Long-Term Disability Denial Letters and the Appeals Process

Video Transcript:

Welcome to the Four Minute Long-Term Disability Lawyer. A channel where you get straight forward, common sense disability insurance help in more or less four minutes. 

In this video, I’m going to explain some key issues regarding denial letters, and also, talk about the different steps in the administrative appeals process. If you have received a denial letter from your insurance company, here are some basic things that you need to know before you call a lawyer for a free initial consultation.  

First and foremost, you should know that you have 180 days to file an appeal and, that you should not wait very long to contact a long-term disability lawyer.

Ideally, when you call a lawyer, you should know at what stage in the process your case is at.  This will help you in obtaining a better free initial consultation.  You should also be ready email or fax the denial letter to the lawyer relatively quickly.  

Typically, there are only two types of denial letters in long-term disability cases: the initial denial letter and the final denial letter.  The Initial Denial Letter is the first notification to an insured by insurance company, that benefits are being stopped or, that a claim has been denied.   The Final Denial Letter is a second letter that only comes if, and after, the insured has filed an administrative appeal.  

However, changes in the regulations from 2018 have made the clear distinction that once existed, between initial denial letters and final denial letters, somewhat murky.  From 2018 on, insurance companies have been required to provide the insured with the opportunity to present additional commentaries prior to the issuance of the final denial letter.  This change, in effect, has created somewhat of an intermediary appeal step between the initial denial and the final denial letter.  In this intermediary step an insured is typically given the opportunity to respond to the opinion or opinions of the medical and vocational experts hired by the insurance company.

A lot going back and forth can occur in this intermediary step.  For example, the insurance company can decide to request additional medical records or, the insured can decide to ask his or her doctor for a new medical opinion.  

This situation can make it difficult for some insureds to understand at what exact step of the process their case is at.  I feel that sometimes, this confusion can make it harder for a lawyer to provide a good Free Initial Consultation.  I hope that this commentary helps clarify the different types of denial letters and the different steps in the appeals process. 

And, more importantly, help you receive a better free initial consultation from a Long-Term Disability Lawyer.

If you have received a denial letter from your long-term disability insurance company, you can request a free initial consultation from my office by going into my website LongTermDisabilityAppeals.Com.

The Guardian Insurance Ordered to Pay RamosLaw 47K in Attorney's Fees

On September 26, 2018, United States District Court Judge Michael P. Shea ordered the The Guardian Life Insurance Company of America ("The Guardian") to pay RamosLaw, LLC a total of $47,416.35 for the attorney's fees and costs in the case of Kimberly Johnson v. The Guardian,  2018 U.S. Dist. LEXIS 165113. This order granting attorney's fees and costs comes after RamosLaw successfully challenged The Guardian's May 7, 2015 decision to terminate Ms. Johnson's long term disability benefits.

Ms. Johnson's LTD benefits were eventually re-instated as result of a Court order mandating a new evaluation of her claim.  RamosLaw waged a long battle on Ms. Johnson's behalf and was eventually able to persuade the Court that The Guardian's decision to terminate benefits "was arbitrary and capricious because Guardian had not conducted a full and fair review of Johnson's claim, and (2) procedural irregularities in the administrative process suggested that Guardian's decision was influenced by its conflict of interest as the entity that would both determine Johnson's disability status and pay disability benefits".  

The Guardian's conduct in this case was particularly reprehensible because, after paying Ms. Johnson's LTD benefits for approximately five years, it decided to stop the payments shortly before she was about to undergo a very complicated thoracic spine surgery.  Throughout the administrative process, The Guardian failed to give Ms. Johnson a fair and open minded consideration of her appeal.  The Guardian relied on the opinion of two doctors who submitted reports that contained very little or no basis to support their conclusions.   

There used to be a time when The Guardian was considered to be one of he most fair and reliable long term disability insurance companies in the Nation.  In fact, The Guardian was one of the insurance companies that professionals such as lawyers and doctors would rely on the most when looking for LTD coverage.  This is no longer true.  The actions by The Guardian in this case were just as unscrupulous as the practices of other insurers such as Cigna or Unum who have received substantial fines from insurance regulators as a result of their questionable practices.       

Individuals who have been denied LTD benefits often ask their disability lawyer whether they can obtain any punitive damages or penalties against the plan or insurance company for failing to follow the law. Unfortunately, under the law that covers most of these plans (the Employee Retirement Income Security Act of 1974 “ERISA”), these damages are not available.  Given the state of the law, there are very little consequences when a disability plan acts illegally.  The payment of the benefits owed is practically the only remedy available to plaintiffs.  However, even though there are no punitive damages, the Court may force the insurance company and/or LTD plan to pay the plaintiff’s attorney’s fees. In these instances, the imposition of attorney’s fees acts as the only penalty or punitive action that can work to deter LTD plans from violating the law.  

RamosLaw Wins at the 1st Circuit Court of Appeals!

RamosLaw just won a great victory in the First Circuit Court of Appeals against Acting Social Security Commissioner Nancy Berryhill.  On August 10, 2018, the First Circuit vacated the judgment of the Massachusetts District Court and determined that our client was "prejudiced by having his psychiatric treatment ignored by the ALJ."  Torres-Pagan v. Berryhill, 2018 U.S. App. LEXIS 22271.  

