Monday, December 12, 2016

The "Co-Signature" of a Physician in a Social Security Disability Medical Opinion

In social security disability cases, the opinion of a treating doctor is given controlling weight unless it is contradicted by substantial evidence in the record.  Social security lawyers know that many doctors do not actually complete the medical opinions that are submitted in support of a claim.  Very often, they simply co-sign the questionnaires which are completed and signed by nurses or PA's in their offices.  (Obviously, it is always better when the treating doctor is the one who actually writes the opinion and signs the paperwork.) 

Given these circumstances, it is somewhat unclear what weight is given to medical opinions that are co-signed by an M.D.  Should these opinions be given "controlling weight" even when the physician did not examine the claimant?

A case recently decided in the Connecticut District Court addressed this question.  In Baldwin v. Colvin, 2016 U.S. Dist. LEXIS 165596 * (D. Conn. Dec. 1, 2016), Magistrate Judge Joan Margolis ruled that Hartford ALJ Peter Borre  erred in ignoring the "co-signature" of a physician.  The case was remanded for a new hearing with the following instructions:
[U]pon remand, the ALJ shall consider "whether . . . [the co-signed] opinion[] [is that] of an acceptable medical source[.]" and "explicitly consider the treating physician factors so that [the ALJ] may comprehensively set forth [his] reasons for deciding whether to give the opinion[] controlling weight[.]" Johnson, 2016 U.S. Dist. LEXIS 19515, 2016 WL 659664, at *3-4, and if the ALJ does not assign controlling weight to the opinion of the treating provider, explain the weight given to the opinions of the State agency consultant by considering the relevant factors set forth in the Regulations. 20 C.F.R. §§ 404.1527 and 416.927.
Ignoring the co-signature of a physician is is a legal error even when the doctor who co-signs a form has not treated a claimant.  In accordance with social security disability regulations, the ALJ must make specific findings explaining the weight given to the opinion.




Monday, December 5, 2016

December 2016 Social Security Disability Briefing

Here are some of the top stories and issues affecting Social Security Disability Lawyers and their clients:

  • New HIV Listing:  The Social Security Administration has published a new listing for claimants who suffer from HIV / AIDS.  The revisions in the HIV listing reflect the great medical advances in treating this condition.  This new rule becomes effective on January 17, 2017.  For a complete version of the new listing click here.
  • Congressman Larson Might Become the Ranking Democrat in the House Social Security Subcommittee:  Just a few days ago Congressman Xavier Becerra, the top democrat on the House SSA subcommittee, announced that he was leaving Congress to become California's Attorney General.  Connecticut's John Larson is the second ranking member on the Committee. However, it is not clear yet if he will become the ranking member on the next Congress. Congressman Larson's office is just a few doors down from RamosLaw.   We will keep you posted .  We want him to take the job!  Our Congressman is the person that we need protecting Social Security.
  • The National Organization of of Social Security Claimant's Representatives (NOSSCR) is interested in any stories about the five day rule and good cause exception harming Region I claimants: for example, situations where the ALJ did not find there was good cause for late submission of probative evidence, and the case needed to be appealed causing delays for the claimant or the claimant lost back benefits by reapplying.  Please send your stories (without any personally identifiable information about the claimant) to Lisa.Ekman@nosscr.org by noon on Thursday Dec. 8th.
  • Commissioner Colvin and Other Top SSA Officials Expected to Resign on Inauguration Day: According to the "ALJ Discussion Forum" Acting Commissioner Colvin has informed SSA employees that she will be stepping down on inauguration day.  According to the rumors "many other" SSA employees will follow her.  This has not happened before.  Anyway, expect more backlogs and more staff reductions in the next administration.  Thanks Republicans! 

Monday, November 21, 2016

Anti Social Security Activists Part of the Trump Transition Team

During the past hours it has become evident that Donald Trump is about to break his campaign promises regarding Social Security.  Generally, it has been assumed that Trump was far more supportive of Social Security than most Republicans in Congress.  Now, it is evident that the right wing of the Republican party which favors major cuts in Social Security has taken control over the Trump transition team and is influencing the way that the Social Security Administration (SSA) will be run in the next four years. 
During the presidential campaign Donald Trump promised to protect Social Security and repeatedly stated that, if elected, he would not make any changes to the program.   He said that he would do everything within his power "not to touch Social Security, to leave it the way it is".  
Today, CNN has reported that Trump has named Tom Leppert, former major of Dallas and a well known proponent of privatizing Social Security, to the "landing team" for the SSA.  (For the CNN article click here.)  "Landing teams" are groups designated by presidents elect to interact with federal agencies in helping to set up the government after the new President is sworn into office.
Other news sources have also reported that other well know anti Social Security activists are at Trump Tower actively working to wreck the SSA an its programs.    Here is a list of these other right wing policy makers who also have a long history of hostility towards Social Security:
  • Mike Korbey, former senior advisor to the principal deputy commissioner in George W. Bush’s SSA.
  • Former Reagan SSA commissioner Dorcas Hardy.
  • Former SSA Inspector General Patrick O’Carroll.
  • Former SSA General Counsel David Black.
Korbey is an ultra conservative who falsely claims that Social Security is “broken and bankrupt.” He was part of a group called United Seniors Association that favored Bush’s Social Security failed privatization plan.



Monday, November 7, 2016

Letter to Commissioner Colvin Re: Proposal to Change Treating Physician Rule

November 7, 2016

Carolyn ColvinActing Commissioner
Social Security Administration


   6401 Security Boulevard
   Baltimore, MD  21235-6401

Submitted on www.regulations.gov

Re:  Notice of Proposed Rulemaking on Revisions to Rules Regarding the Evaluation of Medical Evidence, 81 Fed. Reg. 62559 (September 9, 2016), Docket No. SSA-2012-0035

Dear Acting Commissioner Colvin:

Thank you for the opportunity to comment on the proposed regulations contained in above referenced Notice of Proposed Rulemaking (NPRM).  I am writing to express my strong opposition to the SSA’s proposal to eliminate the treating physician rule and the 9th Circuit’s credit-as-true doctrine. 

I believe that the proposed rules would unduly burden our Federal Court system and the legal staff at the U.S. Attorney’s Office.  Moreover, claimants and your staff at the SSA will also be adversely affected as a result the likely delays caused by these revisions.  As proposed, the new rules will lead to more federal court appeals, more delays and substantially more remands for a new hearing. 

It is no secret that the proposed rules are part of your administration’s strong anti-claimant stance.  This proposal shows once again, that you have acquiesced to the Republicans’ pressure to “tighten up the rules” to make it harder for claimants to qualify for disability benefits.  However, I would like to point out your agency’s current proposal will not achieve the results intended by its drafters.  Instead of leading to lower allowance rates, the proposed changes will lead to chaos, waste, and unnecessary delays in the adjudication process.  Moreover, the new rules will foster confusion at the Federal Court level, resulting in an even bigger backlog and far more EAJA fee awards.

The proposed rule removes the responsibility of adjudicators to explain how they weigh medical evidence and how they weight prior determinations made by other administrative agencies.  If enacted, adjudicators will have to weight medical evidence without guidelines or legal standards. The vagueness and uncertainty created by the proposed rules will lead to more prolonged federal court challenges and not, to the “quick and easy unfavorable decisions” wished for by its proponents. 

It is a well accepted legal axiom that specificity and preciseness in legal standards, lead to less challenges at the appellate level.  The vague rules proposed by your agency violate this legal axiom.  In fact, the proposed changes are an outright invitation to lawyers and jurists to develop new case law to fill up the legal void left by the absence of clear regulatory guidelines.

In my experience as a disability lawyer, I have witnessed how the absence of guidelines to evaluate medical evidence can lead to a significant number of remands by the federal courts.  Besides practicing in the area of Social Security Disability, I also represent claimants who have been denied disability benefits under insurance contracts governed by the Employee Retirement Income Security Act of 1974 (ERISA).  In disability insurance cases covered by ERISA, the treating physician rule does not apply and there are no clear guidelines for evaluating medical evidence.  Due to the absence of clear guidelines to evaluate medical evidence in ERISA cases, federal judges are often unable to issue a decision and are forced to issue a remand back to the insurance company for further consideration. 

For the above mentioned reasons, I urge you to withdraw the proposal to change the way that the SSA evaluates medical evidence.

