with mental impairments, whose psychiatrist disregarded multiple requests for treatment records. As expected, the ALJ stated that he needed the treatment records, even though he did not really think they were necessary. Each time the treatment records were requested, the psychiatrist refaxed his summary narrative report, and he indicated that maybe the claimant should probably seek treatment elsewhere. Rather than risk irritating the psychiatrist any further, I asked the ALJ to request the records. The ALJ approved SSD benefits today with only some of the records I was able to obtain after the hearing.

Wednesday, March 18th, 2015

CROM Testing

Range of Motion (“ROM”) is the measurement of movement around a specific joint or body part. When evaluating disability based on musculoskeletal impairments, the Social Security Administration (the “SSA”) gives what many believe is uneven weight to ROM motion results. When the ROM findings are absent, the SSA denies disability applications on the grounds that the findings are essential to determining a claimant’s functionality. However, when clinical ROM findings indicate substantial reductions that support a disability claim, the SSA frequently gives them little weight on the grounds that it is unclear if the findings were accurately measured.

I represent a 59 year old medical technologist with back problems. Like other applicants with back impairments, I submitted medical treatment and test records and functionality reports from her doctors. Unlike other applicants, I had the claimant go for computerized ROM (“CROM”) testing. And unlike most claimant’s with back problems, this client’s application was approved in less than 5 months.

The CROM testing is the changed variable in this instance. Limited ROM can result from any injury or disease that causes mechanical problems, muscle spasms, joint pain, inflammation or swelling. My opinion is that as opposed to ROM testing, the CROM testing’s reliability is not questioned.

Tuesday, March 17th, 2015

Padro: Relief too little, too late

The Padro Class action law suit was supposed to bring relief do claimant’s whose Social Security Disability (“SSD”) claims were denied by the “Queens Five”. 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. The case was eventually reassigned to another judge, as per the terms of the settlement. The hearing was held on October 23, 2014, more than a year after the AC remanded the case back to the Queens ODAR.

The claimant’s hearing was approved today, 6 months later. Unfortunately for the claimant, the decision came too late as he passed away this Sunday, still waiting for a decision. And the only reason a decision was reached today, was because my office left a message, advising the judge’s assistant that the claimant had passed away. They didn’t even have the decency to call me.

The claimant had a 5th grade education, and worked his whole life as a contractor. His claim should have been approved the first time around, in 2011. He leaves behind a wife and children. Justice served, too little, too late.

Tuesday, March 17th, 2015

IMA Evading Law Again

I represent a 51 year old home improvement contractor with back and shoulder problems, whose Social Security Disability (“SSD”) benefits were approved today despite IMA Disability Services (“IMA”)’s attempt to circumvent my legal representation. No hearing was required.

IMA performs consultative examinations (“CEs”) for the Social Security Administration (“SSA”) in New York. When the SSA asks IMA to do a CE, information regarding the claimant’s attorney is provided to IMA. Nonetheless, with surprisingly regularity, IMA fails to copy my office when sending letters to claimants that state they must attend the CE.

I submitted medical reports and records from the claimant’s orthopedists, neurosurgeons, physical therapist, pain management specialist, that the SSA found sufficient to approved SSD benefits. The perfunctory CEs, frequently performed by inappropriate, rarely are consistent with the supporting reports of the treating doctors. Had the claimant attended the CE, his SSD application almost certainly would have been denied.