www.iwantmydisability.com

Is SSD Permanent? No.

The Social Security Administration (“SSA”) will periodically conduct
a continuing disability review (“CDR”) to determine if you remain
disabled. The regulations state that a CDR should be done at least once
every three years, unless you have a medical condition that is not
expected to improve, in which case the CDR should take place every five
to seven years. If the SSA determines that your medical condition has
improved, then your Social Security Disability (“SSD”) benefits
will be terminated.

We represent a 34 year old financial services manager who the SSA found
disabled in 2018 due to IBS. However, the SSA terminated his benefits on
the grounds that his health had improved, and he retained us again.
On reconsideration, we were able to obtain reports from the claimant’s
doctors that explained how the objective medical evidence supported his
persistent functional deficits. As a result, the SSA reversed its decision, and
reinstated SSD benefits.

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.  That is why it is vital that you continue to see your doctors on a regular basis even after you are approved for SSD benefits.  It is equally as important to retain an experienced Social Security Disability attorney if the SSA erroneously terminates your benefits.  Our office offers free phone consultations and we have offices located on Long Island in both Nassau and Suffolk counties.

SSA – Is Anyone Listening?

By Susan Golden

The Social Security Administration (“SSA”) has problems.  Serious problems.  Years and years of backlogged claims, analysts who don’t give a damn, inexperienced employees, and Judges who don’t follow the rules.  Unfortunately, we have had claimants pass away, while waiting for a decision on their Social Security Disability claim.  And there are thousands of people across the country who are dying before their claims have been decided. 

We have a client who passed away almost four years ago.  He left behind a wife and two children.  He filed for Social Security Disability benefits on December 5, 2017.  His case, which was supposed to be expedited, went before Judge Carlton at the Bronx Hearing Office on April 12 2019, who erroneously denied the claim, and who took months to make the decision; September 26, 2019 to be exact.  We appealed his case to Federal Court.  On January 29, 2021, a Federal Court Judge made the decision to remand the case back to Judge Carlton for a new hearing.  We immediately sent a letter to Judge Carlton, reminding him the that the claimant had passed away, and that the case was supposed to be expedited, and asked that the hearing be scheduled right away.  The remanded hearing wasn’t held until June 9, 2022.   At the hearing, we reminded Judge Carlton that there were no new records to submit because the claimant had passed away.

It’s been well over four months since the hearing, and not only has the Judge not made a decision on the claim, he has not even LOOKED at the case since the hearing.  We have spoken to supervisors at the Bronx Hearing Office, mailed and faxed letters to the Chief Administrative Law Judge of the Bronx Hearing Office, and have had the claimant’s wife call her local congressman’s office.  There has been NO movement at all.  How is this even possible?  The answer is, there are no consequences or repercussions for Judge Carlton, the Bronx Hearing Office, or the SSA.  The way this case has been handled is a disgrace and a travesty.  And it’s not the first one and it won’t be the last.  No one deserves to be treated like this.  Is anyone listening??

Fraudulent CE’s

Cost of Living Increase

It is almost that time of the year again when Social Security announces the cost of living adjustment (“COLA”) to Social Security checks for 2023.  This year, due to inflation, those receiving Social Security benefits could see as much as an 8.7% increase to their Social Security checks.  Experts’ predictions on the amount of the COLA have been fluctuating over the past several months, but one thing they all seem to agree on is that it will be one of the largest increases in more than 40 years.  It would also be the highest increase anyone currently receiving benefits has ever received.

Unconscionable Delays by ALJ

by Susan Golden

It is a well known fact that the process of applying for Social Security Disability (“SSD”) benefits and waiting for a decision, can take months, or even years.  You cannot continue to work if you want to apply for SSD, yet, you’re expected to live without income and wait, while the system slowly churns.