Sincerely,




Iván A. Ramos

Letter to Commissioner Colvin Re: Proposal to Change Treating Physician Rule

November 7, 2016

Carolyn ColvinActing Commissioner
Social Security Administration


   6401 Security Boulevard
   Baltimore, MD  21235-6401

Submitted on www.regulations.gov

Re:  Notice of Proposed Rulemaking on Revisions to Rules Regarding the Evaluation of Medical Evidence, 81 Fed. Reg. 62559 (September 9, 2016), Docket No. SSA-2012-0035

Dear Acting Commissioner Colvin:

Thank you for the opportunity to comment on the proposed regulations contained in above referenced Notice of Proposed Rulemaking (NPRM).  I am writing to express my strong opposition to the SSA’s proposal to eliminate the treating physician rule and the 9th circuit’s credit-as-true doctrine. 

I believe that the proposed rules would unduly burden our Federal Court system and the legal staff at the U.S. Attorney’s Office.  Moreover, claimants and your staff at the SSA will also be adversely affected as a result the likely delays caused by these revisions.  As proposed, the new rules will lead to more federal court appeals, more delays and substantially more remands for a new hearing. 

It is no secret that the proposed rules are part of your administration’s strong anti-claimant stance.  This proposal shows once again, that you have acquiesced to the Republicans’ pressure to “tighten up the rules” to make it harder for claimants to qualify for disability benefits.  However, I would like to point out your agency’s current proposal will not achieve the results intended by its drafters.  Instead of leading to lower allowance rates, the proposed changes will lead to chaos, waste, and unnecessary delays in the adjudication process.  Moreover, the new rules will foster confusion at the Federal Court level, resulting in an even bigger backlog and far more EAJA fee awards.

The proposed rule removes the responsibility of adjudicators to explain how they weigh medical evidence and how they weight prior determinations made by other administrative agencies.  If enacted, adjudicators will have to weight medical evidence without guidelines or legal standards. The vagueness and uncertainty created by the proposed rules will lead to more prolonged federal court challenges and not, to the “quick and easy unfavorable decisions” wished for by its proponents. 

It is a well accepted legal axiom that specificity and preciseness in legal standards, lead to less challenges at the appellate level.  The vague rules proposed by your agency violate this legal axiom.  In fact, the proposed changes are an outright invitation to lawyers and jurists to develop new case law to fill up the legal void left by the absence of clear regulatory guidelines.

In my experience as a disability lawyer, I have witnessed how the absence of guidelines to evaluate medical evidence can lead to a significant number of remands by the federal courts.  Besides practicing in the area of Social Security Disability, I also represent claimants who have been denied disability benefits under insurance contracts governed by the Employee Retirement Income Security Act of 1974 (ERISA).  In disability insurance cases covered by ERISA, the treating physician rule does not apply and there are no clear guidelines for evaluating medical evidence.  Due to the absence of clear guidelines to evaluate medical evidence in ERISA cases, federal judges are often unable to issue a decision and are forced to issue a remand back to the insurance company for further consideration. 

For the above mentioned reasons, I urge you to withdraw the proposal to change the way that the SSA evaluates medical evidence.

Sincerely,




Iván A. Ramos

Monday, October 31, 2016

How to Get Your Social Security Statement

Most clients expect their Social Security Disability Lawyers to know the amount of the monthly benefit that they will receive if their cases are won.  Unfortunately, getting to know this amount can be a difficult process. Moreover, in the vast majority cases, the amount of the monthly check is a secondary concern for the attorney.  
Calculations used to figure out the monthly amount are quite complicated.  I often find out the estimated monthly amount once I get the client's electronic file through the electronic file system (ERE) used by the SSA.  If you do not want to wait until your lawyer gets access to your file through the ERE to find out the monthly amount, can can get this figure by creating your own electronic account with the Social Security Administration.  
Social Security Disability Lawyers are not allowed to create these accounts and obtain statements on behalf of their clients.  Clients must set up this account on their own.  In fact, it is illegal for us to set up these accounts for others. 
To set up your own account and get access to you estimated benefit, you must visit: https://secure.ssa.gov/RIL/SiView.do  You need to have your own email address and create a secure username and password. 
  

Monday, October 24, 2016

Social Security, the COLA and the SAVE Benefits Act

Last week it was announced that Social Security Disability beneficiaries will get a tiny cost of living adjustment (COLA) to their monthly check of only .3 percent.  Federal Law mandates that Social Security COLA's must be based on a consumer price index known as CPI-W which relies heavily on oil prices.
This means that the average disabled or senior beneficiary will get only an additional $3 to $4 a month. This is the fifth year in a row of minuscule raises.  In fact, last year there was no COLA at all.
Many Social Security Disability lawyers and advocates have pointed out that the measure of inflation used by the CPI-W is not a proper methodology for measuring the economic reality faced by most seniors and disabled Americans.  CPI-W is meant to be used for wage earners in urban areas.  It was not developed to asses the cost of goods and services most often purchased by retired or disabled individuals.
In response to the unfairness caused by the very small COLA paid to Social Security beneficiaries, a group of prominent U.S. Senators, including Elizabeth Warren (D-Mass), Bernie Sanders (I-VT) and Chuck Schumer (D-NY), have proposed a special one-time payment of $581.  This legislative initiative is know as that the "SAVE Benefits Act.  This figure of $581 represents 3.9 percent of the average annual Social Security benefit. The 3.9 figure was picked by Senator Warren because this was the average raise received last year by top corporate CEO's.  According to the Senator from Massachusetts this small one-time payment could cover three months of groceries for a disabled person or or a whole year of out of pocket expenses for prescriptions.
Last Sunday Senator Schumer met with disabled beneficiaries in the Lower East Side of Manhattan to learn more about their situation and promote the Save Benefits Act.  For a great article about the economic plight of some SSD beneficiaries in NYC click here.


Social Security, the COLA and the SAVE Benefits Act

Last week it was announced that Social Security Disability beneficiaries will get a tiny cost of living adjustment (COLA) to their monthly check of only .3 percent.  Federal Law mandates that Social Security COLA's must be based on a consumer price index known as CPI-W which relies heavily on oil prices.
This means that the average disabled or senior beneficiary will get only an additional $3 to $4 a month. This is the fifth year in a row of minuscule raises.  In fact, last year there was no COLA at all.
Many Social Security Disability lawyers and advocates have pointed out that the measure of inflation used by the CPI-W is not a proper methodology for measuring the economic reality faced by most seniors and disabled Americans.  CPI-W is meant to be used for wage earners in urban areas.  It was not developed to asses the cost of goods and services most often purchased by retired or disabled individuals.
In response to the unfairness caused by the very small COLA paid to Social Security beneficiaries, a group of prominent U.S. Senators, including Elizabeth Warren (D-Mass), Bernie Sanders (I-VT) and Chuck Schumer (D-NY), have proposed a special one-time payment of $581.  This legislative initiative is know as that the "SAVE Benefits Act.  This figure of $581 represents 3.9 percent of the average annual Social Security benefit. The 3.9 figure was picked by Senator Warren because this was the average raise received last year by top corporate CEO's.  According to the Senator from Massachusetts this small one-time payment could cover three months of groceries for a disabled person or or a whole year of out of pocket expenses for prescriptions.
Last Sunday Senator Schumer met with disabled beneficiaries in the Lower East Side of Manhattan to learn more about their situation and promote the Save Beneficiaries Act.  For a great article about the economic plight of some SSD beneficiaries in NYC click here.


Monday, October 17, 2016

What do Disability Lawyers Mean by Exertional and Non-exertional Limitations?