This decision shows RamosLaw's commitment to fighting and winning tough battles on behalf of persons with disabilities.  Obviously, this victory required a lot of hard work and perseverance. (The First Circuit Court of Appeals is the federal court one step removed from the United States Supreme Court.)  Very few denied disability cases ever go this far.  However, in this case, such an extraordinary amount of work was necessary in order to protect the rights of our client and create legal precedent that will also protect the rights of other disabled claimants.

In Torres-Pagan we argued that the Administrative Law Judge (ALJ) erred, --when he determined that Mr. Torres-Pagan was no longer disabled--, because the Social Security Administration (SSA) failed to obtain and consider his psychiatric records.  The First Circuit agreed with us and determined that the SSA had a heightened duty to develop the record in this case due to Mr. Torres-Pagan's mental disability.  The decision contains some very eloquent statements supporting the rights of individuals who suffer from mental illness:

[I]ndividuals with psychiatric disorders are often some of the most vulnerable in society and unlike the standard pro se claimant at an SSA hearing, those with alleged disabilities sounding in mental health may be particularly vulnerable when unrepresented by counsel. We are thus satisfied that Torres-Pagan was prejudiced by having his psychiatric treatment ignored by the ALJ.  

Torres-Pagan presented important legal and public policy issues regarding the manner in which the SSA conducts re-determination of benefits evaluations of individuals, who have previously been found to suffer from an intellectual disability, who have difficulty advocating on their own behalf and, very often are unable to obtain legal representation.  We trust that Commissioner Berryhilll will take appropriate measures within her agency to ensure that her staff and the adjudicators that she appoints comply with this decision.    

Washington Post Features RamosLaw in Article About Disability Hearing Backlog

Today, the Washington Post published an article that discusses the enormous backlog in the Social Security Disability hearing process. Attorney Ivan Ramos was interviewed for the article.  Here is the Washington Post piece with the comments from attorney Ramos:

Short Staffing Leads to Long Waits for Social Security Disability Hearing Decisions

By Joe Davidson

Robert Steers of Southington, Conn., was an Army captain who served in Afghanistan. He also served his country looking for contraband with the Transportation Security Administration.

Now, he’d like to get decent service from the Social Security Administration.

But, as many Americans know, this can be an exasperating experience, filled with endless waits and growing frustration. ...

Steers applied in April 2012 and was denied. To appeal, he requested a hearing with an administrative law judge (ALJ) in May 2013. It took almost two years to be denied again in March 2015. After appealing to federal court, his case was sent back to the administrative law judge in December 2016.

It is now April 2018 — six years after his initial application — and Steers is still waiting to find out if he’ll get the insurance. ...

“I think SSA does not have the staff it needs,” said Iván A. Ramos, Steers’s lawyer in Hartford, Conn. “When you call a hearing office, nobody answers the phone, and when you go to the office you just stand in front of an empty window until someone finally shows up to help you. Many of my clients have trouble paying for food and shelter while they wait for their disability claims to be processed. Seeing what many of my clients and their families have to go through, just to get a hearing, has become the hardest part of my job.” ...

Staffing and service issues have plagued Social Security for years, and President Trump’s proposed budget for fiscal 2019 would make things worse. The disability hearing process can be particularly vexing because there are too few administrative law judges, who hear appeals, and they have too few support staff members. ...

For the full article visit:

https://www.washingtonpost.com/news/powerpost/wp/2018/04/03/short-staffing-leads-to-long-waits-for-social-security-disability-hearing-decisions/?utm_term=.797c84efb2dc
https://www.washingtonpost.com/news/powerpost/wp/2018/04/03/short-staffing-leads-to-long-waits-for-social-security-disability-hearing-decisions/?utm_term=.797c84efb2dc

New Social Security Ruling (SSR 17-4p) is Not Practicable For Social Security Lawyers

A few days ago, the Social Security Administration promulgated a new ruling regarding the duty of Social Security Lawyers to submit evidence in a timely fashion. Unfortunately, the ruling does not provide practicable guidance to Social Security Lawyers or their clients. SSR 17-4p states in part:

[W]e expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to submit or inform us about written evidence unless they have compelling reasons for the delay (e.g., it was impractical to submit the evidence earlier because it was difficult to obtain or the representative was not aware of the evidence at an earlier date). In addition, it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence. Simply informing us of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available, may cause unreasonable delay to the processing of the claim, without good cause, and may be prejudicial to the fair and orderly conduct of our administrative proceedings. As such, this behavior could be found to violate our rules of conduct and could lead to sanction proceedings against the representative. ...  (For a copy of SSR 17-4p click here.)

In response to this ruling, the National Organization of Social Security Claimant's Representatives (NOSSCR) has submitted a letter to Commissioner Berryhill that states in part: 

In many situations, it is not practicable for “representatives to submit or inform us about written evidence as soon as they obtain or become aware of it.” During the lengthy wait from request for an ALJ hearing to receipt of a determination on the claim (the current national average processing time is 627 days), claimants may have dozens or even hundreds of medical appointments, tests, treatments, and hospitalizations. Requesting records each time a claimant with kidney failure receives dialysis or a claimant with schizoaffective disorder sees a psychiatric social worker could require numerous requests per week. In some states, disability claimants are entitled to one free copy of their records but must pay for subsequent requests. In other states, the first few pages of medical records cost more than subsequent pages. Therefore, making frequent requests to providers months or years in advance of the hearing is not just aggravating to the providers, unlikely to be successful in obtaining evidence, and unnecessary given the long delays before ALJs review the file, but also impossibly expensive for many claimants.  (For a full copy of the letter click here.)

