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SSA Continues Prejudicial Policy

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.

Psychotherapy Notes

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.

Vocational Evidence Determinative

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.

Treating Doctor Testimony

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.

IMA Notices

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?

SSA Delays

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.

SSA INTENTIONALLY INCREASING DELAYS

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.