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DDS Continues to Purge Evidence

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.

Proposed LTD Regulations

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.

Reliance Approves LTD After Deadline

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.

Approval for Toll Collector

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 Consequences of SSD Delays

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.

Acupuncture

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.