Hewlett-Packard (HP) and Sedgwick Lose in the 6th Circuit

A notable ERISA Long Term Disability case decided just a few weeks ago is that of Godmar v. Hewlett-Packard Co., 2015 U.S. App. LEXIS 21467, 2015 FED App. 0801N (6th Cir.)  This decision is notable because it provides some interesting commentaries regarding credibility determinations in long term disability cases and it also comments on the role of doctors hired by plan administrators to conduct paper reviews.

In Godmar, the plan administrator claimed that the plaintiff was not credible because his claims were subjective and could not be corroborated with objective tests.  As we all know, this is  standard language used by many disability insurance companies in their denial letters.  Fortunately, the Sixth District Court of Appeals found that making “credibility findings concerning [the claimant’s] pain without the benefit of a physical exam” would “support the finding that [the administrator’s] determination was arbitrary.”  In other words, the Court of Appeals found that the plan administrator determination could not make a credibility determination regarding the plaintiff's condition without conducting an actual physical exam.  The Court noted that although there is nothing inherently wrong with a paper review of a claim file, it is "particularly troubling" when the plan administrator makes "critical credibility determinations".   

The case is also notable because it "picked apart" the opinions of consulting physicians who offered conclusive statements without any specific discussions of the basis for their opinions.  This is a common practice by doctor's hired by insurance companies and plan administrators.  The 6th Circuit stated:

Sedgwick's decision-making process is difficult to parse. Its final denial letter offered little analysis of Godmar's medical records. Most of the letter is a rote recitation of the records Sedgwick received and the steps taken by its consulting physicians. The letter then provides a  brief summary of the medical documentation—including "chronic nerve pain," "ongoing pain management," and "opioid dependence with substantial limitations"—and offers a conclusory assertion that this evidence is insufficient to support disability benefits.

This case is a great victory for long term disability claimant's and their lawyers because it does not not allow plan administrators and insurance companies to shield themselves with a blanket "abuse of discretion" defense.  Instead, it forces those who deny ERISA long term disability claims to explain the actual basis for their determinations.

Happy Holidays from RamosLaw!

The Holiday season is a perfect time to take a well deserved break and reflect on all the blessing bestowed upon us.  We would like to thank all of our wonderful clients for giving us the opportunity to serve them.  We also would like to thank you for keeping us in mind when a family member or a friend with a long term disability, social security disability or personal injury case needs a lawyer.

We hope that you are enjoying precious memories with your loved ones, particularly the children.  

Be safe this holiday season.  No drinking and driving or, texting while driving.

Merry Christmas
Happy Hanukkah
Happy Kawanzaa
and Happy New Year!

As you relish the good food, decorate your home and sing and dance until the wee hours, may the joy of the season continue to radiate into the new year.  May the holiday season bring more compassion, clarity of mind and a better sense of justice to all of those in charge of adjudicating and administering the disability benefit claims of all of those who suffer from chronic illness or serious injuries.  

Medical Expert Testimony in Social Security Disability Hearings

In certain cases, a medical expert (ME) is asked to testify during a Social Security Disability hearing. This testimony should not be confused with the written medical opinions provided by treating physicians or, confused with the written opinion of doctors hired by the agency to make a paper review of the claim file or conduct a consultative examination of the claimant.  ME's are different in that their testimony is provided during the hearing stage of a case and at the request of an administrative law judge (ALJ).

ME testimony is governed by Hallex I-2-6-70, I-5-34 and I-2-5-39.  ME's are seldomly used by ALJ's in hearing offices in Hartford, Springfield, MA (which includes Worcester) or New Haven. I am aware of an ALJ in Providence who uses ME's on a frequent basis. 

ALJ's may elect to ask an ME to testify under the following circumstances: 

• In order to determine whether a claimant meets or equals a listing
• Determining side effects of medication
• Determining whether a claimant is following prescribed treatment
• Determining a claimant's functional capacity
• Determining the onset of an impairment 

 In the following instances, ALJ's are required to obtain an ME opinion:

• When the Appeals Council or the Federal Court orders it
• To evaluate or interpret a medical test
• In order to consider if a claimant medically equals a listing 

Prior to the hearing, the ALJ must request the ME to examine all the pertinent evidence in the case in which he or she is going to testify.  Moreover, the ALJ must notify the claimant and his or her lawyer of the ME's testimony and provide them with copies of all relevant correspondence.

Section A of Hallex I-2-5-39 requires that the ALJ make a specific opening statement prior to any hearing in which a ME will testify.  The ALJ must explain to the claimant and his or her lawyer why ME testimony is necessary.  The ALJ must also ensure that: the ME has reviewed all the medical evidence, that the ME's professional qualifications are on the record and, must also provide a summary of the the testimony to the ME, if the ME was not able to hear it in person.

During the hearing, claimants or their lawyers can cross examine the ME.  ME's are specifically forbidden from making any physical or mental status examinations during hearings.  Moreover, ME's cannot provide testimony or answer questions on nonmedical matters or make statements outside of their medical and scientific expertise.  

New Claim Procedure Rules Proposed for ERISA Disability Plans

The Employee Benefits Security Administration (EBSA) of the Department of Labor recently proposed new regulations regarding claim procedures for plans providing disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA).  For a copy of the proposed regulations click here.

The amendments are intended to strengthen the current rules and adopt certain safeguards already made part of the Affordable Care Act.  Interested parties may submit comments to the proposed changes in the regulations.

The proposed changes codify many legal standards that are already being implemented by some Federal Courts.  Here is a summary of the proposed changes:

• New procedures must ensure independence and impartiality by those who make decisions regarding long term disability and short term disability claims.  For example, insurance companies handling disability claims cannot provide bonuses to their employees that encourage denials.
• Denial letters must fully discuss the basis for the decision and provide a full discussion of the standards used.  Letters must explain why treating doctor's opinions are not being followed. Moreover, if a claimant has been granted Social Security Disability benefits, the denial letter must also explain why the Social Security decision is not being followed.
• Claimants should be provided with a full claim file and denial letters must contain a provision advising of the right to obtain the file.
• Notice must be given to claimants regarding any new evidence before the claim decision is made.  The claimants must be given an opportunity to respond to the new evidence.
• Final denials at the appeals stage cannot be based on new evidence or new rationales without first giving the claimant a chance to respond.
• Letters from disability insurance companies and plan administrators "must be written in a culturally and linguistically appropriate manner".  If a claimant's address is in an area where 10 percent or more of the population is literate only in the same non-English language  then, denial letters must contain a sentence regarding the availability of translation services.  Such services must include: oral language services, such as a telephone hotline, written notices upon request in a language other than English and, the answering of questions and assistance with filing claims and appeals in any needed non-English language. 

Long Wait Times Prompt Lawsuit in Miami

Disabled claimants are tired of waiting.  In Connecticut and Massachusetts it takes an average of 12 to 14 months to see a judge once a hearing has been requested. 

Its a long time and its not fair to make some of our most vulnerable citizens go through such an ordeal. 

If you think that Connecticut and Massachusetts wait times are bad, take a look at Miami.  In the Sun City, the average wait for a hearing is 22 months!  This situation has prompted the Miami Law School Legal Clinic to file a lawsuit on behalf of 12 indigent and disabled individuals who have been waiting as long as 26 months to get a hearing before an administrative law judge. 

"The delay defeats the Social Security’s purpose of helping to keep people from poverty, and, in the case our clients, has the harshest impact on the poorest population. Miami has one of the highest poverty rates in the country, which makes the extreme delay in Miami that much more unfair,” said JoNel Newman, Director of the Miami Law Health Rights Clinic.

It is not clear what result this legal action will have, however it is clear that it already has had the effect of bringing awareness regarding some of the injustices in the Social Security Disability system. At least two New England newspapers, the Boston Globe and the Portland Press Herald, have covered the news story.  Moreover, since Florida is such an important state in the upcoming Presidential election, the issues raised by the lawsuit hopefully will be brought up during debates concerning Social Security. 