Social Security Disability Lawyers use complicated terminology that very often confuses their clients and other lawyers who do not practice in the area of disability law.  Two of the disability law terms that most people find confusing are: "exertional" and "non-exertional" limitations.  
In analyzing a disability claim, all judges must make a determination regarding what the claimant can or cannot do.  In other words, the judge must determine what are the claimant's limitations.  To reach a proper decision, the judge must separate a claimant's limitations into two different areas: those that are exertional and those that are not.  I will explain these two terms below:
Exertional Limitations: These limitations deal mostly with the strength demands required for a job. The Social Security Administration considers exertional demands to be: sitting, standing, walking, lifting, carrying, pushing, and pulling.  These limitations are used to determine whether a claimant's ability to do work is considered to be at the sedentary, light, medium, heavy or very heavy level. These classifications are fairly straight forward and can assist the judge in making a decision on your case without having to go into other non-exertional limitation, which as you will see, can be more complicated and subjective.
Non-exertional Limitations:  These limitations include areas dealing with much more etherial or subjective matters such as: mental restrictions. environmental restrictions or requirements for changes in posture.  Symptoms related to a medical condition such as pain or fatigue are very common examples of non-exertional limitations.  
Here are several other examples of non-exertional limitations:

  • Difficulty functioning because of depression or anxiety.
  • Difficulty concentrating.
  • Memory problems.
  • Hearing or vision problems.
  • Difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes.
  • Requiring to change positions from sitting and standing.



Monday, October 10, 2016

GOP's Budget Cuts are Killing Social Security

In anticipation of the upcoming presidential election, I urge all of my readers to watch the video below.  Americans who have had to stop working due to a severe disability are being subject to unprecedented hardships as a result of the actions of Republicans in Congress.  As a Social Security Disability Lawyer, I receive calls practically on a weekly basis from persons who are about to go homeless or have ended up in shelters while waiting for their cases to be heard.  I spend a great deal of time explaining the current crisis to callers.  Few of them seem to understand the true cause of this problem or realize that this crisis is not unique to them.  Fortunately, the video and the article cited below will help me back up some the comments and explanations that I give to clients regarding the critical state of affairs at the SSA.

If Social Security Disability matters to you, please watch and the video and read the article below before you vote.  


I encourage everyone to read the wonderful piece written by Nancy Altman, Founder and Co-director of Social Security Works: Slowly Killing Social Security: Death By A Thousand Cuts

Monday, October 3, 2016

Social Security Completely Revamps the Mental Disability Listings

On September 26, 2016, the Social Security Administration finalized a total overhaul of the listings used to evaluate mental disorders and intellectual disabilities.  Most Social Security Disability Lawyers are surprised that these changes have been announced prior to the presidential election.   However, the new rules will not be in effect until January 17, 2017.  This is a major change and a very controversial move by Commissioner Colvin.  For a copy of the new listings click here.
"The Listings" are a long list of medical conditions with specific criteria that the SSA uses to determine whether a condition qualifies as disabling without having to determine whether a claimant can work or not.  If a claimant's conditions meets a listing, then the claimant is found to be disabled without the need to make any findings with respect to his or her residual functional capacity or vocational skills.
The new rules cover practically all mental disorders including: intellectual disabilities, schizophrenia, eating disorders, depression, bipolar disorder, PTSD, anxiety and autism.  Each one of these new listings deserves a separate blog post.  It will take Social Security Disability Lawyers many months to fully understand the impact of these new changes. 
The new listings reflect the terminology used in the DSM-5 (The Diagnostic and Statistical Manual of Mental Disorders) to classify mental disorders.  The DSM-5 is relatively new.  It replaced the DSM-4 on May of 2013.  On a first reading of the new rules, I noted some significant changes.  For example, there is a new listing for trauma which is separate from the listing for anxiety disorders.  On the intellectual disorder listing (12.05), the term "deficits in adaptive functioning", which was the subject of much litigation, has been thoroughly defined.  Another change is that listing 12.05 now requires evidence that the intellectual disability began prior to the attainment of age 22.

Monday, September 12, 2016

Tell Congress to Fully Fund Social Security's Budget

On an average, disabled Americans are waiting 575 days to present their Social Security Disability claims at a hearing before a judge.  A record one million SSDI and SSI cases are currently pending. This is an alarming crisis.  
While disabled individuals wait for a hearing, utility bills go unpaid, families struggle to put food on the table and many face the risk loosing their homes.  
This problem is not happening by mere chance.  This situation has been caused by dramatic cuts in the Social Security Administration's operating budget.  Since 2010, the SSA's budget has been cut by 10%.  In the meantime, the agency's workload has increased due to the rise in the demand for services caused by the ageing of the baby boomer generation.  Services have been cut across the board.   Since 2010, the SSA has closed approximately 60 field offices and 500 mobile offices.
Unfortunately, the Republican controlled Congress is considering even deeper budget cuts.  A proposed bill envisions cutting the agency's budget by over $250 million in 2017.  These additional cuts will aggravate the current crisis even more.
Under the proposed house bill, the Social Security Administration would need to close all its offices for two weeks as a result of employee furloughs. And a looming hiring freeze can lead to even longer wait times and delays in all parts of the Social Security system, including retirement, survivors’, and disability programs. A Senate version containing a similar proposal for cuts provides slightly more funding, but still fails to address many critical agency resource needs.
Social Security advocates across the country are asking everyone affected to contact their representatives in Congress.  President Obama has requested funding for 2017 that would allow Social Security to begin reducing the disability claims backlog and to reduce other agency service delays.
Call your Members of Congress TODAY. You can find their contact information at http://www.house.gov/ and http://www.senate.gov/index.htm (upper right corner of each page).

Monday, September 5, 2016

NFL Player is Denied Long Term Disability Benefits

When it comes to disability insurance claims, it seems like all claimants are subject to the same hassles regardless of their financial status or social class.  Long term disability insurance companies are billion dollar giants that really don't care much about what individual policy holders think about them or about the negative effects that bad publicity can have against their businesses. Take the example of Haruki Nakamura, an Ex-NFL player who was recently denied long term disability benefits.  
Nakamura, a former safety for the Baltimore Ravens and the Carolina Panthers, purchased a 1 million dollar long term disability policy from Lloyd's of London that provided benefits in the event that, due to illness or injury, he became unable to "participate ever again in his occupation of football player". In August 2013, during a Carolina Panthers pre-season game against the Pittsburgh Steelers, Nakamura suffered a hit to the head and was diagnosed with a concussion a few days later. Nakamura was placed on the injured list in September 2013 and two days later was released from his Carolina Panthers contract due to his “concussion.”
In October 2014, Kakamura's treating doctor wrote a report stating that his patient would not be able to play professional football again due to the disabling effects of his concussion.  Despite the well documented evidence of the effects of concussions in football and the medical evidence on record, the insurance company chose not follow the recommendation of Mr, Nakamura's doctor.  Instead, the insurance company invoked its right to conduct its own medical examination by a doctor hired by them.   
After unnecessarily prolonging the application for benfits for more than 18 months, the insurance company denied the claim.  In many ways the actions by the insurance company in Nakamura's claim, resemble many other denials that I see on a regular basis.  The company's decision to deny benefits is typical of the insurance industry's arrogance.   For example, the insurance company claimed that Nakamura could return to play, however their own doctor cautioned Nakamura to consider the “probable long-term effects of repetitive concussions” before making the decision to go back to football.  This leads me to believe that the insurance company knows that it doesn't have a strong case but it denied the claim merely to force Mr. Nakamura to compromise his claim. 
Another aspect of Nakamura's claim that resembles some of the issues faced by my clients is that the insurance company seems to be preying on the highly subjective aspects of disabilities claims caused by concussions.  Nakamura has alleged that due to the concussion he suffers from headaches, vision problems, fatigue, depression and suicidal thoughts.  Unlike usual orthopedic injuries suffered by football players, the subjective effects of head trauma are a lot harder to assess with objective tests.  
Nakamura has filed his complaint in the North Carolina Superior Court.  To read a copy of the complain click here.  Since Nakamura purchased his policy individually, his lawsuit is not covered by ERISA.  As you can see from the complaint, he is entitled to a jury trial and damages for unfair and deceptive practices.  If his claim had been governed by ERISA, such legal remedies would not have been available to him



Monday, August 29, 2016

State Grant Will Help Disabled New Yorkers Fight for Benefits

Denial rates of Social Security Disability claims is at one of its highest points in history.  It is common for some administrative law judges (ALJ's) to approve only 25% to 30% of the cases that they hear.  Due to the high odds of loosing a Social Security Disability case, many disabled claimants are going through the system unrepresented.  This lack of legal representation has lead to many abuses within the system particularly against individuals who are indigent and suffer from intellectual limitations and mental illness. 
Fortunately, the State of New York has announced a $8.2 million grant to assist claimants in the pursuit of benefits such as Supplemental Security Income, Social Security Disability Insurance and other similar Federal programs.  Commissioner Samuel Roberts of the Office of Temporary and Disability Assistance of the State of New York is pleased with the results that the "Disability Advocacy Program" has brought to New Yorkers.  From July 2014 to July 2015 approximately $17 million in benefits were generated for disabled recipients.
Several great non-profit legal legal advocacy organizations are currently participating in this grant. Here is a partial list of the organizations:
  • Legal Services NYC has received $2.29 million -  the largest amount.
  • The Empire Justice Center will provide services in 13 western New York counties.  They will also administer the statewide advocacy program.  The total grant of this organization is $1 million.
  • The Urban Justice Center will receive $819,189
  • New York Legal Assistance Group $794,528
  • Nassau/Suffolk Law Services Committee  $676,858
  • Legal Aid Society if Mid-New York $628,522
  • Legal Aid Society of Northeastern New York $619,023
  • Legal Services of the Hudson Valley $558,493
  • Meighbohood Legal Services $526,371
  • Erie County Department of Social Services $162,242
  • Legal Aid Society of Rockland County $105,323

    

Monday, August 8, 2016

Social Security Disability Insurance Marks its 60th Birthday!

