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Patchogue Obstruction

I represent a 59 year old administrative assistant with double concussion syndrome whose application for Social Security Disability (“SSD”) benefits was approved in two months. It could have been faster, but the Patchogue office delayed matters by creating rules that do not exist. 

As has been the case for many years now, we filed the claimant’s application and representation forms electronically. However, in this case, we received an unsigned, one sentence letter declaring that our forms were unacceptable because “original wet signature documents” had to be submitted. 

The fact that the letter was unsigned indicates that the sender knew there was no basis for rejecting the forms. The POMS states: 

Either an attorney or non-attorney may use a rubber stamp or e-signature to sign the notice. SSA will accept a rubber-stamped or an electronic signature unless there is a reason to doubt that it represents the intent of the representative to accept the appointment. 

The POMS could not be clearer. Nonetheless, contrary to the POMS, the Patchogue office delayed matters as it insisted that original wet signature documents be submitted. A needless waste of time and resources.

Washington Times Article

Here is a link to an interesting article from the Washington Times. Among other things, it says that the Social Security Administration estimates that it will take another four years to handle the hearing backlog, and that 10,000 of the claimants waiting for those hearings died while they waited.

Medical Sources

Recently, the Social Security Administration (“SSA”) enacted new rules concerning evidence from medical providers. The bad news is that the new rules were designed to make it more difficult for a claimant to obtain Social Security Disability (“SSD”) benefits. The rules achieve that goal by eliminating the requirement that controlling weight be given to treating source opinions that are well supported. The bad news is tempered somewhat by allowing more weight to be given treating sources that are not considered acceptable ones, primarily MDs. 

For claims filed after March 27, 2017, the new rules state that all medical sources, not just acceptable medical sources, can provide evidence that the SSA will consider as medical opinions.

I represent a 25 year old with mental impairments whose SSD application was approved after the Administrative Law Judge (“ALJ”) gave even greater weight to the opinion of the claimant’s certified social worker (“CSW”) than the treating psychiatrist. The rationale was that the CSW had extensive face to face interactions with the claimant and reviewed the claimant’s medical records. 

While the new rules eliminate the concept of controlling weight, there is nothing to prevent an ALJ from giving greater weight to a treating doctor after considering all the factors for evaluating medical opinions. Nonetheless, no doubt that those ALJ’s with high denial rates will see the new rules as justification to deny more claims.

Lourdes Marasigan

The New York State Office of Temporary & Disability Assistance, Division of Disability Determinations (the “State agency) needs to fire Lourdes T. Marasigan. I have spent years having to overturn decisions that denied Social Security Disability (“SSD”) benefits based on irresponsible reports by Marasigan. 

According to both the American Board of Medical Specialties and New York State Department of Health, Marasigan is not board certified in any specialty, went to medical school in the Philippines, and was trained as an anesthesiologist. Nonetheless, the State agency has Marasigan review every type of medical problem under the sun, including hearing loss, lumbar radiculopathy, brain injuries, vision impairments. As a result, in those rare instances where a consultative examination (“CE”) by Industrial Medicine Associates actually supports an SSD claim, Marasigan comes to the opposite conclusion. 

I represent a 53 year old former truck loader who had seven heart attacks, five stent surgeries, a triple cardiac bypass surgery, hyperlipidemia, hypertension, polycythemia, sleep apnea, and diabetes, that caused weakness, fatigue, vertigo, shortness of breath, and a grand mal seizure. The CE noted the claimant even needed to hold onto the table in the exam room. The CE concluded that the claimant was markedly limited in the ability to walk, stand, climb, or lift anything. 

It is very unusual for a CE to assert that a claimant has any marked limitation, which essentially means precluded for that activity. There is no possibly rational way to interpret the CE to conclude the claimant could stand and walk for even 2 out of 8 hours, or lift any weight for up to a third of the day. Nonetheless, Marasigan opined that the claimant could stand and walk for 6 out of 8 hours and could lift and carry 20 pounds for up to a third of the day, and could lift and carry 10 pounds for about 6 hours a day. 