There are other cities in which waits are almost as bad as Miami.  Brooklyn, N.Y., Spokane, Wash., Fort Myers, Fla, and Milwaukee have a 20-month wait time.  Atlanta, Charlotte, N.C., Cincinnati, Baltimore and Chattnooga, Tenn. have a 19 month wait.  

How to Deal With Non-Wage Earnings Received After the Onset Date

The Social Security Administration takes a very close look at any earnings received by a claimant after the alleged onset date.  However, in may instances, receiving money after the onset does not necessarily ruin a person's chances of winning Social Security Disability benefits. Sometimes, the only problem caused by such earnings is that it can slow down the application process and create confusion among adjudicators and judges who are afraid of granting an application to someone that they suspect might have been working above the substantial gainful activity level.

Social Security Disability claimants must bear in mind that the agency has access to practically all of their financial records.  Therefore, never assume that the agency won't have information about earnings. In my experience, it is much better to be upfront about earnings than to try to hide them.  Note that the only income that can affect your chances of winning are earnings received from wages.  Earnings received after a person has stopped working such as, payments for unused sick leave or vacation time, doesn't affect a claimant's chances of winning.  Income from pensions, long term disability payments or dividends, are not detrimental either to an SSDI claim.

Given these circumstances, I always advise my clients to be proactive and provide the SSA with a clear explanation of the nature of any earnings received after the onset date.  (Be aware that the SSA receives statements of earnings with very little information explaining where the money came from.) This can be done by writings a letter to the Social Security field office, by mentioning it on your remarks section of your initial application or, by asking your Social Security Disability lawyer to address it in his or her representative brief.  You can also complete a form called the "Work Activity Report" (Form SSA-821) and submit it to the Field Office.  You can download a Form SSA-821 by clicking here.  In this form, you can attest that you have not engaged in any "work activity" and provide information about the nature of your earnings. 

Sun Life Buys Assurant's Disability Insurance Division

Sun Life Financial, one of the largest disability insurance companies in the Nation, has acquired Assurant Inc.'s long term disability benefits division, as well as other group benefit divisions, for $975 million.  The deal includes the purchase of Disability RMS, a subsidiary that specializes in managing disability claims and consulting services for life and long term disability plans.  According to Sun Life's executives, with the purchase of Assurant, they become the sixth largest group benefit business in the U.S.    

Sun Life, a Canadian Company, has strong ties to New England.  Its U.S. headquarters are located in Wellesley, Massachusetts and it operates offices in Windsor, Connecticut and Portsmouth, New Hampshire.  According to media reports, most of the operations related to Assurant's disability insurance policies will be conducted out of Portland, Maine.  Assurant's main offices used to be located in Kansas City, Missouri.  

It is not clear at this point what changes, if any, will be implemented in the claims process currently used in Assurant long term disability policies.  Nonetheless, our law office is familiar with the process used by both insurance companies to decide claims and is ready to provide aggressive legal representation to policy holders of either insurer.   

Class Action Filed Against the SSA for Relying on Faulty Doctor

Just a few days ago, I was delighted to hear that a group of San Francisco Bay Area lawyers have brought a class action against the Social Security Administration on behalf of disability claimants who were denied benefits based on medical reports from a doctor who had been previously disqualified by the Agency.

Claimants are often required to undergo a medical examination conducted by a doctor hired by Social Security.  These evaluations are knows as "consultative evaluations" or "CE's". Unfortunately, a large number of CE's throughout the country are performed by highly incompetent doctors who perform inconsistent, cursory examinations of disability claimants. Disability lawyers become frustrated when they see that just one doctor has examined hundreds of their clients and notice that, in practically all of the cases, the CE reports are unfavorable to the claimants.

I hope that the issues raised by the class action Hart v. Colvin help raise awareness of the many abuses that are often committed in CE's.  In Hart, a group of claimants who were deprived of benefits are contesting the SSA's reliance on medical reports prepared by Dr. Frank Chen, a doctor who had been disqualified by Social Security.  These reports were based on unfair examinations conducted usually in ten minutes or less and often referenced tests which were never performed.  Even though Dr. Chen was disqualified, hundreds of claimants throughout the Bay Area were never informed of the doctor's disqualification.  These reports were often cited by judges and other adjudicators as a basis for the denial of benefits.

The class action seeks to reopen all prior determinations made by the SSA in which it relied on CE's conducted by Dr. Chen.  Plaintiff's demand an opportunity for a new hearing with the option to have a new exam from a qualified medical professional.

Plaintiffs are represented by Morrison & Foster LLP, the National Senior Citizens Law Center and the Legal Aid Society of San Mateo County.

Budget Deal Saves SSDI

The budget deal approved by the U.S. Senate on October 30th saves Social Security Disability beneficiaries from a 20 percent cut in benefits.  The bipartisan agreement transfers funds from the retirement fund to the disability program.  This averts cuts that could have been disastrous for the 11 million recipients of SSDI benefits.

Earlier this year, Republicans had opposed the transfer of any monies from the retirement fund to the disability fund.  Republicans argued that they would only agree to the transfer, if cuts were made to the disability program.  The passage of this legislation is seen as the first significant piece of legislation that has been passed under the leadership of incoming House Speaker Paul Ryan (R-WY).

The budget bill includes 144 pages of legislation solely devoted to the Social Security Disability program.  The new legislation contains several provisions to prevent and fight social security fraud. It provides additional funds to create new task forces of agents who will go after individuals who abuse the system.

The legislation also makes significant changes to the program's work rules.  Currently, if a Social Security Disability beneficiary makes more than $1,090, he or she is automatically disqualified from receiving benefits.  Under the new rule, applicants can work above the SGA level (which is currently $1,090) and continue to be eligible.  From now on, benefits will be progressively offset on a 2 to 1 ratio for every dollar made in excess of $1,090.  However, I suggest that all Social Security Disability applicants must still consult with their lawyer prior to going back to work.  It is not yet clear how this new rule could affect an applicant's chances of winning SSDI. 

There is also a provision in the bill that requires all states to develop a medical screening process at the initial stage of a disability claim.  In the past, approximately 20 states were allowed to grant disability benefits simply through a review by state medico vocational analysts.  Advocates of the disabled have argued that this part of the legislation might result in even longer delays during the initial application process.  In many circumstances, medical records provided by a claimant are clear cut evidence that a person is disabled.  Unfortunately, this new requirement will prolong the wait suffered by many who suffer from very severe physical and mental limitations.

Finally, the bill provides additional funding to hire new Administrative Law Judges.  Acting Social Security Commissioner Carolyn Colvin was extremely pleased with this part of the bill.  She has announced that she will increase the number of ALJ's from 1,450 to 1,925 by 2017.  Hopefully, this measure will help alleviate the backlog at the hearing level which currently exceeds one million cases.

Jessica Smith From RamosLaw Will Attend the Fall 2015 NOSSCR Conference

Social Security claimants' representatives and attorneys from all over the Nation meet twice a year to share their knowledge with one another and learn the best practices in the field.  This event is a four day conference hosted by NOSSCR (the National Organization of Social Security Claimant's Representatives).  

This week, our very own Jessica Smith will be flying out to Denver, Colorado, "the Mile-High City", to further develop her skills in the ever changing world of Social Security Disability law.  Many of you who have used the services of RamosLaw know how well informed Jessica is and how eager she is to share this knowledge with all of our clients.  Her trip to Denver is a wonderful opportunity to continue sharpening her skills.  Note that, the event is an intense seminar: there's no time for golfing or playing shuffleboard.  Work hard Jess, our client's need you more than ever!

NOSSCR has been a pioneer in teaching advocacy skills to lawyers and legal professionals who work on behalf of the disabled.  Its first conference was held in 1979 in New Orleans with about 100 participants. Today, NOSSCR has grown strong and it counts with more than 4,000 members, many who are actively lobbying in Congress to protect our disability programs. 