On August 1956 President Dwight D. Eisenhower signed Social Security Disability Insurance (SSDI) into law.  President Eisenhower stated at the time of signing: "I am hopeful that the new law... will advance the economic security of the American people".  Sixty years later, SSDI has provided injured and disabled workers with a safety net for their economic stability.  
We must all do more to educate the public about the importance of Social Security Disability Insurance.  Please share my blogs and social media posts.  With a backlog of more than a million cases, the Social Security Disability programs need your support more than ever.  
Public opinion polls show a strong support for SSDI.  Nearly nine in ten American's have expressed their support for the program.  (See poll results here.)  Nonetheless, over the past two years a strong minority of ultra conservatives such as Sen. Tom Coburn and Sen. Tom Cotton have done everything possible to undermine the program.

Tuesday, August 2, 2016

Bill Establishing Time Limits for SSDI Payments Likely to Fail

Republican Senator Tom Cotton (R-AR) and Representative J. French Hill (R-AR - 2) are pushing a piece of legislation that would set time limits for Social Security Disability payments.  This bill hasn't received much support.  The proposed bill called "Social Security Disability Return to Work Act of 2016" establishes four categories in which beneficiaries can be placed.  Each category sets a different durational period for the payment of benefits.  

The four categories are:

  1. "Medical Improvement Expected" (MIE)- Under this category benefits would end at the 23rd month of benefits.
  2. "Medical Improvement Likely" (MIL) - Under this category benefits would end at the 59th month of benefits.
  3. "Medical Improvement Possible" (MIP) - Under this category the claimant would have to undergo a Continuing Disability Review ("CDR") after five years.
  4. "Medical Improvement Not Expected" (MINE) - Under this category the claimant would have to undergo a Continuing Disability Review ("CDR") after ten years.
The proposed legislation does not allow claimants to appeal the category that they are placed in.   The bill also provides a benefit offset for individuals who are placed on the MIE and the MIL categories. Earnings above the Substantial Gainful Activity level would result in $1 reduction in benefits for every $2 earned.

Fortunately, no action has been taken on these bills and this Congress will probably never act on this initiative.  

Monday, July 25, 2016

Social Security Amends the Respiratory Disability Listing

The Social Security Administration has enacted comprehensive changes to disability listings 3.00 and 103.00 for Respiratory Disorders.  See  81 CFR 37138  This listing will be effective for cases filed or pending after October 7, 2016.  This is the first major overhaul of the respiratory listing since 1993. The amendment also changes the name of the of the listing from Respiratory System to Respiratory Disorders.
The new listing places a great deal of emphasis on the tests used to measure lung capacity.  The agency will continue to require spirometry testing to determine a person's forced expiratory volume and forced capacity.  Under the proposed changes proof of equipment calibration will no longer be needed.  One particular aspect to keep in mind is that under the new listing the agency seems to require that tracing results of the spirometry be submitted with the medical records.  If tracing results are not submitted, the SSA may then request the claimant to undergo a consultative examination.  
On positive aspect of the changes includes a reduction in the number of hospitalizations needed in a year in order to meet the listing.  The old listing required six hospitalizations but the new listing has reduced them to three.  In enacting this change, the agency acknowledged that claimants are not always able to visit a hospital or able to pay for care when they suffer exacerbations of their conditions.  
Under the old listing lung transplant recipients were automatically considered disabled for a period of one year,  The new changes increases this time period to three years. 

Monday, July 4, 2016

Social Security Disability Recipients Can Have Their Student Loans Discharged

As a Social Security Disability Lawyer, clients and other claimants constantly ask me questions on how to make ends meet with the humble income that they receive from their monthly check.  Since I am not a financial adviser, my advise in this are is somewhat limited.  However, as I learn of different programs that can help relieve their financial hardships, I like to pass the information to them through this blog.
One program available to Social Security Disability beneficiaries to help them deal with their financial stress is the "Total and Permanent Disability Discharge of Student Loans".  To learn the specific details about this program click into www.disabilitydischarge.com
Under this program, if you are receiving SSD you might be able to have your entire student loan forgiven.  If approved, you will not have to pay your loan money back.  However, there are numerous exceptions to the program and must seek help from a financial planner before taking the bold step of requesting that your debt be forgiven.
The rules for student debt forgiveness are somewhat like the rules for Social Security Disability.   In fact, they are almost identical except that the "durational" requirement for debt forgiveness is much longer.  Therefore, you must be disabled for a longer period of time or expect to be disabled for a longer time than for SSD in order to be eligible for debt forgiveness.  To be eligible to receive Social Security Disability you must be disabled or be expected to be disabled for twelve months or more. On the other hand, in order to be eligible for student loan forgiveness you must be disabled or be expected to be disabled for 60 months or more.  Please note that individuals who are told by Social Security that their disability awards will not be reviewed in the next five to seven years (those SSD beneficiaries who are considered as "Medical Improvement Not Expected") are automatically qualified for the student debt forgiveness program.  If your case is supposed to be reviewed within the next five years and you want to be eligible, then you must complete an application an provide a certification from a doctor stating that your disability is expected to last 60 months or more.

Monday, June 27, 2016

Madison, Wisconsin Social Security Judge Accused of "Highly Inappropriate" Comments

A Social Security Disability Administrative Law Judge appears to have been suspended in the wake of a scandal involving allegations so sexism and bigotry.  News reports indicate that the the Office of the Inspector General has begun an investigation into the Madison, Wisconsin Office of Disability Adjudication and Review, particularly of ALJ John Pleuss.  Judge Pleuss has allegedly engaged in a pattern of sexual harassment against his staff and made inappropriate comments about claimants who have appeared before him.
According to Watchdog.org, in recent days, Judge Pleuss' hearings have been cancelled amid the Inspector General's Investigation.   See Sources: Social Security judge suspended in wake of Madison scandal By M.D. Kittle / June 16, 2016    Madison ODAR director Laura Hodorowicz has also been out of the office, fostering speculation that she has been suspended also.  
According to reports, employees at the Madison ODAR have blown the whistle at what they claim is a "culture of corruption and cover-up" at their office.  In fact, someone within the office has leaked some of the notes taken by Judge Pleuss during hearings.  These notes reveal a pattern of gender discrimination and bigotry against claimants.  Some of the notes allegedly written by Judge Pleuss state:
“Young, white (female); long brown hair; attractive; looks innocent,” the ALJ wrote.  He described another claimant as “buxom,” and noted that a “young, white (woman) looks like a man.”
“Obese, young, white (female) skimpy black top,” he wrote of another claimant.
Very black, African looking (female),” the ALJ wrote, and parenthetically he added,“(actually a gorilla-like appearance).”
In another document, Pleuss wrote, “I’ll pay this lady when hell freezes over!”  (See article from Watcdog.org)
U.S. Sen. Ron Johnson, R-Wis. has taken an active role in this controversy and has asked Social Security Commissioner, Carolyn Colvin for her agency's unfettered cooperation in this matter.