Social Security’s excuse for their long delays  in processing a claim has always been that they are understaffed and backlogged.  While this in part may be true, the bulk of the delays seem to be due to a simple lack of caring. While there are many concerned and committed workers at the SSA, they seem to be more of a rarity, as a lot of the more experienced employees retire.  So many cases are delayed simply because a file sits on someone’s desk for days, weeks and even months.

We represent a claimant who applied for  SSD benefits on December 5, 2017.  The claimant became unable to work a fulltime job on June 15, 2016, and contacted us in December of 2017, seeking our services. Unfortunately, he passed away 3 months before his initial hearing.  He left behind a wife and two children, who were his world.  Five months after his hearing, his claim was denied by ALJ John Carlton at the Bronx hearing office.  This is an unusually long period of time for a Judge to take to make a decision.

We appealed the claim at the Appeals Council (“AC”) and it was denied three months later, in December of 2019.  We subsequently filed suit in Federal Court, and the case was remanded for another hearing. The order was signed and issued by Federal Court Judge Ronnie Abrams on July 6, 2021, and sent back to the AC to process and send back to the hearing office.

It then took the AC an unusually long six months to send a letter to AlJ Carlton, advising him that our claimant’s case had been remanded for further proceedings.  Two weeks later, we sent a letter to ALJ Carlton, reminding him that the claim was supposed to be expedited, even though the AC didn’t treat it as such, and asked that the hearing be scheduled.

Our client’s remanded hearing was held on June 8, 2022, six months after we requested ALJ Carlton to have the hearing scheduled, and almost a year after Judge Abrams issued her decision for a remand.

Four months have passed since the June 8th hearing, and ALJ Carlton has not made a decision.  In fact, he has not even looked at the case.  We have called the Bronx hearing office on a number of occasions to ask why this is so.  We were simply told the case is with the ALJ, and there is nothing they can do.  In the beginning of August, we sent a letter to ALJ Carlton, on behalf of our claimant’s wife and children, asking him to please make a decision on the case, as there was no new evidence to submit since the claimant has been deceased since prior to the original hearing in April of 2019.

Regrettably, our request has fallen on deaf ears, and has been completely ignored.  Our claimant’s wife is understandably angry and upset at the way her husband’s case has been handled, and feels that their children deserve to be treated with dignity and respect.  The delays in this case have been unconscionable.

This week, we sent a letter to Chief Judge Selwyn S. Walters, at the Bronx hearing office, respectfully asking him to speak with ALJ Carlton, to avoid any further delays, and to ask him to make it a priority to make a decision on this case.

Podiatrists

Do not underestimate the importance of podiatrists.  when applying for Social Security Disability (“SSD”) benefits.  The Social Security regulations specifically state that podiatrists are acceptable medical sources for purposes of establishing impairments of the foot.  Claimants frequently overlook podiatrists with foot problems when they are not the primary impairment.

We represent a 56 year N.Y.P.D. detective from North Carolina who had been found disabled because he needed kidney dialysis.  After recovering from a kidney transplant, the Social Security Administration (“SSA”) conducted a hearing during a continuing disability review (“CDR”).  The SSA reinstated benefits yesterday.  However, the CDR found that the claimant was disabled based on the claimant’s foot problems from diabetes, not any renal impairment.

Regardless of whether a foot problem is your primary impairment, your podiatrist’s records and disability opinion should be sought.

CE Boondoggle Continues

Time to discuss again the needless demands the State agency makes for a Social Security Disability (“SSD”) claimant to attend a consultative examination (“CE”).

Since the last Century, virtually every CE notice I have received has violated the Social Security regulations.  Demanding a CE means the State agency refuses to believe what the treating doctors say.  The CEs have delayed claimants’ receipt of SSD benefits, wasted taxpayer money, and wasted the time of administrative law judges.  To make matters worse, the State agency has insisted on CEs throughout COVID.

I represent a 47 year old former clerk from Glen Cove with multiple sclerosis (“MS”), bladder cancer and depression.  Despite supportive reports and records from the claimant’s urologist, neurologist and psychiatrist, the State agency denied SSD benefits because the claimant, with a compromised immune system due to cancer, would not attend a CE.