This tine around the keynote speaker, on the Thursday morning general session, will be Theresa Gruber, incoming Deputy Commissioner, ODAR.   

We are all excited for Jess and wish her a great trip!

No COLA Next Year for Social Security Recepients

The cost-of-living adjustment, or COLA usually provided to Social Security Disability beneficiaries on an annual basis will not be available next year.  Retirees and Disabled Veterans will not receive an increase in benefits either.    This is bad news in light of higher medicare costs.  

In 1975 Congress passed legislation providing for an annual increase in benefits to account for increases in inflation.  However, the formula used to determine inflation uses a consumer price index which relies heavily on gas prices.  Since gas prices have been dropping, figures used to determine the COLA led the government to conclude that there hasn't been any significant inflation that would justify an increase in benefits.  

It is widely accepted that the drop in gas and heating oil prices were the main reason why there will be no COLA in 2016. However, the cost of other items and services that disabled individuals spend a great deal of money on  --such as health care-- went up last year.  Therefore, Social Security Disability beneficiaries will take a big hit as a result of not receiving the yearly boost in benefits.  It is estimated that the prices for medical care increased by 2.4 percent last year.  The prices for other items that disabled beneficiaries need have also gone up.   For example, the price of housing went up by 3.2 and food prices climbed by 1.6 percent.
Advocates for the disabled and the elderly have argued for years that the formula used by the government to determine inflation does not accurately reflect the cost of good and services consumed by this sector of the population.  Instead, advocates favor another price index called the CPI-E (E for elderly), which takes into consideration the specific spending patters of those who are elderly. Congressman Eliot Engel (D-N.Y.) is proposing legislation that would amend the law and require the use of the consumer price index for the elderly instead of the consumer price index being used now.

6th Circuit: Deadline to File For LTD Benefits Does Not Apply When Disability Prevents Claimant from Making Claim

I often get calls from claimants who have failed to make timely claims for long term disability benefits.  A recurrent theme in some of these phone inquiries is that the claimant failed to apply for LTD benefits because their overall mental and/or physical health hindered their ability to advocate on their own behalf.  In many cases, the callers tell me that they were fired by their employers before they could file for disability.

Fortunately, just a few days ago the Sixth Circuit Court of Appeals decided a case on point.  In Waskiewicz v. UniCare Life and Health Ins. Co., the Court of Appeals heard the case of Laura Waskiewicz, a Ford Motor Company employee who was absent from her job due to a "debilitating emotional breakdown".  Ms. Waskiewicz did not inform Ford of her absence and was fired from her job.  Since she was no longer an active employee at Ford, her application for LTD benefits under the company's plan was not accepted.  However, Ms. Waskiewicz's doctor had written a letter stating that his patient's inability to work was due to her medical condition and that her disability had begun on the day of her first absence from work.   

Ms. Waskiewicz contested the denial of her long term disability benefits in Federal District Court. After loosing at the District Court level, the case was heard by the 6th Circuit Court of Appeals which decided, in an unanimous decisions, that her failure to file for LTD benefits was excusable because she was unable to comply with the plan's deadline "due to the very disability for which she sought coverage".   Appellate  Judge Alan E. Norris writing for the three judge panel stated: 

“An insurance policy can hardly be said to provide employee disability ‘insurance’ at all if it protects against sudden disability but not if the employer immediately discharges the employee because of the disability before she gets a chance to apply for the benefits,” Judge Norris said. “Common sense convinces us that the denial of benefits in this case runs contrary to the spirit of ERISA, which is designed to protect employee benefits, not subject them to arbitrary termination — in this case retroactive termination — after the benefit has otherwise accrued.”

This case is undoubtedly a legal victory for disabled claimants.  However, it must be pointed out that a successful outcome in a case such as Waskiewicz  depends greatly in the ability of the claimant and his or her lawyer to obtain medical opinions corroborating that their patient was unable to file the claim on a timely basis due to a disabling physical or mental condition.

Is the SSA Respecting the Integrity of Administrative Law Judges?

Recent developments at the Social Security Administration (SSA) have raised concerns whether
the agency is respecting the integrity and independence of Administrative Law Judges (ALJ's).  For example, in 2014 the SSA asked ALJ Rita Eppler to make a presentation during a training for its employees.  Other ALJ's were supportive of her remarks, particularly when she emphasized the importance of having a totally independent trier of fact making unbiased determinations in disability cases.

Apparently, the SSA management didn't like her remarks and has kept her speech out of future training sessions.  Here is a video of Judge's Eppler's remarks.  You can judge for yourself whether there was anything inappropriate in what she said.
The SSA's actions in this matter are very troubling given the fact that in the past year many ALJ's seem to have decreased dramatically the number of  fully favorable decisions being issued.
The integrity of our disability claims process depends greatly in maintaining and protecting the independence of the ALJ's.  It is the responsibility of every Social Security Disability Lawyer to defend the right of the disabled to appear before unbiased judges.  We must stand united and protest any attempts to infringe on the independence of the ALJ's.    

Pro-Bono Representation to Kentucky and West Virginia Claimants

In an unprecedented action by the SSA, approximately 1500 SSDI beneficiaries in Kentucky and West Virginia received notices this summer stating that their benefits could be discontinued. RamosLaw has joined the National Organization of Social Security Claimant's Representatives (NOSSCR) and the Appalachian Research and Legal Defense Fund (AppalReD) in providing Pro-Bono representation to some of these individuals.  

Government officials have requested that benefits be stopped for all former clients of Eric Conn, a Kentucky lawyer who they suspect committed fraud.  Many generous local attorneys have been working tirelessly to protect these individuals’ rights and benefits, through preliminary injunctions, wrongful death actions, motions to freeze Conn’s assets, and pro bono representation at the Social Security ALJ hearings. These individuals need representation to assist them in obtaining medical evidence, and to represent them before the Appeals Council or at ALJ hearings, if needed. Since it is expected that there will be no funds available to pay attorneys, many lawyers throughout the country have agreed to provide free legal services. To date, an army of about 100 social security disability lawyers has volunteered to help represent the claimants at hearings or to provide training or other resources to volunteer lawyers.

Help is still needed from attorneys. The local attorneys in Kentucky and West Virginia anticipate that they can serve fewer than 15% of the affected individuals. You can send an email to nosscr@nosscr.org if you are an attorney or a representative who is willing to help.  If necessary, ALJs will allow lawyers to participate in three way video conferences and lawyers might not be required to attend hearings in person.

Social Security lawyers and representatives are truly involved in ensuring the integrity of the Social Security disability process.  Unfortunately, some of the actions taken in these cases have been highly arbitrary and are hurting people who are completely innocent. We must ensure that the affected individuals receive full due process from the Social Security Administration.

Seventh Circuit Upholds Ban on Discretionary Clauses

On September 4, 2015, the Seventh Circuit Court of Appeals issued a decision which is a giant victory for long term disability claimants.  In Fontaine v. MetLife, the Seventh Circuit joined the Ninth and Sixth Circuits holding that state laws prohibiting discretionary clauses in LTD insurance policies are not preempted by Federal Law.  This means that state legislatures can pass laws prohibiting policies that give full discretion to the insurance companies when they determine whether a claimant is eligible for benefits or not. 

One of the most common issues in long term disability lawsuits is what standard of review is used by the court to decide a case.  In 1989, the Supreme Court held in Firestone v. Brunch, 489 U.S. 101, 115, that courts should apply a de novo standard of review in suits dealing with a denial of benefits governed by ERISA.  However, if the LTD plan expressly provides for a different more deferential standard of review, then that specific language in the policy controls.  After 1989, insurance companies began including language in their policies, stating that they had discretionary judgment in interpreting the policy or deciding whether to pay benefits.  As a result of this move by the insurance companies, some states started adopting laws prohibiting such clauses in insurance policies.  This action by state legislatures prompted extensive litigation involving cases such as Fontaine.