As a sustaining member of NOSSCR, I share the same concerns. Evidently, many at the SSA are working hard to make life miserable to those who represent disability claimants. Instead of helping reduce the agency's backlog and provide a fair adjudication process, this new ruling will lead to more delays and unnecessary appeals. 

Puerto Rico Needs Your Help! The SSA Must Consider Accepting More On the Record Requests from Puerto Rico

I must take a break from my weekly Social Security Lawyer postings and ask all of my readers to donate generously to the people of Puerto Rico. The Island is going through a terrible humanitarian crisis in the wake of Hurricane Maria. Below, I will provide a list of some charitable organizations that are collecting funds for the victims of the disaster. 

In the next few days, I also would like to contact my Social Security Lawyer colleagues at the National level to see if we can lobby the Social Security Administration to consider accepting more on the record requests (OTR's) from the victims of Hurricane Maria. I believe that the disaster will increase the case backlog in Puerto Rico and that holding in-person hearings is going to be extremely difficult.  

Here is a list of organizations seeking donations for Puerto Rico:

Fondos Unidos de Puerto Rico
P.O. Box 191914
San Juan, PR 00919
tel: (787) 728-8500
fax: (787) 728-7099
http://www.fondosunidos.org/

Caritas Puerto Rico
201 Calle San Jorge
Esquina Baldorioty de Castro
San Juan, Puerto Rico 00902
P.O. Box 8812, San Juan, Puerto Rico 00910-0812
787 300-4953
www.caritas.pr

Fundación Comunitaria de Puerto Rico
1719 Ave. Ponce de León
San Juan, PR 00909-1905
787-721-1037
https://www.fcpr.org/

Hurricane Maria Children's Relief Fund
Save the Children
501 Kings Highway East, Suite 400,
Fairfield, CT 06825
https://secure.savethechildren.org/site/c.8rKLIXMGIpI4E/b.9535647/k.A2B9/Hurricane_Maria_Childrens_Relief_Fund/apps/ka/sd/donor.asp

Maria & Irma: Puerto Rico Real-time Recovery Fund
ConPRmetidos
1511 Ave. Ponce de León Suite K, La Ciudadela
San Juan P.R. 00909
Phone:787-773-1100
https://www.generosity.com/emergencies-fundraising/maria-irma-puerto-rico-real-time-recovery-fund

New Social Security Ruling Regarding Sickle Cell Disease (SSR 17-3p)

Some Social Security Rulings (SSR's) can be of great assistance to Social Security Disability Lawyers when they encounter a case with a medical condition that is frequently misunderstood or difficult to understand.  This is the case with SSR 15-1p, which deals with interstitial cystitis, and SSR 12-2p, which deals with fibromyalgia. 

Just last week, the Social Security Administration (SSA) published a new ruling regarding sickle cell disease (SSR 17-3p)  For a copy of this new ruling click here.  This ruling gives social adjudicators and judges important background information on sickle cell disease and sets forth how cases involving this condition should be evaluated.  Hopefully this ruling will provide a more consistency in the decision making process.

Sickle cell is the most common inherited blood disease in the U.S..  It is believed that approximately 100,000 Americans have sickle cell disease.  Despite its prevalence, this condition is not always easy to evaluate due to its many different manifestations and complications.  

One of the important aspects of SSR 17-3p is that it instructs adjudicators to evaluate sickle cell disease under the following hematological disorder listing: 7.05, 7.17 and 7.18.  The new ruling also recognizes that sickle cell can impose exertional as well as non-exertional limitations on a claimant. For example, a person with sickle cell may have pain, fatigue and shortness of breath.  The condition may also cause difficulty in maintaining concentration or have difficulty completing tasks due to pain acute pain crises.

The Social Security Administration has indicated that the effective date of this ruling is September 15, 2017, and that the SSR will apply to new applications filed on or after September 15, 2017.  This means that SSA will use this ruling on and after 9/15/17 in any case in which SSA makes a determination or decision. SSA expects that Federal courts will review SSA’s final decisions using the rules that were in effect at the time SSA issued the decisions. If a court reverses SSA’s final decision and remands a case for further administrative proceedings, SSA will apply this SSR to the entire period at issue in the decision it make after the court's remand.

RamosLaw's Long Term Disability Lawyer Video Reaches 18K Views

At RamosLaw, we believe that disability lawyers should take full advantage of social media to inform and educate the community that they serve. 

Social media has given lawyers a platform to reach communities that historically have had very little access to legal representation.  In the past, disabled individuals who were denied coverage by disability insurers such as Cigna, MetLife, Unum, the Hartford and many others, didn't know who to turn to when their benefits were denied or stopped.  Many of them would go unrepresented and some didn't know how to, --or simply couldn't--, advocate for themselves.  Disability insurers were aware of this, and took advantage of claimants who were unrepresented or were represented by lawyers who didn't have any experience working in ERISA cases.  