As this controversy escalates, one must wonder whether the SSA is going to follow the same hard line approach that it has used in cases of alleged corruption where claimants were granted benefits. For example, in cases involving alleged corruption in Kentucky and Puerto Rico, the SSA suspended benefits to claimants even before the allegations of corruption had been substantiated.   Eventually, claimants in Puerto Rico and Kentucky were required to go through a new hearing process in order to re-determine whether they could receive disability benefits.  In light of this harsh stance by the Agency, claimants who received unfavorable decisions from Judge Pleuss have every right to demand that they be given a new opportunity to present their case at a new hearing before a different Administrative Law Judge.   

Monday, June 20, 2016

Recent Connecticut Cases Regarding "The Treating Physician Rule"

The "treating physician rule" is a fundamental principle of Social Security disability law.  According to this rule, if an opinion comes from one of your own doctors, the SSA has to give that medical opinion "controlling weight".  An Administrative Law Judge can only disregard an opinion from a treating physicians if he or she finds that there are "good reasons" to disregard the opinion.
Unfortunately, for the past several years ALJ's in Connecticut have taken the habit of disregarding medical opinions from treating sources for practically any reason.  In fact, it appears that ALJ's have developed boiler plate phrases that they insert in unfavorable decisions when they want to disregard a treating physician's opinion.  
In response to this problem, the Federal Court in Connecticut has issued two recent decisions discussing the treating physician rule. Thornton v. Colvin, 2016 U.S. Dist. LEXIS 15504 (D. Conn. Feb. 9, 2016) and Stango v. Colvin, 2016 U.S. Dist. LEXIS 79096 (D. Conn. Jun, 17, 2016)  These decisions provide an excellent discussion of some of the typical excuses and boiler plate language used by ALJ's to disregard treating doctor's opinions.  Both of these cases provide great ammunition for anyone seeking to obtain a remand in a case where the ALJ gave less that controlling weight to a treating physician's opinion.   

Monday, June 13, 2016

Social Security Proposes Rule to Excluded Evidence from Providers Convicted of Felonies

As part of the bipartisan budget of 2015, Congress instructed the Social Security Administration to enact a rule excluding evidence from medical providers who have been convicted of fraud.  This mandate arose out of the concern that disability claimants could be gaining an unfair advantage by using medical opinions that had been obtain through dishonest means. 
Although this rule serves a good purpose, its strict application  could lead to unfair results.  In many cases involving fraud accusations, claimants were completely unaware  that their lawyers or medical experts were involved in fraud.  I have seen this in cases that I have worked on in Kentucky where some claimants were completely unaware of the fraud.  Unfortunately, when cases from claimants from Kentucky were re-opened during the course fraud investigations, it was extremely difficult to prove their cases without relying on evidence from sources who were implicated in the scandal.  It isn't fair to assume that all medical evidence produced by a doctor who was involved in fraud is unreliable.  Take the example of a case from Puerto Rico that I worked on.  In Puerto Rico, the same doctor who was involved in the fraud was also hired by the agency to perform consultative evaluations.  Under those circumstances, it wasn't fair to exclude the consultative evaluation from the review process.
The proposed regulation will allow the SSA to admit evidence otherwise excluded if there exists "good cause".  The proposed regulations lays out five circumstances under which good cause might exist.   For a copy of the proposed rule visit: 
Another important mandate of this new rule is that it requires medical providers to inform the SSA that they have been subject to penalties for fraudulent conduct.

Monday, May 23, 2016

Screening Cases at the Appeals Council to Expedite Review

In order to contest a decision from a Social Security Disability Judge, a claimant must file an appeal with the Appeals Council (AC).  Usually an appeal before the AC can take more than a year.  Under some circumstances, staff from the AC is supposed to screen cases to determine which ones should be decided on an expedited basis.  To be quite honest, I am not sure of how good of a job they do at screening their cases.  In any event, here is the list of circumstances under which a claimant's case can be expedited:

(1) Age 55
(2) Any indication or report of death
(3) Hospice, nursing care, or claimant cannot care for personal needs
(4) Intensive care unit for more than 3 days
(5) Hospitalization for more than 7 days
(6) Transplant notes (kidney, heart, heart/lung,
liver or bone marrow, etc.)
(7) Transplant waiting list
(8) Cancer with poor or no response to treatment
(9) Cancer that has spread to other areas/
(10) Coma
(11) Heart attack or myocardial infarction
(12) Stroke, or cerebral vascular accident
(13) Prescribed use of home oxygen
(14) Prescribed use of wheelchair
(15) VA disability rating of 70% or more
(16) Letter or notice approving other forms of
disability payments
(17) Medical report(s) of a terminal prognosis
(18) Dialysis or End Stage Renal Disease (ESRD)
(19) Blood transfusion(s)
(20) Bed or home confinement
(21) Very rare, unusual, or compassionate allowance diagnoses

If your case falls under any of these circumstances, it is a good idea to notify the Appeals Council. Supposedly, the AC automatically screens for claimants over 55.  Nonetheless, whenever I file an appeal of someone who is over 55, I try to state it in a very visible way on the very first paragraph of the brief.  To verify that the Appeals Council knows a client meets one of the 21 circumstances, call the Congressional and Public Affairs Branch at 1-877-670-2722 or fax Appeals Council Ombudsman Terry Jensen at 703-605-8691.

Monday, May 16, 2016

Who is Responsible For Obtaining Medical Records in a Long Term Disability Appeal?

I find that claim administrators and long term disability claimants are often confused as to which party is responsible for obtaining the medical records during the administrative appeals process. Is it the claimant's responsibility or the plan administrator / insurer? 

As a result of this confusion there are many situations where decisions are made by the insurer or the plan administrator without reviewing all relevant medical files.  Moreover, it is evident that many unscrupulous disability insurers foster this confusion in order to gather only those medical records that are favorable to their position.  

Fortunately, several Circuit Court of Appeals decisions have shed some light on this issue.  One case that is particularly helpful on this questions is Harrison v. Wells Fargo Bank, N.A., 773 F.3d 15, 2014 U.S. App. LEXIS 22932, 59 Employee Benefits Cas. (BNA) 1507 (4th Cir. Va. 2014).  In Harrison  the plan administrator failed to obtain medical records from the claimant's psychologist even though the records were "readily available" and it was put on notice of their existence.  The 4th Circuit held that by failing to contact the claimant's psychologist when the plan administrator was on notice that she was seeking treatment for mental health conditions and when the administrator had his contact information, as well as  properly signed release forms from the claimant, the administrator "chose to remain willfully blind to readily available information" that may well have confirmed her theory of disability.  Consequently, the Circuit Court held that the plan administrator breached the fiduciary duty owed to the claimant.

However, it is extremely important to note that in Harrison the 6th Circuit emphasized that under most circumstances claimants are primarily responsible for obtaining the medical records.  The Court of Appeals stated:
[T]he primary responsibility for providing medical evidence to support a claimant's theory rests with the claimant. (Citations omitted.) Claimants are more familiar with their medical history and their treating physicians and are far better suited to provide the evidence necessary to support a claim for disability. However, once a plan administrator is on notice that readily-available evidence exists that might confirm claimant's theory of disability, it cannot shut its eyes to such evidence where there is little in the record to suggest the claim deficient.
Harrison is consistent with other Court of Appeals decisions.  See Roganti v. Metro. Life Ins. Co., 786 F.3d 201, 2015 U.S. App. LEXIS 7933, 59 Employee Benefits Cas. (BNA) 2529 (2d Cir. N.Y. 2015)