In Fontaine, MetLife argued that the Illinois statute banning discretionary clauses was preempted by the Employee Retirement Security Income Act of 1974 (ERISA).  In other words it argued that, state statutes were not valid because legislation in this area of the law has been reserved only for Congress. Fortunately, the Appeals Court rejected this argument stating the ERISA law specifically saves from preemption any state law "which regulates insurance".  29 U.S.C. Sec. 1144(b)(2)(A).   

Moreover, a more clever argument was made by MetLife in Fontaine.  MetLife argued that the discretionary clause in question was not in the insurance policy but in the actual long term disability plan.  The insurance company alleged that since the plain was not part of an insurance policy it could not be regulated by state laws.  The Seventh Circuit rejected this "hyper-technical argument" and stated: "whether a provision for discretionary interpretation is placed in an insurance policy or in a different document is arbitrary and should make no legal difference",  The Court concluded that: "If MetLife's interpretation of ERISA's savings clause were correct, then states 'would be powerless to alter terms of the insurance relationship in ERISA plans; insurers could displace any state regulation simply by inserting a contrary term in plan documents.'" 

  

SSDI Allowance Rates Fall Under Obama / Colvin

Over the past year, enemies of the Social Security Disability Programs have waged a campaign of misinformation alleging that the Democratic administration of President Barack Obama has allowed the number of SSDI recipients to soar during his tenure.  An article recently published by The Atlantic shows that official numbers do not back up this accusation.  See Saving SSDI   

The article from The Atlantic notes that: "SSDI has become a more stringent program during the Obama years, admitting fewer than expected new recipients onto program rolls."  Here is a chart showing the actual figures gathered by the Center on Budget and Policy Priorities:

Another must read article on this issue was published by the Center on Budget and Policy Priorities: Disability Allowance Rates Fall as Social Security Strengthens Oversight of Hearings.  The articles states: 

The rate at which Social Security administrative law judges (ALJs) approve claims for disability benefits dropped for the fifth straight year in 2014, new Social Security Administration (SSA) data show. The ALJ allowance rate has fallen from 63 percent in 2008 and 2009 to 45 percent in 2014. Thus, claims that ALJs are “out of control” are without merit.

It should be pointed out also that the only time during the Obama administration when allowance rates increased was when the SSA was under the direction of Commissioner Michael Astrue.  Astrue was appointed by President George W. Bush, not Barack Obama.  Terms for SSA Commissioners are staggered.  When Astrue finished his term, President Obama appointed the the current Commissioner, Carolyn Colvin.  Official data clearly shows that allowance rates for SSDI have dropped, at all stages of the process, under Commissioner Colvin.

This is important information to keep in mind during the upcoming debate regarding the fiscal challenges that the Social Security trust fund will face in the fall of 2016.  As I have stated in previous posts, the problems facing the fund can be corrected with a relatively minor relocation of funds.  However, enemies of the disability programs are trying to manufacture a crisis in which they allege that disability allowance rates have gone wild over the past years.  As you can see from the latest numbers gathered regarding allowance rates, this accusation is completely false.  

Updating Your Social Security Disability Case

As we all know, the Social Security Disability claims process is very slow.  While you wait for your case to be decided, it is extremely important to continue receiving intensive medical care for your conditions.  Moreover, you must keep your lawyer updated on certain specific developments in your case.  Here is a list of certain things that you must keep your lawyer updated while your case is pending:

• Any attempts to go back to work:  If you decide to work or to make an attempt to work while your case is pending, you must immediately notify your lawyer.  Be prepared to provide your lawyer with paystubs of all the payments that you have received.  Moreover,  you should provide your attorney with a list of the duties that you perform on your job.  Consult with your attorney to make sure your attempt to work is not inconsistent with your allegations of disability.  
• Changes in address and other contact information:  This one is common sense.  Unfortunately, many clients forget to let their lawyers know about changes in address, email or telephone. Always provide your lawyer with alternative contact information from relatives or close friends in case that your are too sick to be able to respond to your lawyer when he or she is looking for you.
• For SSI cases, any changes in income:  If you have an SSI case, you must notify your lawyer of any new sources of income received by you.  For example, if your former spouse begins paying alimony after the filing of your disability claim, you must tell your lawyer.  Changes in income can affect your eligibility for SSI.
• Any offers to settle your worker's comp case:   If your SSDI case is pending, you should not sign a settlement agreement in a worker's compensation case without first running it by your Social Security Disability Lawyer.  Once you sign an agreement in a worker's comp. case, you might be stuck with a fairly high reduction in your Social Security Disability Benefits.  It might be possible for your Social Security lawyer to include language in the settlement agreement that prevents a high reduction (offset) in benefits.
• New medical treatment and new doctors:  If you are receiving a new type of medical treatment or have a new doctor, you must let your lawyer know.  Be prepared to send the law firm an email, if possible, with the name of the doctor(s) or treatment sources, dates of treatment and the doctors addresses.

What is the Office of Quality Performance (OQP)? Is it Doing its Job?

The Office of Quality Performance is a division of the Social Security Administration that is in charge of randomly selecting cases for review.  The purpose of their intervention on a case is to ensure that decisions made at the local level are consistent with the regulations.  Bear in mind that at the initial application stage, cases are reviewed by DDS examiners who are not employed by the Social Security Administration.

Obviously, one of the purposes of this office is to prevent any particular state or region from issuing decisions that are too generous to claimants.  According to the SSA, one in every 100 cases are pulled from DDS for review.  If your case is selected for review, your case is likely to take longer to be decided.  

In my involvement in cases that have been reviewed by OQP, I usually find that the quality review process rarely works in an effective way.  All that QR does is to create an unnecessary layer of adjudication.  OQP employees aren't any smarter DDS workers.  OQP conducts yet another de-humanized paper review of a disabled person's claim, prolonging the time that it takes the agency to decide a case.  

In light of all the accusations of corruption in Kentucky, West Virginia, New York and Puerto Rico, I wonder where OQP has been.  The SSA and the critics of the disability program act as if these cases of corruption happened without their knowledge.  Really?  Any person reviewing 1 out of 100 cases at DDS in Kentucky or Puerto Rico could have easily spotted a pattern of deception by certain representatives.
OQP has an important mission.  More should be done to improve the quality of its work.  Its role shouldn't be to slow down the process and create a further layer of review.  Instead, the Office should concentrate in ensuring that the disability programs are fairly administered to protect the system from corruption and to safeguard the rights of the disabled.       

   

Deciding Whether to Appeal a Judge's Decision or File a New Claim?

Unfavorable decisions by Administrative Law Judges (ALJ's) are  on the rise.  As I have indicated in previews posts, last year, SSDI denials went up 15% at the National level.  I suspect that this percentage has continued to increase throughout the first half of 2015.  For this reason, a question that many claimants are currently facing is whether to appeal an unfavorable decision by an ALJ or instead, file a new application at the initial level.  Here are some of the issues that claimants must consider in making this difficult decision.

• The Date of Last Insured Matters:  In deciding whether you want to appeal or file a new application, you must first find out your "date of last insured".  If your date of last insured is in the past, it will be very hard for you to file a successful new application.  In order to succeed, you must show that your disability began before your date of last insured.  On the other hand, if your DLI is in the future, you still have a chance to submit new information with proof of your ongoing disability,  For these reasons, I usually disfavor filing a new application in cases in which the DLI is in the past.
• Do you Want to go Before the Same Judge, Again?:  One of the main problems of appealing a judges decision, is that if your appeal is successful it is very likely that your case will be remanded back for a new hearing with the the same judge who denied you.  Only in very rare occasions, will the Appeals Council take the case away from the judge who denied you or issue a favorable decision without the need of a new hearing.  This is one of the biggest drawbacks of appealing your case.
• Are you Willing to Compromise Some of Your Past Due Benefits?:  One of the drawbacks of filing a new application is that you are potentially giving up your claim for past due benefits from your prior application,  Under some circumstances, giving up past due benefits might be a good trade off.  If time is of the essence and you think that your new application has a good chance of being granted early in the process, you might want to consider giving up your past due benefits.
• Time Considerations: Almost everyone that I talk to is concerned about the length of time of that an appeal will take versus an initial application.  Both processes can be extremely lengthy. In most cases, it takes the Appeals Council more than one year to decide a case.  Assuming that the Appeals Council issues a remand, it takes the ALJ about another 6 months to schedule a hearing and issue a decision.  In terms of time, there really isn't a big difference between an appeal vs, and new application, unless your medical condition her worsened dramatically since the date of your hearing,  If your condition has worsened dramatically, then you might have a good chance of having your initial application granted relatively early.   