Now, thanks to the availability of information on the web, disability claimants have much more information available to them.  Moreover, they know that there are lawyers throughout the Nation that can represent them without any up front legal fees.

These are just some of the reasons why our office's video has has had so many views on YouTube. Please take a look at our video, comment, like it and share it:

   

For more information regarding our practice please visit www.LongTermDisabilityAppeals.com

Social Security Failed to Send Due Process Notifications

Last week, Social Security issued a message advising its lawyers and staff that due to an apparent gross error it had failed to notify claimants and beneficiaries of certain adverse decisions, such as denial and cessation of disability benefits notice letters.  For a copy of the "Emergency Message" click here.  According to the message, it looks as if the error in sending the notices happened between September 2016 and March 2017.

As stated in a previous post, a claimant generally has 60 days to file an appeal when he or she receives a letter from social security stating that benefits have been denied. If the claimant misses the 60 day appeal period it can only file a late appeal for good cause.

According the Emergency Message, the SSA failed to send notices in all or some of the following situations:

• Cessation of benefits letters telling the beneficiary that he or she was no longer disabled. 
• Denial of initial applications filed by disability claimants. 
• Letters informing a beneficiary that there has been an over payment of benefits. 
• Letters informing a claimant that there has been a change on the onset date of disability. 

Due to the failure to send these notices many beneficiaries have no idea that their benefits have been stopped or denied. Moreover, they have no idea that they have a right to appeal these adverse decisions.

In addition, the Emergency Message tells the SSA staff: "If the beneficiary alleges he or she did not receive a notice during the relevant period, technicians should take the allegations seriously, carefully review the case and provide due process as required by existing regulations and agency policy." Given the wording on the message, if any claimant did not receive notice of a denial or cessation of benefits, he or she would clearly have a strong argument of "good cause" to file a late appeal. 

Unfortunately, the Emergency Message does not state whether or not the claimant and beneficiaries who didn't receive notices will receive a belated letter informing them of their right to appeal. At RamosLaw we believe that sending new notices would be the right thing for Commissioner Berryhill to do. We will keep our readers informed if we receive any new information regarding this issue.

At RamosLaw, we have seen a lot of problems regarding the SSA's failure to provide claimants with notice letters. We weren't sure if this was a Connecticut and Massachusetts problem or whether this was an agency-wide error. We are glad that at least the agency is acknowledging that it has widespread problems with regards to the issuance of notices.

New Bureaucratic Realignment at Social Security

Not even the most experienced Social Security Lawyers are able to comprehend what is going on with the latest plans to reorganize the Social Security Administration.  A few weeks ago, in the midst of an astronomical backlog of cases and rock bottom morale among her employees, Social Security Commissioner Nancy Berryhill announced a series of pointless bureaucratic changes aimed at creating a false illusion of progress.  

The changes create a series of new acronyms: The Office of Disability Adjudication and Review (ODAR) will now be the Office of Hearings Operations (OHO).  There will be a newly created office called the Office of Analytics, Review, and Oversight (OARO).  In addition to this new organizational changes, the Office of Budget, Finance, Quality, and Management will now be the Office of Budget, Finance, and Management (OBFM).  Thanks Commissioner for making the Social Security alphabet soup even thicker!  Just what more than one million disabled Americans, who are waiting for a hearing, needed.

From what it seems so far, it looks like the hearing offices (ODAR which now will be OHO) will no longer be under the same umbrella as the Appeals Council (AC).  Exactly what effect this change will have in the appeals process is not yet clear.  We will keep you posted on what effect this changes will have as more details are revealed in the next few months.

How to Find Out if You Have Enough Work Credits to Apply for SSDI

Many potential disability applicants call a Social Security Law Firm to find out if they have enough work credits to be eligible for SSDI benefits. However, since Social Security Lawyers do not have access to your Social Security work history prior to assuming legal representation on your case, a lawyer in not the right person to call to find out this information.  Instead, the best way to find out this information is by contacting the Social Security Administration.

The amount of work credits a person needs to be eligible for Social Security Disability is proportionate to the person’s age. For example, a person who is 50 would need 28 work credits, and a person who is 62 or older would need 40 work credits. In general, younger applicants are expected to have less work experience.  Therefore, more credits are required as person gets older.

A person earns work credits from earning an income subject to the FICA tax. FICA is a payroll tax that all workers must pay. Under-the-table income does not count towards earning work credits. For each $1,300 a person makes, they receive one work credit, and a person can earn up to four work credits per year.

Before applying for SSDI, you need to know how many work credits you have earned. If you know how many work credits you have, you can potentially save the time and effort of completing an application and then finding out that you arebeing denied benefits due to lack of credits. To find out how many work credits you have, you can get your Social Security statement online at:

http://ssa.gov/mystatement/

Social Security information is confidential, and lawyers do not have access to information about a person’s work credits. For this reason, it is important to get your Social Security statement on your own before contacting a lawyer. 

If you do not have enough Social Security work credits to be eligible for SSDI, you can still apply for Supplemental Security Income, or “SSI”. SSI, unlike SSDI, is based off of demonstrated financial need. If you are unsure about whether or not you can receive SSI or SSDI, please call our office to discuss your best options.