Monday, May 9, 2016

The 7th Circuit is Fired Up Over Abuses by the SSA

Over the past few years the 7th Circuit Court of Appeals has been issuing sternly worded opinions which are highly critical of the way that the SSA has been handling the disability claims process.  In this era of high denial rates, the opinions of this appellate court, particularly those from Justice Richard Posner, are a sign of hope.  It is not clear yet what immediate impact these opinions are having on the agency but sooner or later things are going to have to change.
Perhaps the most interesting aspect of these decisions is the tone used by the 7th Circuit judges. It is evident that the Court of Appeals is loosing its patience with the Social Security Administration and with the tactics used by many of the ALJ's assigned to hear disability cases. Judge Posner's disdain with the agency is evidenced by the fact that in some decisions he has begun to raise issues on his own without being asked to do so by plaintiff's counsel.  In addition, he has frequently warned the SSA of its repeated use of inadequate vocational expert testimony.  He seems to be so frustrated with the SSA that, at times, his tone has become sarcastic. For example, when a vocational expert testified that there are 1000 sedentary unskilled production worker jobs, 1000 sedentary unskilled information clerk jobs and 2000 sedentary cashier jobs in Wisconsin, Judge Posner said that these numbers "sounded like guesses".  He noted that 1000, 1000 and 2000 were "suspiciously round numbers".  In another case, when an ALJ found that a claimant could perform the supposed occupation of "addresser", Judge Posner question the existence of such a job.  Addresser was identified as a job where someone by hand or by typewriter addresses envelopes and cards. Judge Posner noted: "It's had to believe that, as the vocational expert testified in this case, there are 200,000 people in the United States for who this is a full-time job"... And does anyone use a typewriter anymore?"
In addition to frequently criticizing the SSA for inadequate use of vocational testimony, Judge Posner has also criticized the agency for giving too much weight to a claimant's ability to do home chores such as shopping or taking care of their children.  The 7th Circuit has repeatedly stated that equating house chores with employment tasks is a great misunderstanding because an employee cannot take breaks or ask friends and family for assistance at work.  The 7th Circuit has also been critical of ALJ decisions that find that a claimant is not disabled because he or she has not received constant medical care. The 7th Circuit has correctly explained that claimants usually don't have the money to afford medical services and that denying disability benefits for failure to obtain medical care is not always appropriate.  
Evidently its going to take a while before the SSA gets the message from the 7th Circuit.  As Social Security Disability denials continue to soar, I predict that the number of remands issued by the federal courts is also going to go up.  It is estimated that there were approximately 30,000 Social Security Disability cases remanded last year by the Federal Courts and the Appeals Council.  Eventually, other federal courts will join the 7th Circuit and become critical also of the way that the SSA is massively denying benefits to thousands of disabled Americans.  Its only a matter of time before other judges in the federal court system get fed up with avalanche of unfair disability denials that have begun to clog up their dockets.







Monday, May 2, 2016

May is Lupus Awareness Month!

Do you know that one out of four persons diagnosed with lupus receive disability payments?  As a Social Security Disability lawyer and long term disability lawyer, I urge all of my blog's readers to grab their purple and help advocate for lupus patients.

Lupus Awareness Month is celebrated yearly in May.  Spring is a great time to take action and help raise awareness about this terrible disease.  There are a number of events organized throughout the world and Connecticut.  Here is a list of the most important activities at the local level:

  • Tuesday May 3rd from 10:00 am to 12:00 pm is Lupus Advocacy day at the Connecticut State Capitol.  Educate our legislators about what is like to live with this terrible disease and ask them to take action.  
  • World Lupus Day is May 10th.  Its celebrated everywhere.  Watch the video message from the Global Ambassador for the Lupus Foundation of America Julian Lennon.
  • Join the Walk to End Lupus Now in West Hartford, Connecticut on Sunday, May 15th.  Contact info@lupus.org for information.
  • Put on Purple! Join raise awareness by wearing purple on Friday, May 20th.  Create a group and encourage your friends, family and coworkers to put on purple.  Also use social media to create awareness with the hashtag #PutOnPurple!
  • Join the Lupus Foundation of America Connecticut Chapter at their New Haven County Walk to End Lupus Now on Sunday, September 18th at beautiful Savin Rock Beach  located at 6 Rock Street, New Haven, Connecticut.

Monday, April 25, 2016

Social Security Will No Longer Provide CD's at Disability Hearings

Over past years, the Social Security Administration has provided attorneys with CD's with copies of their client's files.  Just a few days ago, the SSA announced that commencing August 18th it will stop this practice.  From now on, all attorneys must access their client's files electronically using the "Appointed Representative Service" (ARS).  I urge all lawyers who have not registered in the ARS to register as soon as possible.

Beginning August 18th, all Social Security Disability lawyers are going to have to download their clients' files into their own CD's or, download the files into their own laptops and bring the computers into the hearing room.  I'm looking forward to this change.  The current system used by the SSA is not working very well for me.  I find that very frequently the CD's provided to lawyers are not up to date or are broken.  Moreover, the desktop computers available at hearing rooms are awfully slow or freeze in the middle of the hearing.  I have been registered in the ARS for several years and really don't know why I have continued to rely of the CD's provided on the day of the hearing.  I should have started bringing my own laptop to the hearing rooms a long time ago.

I must confess that the only reason why I have not been bringing my own laptop into Social Security Disability hearings is that I don't like having to pass too many items through the metal detectors at Federal Buildings. Social Security hearings are held in Federal Buildings with very tight security and going through this airport type of routine is a real hassle.  

Practice Tip:

For those lawyers who are new to the ARS or are not very skilled using it, here is a great practice tip that I learned from the tech savvy staff at RamosLaw:  Download the client's file into a PDF document.  Use a PDF program that allows you to make bookmarks and comments on the file.  Take notes on the PDF document and flag important exhibits that you can easily refer to during the hearing.  This will enable you make quick references to Exhibits and medical records during your presentation without loosing your train of thought or getting sidetracked by the inability to find an exhibit. 


Monday, April 4, 2016

New Social Security Ruling Eliminates "Credibility" Findings - SSR 16-3p

On March 16, 2016, the SSA issued a new ruling that significantly changes the way that the agency makes disability determinations.  Social Security disability lawyers and their clients should take notice of this considerable change. SSR-16-3p, Evaluation of Symptoms in Disability Claims, supersedes SSR- 96-7p.  For a copy of  SSR 16-3p click here.  This ruling is effective immediately.
SSR 16-3p completely eliminates credibility findings from the adjudication process. Determining whether a claimant was credible or not used to be a central part of the decision process followed by administrative law judges (ALJ's).  Now, credibility cannot be a factor used by the ALJ to decide a case.  At this point, it is too early to tell exactly what effect this ruling will have.  One positive aspect of  SSR 16-3p is that, from now on, ALJ's can no longer put the claimant's character on trial.  Up until this ruling was issued, "character assassination" was frequently used to justify a denial of benefits.  For example, supposed prior bad acts by a claimant, such as a period of incarceration or getting fired from a job, was frequently cited as a reason for denying benefits.
Instead of making a credibility determination, the new ruling requires the ALJ to find out whether the claimant's allegations are "consistent" with the medical evidence and with the statements contained on the record.  If the ALJ finds that the claimant's allegations are not consistent, then the ALJ must explain the specific reasons why the allegations are not consistent.  General statements regarding the consistency of the allegations are not enough.  
One negative aspect of SSR 16-3p is that, from now on, ALJ's cannot make credibility findings based on a claimant's good work record.  On many occasions, I have successfully argued that the allegations of a claimant who has been a good worker, should be given full credibility.  Due to this new ruling, it is uncertain what, if any, importance will a claimant's work record have in the disability determination process.  

Monday, March 28, 2016

Study Suggests Changes to Representative Payee System

As a Social Security Disability Lawyer I have handled many cases in which the relatives of the disabled person have asked that a family member be appointed to manage the claimant's funds.  This request is usually made because the relatives feel that the claimant's disabling condition prevents him or her from adequately managing their benefits.  A person who is appointed to receive and manage the funds of a claimant is called "a representative payee". 
Unfortunately, there appears to be no clear cut rule used to appoint a representative payee.   For example, there are no effective guidelines used to determine whether a person can manage his or her funds or whether the third party being appointed is trustworthy and knowledgeable enough to do the job properly.  Just a few days ago, a study from the Institute of Medicine of the National Academies of Sciences, Engineering and Medicines raised concerns about the manner in which the Social Security Administration is handling the representative payee process.  (For a copy of the report click here.)  
At present time, approximately 3.5 million of the 16 million adults receiving SSDI benefits have a representative payee.  The report found that too few beneficiaries have a representative payee to ensure that funds are used properly.  Other problems were also identified, for example the report found that in some cases beneficiaries who receive both SSI and SSDI have a representative for one program but not the other.  Consequently, the study recommends that new rules be implemented by the Social Security Administration regarding the representative payee program. 

