July 2018 - New York Disability Lawyer Law Offices of Jeffrey Delott Law Offices of Jeffrey Delott

Wednesday, July 25th, 2018

Recording A CE

Regardless of what the medical records reveal, the State agency tells a Social Security Disability (“SSD”) claimant to go for consultative examinations (“CE”). CEs almost invariably contain fraudulent findings. For example, the CE report will say that the claimant had no trouble getting on and off the exam table, when the claimant only sat in a chair. This has been happening for many years.

To guard against fraudulent findings, I advise my clients to video record the CE, which are performed by IMA. Because there is no law, rule, or regulation that prohibits a SSD claimant from recording the CE, IMA claims that it is against their policy. However, in IMA offices, they have signs stating that claimants can record their exams, so their “policy” is specious at best.

I represent a 52 year old former teacher for the deaf whose SSD application was approved by an ALJ today. The State agency had denied the claim on the grounds that the claimant refused to attend the CE. The claimant testified that when the IMA doctor saw the claimant’s spouse recording the exam, the doctor threw a fit, left the exam room, and refused to return. The claimant further testified that she never refused to answer any question or submit to an exam by IMA. If the reports of IMA doctors actually reflected what transpired during their exams, then there would be no reason for IMA’s “policy.”

Friday, July 20th, 2018

COPD

Chronic obstructive pulmonary disease (“COPD”) is a progressive disease that makes it hard to breathe. COPD symptoms include breathing difficulty, cough, mucus (sputum) production and wheezing. The symptoms of COPD are progressively worsening and persistent breathlessness on exertion, eventually leading to breathlessness at rest.

Because a claimant is initially symptomatic upon exertion, the more strenuous a claimant’s job is, the sooner that person is likely to become unable to perform it. Thus, a laborer in the construction industry is much more likely to be found disabled soon after the onset of COPD, compared to a receptionist who spends most of the day sitting.

I represent a 55 year old floor tiler whose Social Security Disability (“SSD”) claim was approved today. His job required him to carry 100 pound boxes of tiles and sacks of grout. The administrative law judge (“ALJ”) found it credible that the level of exertion to perform the tiling work was precluded by the COPD. Had the claimant’s work required mostly sitting, then the ALJ would not have found the COPD to be disabling until it had progressed to the point where little exertion resulted in symptoms.

Friday, July 20th, 2018

CE Boondoggle Continues

For many years, I have been describing how virtually every single State agency examiner who processes applications for Social Security Disability benefits insists that claimants must attend consultative examination “CE”s. Almost every CE is scheduled in violation of the Social security rules and regulations, and results in a waste of time and taxpayer money. By demanding a CE, the State agency is saying it does not believe what the treating doctor says. Notably, ALJ Kilgannon just said the same thing during a hearing last week, which shows that the aforementioned concept is not limited to the State agency.

I represent a 54 year old former carpenter with knee, neck, back, and shoulder impairments. On May 21, 2018, the State agency told the claimant he had to attend CEs for his knee and depression. Ignoring my May 23, 2018 letter detailing why a CE was improper, the State agency rescheduled them on May 31, 2018.

When the State agency sent a reminder letter about the CEs on June 1, 2018, we faxed a letter advising the State agency that the claimant neither has, nor claimed, a mental impairment. Nonetheless, on June 14, and 15, 2018, the State agency sent additional letters to remind the claimant about the CEs. After a series of calls, the State agency finally agreed that a CE was not needed to address a mental impairment.

The good news is that the claimant’s SSD benefits were approved last week without a hearing. The bad news is that the attempt to compel the claimant to submit to a mental CE must have delayed the processing of the application. There was nothing in the application regarding a mental impairment. There was no medical record regarding any mental problem. No psychotropic medication was prescribed for the claimant.

Did the State agency fail to review the file properly when scheduling the mental CE? Does the State agency or its examiners have an undisclosed incentive to schedule needless CEs? I suspect we will still be asking these questions for the unforeseeable future.

Friday, July 13th, 2018

Continuing Disability Review

A few years after the Social Security Administration (“SSA”) finds you are disabled, it will conduct a continuing disability review (“CDR”) to determine if you remain disabled. The SSA will find that your medical condition has improved if you significantly reduced treating it. If you stop seeing the same doctors, that can lead to a CDR termination of benefits.

I represent a 57 year old former information systems tech, whose retained us after her SSD benefits were terminated following a CDR. The claimant had relocated from New York to Connecticut. Despite any evidence that the claimant’s medical condition had improved, her SSD benefits were apparently terminated because she had new doctors, and presumably, the SSA hoped that the claimant would no longer be able to supply medical evidence to support her continued inability to work.

On reconsideration, after submitting treatment records and tailored disability reports from the Connecticut physicians, the claimant’s SSD benefits were restored. The SSA has been increasingly seeking ways to reduce the number of claimants collecting SSD benefits. You cannot assume that you will continue to receive SSD benefits until you reach retirement age.

Tuesday, July 3rd, 2018

Help for Social Security?

Anyone who has applied for Social Security Disability (“SSD”) benefits knows that the system has rules that do not make sense and are unfair. Two stand out. First, if you are approved for SSD, there is a 5 month waiting period from your onset date until your benefits to kick in. So if you stopped working on January 15, 2018, your SSD benefits would not start until July 2018. There is absolutely no reason to make people wait for SSD benefits, especially since there is no 5 month waiting time for Supplemental Security benefits. Second, if you are approved for SSD benefits, you must wait 2 years from your date of entitlement for Medicare coverage. Using the example above, you would not be eligible for Medicare until July 15, 2020 if your onset date was January 15, 2018.

Sen. Bernie Sanders (I-Vt.) and Rep. John B. Larson (D-Conn.) introduced legislation Wednesday that addresses many of the issues facing Social Security, such as lack of funding and long waits for hearings. The legislation also proposes to do away with the 5 month SSD waiting period and the 2 year waiting period for Medicare. If this legislation passed, it would make a huge difference in the lives of disabled individuals who qualify for SSD.