www.iwantmydisability.com

Lincoln Denial Reversed

We represent a 60 year senior executive with a very large regional hospitality group, who had to stop working as a result of a heart attack.  Lincoln Life denied the claimant’s long term disability (“LTD”) benefits because they claimed he could still work at his old job.  However, after we sued, Lincoln Life agreed to pay the LTD benefits.  Issues regarding interest on the past due benefits, attorney fees and costs still remain unresolved.

Lincoln life has stated that it will require additional information to continue paying LTD benefits, even though the claimant’s condition is permanent and will not improve. It is possible that Lincoln Life’s assertion is simply boilerplate language included in an approval letter.  However, any additional documentation would be cumulative and duplicative.

The LTD policy does not require the claimant to prove he is unable to perform any other type of full time work.  The letter approving LTD benefits implies that Lincoln Life may require the claimant to apply for Social Security Disability (“SSD”) benefits, which requires a claimant to prove they are unable to perform any type of full time work.  My client does not contend that he is unable to perform any type of work.

One of the first questions that a claimant is asked at an SSD hearing is, “Why can’t you work?”  I will not allow my client to risk being accused of Social Security fraud.  I advised my client that if Lincoln Life requires him to apply for SSD benefits, to testify that he believes he probably could do some type of full time work other than his prior occupation.  Then, when asked why he applied for SSD benefits, my client will testify that Lincoln Life told him they would take away his LTD benefits unless he applied.  That should protect the claimant from Social Security fraud, which is a felony, and subject Lincoln Life to a qui tam action under the False Claim Act. See U.S. ex. rel. Loughren v. Unum, 2008 WL 4280133 (D.Mass. 09/15/2008).

Adversarial ALJs

An administrative law judge (“ALJ”) is required to adjudicate your Social Security Disability (“SSD”) claim in a neutral manner.  That means an ALJ has a legal duty to treat your claim in a non-adversarial manner.  If an ALJ acts in a way that reflects unfairness, bias, or discrimination, they should be held accountable for failing to fulfill their duties with fairness and impartiality.

If each time you submit evidence, the ALJ seeks to obtain contradictory medical and or vocational evidence, especially post hearing, to rebut your evidence, then the ALJ is probably acting in an adversarial manner.  It is improper for the ALJ to assume that the medical and vocational evidence you submit is suspect because the ALJ is required to adjudicate claims neutrally.  Therefore, when the ALJ seeks to rebut your evidence, especially if done more than once with, e.g., post hearing interrogatories or supplemental hearings with new experts, you should file a complaint against that ALJ, pursuant to Social Security Ruling 13-1p.

One way to hold the ALJ accountable is by filing a complaint with the Division of Quality Service (“DQS”), to determine if the ALJ should be disciplined.  The DQS is responsible for receiving, tracking, and monitoring complaints that it receives.  That tracking will also help support the complaints of other SSD applicants who were subjected to similar unfair treatment by the ALJ.

If you want the DQS to review or investigate the ALJ, you must file a written  complaint, that must be received within 180 days of the wrongful action.  The complaint should contain specific information about the ALJ’s conduct.  Your attorney can file the complaint on your behalf.

2d Circuit Reverses LTD Dismissal

The Second Circuit issued McQuillin v. Hartford today, which reversed the decision of U.S. District Court Judge Seybert.  A copy of the decision can be found under the Resources tab on my website.  Judge Seybert had granted Hartford’s motion to dismiss based on a purported failure to exhaust administrative remedies.

The Second Circuit held that ERISA requires a decision on the merits within 45 days.  Since Hartford failed to do so, or to identify “special circumstances” for an extension, within 45 days, the Second Circuit ruled that Mr. McQuillin had exhausted his administrative remedies.  Thus, the Second Circuit remanded the case back to Judge Seybert so Mr. McQuillin can now receive his day court.

Lupus Anticoagulant

Lupus Anticoagulants are a type of protein antibody called antiphospholipids.  These proteins react to phospholipids, which are fat molecules in your blood cells that can stop your cells from working properly.  The problem with these antiphospholipids is that they can cause blood clots in your lungs, legs, heart and brain.

We represent a 59 year old security guard with Lupus Anticoagulant from Syosset whose Social Security Disability (“SSD”) application was approved today.  The claimant could not sit, stand or walk for more than 10 minutes without his legs swelling, despite being medicated with blood thinners. Consequently, the claimant has to spend as much time elevating his legs to reduce swelling, as he does sitting, standing or walking, which a vocational expert testified precluded all work.

Our office offers free phone consultations if you are thinking about applying for disability and want to retain an attorney who specializes in disability.   We have offices located in Nassau and Suffolk counties on Long Island.