The case was approved today without a hearing.  As soon as an attorney from the Social Security Administration received the case, it was approved OTR.  The four demands for the claimant to attend a CE obviously were unnecessary.

Does the State agency have an unwritten regulation that requires they insist that every claimant attend a CE?  Doubtful.  More likely, the State agency examiners are too lazy or too busy to read the file.  Therefore, the examiners want to disregard all the medical evidence in the file, and just want to rely on what the CE says.

Yao Syndrome

Yao syndrome (“Yaos”) is an autoinflammatory syndrome involving irregularly occurring episodes that can last for several days, of fever and abnormal inflammation affecting many parts of the body, particularly the skin, joints, and gastrointestinal system.  The joint pain, swelling and inflammation is similar to arthritis, and frequently happens in the legs, ankles and feet.

We represent a 41 year old Director at a Health Care facility from Mineola with Yaos.  Based upon his treatment records, we obtained a report from the claimant’s rheumatologist, Qingping Yao, which explained why he believed the claimant was incapable of working on a full time basis.  Dr. Yao is the Chief of the Division of Rheumatology, Allergy and Immunology, and Director of the Center of Autoinflammatory Diseases at SBUH.  It was Dr. Yao who identified Yaos when he was a senior rheumatologist at the Cleveland Clinic.

Not surprisingly, the claimant was approved for disability benefits without the need for a hearing.   But our client had originally applied for Social Security Disability benefits on her own, and was denied.  She retained our services after she was denied, and she is very happy that she did so.

If you are thinking about applying for disability benefits, please contact our office for a free phone consultation at (888) 572-0861.  We have offices located on Long Island in both Nassau and Suffolk counties.

SSA’s Total Dysfunction

We are constantly asked why a case is denied, when it is so obvious that a claimant is disabled, which as defined by the Social Security Administration (“SSA”) means you are unable to perform any job on a full-time basis.

A perfect example is a case where a claimant fell down an elevator shaft, and sustained numerous severe, life changing, injuries.  He was denied at the initial application, and at the reconsideration stage, and twice by the same ALJ, and twice by the Appeals Council, and his case was remanded three times by the Federal Courts, before it was finally approved 12 years after his accident.

There is nothing that can excuse our government’s laziness, ignorance, or total disinterest in fixing the countless problems with the SSA, so that eligible workers do not have to have their lives ruined, while going through the process of applying for Social Security Disability benefits.

While an attorney cannot fix the problems with the SSA, retaining an attorney who specializes in SSD and disability law greatly improves your chances of being approved, and approved more quickly.  We have been handling disability claims with the SSA since the last Century, and know the system like the back of our hands.  We know what to focus on, and what is needed to obtain an approval.  We offer a free phone consultation during which we explain the entire process of filing for SSD benefits, and guide you with the type of support that is required from your doctors in order to have a successful claim.

Long COVID Approval

According to the CDC, 20% of the people who contract COVID end up with long COVID, and the distribution is notably high for those in the 50-59 age category.  Long COVID is no different from any other medical condition when it comes to eligibility for disability benefits.

We represent a 60 year old medical site manager from Riverhead who became unable to work due to long COVID.  Her symptoms were so severe that she was promptly approved for Social Security Disability after it was determined that she was incapable of resuming her job or any other occupation.  However, the claimant had a more difficult time maintaining long term disability (“LTD”) benefits from Unum.

Despite having many doctors who explained why the claimant’s numerous medical signs, tests and symptoms prevented her from working, Unum terminated the claimant’s LTD benefits shortly after approving them.  After we sued Unum, it immediately urged the court to mediate to avoid further litigation.  The claimant accepted Unum’s offer during mediation, and the case will settle.