Good Cause to File a Late Social Security Appeal

After being notified of a Social Security decision, a claimant has 60 days to file an appeal. If this deadline is missed, the claimant usually has to make an entirely new Social Security claim, but in some cases claimants are allowed to file late appeals.

The SSA will decide if a claimant has a “good cause” for filing a late appeal. “Good” causes include circumstances that prevent a claimant from filing an appeal on time, whether or not the claimant understood what needed to be done, whether or not SSA or CMS misled the claimant, and whether there was a physical, mental, educational, or language limitation that kept the claimant from filing a timely appeal.

Examples of “good causes” for the SSA to accept a late appeal include:

• If you were very sick when the appeal was due and you could not have contacted Social Security yourself or through anyone else. You will need to show that you were seriously ill; otherwise Social Security will find that you could have submitted the appeal paperwork on time or asked someone to do it for you.
• If there was a death or serious illness in your immediate family.
• If records that you needed for the appeal were destroyed by a fire or other accident. You will need to show that the records were destroyed close in time to the appeal deadline and that they were important to your meeting the deadline. For example, if your house burned down the week before your deadline and your denial notice was inside the house, you would have a strong argument that you had good cause for missing the deadline.
• If you were actively looking for evidence to support your claim but failed to ask for an extension of time before the deadline passed.
• If you or your lawyer asked Social Security for more information about its denial before the appeal deadline passed. You would have 60 days after Social Security gave you the additional information to file for reconsideration or for a hearing.
• If Social Security or CMS gave you incorrect or confusing information about appealing your claim.
• If you did not understand that you were required to file an appeal by the deadline or you were not able to appeal because of a physical or mental problem.
• If you did not receive a denial notice. You will need proof that you never got the notice. For example, if Social Security mailed the notice to the wrong address, and you had notified them of the right address, then they might find good cause for your late appeal.
• If you sent your appeal to another government agency within the time limit because you misunderstood that the appeal needed to be sent to Social Security, and the other agency did not forward your request until after the deadline.
• If there were any other unusual or unavoidable circumstances, and you could not reasonably be expected to have met the deadline.

Social Security has published these examples of “good causes” to file late appeals, but this list is not exhaustive. If you believe you have a good cause for filing a late appeal to your SSI or SSDI decision but it isn’t on the list, Social Security may still accept it. The later an appeal is filed, the less likely it is that Social Security will accept it.

To make a late appeal, you must attach a written document with the reason for the late submission to the appeal form. Social Security is obligated to consider your late appeal request, but has the right to deny the request if they find there is no good cause. Even if the request is denied, Social Security may consider the date you made a late appeal request as a protective filing date for the next time you apply for benefits.

Study Shows That Disability Insurance Income Saves Lives

A recent study showed that disability insurance can decrease the mortality of its recipients. The research for this study was supported by grants from the Social Security Administration and the SSA Disability Research Consortium at the National Bureau of Economic Research.  The study was published by Alexander Gelber from UC Berkeley, Timothy Moore from the University of Melbourne and Alexander Strand from the SSA.

This study was the first to detail the positive impacts that disability income has on its recipients' health and lifespan. Previous studies on income's effect on health and mortality have not focused specifically on disability insurance recipients, and other studies have only focused on disability benefits' effects on the workforce. Many recipients of disability benefits already understand the improvements in quality of life after receiving disability income, this study confirms those testimonies and proves why disability income is necessary for millions of Americans.

A complete copy of this study can be found at:

https://www.dropbox.com/s/d9eunmqasy4ku8z/gelbermoorestrand_mortality_072017%20nber1.pdf?dl=0

Disability insurance recipients have high mortality rates and low average income, which is a unique demographic situation. This causes disability beneficiaries' health to be affected significantly by their level of income. Disability payments can greatly impact the recipient's health. The study found that $1,000 in annual disability payments decreases the annual mortality rate of low-income beneficiaries by 0.1 to 0.2 percentage points. This means that people with disabilities are living longer while on disability payments.

To many, this findings of this study aren't surprising. Many of our clients live with less stress and live healthier lives after winning disability benefits.

Nebulizer Treatments and RFC Determinations In Social Security Disability Cases

In every Social Security Disability case, the adjudicator must determine the claimant’s residual functional capacity, otherwise known as the “RFC.” Unfortunately, disability lawyers and judges often forget the importance of nebulizer treatments when determining RFC.

The judge in an SSD case makes an RFC determination by evaluating the most a claimant can do despite their limitations. The judge is required to consider all relevant evidence, including medical records, physical and mental abilities, and a claimant’s subjective evidence of symptoms. Usually, lawyers and judges think of a person’s ability to lift, walk, and stand when determining the RFC. However, going through frequent treatments also plays a large part in a person’s ability to work.

Nebulizer treatments tend to require frequent usage and are not easily portable. One client at Ramos Law needed to use a nebulizer every 4 to 5 hours during the day, which, a vocational expert determined, would prevent him from performing any job. The judge, who decided the case before Ramos Law became involved, initially overlooked the claimant’s need for regular nebulizer treatments and denied the case. The case is now pending at the Federal Court level.  