Monday, March 21, 2016

1st Circuit: LTD Denial Letters Must State Time Period to File Suit

Last week, the First Circuit Court of Appeals held that a plan administrator must include the time period for filing a lawsuit in its denial of benefits letter.  In Santana-Díaz v. Metro. Life Ins. Co., 2016 U.S. App. LEXIS 4670 (1st Cir. P.R. Mar. 14, 2016, a disability claimant failed to commence a legal action within the three year limitation period set forth in the long term disability policy.  The final termination of benefits letter sent to the claimant made him aware that he had the right to bring legal action but did not specify the time period to file the lawsuit.  The Court of Appeals held that Defendant MetLife's failure to state the specific time period in the letter violated the requirements of ERISA regulations.  (29 C.F.R. § 2560.503-1(g)(1)(iv)).
Furthermore, the Court held that due to MetLife's failure the comply with ERISA regulations, the three year limitation period was inapplicable to Mr. Santana-Diaz's claim.  The Court of Appeals was not persuaded by MetLife's argument that the plaintiff had received notice of the three year limitation period by receiving a copy of the disability policy.  The First Circuit's decision is consistent with opinions from the Third and Sixth Circuit Court of Appeals.  See Mirza v. Insurance Administrator of America, Inc., 800 F.3d 129 (3d Cir. 2015) and  Moyer v. Metropolitan Life Insurance Co., 762 F.3d 503 (6th Cir. 2014).
Interestingly, in the District of Connecticut, Judge Janet Bond Arterton appears to have issued a decision which is contrary to Santana-Diaz, Mirza and Moyer.  See Heimeshoff v. Hartford Life& Accident Ins. Co., 2012 U.S. Dist. LEXIS 6882, 2012 WL 171325 (D. Conn.Jan. 16, 2012).  (Note that Connecticut is within the Second Circuit Court of Appeals.)  Judge Arterton held that even though the Hartford failed to state in the denial letter that there was a three year limitation for filing a lawsuit, the limitation period applied because it was stated in the summary plan description documents. 

Monday, March 14, 2016

Social Security Presents "CARES" Initiative to Reduce Disability Case Backlog

The number of disability claimants waiting for a hearing before an Administrative Law Judge (ALJ) has now reached 1.1 million.  By the end of 2015, the average waiting time for a hearing was 512 days.  Just a few weeks ago, the SSA's Office of Disability Adjudication and Review (ODAR) unveiled a new plan to help alleviate this backlog.  The plan has been called "Compassionate And REsponsive Service (CARES).  If successful, the SSA believes that CARES will reduce average processing times to 270 days.
One major problem with CARES is that it will only be successful if Congress provides the SSA with the funding needed to implement it.  Nonetheless, even if CARES is implemented, the backlog will not be reduced in the near future.  It is expected the backlog will continue to climb in 2016.
Many a the initiatives of the CARES plan have been used before.  Here is a summary of some of the components of CARES:
  • Hire more ALJ's and ODAR staff.
  • Use Administrative Appeal Judges (AAJ's) instead of ALJ's to decide non-disability cases such as over payment appeals and claims involving retirees and survivors.
  • Expanding the teams of agency lawyers who pull cases from around the country to consider them for favorable on the record decisions.  
  • Have more pre-hearing conferences with senior attorneys from ODAR.
  • Provide "More Robust Case Screening" of cases that have a high probability of favorable decisions.  Apparently, under this part of the plan, cases will be sent back to DDS for additional review.  The SSA has given very few specifics about this part of the plan.
  •  Create more hearing office space, particularly for video hearings.   
  • Allow claimants to file electronic appeals to the Appeals Council. 
Of all the proposals made in the plan, the only one that will make a significant impact is the initiative to have more agency lawyers pull cases from around the country to consider them for fully favorable decisions.  This initiative worked well in the past but for reasons that are not entirely clear, it was discontinued.   

Monday, March 7, 2016

The Obligation to Exhaust Administrative Remedies in ERISA LTD Lawsuits

Once your Long Term Disability clam is denied, you have a period of 180 days to file an administrative appeal.  If your disability plan is governed by the Employment Retirement Income Security Act of 1974 ("ERISA"), the denial letter that you have received, --in all likely hood--, states that you must file an appeal within this time period.  It is imperative that you complete this appeal, otherwise you will loose your right to contest the denial.  
The legal principle that requires you to file an administrative appeal before being able to go to court is known as the "Exhaustion of Remedies" doctrine.  In essence, this doctrine precludes a party from contesting a matter in court until the issue in dispute has been presented before at a lower administrative forum.  Very recently, the 5th Circuit Court of Appeals had the opportunity to consider an ERISA LTD case dealing with this doctrine.  In Moss v. Unum, (Click here for a copy of the unpublished decision.), the Court of Appeals considered whether a phone call from a claimant's lawyer to a disability insurance company (Unum) was sufficient to constitute an exhaustion of administrative remedies. According to the decision, the claimant's attorney called Unum and verbally informed them that he disagreed with their decision to deny his client benefits.  However, he did not file a formal written appeal.  Instead, shortly thereafter, he filed a lawsuit.  
The 5th Circuit ruled that the telephone call to Unum did not constitute an administrative appeal. Furthermore, the Court explained: "[A]llowing informal attempts to substitute for the formal claims procedure would frustrate the primary purpose of the exhaustion requirement."  
Moss v. Unum, shows the importance of writing a formal appeal letter in an ERISA LTD case. Although, it is possible that other Circuit Courts may allow for more informal appeal methods such as a phone call, it is never a good idea for a claimant to take any risks when filing an administrative appeal.  
The plaintiff in Moss also argued that an administrative appeal in his case was not required because the denial letter stated: "Unless there are special circumstances, the administrative appeal process must be completed before you begin legal action..."  Moss argued that since there had been bad faith by Unum in denying the claim, the "bad faith" constituted "special circumstances".  The Court rejected this argument also.  It stated that under such an argument virtually anyone could make a claim of bad faith and circumvent the requirement of filing an administrative appeal. 

Monday, February 29, 2016

The Social Security Administration Faces Lawsuit Over Two Suicides

Last May, the Social Security Administration attempted to stop the disability checks of nearly 1,800 Kentucky and West Virginia recipients who it alleged had obtained their benefits through fraud. The SSA sent letters stating that their disability checks would be cut off immediately.  SSDI recipients were told that they had only ten days to gather all their medical records to contest the decision.   
Understandably, many persons became despondent when they heard of the SSA's plan to stop their benefits.  Most of them were the innocent victims of an unscrupulous lawyer and a corrupt administrative law judge.  It is very clear that the vast majority of them didn't participate in any efforts to deceive the Social Security Administration.  It now turns out that the termination of benefits letters sent by the SSA appear to have played a significant role in two suicides.
Just a few weeks ago the estate of the two who committed suicide, Melissa Jude and Leroy Burchett, filed a lawsuit blaming the SSA for their deaths.  The lawsuit alleges that the SSA acted negligently, carelessly and recklessly in sending the suspension notices.  Furthermore, the plaintiffs state in their complaint that the SSA should have known that sending out hundreds of immediate suspension letters to vulnerable persons, many with serious mental health conditions, would lead to suicides. 

  

Monday, February 15, 2016

The ALJ's Duty to Develop the Record in a Social Security Disability Hearing

Because Social Security proceedings are not strictly adversarial in nature, the Secretary of Health and Human Services has a duty to develop an adequate record from which a reasonable conclusion can be drawn. This responsibility increases in cases where the claimant is unrepresented, where the claim itself seems on its face to be substantial, where there are gaps in the evidence necessary to a reasoned evaluation of the claim, and where it is within the power of the administrative law judge (ALJ), without undue effort, to see that the gaps are somewhat filled. The Secretary's duty is even greater when the claimant is obviously mentally impaired. If the ALJ fails to fill those evidentiary gaps, and if they prejudice a plaintiff's claim, remand is appropriate.
In an action for social security benefits, if the evidence does not support a source's opinion and the administrative law judge (ALJ) cannot ascertain the basis for the source's opinion, theALJ has an obligation tomake every reasonable effort to recontact the source for clarification. Specifically, the ALJ must recontact the treating doctor when the doctor's records are inadequate, contain conflict or ambiguity, do not appear to be based on medically acceptable diagnostic techniques, or appear incomplete. The ALJ may carry out this duty by seeking additional evidence or clarification from the source, telephoning the medical provider, or requesting copies of the records, a new report, or more detailed report. In an action for social security benefits, one can demonstrate prejudice by showing that additional evidence would have been produced if the administrative law judge had fully developed the record, and that the additional evidence might.
The Commissioner of Social Security's failure to develop an adequate
record is grounds for reversing theCommissioner's decision pursuant to sentence four of § 205(g) of the Social Security Act, 42 U.S.C.S. § 405(g), and ordering the case remanded for further proceedings have led to a different decision.