Determining whether to file an initial application or appeal is something that must be decided on a case by case basis.  I hope that this brief summary of the issues to be considered are of help in making your individual decision.

Obama, Guns and Social Security Disaibility

A gun control proposal by President Barack Obama could affect millions of Social Security Disability beneficiaries who have been deemed incompetent to handle their own affairs.  As is the case with most gun issues, the idea has sparked a heated debate.

Unfortunately, there is a great deal of misinformation on this topic.  This ignorance stems largely from the fact a large number of news reporters and public figures don't know much about how SSDI operates.  Since the SSA has the responsibility to insure that monies are properly used, it determines whether beneficiaries are capable of handling their own funds.  If they are deemed to be incompetent of handling their money, they are required to have a representative payee to handle their SSDI or SSI checks.  President Obama's proposal intends to report SSDI beneficiaries who have a payee to the National Instant Criminal Background Check System and prevent them from owning guns. 

About 4.2 million adults receive SSDI checks that are managed by representative payees. Opponents of the President's plan argue that that being incapable of managing funds does not necessarily make a person violent or dangerous.  At first glimpse, this argument seems to make sense.  However, if you have practiced Social Security Disability Law as long as I have, you know how hard the disability determination process has become.  Claimants are routinely denied benefits at all stages of the process based on their capacity to perform simple manual tasks such as: cooking, washing dishes, washing and folding clothes and taking care of pets.  I submit that a person who alleges to be able to handle a firearm is very likely to loose his or her Social Security Disability case.  Lets face it, operating a firearm safety requires a great deal of attention and concentration --far more than its required in simple sedentary jobs.  Moreover, firing a gun requires excellent manual dexterity, coordination and eyesight: all excellent skills that can be used in a wide array of occupations.

Nonetheless, I do recall winning at least one Social Security Disability for a client who was an avid hunter.  Needless to say, it wasn't an easy one.  I would be very concerned of representing anyone in the future who insists of maintaining any hobbies associated with guns (with the obvious exception of a very low key gun collector).  

Consequently, I am not thrilled by those who are defending SSDI beneficiaries' right to bear arms. SSDI is a financial lifeline for millions of disabled Americans.  Insisting on the beneficiaries' right to bear arms, could lead to an eventual denial or cessation of their benefits. For this reason, I believe that, at this crucial point in time, protecting the economic well being of the disabled is far more important than their right to bear arms.

New Listing for Children's Growth Disorders

The Social Security Administration has revised its listing for children with growth disorders and weight loss.  (Listing 100.00 and other sections)  This rule was published at 80 Fed. Reg. 19522 (Apr. 13, 2015) and went into effect on June 12, 2015.  Babies born at at 32 weeks of gestation and weight less than 1250 grams meet the listing.  Babies who weight less than 1200 grams at birth meet a different part of the listing regardless of how many weeks of gestation they had.

There are some new listings regarding children's growth disorders.  For example, section 100.5 pertains to children under 3 who "fail to thrive".  There are also new listings for growth failure caused by chronic respiratory disorders (listing 103.06)  and for renal disease (listing 106.08).  However, some listings were eliminated: (listings 100.02 and 100.03) for growth impairments related to a medically determinable impairment.

The new listing's objective is not to rely anymore on "linear growth" (height) alone, but also on a child's weight to length ratio or body mass index.

Avril Lavigne's Struggle with Lyme Disease

If you have suffered from a severe form of Lyme Disease or know someone who has gone through the ordeal associated from suffering from this condition, you know how hard it is to obtain adequate medical treatment.  Last week, Canadian pop star Avril Lavigne described on television her struggle with Lyme Disease, particularly how difficult it is to get a doctor to even acknowledge that a patient is suffering from this disease.

When I first heard her interview, her ordeal seemed incredibly similar to the experience of many of my disability clients.

Here is a video of her interview:

I hope that her account of her fight with Lyme Disease helps raise awareness regarding the difficulties faced by Lymes patients. In addition to suffering from lack of adequate treatment, these patients are often taken advantage by disability insurance companies and by the Social Security Administration because their doctors are not willing to make an adequate diagnosis,  If someone like Avril was labeled  "crazy" due to her unusual symptoms, imagine what an average disability claimant goes through.  Hopefully her appearance on ABC helps educate disability claims adjudicators that this disease is real and that, at times, it can be extremely disabling.

ERISA Denial Letters Do Not Need to State Time Limit to File Action in Court

It has been clearly established that a claimant has 180 to file an administrative long term disability appeal.  However, once the administrative appeal is denied, there is a great deal of ambiguity as to when a claimant must commence an action in Federal District Court.  In a recent decision,  Wilson v. The Standard Insurance Company, the 11th Circuit Court of Appeals had the opportunity to explain the applicable time limitations in ERISA cases.  

In Wilson, the 11th Circuit noted that “ERISA does not provide a statute of limitations for suits brought under § 502(a)(1)(B) to recover benefits. Thus, courts borrow the most closely analogous state limitations period,” unless the parties have contractually agreed to a different one in the ERISA plan. Northlake Reg’l Med. Ctr. v. Waffle House Sys. Emp. Benefit Plan, 160 F.3d 1301, 1303 (11th Cir. 1998).  In other words, since there is no specific time limit to file an action in court, the statue applied in ERISA cases is whatever statue exists in the forum state.  Therefore, in most long term disability cases, courts borrow the statute of limitations on breach of contract actions of the state where the case is heard.  

However, plan administrator and insurers can specify in the plan or policy document that a different statute of limitations is applicable.  This is in fact what happened in Wilson.  In Wilson, the Standard Insurance Company specified in the disability policy that the time limitation to file an action in Federal Court was 3 years.  However, the applicable statute of limitations for breach of contract cases in that particular forum state (Alabama) was six years.  When the Standard issued its letter denying Ms. Wilson her long term disability benefits, it failed to mentioned that the policy had a three year limitation period. 

Wilson eventually filed an action in Federal Court, 34 months after the three year period had passed. The Standard alleged that the action was time barred because it was outside the three year period contained in the policy.  Wilson contended that the three year period was not applicable because the Standard had failed to point out in the denial letter that there was a three year limitation to bring actions in court.  The 11th Circuit held that the insurance company was not required to inform the claimant of the time limitation to bring action in court.  According to the court, the insurance company is only required to mention in the denial letter the 180 time limitation to file administrative appeals.  Moreover, the Circuit Court of Appeals noted that the plaintiff bears the responsibility of obtaining a copy of the long term disability plan and determining on his or her own what is the applicable time period to file an action in court.

Social Security Amends its Cancer Listing: Section 13.00

Over the years the Social Security listing that pertains to cancers has been known as the listing for "Malignant Neoplastic Diseases".  This listing is contained in Section 13.00.  A few days ago, the SSA made several amendment to this listing and finally renamed it as the "Cancer" listing.

One of the changes of this listing is that it recognizes that treating sources, other than MD's, can provide valid documentation of multimodal therapy.  The new rule states: "While an acceptable medical source may provide this evidence, our existing policy allows us to accept evidence from other medical sources to establish the impairment's severity.  For example, this evidence may come from sources we do not consider acceptable medical sources, such as oncology nurse practitioners who administer chemotherapy and radiation therapists who deliver radiation treatments."