Unfortunately, the effects of therapies such as the need to use a nebulizer are often overlooked.  For this reason, it is important to provide sufficient evidence to prove that the claimant’s treatments affect their RFC.  In an ideal situation, a client would need records of specific medical treatment and prescriptions by a doctor, and proof that the claimant actually needs and uses the treatment. Usually the treatment must be provided by a specialist, and there must be documentation of the treatment’s continuation throughout their visits with the doctor. The treating physician should also provide a written opinion stating the need for the treatments. Insurance records could also serve as proof that the claimant purchased the prescribed treatment and that its medical necessity has been established by an independent party.

As mentioned above, cases where judges overlook the effect nebulizer treatments in the RFC determination are not uncommon.  Here are a few examples of Federal District Courts cases where the courts have emphasized the importance of considering nebulizer treatments in RFC determinations:  

Deso v. Astrue, 2011 U.S. Dist. LEXIS 137646 (D. Vt. 2011);

Holland v. Apfel, 1998 U.S. Dist. LEXIS 15674 (E.D. Pa. Feb. 23, 1998); (Approved and adopted in  Holland v. Apfel, 1998 U.S. Dist. LEXIS 5891 (E.D. Pa. Apr. 28, 1998)); and Konoloff v. Comm'r of Soc. Sec., 2016 U.S. Dist. LEXIS 42127 (N.D. Ind. Mar. 30, 2016)

Moreover, an ALJ cannot impose in his own lay opinion of the claimant’s need, or lack thereof, for nebulizer use.  This is the case even when the evidence in a case might reflect that a pulmonary condition is well controlled.  See  Begolke v. Astrue, 2007 U.S. Dist. LEXIS 41747, 2007 WL 5555951 (W.D. Wis. June 7, 2007)

New Regulations Make it Harder for Disabled Veterans to Win Social Security Disability Benefits

Veterans in the United States, especially disabled veterans, frequently have trouble receiving the government benefits that they deserve after surviving the physical and psychological injuries they might have experienced while serving their Country. In light of some new changes to the Social Security regulations, Disability benefits are becoming increasingly difficult for veterans to win.

Though the Department of Veteran’s Affairs and the Social Security Administration have different criteria for determining disability, in the past, Social Security judges were required to take VA disability ratings into account when making an SSD ruling. Though the SSA was not required to agree with the VA, judges had to provide an explanation for their rulings either way, and they had to specifically explain why they disagreed with the disability determination made by the VA. As of March 27, 2017, SSA judges no longer are required to give any special weight to medical opinions from the VA or from other governmental agencies. This means that VA disability ratings and opinions from VA medical professionals do not hold any special legal weight in SSA hearings.

VA disability ratings can still be considered as evidence, but technically, judges are now legally allowed to completely ignore VA disability ratings. Furthermore, SSA judges are no longer required to provide explanations for their rulings. A judge can overlook evidence provided by the VA without being required to provide a reasonable explanation.

​Many Americans are questioning why the two government agencies have such a “disconnect”. Why do the VA and the SSA have different criteria for determining disability? Why is the SSA allowed to overlook VA findings, when VA medical professionals are presumably more familiar with their disabled veteran patients’ cases than the SSA is?

​Our current Commander in Chief promised to protect veterans. However in light of these recent changes benefits for veterans are only becoming more difficult to attain. A recent article by Andy Pierrotti for WBIR in Knoxville, Tennessee reports on the specific struggle of Daniel Norfleat, a disabled veteran who recently had his Social Security Disability benefits terminated. Norfleat was already receiving SSD benefits when his attorney advised him to apply for additional back payments for a time period before he won benefits. Shockingly, the SSA then denied his request for back payments and also revoked his SSD altogether, claiming he was employable, and completely ignoring the opinions of VA professionals.

Here is a video of Mr. Norfleat’s story:

http://www.wbir.com/news/local/veteran-survives-crash-stroke-heart-attack-but-denied-benefits/458822810
​

Unfortunately, Norfleat’s case is an example of what can happen to veterans who need SSD but are facing great legal challenges under the new SSA regulations. Trump promised to protect veterans, but here is a clear example how government resources are only becoming more difficult for veterans to access under his administration.

Cigna Reinstates LTD Claim After Ramos Law Files Administrative Appeal

Ms. S sought legal representation from a long term disability attorney after Cigna denied the continuation of her long term disability benefits. Ms. S worked at a desk job that required repetitive typing motions.

Fortunately, Ramos Law was able to help her win back her LTD benefits.

Prior to becoming disabled, Ms. S had worked at a large investment services firm until the pain in her hands made it impossible for her to continue with her job.

Ms. S had bilateral carpal tunnel syndrome, trigger finger in multiple fingers as well as other severe issues in her wrists and hands. Ms. S underwent several surgeries and physical therapy sessions for these debilitating conditions. Unfortunately, her hand pain persisted despite aggressive treatment. Ms. S also had several other health issues which caused pain in her back, hips, foot, and ankle. Ms. S complained of pain in her hands, hips, and back both while working and during her long drive to and from the office each day. Ms. S’s doctor also recommended elevating her foot and ankle intermittently throughout the day, which also significantly interfered with her ability to work at the office.

Like many other LTD plans, Cigna’s policy in Ms. S’s case provides disability benefits for a period of 24 months if she is unable to perform the material duties of her regular occupation or “own” occupation. In Ms. S’s case, Cigna denied the continuation of her long term disability benefits, claiming that she was physically able to her own job.