Consultative Exams

The State agency continues to send claimant’s letters stating that they “need” to, and “must,” be examined by Social Security doctors.  They don’t.  I have regularly posted about why the DDS letters are misleading and inaccurate.

Once again, I represent a claimant, this one an attorney from Hewlett with cardiovascular and mental impairments, to whom the State agency sent repeated letters insisting that he attend a consultative examination (“CE”).  Because of COVID, he wanted his doctor to perform the CE, which is what the regulations actually require.

The claimant was awarded Social Security Disability (“SSD”) benefits without the need for a hearing.  Obviously, it was not necessary that he attend a CE in order to be eligible to receive SSD benefits.

The analysts at the State agency like to harass and threaten people.  If you don’t have a disability attorney representing you who is experienced with dealing with these analysts, you will have a very difficult time doing so on your own, not to mention the stress and heartache it will cause you.  We have over 35 years of experience representing disabled workers.  You can call our office for a free phone consultation.  Our offices are conveniently located in both Nassau and Suffolk counties on Long Island.

45 Days Means 45 Days

Long term disability (“LTD”) insurers have made it a habit of taking too much time to decide if  claimants are entitled to benefits. Don’t let it happen to you.

A claimant with cardiovascular impairments from Huntington retained us after Lincoln Life denied his LTD application. We appealed.

LTD claims are governed by a federal law called ERISA. After an appeal, ERISA requires the insurance company to decide if a claimant will receive benefits, or request an extension of time, within 45 days. If the insurance company fails to do so, then its decision will be deemed denied.

When Lincoln Life failed to decide the claimant’s appeal in 45 days, we sued in federal court.  Afterwards, Lincoln Life continued to add documents to the claim file that, not surprisingly, were adverse to the claimant’s application.

We filed a motion to preclude Lincoln Life from including the belatedly created documents from the administrative file record that the district court judge will review when deciding if the claimant is entitled to LTD benefits. Magistrate Judge Locke granted the motion, and his decision can be found with the Court Decisions under the Resources tab on our website.

Updating Opinions

Waiting times for Social Security Disability (“SSD”) hearings are notorious.  A consequence of the delays is that by the time your hearing comes around, the evidence that you obtained, often at significant expense, has become “stale.”

The prolonged wait for a hearing creates a dilemma.  You must submit supportive medical opinions at the initial and reconsideration stages of the administrative review to have any chance of your application being approved.  Moreover, frequently an opinion will be found more persuasive the closer in time it is given to the onset of the disability.  However, if your claim is denied at those stages, the opinion will be considered too old to establish ongoing disability by the time you appear for a hearing.

A medical opinion is usually submitted in the form of a narrative report or a medical source statement.  Physicians and other medical sources often charge a fee for providing their opinion, which they perceive as being extraneous to their treating you.  The expense of updating a medical opinion can be reduced without having to pay for a second narrative report or medical source statement.

We represent a 50 year old from St. Albans with musculoskeletal and urological impairments, who had worked as a police officer.  Besides paying out of pocket for medical treatment, the claimant had paid for medical reports to submit in connection with her SSD application.  At the hearing, the administrative law judge, familiar with my practice, stated that she would accept a note from the claimant’s doctor stating that the restrictions and limitations in the previously submitted reports had not changed.  Experience has shown that physicians rarely charge for such a note.

If you are thinking about applying for disability, you should contact an experienced disability attorney to discuss your potential claim for SSD benefits.  We offer a free phone consultation, and we are available 5 days a week to take your calls.  Our offices are located in both Nassau and Suffolk counties on Long Island.

SS Approves Long COVID

Compassionate Allowance

Social Security’s Compassionate Allowances Program allows for a quick approval for people who have a critically severe illness, such as Stage 4 cancer or a brain disorder.  When an application for Social Security Disability (“SSD”) benefits is filed as a Compassionate Allowance claim, the local office is supposed to determine if the claim satisfies the criteria for a compassionate allowance.  If it does, the local office is supposed to send the claim to the State agency as a flagged claim.  The analyst at the State agency assigned to the case is supposed to expedite the claim, so instead of taking months or years to make a decision, the claimant can expect a decision within a matter of a few short weeks.

We represent two claimants with Stage 4 cancers, who were approved within weeks of filing their application.  We knew when we took their cases, we would not be collecting a fee because our fee is a percentage of a claimant’s past due benefits, and there would be no past due benefits because their claims would be approved so quickly.  We could have told the claimants to apply on their own, knowing they would be approved right away, like some other lawyers would have done.  But we are not those kinds of attorneys.  We wanted to take the burden of applying for SSD off their shoulders and their families’, and help in any way we could.  The last thing they needed was to be stressed and worried about applying for SSD.