Also, Section 13.00I.6 was amended to change the definition of the term "progressive cancer". Before, progressive cancer was described as a cancer where "malignancy becomes more extensive after treatment".  The new rule states instead: "progressive means the cancer becomes more extensive after treatment; that is, there is evidence that your cancer is growing after you have completed at least half of your planned initial anticancer therapy."

The amendment to the listing also makes amendment to how specific types of cancers are evaluated. Here are some examples:

Primary breast cancer evaluations will under go some changes under the new listing. For example, Secondary lymphedema resulting from anticancer therapy is evaluated under 13.10E if the secondary lymphedema is treated by surgery, but the onset of disability can be earlier that the date of surgery if there is enough evidence to that effect.

Primary peritoneal carcinoma is evaluated under 13.24E for women and 13.15 for men.

Skin cancer listing at section 13.03 was amended to exclude malignant melanoma and directs adjudicators the new section 13.29 to evaluate this cancer.

Disability Report Must be Filed With Appeal by Deadline

Once an initial Social Security Disability application or a request for request for reconsideration is denied, a claimant has 60 days to file an appeal.  In the past, the claimant and his or her lawyer could simply file the appeal electronically using (SSA-i561 or SSA-i501) without the need to included any additional information. However now, pursuant to new rules, the appeal will not be accepted unless it is filed simultaneously with the "Disability Report" (SSA-i3441).

For a long time, attorneys had the practice of submitting the appeal (the Request for Reconsideration or Request for a Hearing Before and ALJ) within the 60 day period and then submitting the Disability Report later on.  However, at a recent NOSSCR conference in Arlington, Virginia, ODAR Deputy Commissioner Glenn Skylar announced that a claimant's appeal will no longer be considered valid unless the Disability Report has been submitted.  This new policy is more specifically described by the Social Security Administration in POMS GN 03101.125.

Another important development with respect to the electronic appeal process is that now claimants and their lawyers can upload documents as part of their appeal.  Now lawyers can attach materials such as medical records, doctor's opinions or Appointment of Representative forms (SSA-1696).

This new policy has its advantages and drawbacks.  On one hand, it prevents irresponsible social security lawyers from doing a quick appeal without doing any work.  On the other hand, it can be very difficult for claimants who obtain legal representation just a few days before their sixty day deadline.  In many cases, claimants who obtain a lawyer in the last minute are unable to remember details of their medical treatment and it can be very difficult to complete the Adult Disability Report. 

It is important to point out that the requirement to file an appeal electronically applies only to to Requests for Reconsideration and Requests for a Hearing.  Appeals to the Appeal Council must still be filed in paper.   

SSD Tip of the Week: Get a Print Out of All of Your Worker's Comp. Payments, ASAP

Social Security Disability Benefits (SSD) are reduced by Worker's Compensation (WC) payments.  If a disabled individual is receiving both SSD and WC, SSD monthly payments cannot be more than 80 percent of the money that the beneficiary got paid during full time employment.  This is commonly referred to as "the worker's comp offset".

Social Security Administration employees who process payments are trained to look for possible worker's comp offsets.  If they find any evidence that there ever were any worker's comp payments made to a claimant, they will stop the payment process until the claimant produces paperwork itemizing all worker's comp payments.  Please be aware that it does not matter how long ago these payments were made or the amount of money involved.  You must assume that SSA field office employees will not process your payment if they don't get a clear explanation of the money that you got in worker's comp.  This situation has become a real nightmare for many claimants in Connecticut and Massachusetts who desperately need their monthly Social Security Disability check, right away.

My advise to all the readers of this blog is that no one should wait until a disability case is won to start looking for worker's comp paperwork.  In fact, it is highly advisable to obtain this information during the initial application stage.  Once an application is filed, a claimant who has received WC benefits should contact the insurance carrier who issued the benefits and request a full print out of all the payments.  Also, it is important to obtain copies of any WC settlement that describes any lump sum payments made to you.  It is might be a good idea to request this information from the lawyer who handled the comp case.

Once this information is gathered, the claimant or his or her lawyer should submit it to the field office with a cover letter explaining that information provided contains the total figures of the amounts of worker's compensation benefits received. 

LTD ERISA: 9th Circuit Excludes Weekends from 180 Day Appeal Deadline

Once an insurance company denies or terminates a long term disability claim, a claimant has 180 days to file an administrative appeal.  Last week, the 9th Circuit Court of Appeals ruled that weekends should not be counted in the 180th day computation when the deadline falls on a Saturday or a Sunday.     

In Legras v. Aetna Life Insurance Company, (Click Here for a Copy of the Opinion) Aetna cancelled Andre LeGras' long term disability benefits because he, allegedly, was no longer disabled under the terms of the plan.  The the 180 time frame for LeGras to file the appeal ended on a Saturday. However, he did not mail his appeal until the following Monday.  Aetna automatically turned down his appeal because it was untimely.  Subsequently, the the District Court entered a judgement in Aetna's favor and ruled that LeGras had failed to submit his appeal within the 180 time period. 

On appeal, Judge Richard Paez from the 9th Circuit Court of Appeals determined that Aetna should have allowed LeGras' appeal based on the "widespread understanding that a deadline falling on a Saturday, Sunday or a holiday extends to the next business day".  It is important to note that ERISA does not specify a method for computing time for appeals.  There has always been a great deal of uncertainty as to how this time period is computed.  Fortunately, this Circuit Court decision provides some guidance on this issue.  

Judge Paez wrote on behalf of the majority: "There is nothing novel about the principle we adopt here",,,  Incorporating this time-computation method into ERISA's federal common law protects the interests of insureds, thereby effectuating the policy goals of ERISA.  

A dissenting opinion was written by Judge N. Randy Smith who maintained that the case dealt with "simple contract interpretation" and that the ruling expanded "Federal Common Law" without any precedent.       

Newtown Officer Must Get Disability Benefits for PTSD

Many individuals who contact our office seeking the assistance from a long term disability lawyer, seem to be unaware that most disability plans have a limitation on payments for claimants who suffer from mental health conditions.  Unfortunately, they assume that disability benefits will continue to be paid until age 65 or 66, regardless of whether their disabling condition is caused by mental health or not.

As part of my practice, I must constantly remind clients and prospective clients that most group insurance policies only pay benefits for a period of 24 months if their inability to work was caused by a mental health condition.  It appears, that town officials in Newtown, Connecticut also overlooked the 24 month mental health limitation provision when they negotiated the collective bargaining agreement with the police union.  

As part of the police union contract, the town of Newtown agreed to provide members of the police department with disability benefits.  The union contract that was signed did not contain any limitation for the payment of benefits for mental health conditions.  However, when the town proceeded to purchase a group disability policy for the union members, they bought a "standard a group policy" that has a 24 month limitation for mental health.  As a result of the purchase of this type of insurance policy, the town has been left with the responsibility of paying from its own funds for any claims for disabling mental health conditions that last more than 24 months.  

This past Friday, the Connecticut State Board of Mediation and Arbitration ruled that Newtown must pay a police officer who hasn't worked since 2012 due to PTSD that was caused by his involvement in the horrific Sandy Hook Elementary School massacre.  The three member panel ruled that the town was contractually obliged to pay disability benefits under the union contract, without being subject to the two year limitations contained in the LTD insurance policy.  For a copy of the Arbitrator's decision click here.

  

FedEx LTD Denial Subject to De Novo Review

On May 5, 2015 the United States Court of Appeals for the Fourth Circuit ruled against the Federal Express Long Term Disability Plan in its denial of LTD benefits to one of its former employees. This decision is great news for  disabled FedEx employees.  FedEx was unsuccessful in convincing the Circuit Court to apply an abuse of discretion standard to review the denial of benefits. Instead, the court determined unanimously that the denial was subject to a de novo review.  See Bilheimer v. Federal Express Corporation Long Term Disability Plan, No. 13-1859.  