Attorney Ramos thoroughly reviewed Cigna’s denial letter and Ms. S’s entire claim file. He noted that Cigna’s medical and vocational reports contained numerous inconsistencies and did not take into account the progressive nature of Ms. S’s conditions. As part of the administrative appeal that was submitted to Cigna, Ramos Law obtained new medical opinions from Ms. S’s doctors as well as a thorough opinion from a vocational expert.

Hiring our own vocational expert in this particular case was extremely helpful. Through the use of a vocational expert, we were able to prove that Ms. S’s could not perform the material duties of her own job without requiring the use of her hands and fingers at least two thirds of the workday.

Through the use of a more recent medical opinion and a vocational evaluation, Ramos Law was able to prove that Ms. S’s conditions continued to meet the definition of disability under the terms of the policy provided by Cigna. Besides the inability to use her hands on a frequent basis, our appeal also provided substantial evidence which showed that, non-exertional limitations such as chronic back pain did not allow her to maintain the pace and concentration needed to stay on task in an office that deals with challenging financial information.

Once Cigna reviewed the documents that Ramos Law filed in support of Ms. S’s case, Cigna was forced to reinstate her long term disability benefits. Our paralegal Jessica Smith was informed by telephone that Cigna had agreed to grant our appeal and told that a retroactive check had been issued to Ms. S’s for the amount owed in back due benefits.  

Working Under the Table and Social Security Disability

Many clients ask their Social Security Disability lawyershow working under the table will affect their eligibility for Social Security Disability benefits. Under the table income is not taxed, therefore no deductions are taken from these monies to pay into the Social Security system. For this reason, persons applying for SSDI with a history of working under the table may not have enough credits, or quarters, paid into the system to be eligible for benefits. These applicants may only have the option of applying for Supplemental Security Income (SSI), which is an asset-based program. This is measured based on the amount of money in the bank or the amount of assets (or property) that a person has.

Moreover, under the table work can present some problems during a Social Security Disability Hearing.  Failing to report income and pay taxes can be seen by some judges as a sign of dishonesty.  Nonetheless, it is important to be completely honest from the outset and disclose all work related information to the judge.  In our experience, it is much worse to get caught lying about your work than it is to admit that you performed work under the table.      

In an SSDI case, the judge will ask about the applicant’s work history. It is important to be upfront about all income made in the past 15 years, even if the income was not taxed. Though some work history is not on tax forms, judges can still find out about unreported work and income through other documents. Medical records usually include more than individuals think they do- and doctors, particularly mental health providers, usually ask and take notes about work history.  

It is always a bad strategy to assume that the government doesn’t know about your work history.  In fact, you should make the opposite assumption: --assume that Uncle Sam knows everything about you!  Be aware, claimentsget caught lying about their wages all the time.  For example, many individuals who think that they are being paid under the table are not aware or do not remember that their employers have issued 1099 forms for some or part of the payments made for wages.  This situation can cause some discrepancies between the testimony provided and the actual wages reported.  Another similar problem occurs when a claimant is self-employed and does not report income for purposes of income taxes but then receives a 1099 form from one of his or her clients.  

If you are unsure about your eligibility for SSDI and SSI because your income is under the table, please contact our office for a consultation.

Winning SSD for Clients with POTS and Dysautonomia

Claimants seeking SSDI benefits for POTS and/or dysautonomia often have difficulty finding a disability lawyer who is educated and experienced in these kinds of cases. Ramos Law has successfully worked with clients with POTS who have been able to win their Social Security Disability benefits.  

POTS, or Postural Orthostatic Tachycardia Syndrome, is a type of dysautonomia-- a condition which impacts the body’s ability to perform “automatic” functions, such as heart rate, blood pressure, digestion, and temperature control. People living with POTS can experience the condition in many different ways at different severities. Many POTS patients experience fatigue, headaches, lightheadedness, heart palpitations, exercise intolerance, nausea, diminished concentration, shaking, fainting, coldness or pain in the extremities, chest pain, and shortness of breath. According to Dysautonomia International ( http://www.dysautonomiainternational.org ), approximately 25% of POTS patients are disabled and unable to work, and “symptoms may be so severe that normal life activities, such as bathing, housework, eating, sitting upright, walking or standing can be significantly limited.”

People living with POTS may have a hard time finding a diagnosis, as it is a long process, and doctors specializing in POTS and dysautonomia are uncommon. Many POTS patients are misdiagnosed with anxiety disorders, due to the fact that POTS and severe anxiety disorders have similar symptoms. However, their causes are entirely different. POTS is caused by dysfunction in the autonomic system, and that dysfunction can have many underlying causes. Often, diseases that cause chronic pain such as Ehlers–Danlos syndrome (EDS) can be the source of dysautonomia. Other times, the cause of this syndrome is never known. It is estimated that about 80 percent of the patients suffering from POTS also suffer from Type III EDS.  EDS is a genetic connective tissue disorder that causes chronic pain, constant joint dislocations, arthritis, and vascular disease. 