Monday, February 8, 2016

Social Security Retirees and the Worker's Comp Offset

Social Security Disability Claimants also qualify for worker's compensations benefits.  When a worker is injured on the job, he or she receives periodic checks or a lump sum amount as compensation for his or her injuries.  However, by law the total amount received in SSDI benefits is offset by the amount received in worker's comp payments.   Under the law, the combined amount of worker's comp and Social Security Disability benefits cannot exceed 80% of the worker's earnings prior to his or her disability.  This reduction in benefits is commonly referred to by Social Security Disability Lawyers as the "Worker's Comp Offset" ("Offset").  
Up to now, the the Worker's Comp Offset applied only to disability benefits, not to retirement benefits.  Historically the offset ended at age 65 when the worker reached retirement age. However, as a result of a new law passed by Congress in order to keep pace with the new retirement age, Congress recently increased the age at which the offset will end. PL 113-295, Section 201 (December 19, 2014) amended 42 USC 424a to provide that, effective December 19, 2015, SSDI benefits will be offset until the worker reaches full retirement age. This provision applies to any individual whose DI benefit is currently offset for WC/PDB and who attains age 65 on December 19, 2015, or later.
This change is yet another reason why worker's comp claimants need to discuss their case with a lawyer who is well aware of Social Security laws and its complex regulations.  Unfortunately, I have met many worker's comp claimant's who hire lawyers that do not understand the how the offset works.  There are several ways in which a lawyer who knows Social Security laws can help you reduce any potential worker's comp offset.  For this reason, if you are currently considering settling your worker's comp case, you should insist that your lawyer include language in the settlement agreement that reduces your offset in the future.  Failure to include this language in your settlement agreement can be a fatal mistake that cannot be corrected later on with an amendment.   

Monday, February 1, 2016

The "Mental Illness Limitation Clause" in Long Term Disability Policies

If you are covered by a long term disability policy, it is very likely that your policy contains a limitation as to how long you can be paid benefits when your disability is caused by mental illness. Most disability insurance policies contain a standard provision that states that if your disability is caused by a mental health problem, the maximum period for which you can receive LTD benefits is 24 months.  However, the length of the limitation for mental illness might vary depending on the language on your particular policy.
It is extremely important to check your long term disability policy to determine the exact term of the limitations for mental illness.  In some rare cases, policies don't contain any limitations for disability claims based on mental health. 
Generally, limitations for claims based on mental illness have been held to be legal.   In my opinion, clauses limiting the payment of disability benefits for mental illness are extremely unfair. Moreover, such actions by insurance companies show a clear bias against persons who suffer from mental disabilities.  A mental health condition can be just as disabling as a physical one.  About a year ago, I participated in a disability law conference where a guest speaker, who was a psychiatrist, explained that science now believes that most mental health problems have a psychical cause inside a persons's brain and that it is erroneous to think that mental illness is caused by environmental or emotional factors.
One legal issue that comes up very frequently is whether the cause of a person's disability is a mental health condition or a physical illness. Take for example the case of someone who has suffered a stroke.  Many times stroke victims suffer from symptoms that go beyond physical limitations.  For example, after a stroke some patients suffer from severe depression symptoms.  Such cases are generally decided on a case by case basis. The determination as to whether the mental health exclusion applies or not depends on the exact language used in the policy as well as the specific facts of the case.  For example, if the language of the mental health limitation clause is expressed in very general terms and the claimant never had a history of depression before the stroke, it is possible that the person might have a good argument against the application of any limitations due to mental health.
If you are currently receiving disability benefits or have recently applied an you suffer from mental and physical health limitations, it is good idea to consult with a long term disability lawyer.  A lawyer can determine whether any limitations for payment will apply.  Moreover, an attorney can assist you in developing a claim strategy that makes it difficult for the insurance company to limit your disability benefit payments to 24 months or less. 

Monday, January 25, 2016

Myasthenia Gravis and Social Security Disability

Myasthenia Gravis (MG) is a disabling neuromuscular disease that causes the muscles to become very weak when they are being used.  It is considered to be an autoimune disease and it breaks the communication between nerves and muscles.  MG has its own listing provided by the Social Security Disability regulations under the Neurological disorder Section 11.00.

Specifically , Social Security Listing 11.12 sets forth that the following conditions must be present in order to meet the listing:
A. Significant difficulty with speaking, swallowing, or breathing while on prescribed therapy; or B. Significant motor weakness of muscles of extremities on repetitive activity against resistance while on prescribed therapy.
Most Social Security Disability claimants do not have conditions related to MG that are severe enough to meet the listing.  However, due to the serious nature of the physical and mental limitations of the disease, they might not be able to work.  

With the help of a competent Social Security Disability Lawyer, a person with MG might be able to prove to the Social Security Adminstration that given his or her age, education and skill level there are no jobs that he or she can perform in the economy.  Social Security rules are very complex and there are many ways in which a person can prove his or her case.  A particular diagnois of a chronic condtion is not enough to win disability.  What really matters is being able to show the specific level of physical or mental limitations caused by the illness.    

Monday, January 18, 2016

Social Security's Use of CDI Units in Disability Cases

Social Security Disability Lawyers and their clients must be made aware of the increasing use of Cooperative Disability Investigations ("CDI") units by the Social Security Administration in disability cases.  CDI units have been created by the Federal Government to investigate allegations of fraud in the disability programs.  CDI units work with the Office of the Inspector General (OIG), state DDS and local and state law enforcement agencies.   It is important to take note of the new role of CDI units and its impact on pending SSDI cases.
Referrals to CDI units are typically made by DDS or SSA staff.  There is no clear guiding criteria for a referral.  Referrals can also be made by the hearing offices ("ODAR"), by private citizens or anonymous sources.  CDI units can investigate a case at any step of the disability process: at the initial application stage, at reconsideration, while a hearing is pending or while a claimant is receiving on-going benefits.  Once the CDI unit makes findings, it can send a report with the evidence gathered to DDS or to the ALJ.  DDS and the ALJ can rely on evidence gathered by the CDI unit to make their determinations.
Another very important aspect to note is that, upon referral, CDI staff will conduct a search of the claimant's social media accounts for evidence of fraud, including Facebook, Twitter and Google +. This is a clear departure from  the way that SSDI claims have been reviewed in the past few years. DDS and the Administrative Law Judges (ALJ's) do not look at social media accounts however, CDI units can.  If the CDI unit searches social media then, their findings can be turned over to DDS or to the ALJ.  For this reason, Social Security Claimants must be very careful with their social media postings and the privacy settings on their social media accounts.  CDI units will also interview claimants, talk to third parties and conduct surveillance of the claimant.    
As you all know, I practice Social Security Disability Law in Connecticut and Massachusetts. (Jurisdictions located within the 1st and 2nd Circuit Courts of Appeals.)  Issues involving CDI units have begun to arise in these two circuits.  For example, Donnelly v. Commissioner, 49 F. Supp. 3d 289 (E.D.N.Y. 2014) is probably the first case that discusses the use of evidence from a CDI unit in a Social Security Disability claim.  In Donnelly, the ALJ decided the case based on a report from a CDI that alleged that the claimant was able to move with normal gait an that she was able to move in and out of a car without any difficulty.  The District Court agreed with the ALJ that the CDI unit surveillance showed that the claimant's allegations were not credible.  The Second Circuit Court of Appeals upheld the district court's decision.  Another case in the District Court of Massachusetts that also also discusses the role of CDI Units is  Altman v. Colvin, No 14-CV.301-KAR (D.Mass Sept 1, 2015).
The rise of CDI units is part of an ongoing  Congressional effort to prevent Social Security disability fraud. The  bipartisan budget passed on 2015 specifically requires the SSA Commissioner to expand CDI units throughout the Nation.
If you or your lawyer becomes aware of a CDI unit investigation, you must demand that the agency provide you with a copy of the report.  The claimant must be given the opportunity to comment on the findings made by the CDI unit.  Failure to provide such an opportunity is a violation of a claimant's due process rights.