Long term disability attorneys must deal, on a regular basis, with the issue of what standard of review a court must apply when reviewing a denial of benefits.  Under ERISA case law, a court may review a denial of benefits using one of two standards: 1. an abuse of discretion standard or, 2. a De Novo review.  Under an abuse of discretion standard a court will not reverse a denial of LTD benefits if the denial "was reasonable" even when the court "would have reached a different decision". Therefore, as long as the denial is grounded in some "principled reasoning process" it will not be reversed.  However, under a "de novo" standard a judge can review the record and make a decision without any deference to the denial by the insurance company or plan administrator. Obviously, the de novo standard is much more beneficial for disabled individuals and is the standard that plaintiffs' lawyers always want.

In the case of Bilheimer, which was decided just a few weeks ago, the Fourth Circuit Court of Appeals had the opportunity to decide whether FedEx had discretion in denying LTD benefits to one of its employees.  The Circuit Court ruled that the denial was subject to a de novo review because the FedEx LTD Plan did not properly delegate its final decision making authority to Aetna.  The court found that FedEx could not outsource its discretionary duties to Aetna without first amending its long term disability plan documents.  RamosLaw is currently representing another  disabled FedEx employee whose LTD benefits were also denied.  The case involves the same standard of review issue as Bilheimer and is pending before the Connecticut District Court.  Although the Fourth Circuit decision is not binding in our case, (Connecticut is on the Second Circuit) we are confident that the Court will reject the abuse of discretion standard also, and review the case de novo.   

Put on Purple! Raise Awareness for Lupus

May is lupus awareness month.  During this month there will numerous events throughout the world seeking to raise awareness of lupus and show solidarity for those living with the disease.  There are many ways that you can participate.  This Friday May 15th you can sport your favorite purple wardrobe and ask your friends and co-workers to join you.  Wear purple with pride and tell people why!  You can also use #PutOnPurple on social media to share your support.

On Sunday, May 17th in Blue Back Square in West Hartford, Connecticut, join the Lupus Foundation of America, Connecticut Chapter at the "Walk to End Lupus Now!

The Walk to End Lupus Now is probably the most important event of the Lupus Foundation of America, Inc.  Around 50 different walks will be celebrated across the United States.  Thousands of people will walk and raise funds for research, education and support services. 

The Importance of VA Ratings in SSD Cases

Veteran's Administration rating exam reports and disability ratings can be extremely persuasive in a Social Security Disability hearing.  However, strictly speaking, these determinations are not binding on the SSA.  Pursuant to the regulations, the Commissioner of Social Security must make its own independent finding of disability.  (20 C.F.R. §  404.1504) and (SSR 06-3p)  

Nonetheless, regulations also provide that decisions pertaining to disability by another agency, such as the VA, are considered to be "evidence" in Social Security Disability cases.  More importantly, SSR-06-3p states that Social Security judges must consider the ratings made by the VA and explain the consideration given to the VA determination in the notice of decision.  This means that in all cases where a claimant has received a rating from the VA, the ALJ must make specific findings in the the decision.  If you have received a VA rating and the Social Security Judge has failed to mention it, you probably have grounds to reverse the judges determination.  In addition, the judge is required to explain what weight if any is given to the VA's determination.

Determinations by the VA are particularly persuasive when the veteran has received an "unemployability rating".  This rating is received by the veteran when the VA determines that he or she is  unable to secure or follow a substantial gainful occupation as a result of service connected disabilities.  This standard is obviously very similar to the standard used by Social Security in determining whether a claimant is disabled.  

Due to the similarity between the Social Security rule and the VA rule, four Circuit Court of Appeals have determined that VA disability ratings are entitled to "great weight".  VA disability determinations are entitled to great weight in the 9th, 5th, 11th, and 4th circuit court of appeals.  Moreover, the 3rd Circuit Court of Appeals has stated that VA disability ratings are entitled to "substantial weight".     

The Second Circuit Court's ruling with regarding this issue has not been as categorical as the rulings from the five Circuit Courts mentioned above.  In Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980), the Second Circuit observed “[b]y in effect ignoring the VA’s determination of disability, the ALJ disregarded our suggestion in Cutler v. Weinberger, supra, 516 F.2d at 1286, that ‘(w)hile the determination of another governmental agency that a social security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to some weight and should be considered.’” Id. at 896-97, citing Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975).

New Ruling on Interstitial Cystitis (SSR 15-1p)

The Social Security Administration has issued Social Security Ruling (SSR) 15- 1p, which became effective immediately upon publication. 80 Fed. Reg. 14215 (Mar. 18, 2015). This ruling replaces  SSR 02-2p, which became effective in 2002. 

The new ruling describes interstitial cystitis (IC) as “a complex genitourinary disorder involving recurring pain or discomfort in the bladder and pelvic region.” Some medical providers and organizations, including the American Urological Association, consider the disease synonymous with “painful bladder syndrome” and “bladder pain syndrome.” The SSR states that although it uses the term IC, it is designed to address other medical conditions. IC more prevalent in women.  It can happen at the same time as other diseases including fibromyalgia, chronic fatigue syndrome, irritable bowel syndrome, inflammatory bowel disease, vulvodynia, chronic headaches, Sjögren’s syndrome, endometriosis, or systemic lupus erythematosus. The most common way of diagnosing this condition is by a process of elimination of  other disorders with similar symptoms. Tests used to determine a diagnosis are part of a complex ruling-out process. Tests include urinalysis, urine culture, cystoscopy, biopsy of the bladder wall and urethra, distention of the bladder under anesthesia, and culture of prostate secretions. Doctors are able to treat the symptoms of IC in some patients only.

Much of the SSR applies existing SSA policy to IC. For example, it states that when adjudication occurs less than 12 months before a claimant’s alleged onset date, SSA will use “information about the person’s treatment and response to treatment, including any medical source opinions about the person’s prognosis at the end of 12 months, helps us decide whether to expect an MDI of IC to be of disabling severity for at least 12 consecutive months.” Also, once an individual is found to have an MDI of IC, the adjudicator must proceed through the sequential evaluation process, determining whether the MDI is “severe,” whether the claimant meets or equals a listing (there is no listing for IC itself), and if not, what the claimant’s residual functional capacity is and whether is allows a return to past or other work.

Sheltered or Subsidized Work

In order to win a Social Security Disability case, a claimant must show that he or she is not engaging in a substantial gainful activity (SGA).  The SGA threshold for 2015 is $1,090.  If a claimant makes more than this amount, he or she will be found to be engaging in a "substantial gainful activity" and will be determined to be ineligible for Social Security Disability.

However, one of the exceptions to this general precept is known as the "Sheltered"or "Subsidized" work rule.  Sheltered or subsidized work is work performed by individuals who work under a special program with special rules.  For example, if a person who is disabled, works for a family member and is given great leeway in determining work schedules and tasks, he or she may be found to be working in a sheltered environment.  This situation often happens when the family is fully aware of the employee's medical condition and decides to provide the family member with extra compensation for their work and/or additional flexibility in performing the demands of the job. Under these circumstances, Social Security does not have to adhere strictly to the specific monetary threshold for SGA and may find that the claimant is eligible for benefits despite the actual amount of dollars earned.  

Another common situation involving sheltered work occurs when the military pays wages to a solider who is disabled and unable to work.  This is prevalent among claimants who are assigned to a "Warrior Transition Unit" while they wait for military discharge.  The discharge process might take many many months and, in many instances, the disabled soldier is not required to work at all.  Under this scenario, the SSA will not count the pay received by the soldier as SGA. 

Convincing Social Security that a claimant is working in a sheltered environment can be a difficult task.  Whenever I have a client who I believe has been working in a sheltered work environment, I obtain letters from co-workers and supervisors stating the specific circumstances under which the claimant performed his or her duties.   It is also advisable to gather evidence such as time sheets, work schedules and pay stubs in order to succeed in a case involving sheltered work.  Never assume that the claimant's statements or testimony are sufficient evidence to win this type of claim.  In this day in age when Social Security is under constant scrutiny, ALJ's and SSA adjudicators feel a lot more comfortable in granting a case where extensive documentation has been submitted by the claimant and his or her attorney.