SSD and Retirement

Consistency and Persuasiveness

When the Social Security Administration (“SSA”) evaluates medical opinions, the two most important factors are supportability and consistency.  The more consistent a medical opinion is with the evidence from other medical sources and nonmedical sources, the more persuasive the medical opinion will be.  Evidence from nonmedical sources should not be overlooked.

We represent a 47 year old nurse from Bethpage with polycythemia and mental impairments.  In connection with the claimant’s Social Security Disability (“SSD”) application, we submitted letters from his friends and relatives, which described their observations about the way his impairments progressively restricted his ability to function.  The administrative law judge (“ALJ”) found their opinions “somewhat persuasive” because they were consistent with the treatment reports of the claimant’s treating sources.

The ALJ found the opinions of the state agency medical consultants regarding the claimant’s physical and mental functioning abilities “not Persuasive” because additional evidence was provided after their reviews. The ALJ found the opinion of the treating physician to be the most persuasive because, among other things, it was the most consistent with the record as a whole.

Providing detailed descriptions from third parties concerning how a claimant’s affect their ability to do things, and how their behavior has evolved, adds strength to the argument that the treating doctor’s opinion should be considered persuasive.

If you are planning on applying for Social Security Disability benefits, it is in your best interest to retain an attorney who specializes in disability.  Please call our office for a free phone consultation.  Our offices are conveniently located in both Nassau and Suffolk counties on Long Island.

Wasteful & Inequitable CEs

We represent a 53 year old business owner from New Rochelle with physical and mental impairments, whose Social Security Disability (“SSD”) application was approved today.  Last month, the claimant was warned that his failure to attend a consultative examination (“CE”) with IMA could result in his application being denied.  Due to COVID I had advised the claimant not to attend the CE.  It seemed hypocritical to me that Social Security district and hearing offices were closed due to COVID, yet the State agency wanted claimants to be physically examined at IMA offices.

Three non-for-profit institutions just published a position paper about their investigation into CEs that IMA performs.  The position paper discusses the various complaints that I have been posting about for many years now.  The position paper can be found on my Resources tab, and I would encourage anyone applying for SSD benefits to read it

Overwhelming Opinions

Multiple Impairments

When applying for disability benefits, Social Security must determine if the combined effect of all your impairments renders you disabled, regardless of whether any impairment individually would.  We filed an application last September for a 60 year old project manager from Medford that illustrates this point.

The claimant’s case was initially denied, even though we submitted strong evidence that her cervical spine impairment made desk work near impossible.  However, shortly after we submitted evidence demonstrating that claimant’s hip problems limited her ability to stand and walk, which is required by work that is not sedentary, disability benefits were approved.

Claimants frequently neglect to provide information about medical problems because it is not the main issue.  However, any impairment that results in any limitation can be important.

Retaining a disability attorney should be a top priority if you are planning on applying for Social Security Disability benefits.  Applying for SSD requires strategy and expert knowledge of what is needed to be approved.   It is not a simple process, and can be very stressful, especially when you are suffering from medical problems.   We can take that burden off of your shoulders.  You can call our office for a free phone consultation.  We have offices located in Nassau and Suffolk counties on Long Island.

Growing Dire Need

The Social Security Administration’s (“SSA”) local offices will be reopening their doors to the public beginning in April.   While this is good news, the SSA expects that the local office will be inundated with people who have not been able to get any help since March 2020, when the offices shut down to the public.  The local offices also expect to have even longer wait times compared to their usual long wait time, to speak to a representative. To add insult to injury, the SSA has been experiencing daily issues with their phones while they update their phone system.

The backlog in disability claims has grown exponentially since the offices shut down.  The backlog is mainly at the State agencies, who review and make the initial decisions on disability claims.  This backlog has left claimants, who have been unable to work and have no income, waiting for months, sometimes years, for a decision.  Many of them are losing their homes, losing their health insurance, and in some cases, passing away before a decision is even made on their claim.

It is important to note that spouses and children of deceased workers, who had enough work credits before they passed away to be entitled to benefits, may be eligible to collect Survivor and/or Widow benefits under their loved one’s Social Security Number.

The National 800 number for the SSA is (800) 772-1213.  You can also call your local office, whose representatives are usually more knowledgeable than the reps that answer the national number.  You can find your local office’s phone number using the Social Security Office Locator tool on their website, which  asks for your zip code to determine which local office would handle your questions.

Multiple Sclerosis

MS is a chronic neurological and eventually disabling disease that attacks the brain, spinal cord, and optic nerves. Symptoms include overwhelming fatigue, pain, numbness, and poor coordination.

The Social Security Administration (“SSA”) made it near impossible to meet the listing for MS.  Consequently, the key to obtaining benefits is explaining why the symptoms from MS credibly result in functional limitations that preclude the ability to perform full time work consistently.