The State agency denied the SSD claim based on Marasigan’s opinion, even though she never examined or even saw the claimant, and even though the claimant’s cardiologist limited the claimant to sitting for 1 out of 8 hours, standing/walking for less than 1 out of 8 hours, and lifting and carrying somewhere between 0 and 5 pounds for up to a third of the day. The claimant’s internist provided similar restrictions. The bad news was that even though every doctor who examined the claimant, included the CE, provided restrictions that precluded the claimant from any full time activity, the State agency denied the claimant SSD benefits. 

The even worse news was that the case was reconsidered by the State agency quality control, which is fairly rare, yet the claim still was denied. The average wait for a hearing is now well over 600 days. The good news is that rather than remaining idle all that time, the hearing office reviewed the claim about a month later, and reversed the decision.

There simply is no excuse to continue to spend the State agency’s limited resources by employing non-examining doctors, with inapt medical qualifications or backgrounds, to review SSD claims. That injudicious expenditure of resources then wastes the hearing office’s resources too.

Lump Sum Settlements

Disability insurers sometimes will offer a lump sum to a claimant in lieu of continuing to receive a monthly benefit. Insurance companies do so for one reason – to increase their profits. The offers are never in the claimant’s favor because the insurance company is operating in its self-interest, not yours. 

Insurers make unfair offers by misrepresenting that they are offering the present value of the claimant’s future benefits. Present value is the time value of money. If you win a million dollar lottery, the lump sum you can get will be less than a million dollars. The theory is that you can invest the lump sum, which over time would equal a million dollars. 

The lump sum settlement that insurers offer use an interest rate that is too high to represent the present value of the future benefits. The higher the interest rate used, the smaller the lump sum. There is an easy way to prove this if you get a lump sum offer. Ask the insurer what interest they used to calculate the present value of your future benefits. Then tell the insurer that you will accept the lump sum if they purchase an annuity for you at that interest rate. The insurer will tell you that no such annuity is available in the market. 

I represent a claimant who was offered a lump sum in 2014 by CIGNA. Among other things, I advised the claimant that the interest rate used to calculate future benefits was too high. The claimant rejected the offer. 

CIGNA terminated the claimant’s benefits four years later. CIGNA was unable to identify any medical test, exam finding, or symptom that had changed. The case settled for much more than the 2014 offer, even though there was now four fewer years of future benefits. 

If you are currently receiving monthly disability benefits, and the insurance company offers you a lump sum settlement, make sure that you have the offer reviewed by your financial consultant or attorney. Chances are that the settlement is not worth it.

Partially Favorable Decisions

The State agency regularly issues partially favorable decisions (“PFD”) when making initial determinations on Social Security Disability (“SSD”) applications. A PFD should almost always be appealed as this could result in the receipt of substantial additional benefits.  

The first step in appealing a PFD is to review the documents in the eFolder to see if there is one that explains why a later onset date was chosen. Many times it seems that there is absolutely no reason for the delayed onset date. Sometimes there is no document in the eFolder that provides a reason why the State agency issued the PFD. Sometimes, a specific explanation is provided. 

I represent a former carpenter with hand and knee impairments. The State agency issued a PFD based on the claimant turning 55 under the“Grid” rules, instead of when he alleged he became disabled while he was 54 years old. I appealed. At the claimant’s hearing, I questioned him in detail about the treatment records for the 10 month period prior to the PFD. After about 25 minutes, before I could complete the examination, the ALJ agreed that I had established the claimant was disabled from work during that 10 month period. The result was that the claimant will receive nearly an additional year of SSD benefits.

No Help for SSD Backlogs

There is no end in sight for the continued backlog of disability cases at the Social Security Administration. It lacks the funding to hire more ALJ’s and staff, and to update their antiquated system. Without the funding, the wait times will continue to grow and cause extreme hardship for the people waiting for decision on their claims.