SS Benefits Increase for 2023

Lack of Funding

SS Terminology

Nurse Practitioners

At the same time Social Security decodified the treating physician rule, it also named a nurse practitioner (“NP”) or any advanced practice nurse (“APN”) as an acceptable medical source (“AMS”).  The amendment placed the opinion of such nurses on equal footing with physicians.  Among other things, the effect of the amendment meant that when a claimant was primarily treated by an NP or APN, the claimant no  longer needed to get the nurse’s reports co-signed by a physician, and an Administrative Law Judge could no longer disregard the nurse’s opinion.

We represent a 55 year old Park Attendant from Massapequa with mental impairments who was approved for Social Security Disability (“SSD”) benefits today.  Social Security had been vacillating about approving SSD benefits, apparently because the primary treating opinion was from a psychiatric nurse practitioner (“PNP”).

Social Security’s website states that mental health records are confidential, and do not need to be provided.  However, shortly after we submitted the PNP’s extensive progress notes, it seemed Social Security recognized the persuasiveness of the PNP’s opinion, and found the claimant disabled.

When applying for SSD benefits, it is beneficial to have an experienced disability attorney handle your claim.  We offer a free phone consultation, and have offices located on Long Island in Nassau and Suffolk counties.

Treating Source Still Prevails

While the treating physician rule was decodified, courts in the Second Circuit continue to highlight the importance of the treating physician’s opinion.

Administrative Law judge Schriver approved the claimant’s benefits back to 2015 today, after he found the treating rheumatologist’s opinion somewhat persuasive concerning the severity of the claimant’s fibromyalgia.

Our client is glad that we never gave up on her and is ecstatic that her benefits were approved back to 2015.  Please call our office for a free phone consultation if you are planning on applying for Social Security Disability benefits.  Our offices are located on Long Island in both Nassau and Suffolk counties.

Living with Long COVID

COVID has been with us for over 2 years. Many of us have had COVID and recovered. We were able to return to work and resume our lives. But for millions of people, that isn’t their story. Their story is that they suffer from Long COVID, struggling to get through each day, and unable to work. The government has recognized Long COVID as a disabling condition, and wants employers to offer different options and or accommodations for people with Long COVID.

IMA & DDS

The questionable relationship between IMA and the State agency  continues, without any meaningful oversight.  It seems nobody is concerned about the thousands of unnecessary exams.

We were retained by a 55 year old pharmacy tech from West Babylon with progressive orthopedic impairments following a motor vehicle accident, after her Social Security Disability (“SSD”) application was denied.  As usual, the claimant was sent a letter stating that it was “necessary for” her to be examined by an unnamed doctor from IMA Disability Services.

In light of the persistent COVID-19 pandemic, we advised the State agency that it was more important now than ever to comply with the regulation concerning a consultative examination (“CE”).  After all, according to Social Security’s website, they continue to conduct many hearings by telephone due to COVID-19.  We advised the State agency to make a decision because the claimant was not willing to postpone a CE with IMA.  Additionally, we advised the State agency that whatever information it believed was needed from IMA, could be requested from the claimant’s medical sources, who are the preferred source pursuant to the regulations.

The claimant did not attend a CE with IMA.  We received a Notice of Award today for the claimant, who provided all her medical records and reports from her doctors.  The State agency’s motivation for disregarding the CE regulations remains unclear.  However, it is clear that the State agency’s letters asserting the IMA CEs are “necessary” is untrue.  The claimant’s application should never have been denied in the first place.

Hartford Loses Again

Last month’s post, briefly discussed McQuillin v. Hartford, which the Second Circuit issued following an oral argument that sharply criticized Hartford.  The decision also decisively rejected Hartford’s argument that it did not have to decide if a claimant is entitled to receive long term disability (“LTD”) benefits in 45 days.

Despite being trounced by the Second Circuit panel at oral argument and in its decision, Hartford decided to file a forty-two (42) page petition in support of a rehearing.  The Second Circuit saw fit to respond to Hartford’s petition in only a couple of sentences:

Appellee Hartford Life and Accident Insurance Company, filed a petition for rehearing en banc.  The active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.

Long COVID Strugglers

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).