I represent a 41 year old from Oceanside with MS who worked as a property manager.  The objective diagnostic tests established the MS diagnosis, which explained the presence of her symptoms.  However, the State agency denied her SSD application because it refused to believe that the claimant’s symptoms were severe enough to preclude all work.

The claimant had a hearing with ALJ Berkowitz, who immediately zoned in on the obvious.  The claimant had been earning around $200,000 annually, and the ALJ asked the claimant if she knew how much SSD she would receive.  Common sense dictated that the claimant would not forgo a job that she held for over two decades because she wanted to receive SSD benefits equal to less than 20% of her former income, and that provided credible support for the severity of her symptoms.

It seemed clear to the ALJ that the claimant was unable to work, and entitled to SSD benefits.  It seems incomprehensible that it wasn’t equally evident to the State agency that the claimant could not work on a full time basis.

Treating CE

The Social Security Administration (“SSA”) usually asks a claimant to have a consultative examination (“CE”) when applying for Social Security Disability (“SSD”) benefits.  According to the SSA regulations, a claimant’s medical source is the preferred source to do the CE.

We represent a 54 year old production coordinator and warehouseman with knee impairments, whose SSD application was approved today.  Because of his knee problems, the only possible category of work the claimant could perform would be sedentary work. If the claimant were limited to sedentary work, then under the Grid rules, the claimant still would have to be found disabled if he lacked transferable skills.

The SSA asked the claimant to attend a CE, which was performed by the claimant’s orthopedist.  The orthopedist completed SSA’s form DDD-3883, and the information provided would preclude even sedentary work, which meant that it was not even necessary to determine if the claimant had transferable skills.  The SSD application was approved shortly after the CE report was submitted.

Long Covid Financial Duress

It’s been 2 years since COVID took over our lives.  If you were lucky, you didn’t get COVID, or at least you recovered from it fairly quickly without any lingering effects.  But millions of people in this country have long COVID, a condition which can cause any number of lingering symptoms.

COVID does not discriminate against age, race, economic or political status, or gender.  COVID affects previously healthy individuals as well as people with underlying health conditions.  Some people with severe symptoms can barely get out of bed each day, let alone work a full-time job.

The financial duress caused by long COVID is unimaginable.  So many of these people were unable to return to their job, and cannot work at all.  Their only option, if they are fortunate enough to be eligible, is to apply for Social Security Disability benefits, Long Term Disability Insurance benefits through their job, or through a private disability policy.  Yet , despite all the medical data available from reliable sources, people afflicted with long COVID are being denied disability benefits, even with their doctors’ support.

Hard working people just like you and me are being denied benefits.  Shouldn’t they be compensated when they are struck down by an illness that renders them unable to work?  The insurance companies and the Social Security Administration need to wake up, and help these people instead of denying them.  Who knows, maybe in a few years they will recover so they can return to work.  But right now, as much as they want to and need to, they cannot.

Instead of receiving the benefits to help them through their medical condition, people with Long COVID are losing their health insurance, their homes, and their dignity.  These people need financial assistance now.  The insurance companies and the SSA need to follow the science, and follow what the medical experts are saying.  They cannot continue to bury their heads in the sand.

Aid for Long COVID

Federal Court Remand

We appealed the decision of an administrative law judge (“ALJ”) that denied Social Security Disability (“SSD”) benefits to a 35 year old teacher from Brooklyn with mental impairments.  The ALJ accepted the opinions of consultative psychologists after a single examination over my client’s long time treating psychiatrists.

We argued that the ALJ erred in elevating the consultative psychologists’ opinions over the treating psychiatrists, and by interpreting the mental health records herself.  District Court Judge Chen agreed, and reversed the ALJ’s decision.

Judge Chen also ruled that the ALJ erred when rejecting the treating doctors opinions because they purportedly were inconsistent with their treatment notes.  Judge Chen explained that the ALJ should have requested more information from the doctors to reconcile any alleged inconsistency.

Our client originally filed for SSD on her own, with the help of her father, in 2016.  After her initial denial, her father sought us out and retained us to represent his daughter for SSD benefits.  He assisted in providing us with supportive evidence, and even testified on his daughter’s behalf at her hearing.  But since the ALJ elevated her own opinion over the opinions of our client’s treating doctors, and erroneously denied our client’s SSD claim, we filed suit in Federal Court.  Our client would never have gotten this far had she not retained us, and with Judge Chen’s acknowledgement of the ALJ’s errors, we look forward to a new hearing and a new decision.

If you have already filed on your own for SSD benefits, you can still call our office for a free phone consultation in order for us to assess your disability claim and potentially represent you going forward with your SSD case.  We have offices located on Long Island in both Nassau and Suffolk counties.