Because POTS is difficult to diagnose and largely misunderstood, POTS patients seeking disability benefits need to work with a lawyer who is educated about the condition. Judges may dismiss POTS patients’ cases because the patient appears well or because the severity of symptoms may be difficult to measure or prove. This does not mean that the often painful and debilitating nature of POTS isn’t real.  If you are suffering from the debilitating symptoms of POTS and/or dysautonomia and are unable to work, feel free to call our office to see if we can help you win disability benefits.

TrumpCare (AHCA) Will Have a Devastating Impact on Our Clients

Denying millions of more vulnerable Americans health care while cutting taxes for millionaires and billionaires is unacceptable. Ramos Law is strongly opposed to the AHCA and fully supports the actions of those in the disabled community who have voiced their outrage over this “mean” proposal.

The American Health Care Act (AHCA, AKA TrumpCare) received strong opposition, particularly from Americans with disabilities, almost immediately after it was released to the public. One group voicing their strong opposition was disability rights organization ADAPT, which held a protest at Senate Majority Leader Mitch McConnell’s office. ADAPT is run by and for people with disabilities, and has operated for 25 years. At Ramos Law, we were moved by the energy and determination of the ADAPT activists who were arrested for engaging in Civil Disobedience at the Capitol. Here is a video clip showing the protest:

Also, the National Organization of Social Security Claimants’ Representatives (NOSSCR) has issued a statement against the AHCA. For the statement from NOSSCR’s executive director Barbara R. Silverstone click here:
https://www.nosscr.org/news/2017/06/statement-response-senate-health-care-bill

AHCA, if passed, would throw approximately 24 million people off health insurance and raise costs of premiums. Ten million current Medicaid enrollees have disabilities and are now at risk of losing their health insurance. Loss of basic health insurance and healthcare will have devastating repercussions. SSDI claimants who have lost health insurance will lose access to doctors’ visits, making it harder to obtain the medical evidence needed to support their cases.

Medicaid and SSDI work hand in hand in supporting people with disabilities in living independent and healthy lives. Many people rely on both the healthcare they have through medicaid and the supplemental income they receive through SSI and SSDI. In a press release, representatives from ADAPT expressed concerns that with AHCA’s cuts to Medicaid, many Americans with disabilities will be institutionalized against their will because they will no longer be able to afford the resources that they need to live independently.

Mike Oxford, and ADAPT organizer from Kansas, said, “Home and community based services are what allow us to do our jobs, live our lives and raise our families. Without these services many disabled and elderly Americans will die. We won’t let that happen.”

FedEx Long Term Disability Plan Ordered to Pay Ramos Law 40K in Attorney's Fees

Individuals who have been denied LTD benefits often ask their disability lawyer whether they can obtain any punitive damages or penalties against the plan or insurance company for failing to follow the law. Unfortunately, under the law that covers most of these plans (the Employee Retirement Income Security Act of 1974 “ERISA”), these damages are not available.  Given the state of the law, there are very little consequences when a disability plan acts illegally.  The payment of the benefits owed is practically the only remedy available to plaintiffs.  However, even though there are no punitive damages, the Court may force the insurance company and/or LTD plan to pay the plaintiff’s attorney’s fees. In these instances, the imposition of attorney’s fees acts as the only penalty or punitive action that can work to deter LTD plans from violating the law. In a recent case, Ramos Law was successful in obtaining an award of attorney’s fees against the Federal Express Long Term Disability Plan. See Dwinnell v. Fed. Express Long Term Disability Plan, 2017 U.S. Dist. LEXIS 57828 (D. Conn. Apr. 14, 2017)  .

In Dwinnell, the plaintiff brought a case against the benefits plan of her former employer, Federal Express Corporation, and its disability plan administrator, Aetna Life Insurance Company, after she was denied long term disability benefits. Following several years in litigation, the Court found that Aetna acted contrary to the law by failing to conduct a vocational review of the plaintiff’s claim.

In District Courts within the Second Circuit, disability plan administrators are required to conduct a two-step evaluation of disability claims. First, the plan must conduct a medical review.  Once this first level of review is completed, the plan must conduct a second assessment which involves a vocational evaluation of the claim. In Dwinnell, Aetna did not conduct a vocational review and decided the case solely based on the medical evidence. In light of the incomplete review of the claim, District Judge Jeffrey A. Meyer ruled that Aetna’s review process failed to satisfy the standard set forth by the Second Circuit Court of Appeals. The case was remanded back to Aetna with an order to conduct a new review which must include a vocational assessment of the plaintiff’s claim.

After successfully arguing her position, the plaintiff in Dwinnell then filed a motion for attorney’s fees and costs. Judge Meyer granted the motion and found that Attorney Ivan Ramos’ fees of $375 per hour and Paralegal Jessica Smith’s rate of $100 per hour were reasonable. Based on the amount of time spent by Ramos Law working on this case, Judge Meyer ordered FedEx to pay Ramos Law $40,657.75 in Attorney’s fees and $400 in costs.

It must be noted that under ERISA, a plaintiff need not have total success on the merits of his or her case in order to obtain attorney’s fees.  In fact, the law states: “The court in its discretion may allow a reasonable attorney’s fee and costs of action to either party,” appropriate if the party seeking fees has had “some degree of success on the merits.”  Therefore, attorney’s fees can be awarded when the plaintiff gets a second opportunity to have the cases reviewed but does not get his or her benefits reinstated.