Do you want to save Social Security?

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Are Long Term Disability Insurance Benefits Taxable?

Its tax season once again!  One of my least favorite times of the year.  During this time, I am often asked whether LTD benefits are taxable.  The answer to this questions depends greatly on who paid for the disability insurance premiums, you or your employer.  The answer also depends on whether the premiums were paid with pre-tax or after tax income.
If your employer paid for 100% of your disability insurance premiums and did not include the amount paid as your gross income, then your long term disability payments are taxable.  Moreover, if your employer paid you directly while you were disabled, these payments are also taxable.
If your employer paid a percentage of your premium and you were responsible for paying the remaining percentage, then you won't have to pay taxes for the amount of benefits that equals the percentage that you paid.  Here is an example on how you will be taxed under this scenario:
Pete pays $40 dollars a month for his LTD policy and his employer pays another $40 per month for this insurance.  Pete becomes disabled and starts receiving $4,000 a month in LTD benefits.  Since he paid 50% of the premiums he is responsible for paying taxes for half of his monthly payments ($2,000).  The other $2,000 is tax free.
As a general rule, expect short term disability payments paid by a self-funded plan to be taxable.  On the other hand, you can also expect benefits froma non-ERISA policy purchased individually to be tax free.  However, please note that different rules might apply to each particular scenario.  This post is intended for general information purposes and should not be construed as tax advise.  As I have said many times in previous posts, I am a disability benefits attorney, not a tax lawyer.  Moreover, I am not an accountant, CPA or tax preparer.  Please consult a tax professional before filing taxes or making any decisions with respect to your particular case.  

New Duty to Submit Adverse Evidence

On March 20, 2015, the Social Security Administration published a "final" rule regarding the duty of Social Security Disability Lawyers to submit all relevant evidence pertaining to a disability claim. These new regulations are available at at 80 Fed. Reg. 14828 (Mar. 20, 2015).  For a PDF version of the rule click here.

 http://www.gpo.gov/fdsys/pkg/FR-2015-03-20/pdf/2015-05921.pdf

Many lawyers expressed concern regarding this new rule because it erodes the attorney-work product privilege that protects certain documents created by lawyers during the course of a judicial or administrative proceeding.  Specifically the new rule states that claimants and their lawyers must "inform us [SSA] about or submit all evidence known to you that relates to whether or not you are blind or disabled,” with two exceptions: (1) material subject to the attorney-client privilege, and (2) the representative’s “analysis of the claim,” a narrow version of the attorney work product doctrine. Therefore, both favorable and unfavorable evidence must be submitted.
 What “evidence” must be submitted?  The claimant and his or her lawyer must inform SSA about “all evidence.” Claimants and representatives must submit everything “relevant” they receive. However, claimants and representatives do not need to request “all evidence.” SSA’s response to comments reiterates the agency’s duty to develop the file. SSA’s response also states that “if claimants or their representatives request only the discharge summary from a hospital chart, we require them to submit only what they receive in response to that request in its entirety. We would not require them to request and pay for all of the other records from that hospitalization.” SSA’s response to comments also notes that medical records for an individual other than the claimant, sent accidentally by a treating source, are not considered relevant. 

What about opinions and questionnaires generated by doctors during a disability claim? In addition to requesting extant medical records, representatives often ask medical providers to write letters or complete questionnaires about a claimant’s impairments. SSA’s response to comments explain that “if a claimant’s medical source sends his or her representative medical records or a written opinion about the claimant’s medical condition, the representative cannot withhold those records or that opinion based on the work product doctrine adopted under these rules.”  Therefore, these questionnaires have to be turned over to the SSA even when they are not favorable to a claimant's case.

The Larson - Blumenthal Plan to Strengthen Social Security

I applaud the efforts of my Congressman John B. Larson and my U.S. Senator Richard Blumenthal for their latest effort to protect the Social Security programs.  

On St. Patrick's day, these two Connecticut Lawmakers presented a great piece of legislation that, if passed, will ensure the solvency of the Social Security Trust Fund for the next 75 years.  This proposed bill is called "The Social Security 2100 Act" (H.R. 5306).  For a summary of this bill click here.

As I have stated in previous posts, the so called "Social Security Solvency Crisis" has been manufactured by right wing Republicans in Congress.  It has been known for several decades that an adjustment to the fund would have to be made when the baby boom generation reached a certain age.  A common sense cost-effective re-allocation can easily be made to ensure the solvency of the Social Security Trust Fund.  Nonetheless, Social Security opponents are trying to create the impression that the crisis is insurmountable and that the only solution to this problem is to completely dismantle our most effective anti-poverty program.

Larson and Blumenthal have proposed a plan that lifts the $118,500 cap.  Unfortunately, many Americans are not aware that individuals only pay Social Security contributions on their first $118,500 in earnings.  This means that those who make wages over $118,500 do not have to make any contributions beyond that point.  Under the plan proposed by Larson and Blumenthal earnings over $400,000 would be subject to Social Security taxes.

The proposed legislation shows that it is completely feasible to save the fund's solvency.  I urge everyone to read the bill's summary and not fall for right wing agenda that has resulted in the widening of the gap between rich and poor and is destroying our middle class. Among other things, the Larson-Blumenthal plan proposes to cut taxes for Social Security beneficiaries (those who need a tax cut the most!). 

Presently, your Social Security benefits are taxed if you have an income exceeding $25,000 for an individual or $32,000 for couples. The proposed plan would raise that threshold to $50,000 and $100,000 respectively.

Winning the World Series can be Easier than Winning Social Security Disability

Baseball was made for kids, and grown-ups only screw it up. -Bob Lemon

When I was 11 years old, baseball was the most important thing in my life.  Back then, I had very little time to think about anything else.  As the month of October approached, my parents worried that my fascination with the game had turned into an unhealthy obsession.  My grades were dropping faster than Guidry's ERA and I didn't seem to get much joy out of life unless the New York Yankees had won the night before.

It was October of 1978, and as far as I can tell, no other 11 year old baseball fan has ever had more fun than me.  The Bombers were in the World Series looking to repeat their 1977 epic victory, when suddenly, it was announced that second baseman Willie Randolph would not be able to play due to an injury.  At first, I felt a sense of despair but, as the Series progressed, I realized that it is moments like this that make baseball --as well as life itself-- such a fun endeavor.  

A seldom used second baseman, named Brian Doyle, came to the Yankees rescue filling in for the injured Randolph.  Doyle had always been a reserve player and was very weak at batting.  He had a dismal .192 batting average that season but, on that World Series, something extraordinary happened. A tenacious Doyle, went 7 for 16, drove in two runs and ended the World Series with a .438 batting average.  

Doyle, a small infielder, became one of the most unlikely baseball heroes of all time.  He might be one of the reasons why, despite being a Yankee fan, I always enjoy rooting for the underdog and why I always like to see something special in those that, at first glimpse, might appear to be less fortunate than the rest.

As a baseball fan and as a person I owe a great deal to Brian Doyle.  Unfortunately this week, I found out through the news, that the great player who once came to the rescue of his team, is now being left behind by his Nation.

Doyle suffers from several severe medical conditions that make it impossible for him to work in any job, including his former job as a coach and as a motivational speaker.  He battled leukemia which deteriorated his bones greatly.  He has had two cervical fusions and, in addition, he suffers from and advanced form of Parkinson's.  

Despite all of the dramatic limitations imposed by Doyle's conditions, his Social Security Disability benefits claim has been denied.  He is currently waiting for his case to be heard by a judge.  

Doyle's Social Security Disability denial has been documented by the Fox News Station in Atlanta. The news story shows that winning the World Series can be easier than winning SSD.  I ask everyone to view the story, --particularly those who are critical of the Social Security Disability programs--, and ask yourselves whether this is the way that we want to treat this Nation's disabled individuals.

It's easier to win a World Series than get Social Security disability http://www.myfoxatlanta.com/clip/11228371/its-easier-to-win-a-world-series-than-get-social-security-disability