The Illegible Medical Records Problem

Over the years, my office has developed great expertise in deciphering the awful scribbles and poor hand writing of some physicians.  However, in some instances, a doctor's  handwriting is so bad  that it  is impossible use the medical record to support our client's claim.  

Bad handwriting can seriously interfere with your Social Security Disability or Long Term Disability Claim.  If the examiner reviewing your case cannot understand your doctor's notes, your case is less likely to be granted.  The problem of illegible medical records not only causes problems for disability benefit applications.  It is well established that illegible medical notes can also harm patient care.  A 1986 study from the New England Journal of Medicine found that out of 50 outpatient notes, 16% of the all words were illegible.  This means that on an average, one out of every six words could not be deciphered.  Besides affecting your chances wining your SSDI or LTD case, bad handwriting from doctors result in lost time and money, medication errors and bad communication between different providers. 

The solution to problem of bad hand writing is obvious: switch to a computer based system for taking  medical notes. Unfortunately, many dinosaurs in the field of medicine are still unaware of the digital era.

If you are seeking long term disability and/or Social Security Disability Benefits and you have a medical provider that has poor penmanship, here are some suggestions of steps that can be taken to improve the quality of medical evidence presented with your claim:

• Prepare a questionnaire for your doctor to complete with very specific questions.  In our office we call these questionnaires "Medical Source Statements", however, many disability lawyers also refer to these forms as residual functional capacity "RFC" forms.  In many instances, it is a good idea to have specific boxes that your doctor can check in order to prevent him from writing too many illegible scribbles in the form.  Preparing this questionnaire can help you narrow down some of the specific medical issues in your case and get specific responses pertaining to your medical condition.
• Try to transcribe some of the medical records and present them to your doctor for his approval. At the end of the transcription, you can provide a space for his signature attesting that your transcription is correct.  You can also be more diplomatic and resourceful and hire your own medical consultant to do the transcription.  Your medical consultant can then write the doctor asking for his approval of the transcription.
• You can ask your doctor to agree with another medical expert's opinion by signing it.  You can provide him a copy of the other doctor's medical opinion and ask him in writing whether he agrees.  This is a way to, at least, give some weigh to the credibility a medical provider's whose record's would otherwise have very little weight in your case.
• Finally, under HIPPA laws you are allowed to request that a medical provider make corrections on medical records that are inaccurate or illegible.  The problem with this option is that it might take a while for the doctor or hospital to make this change.  You are probably better off trying to address the issue informally with your doctor and ask him whether he can write a letter for your disability claim explaining the any illegible statements on the record.

I Will be Attending the 17th National Conference on Litigating Disability Insurance Claims

For the second year in a row, I will attend the ACI's 17th National Conference on Litigating Disability Insurance Claims.  This year's conference will be held at The Union League in Philadelphia, PA.  This is the only long term disability insurance law seminar where plaintiff and defense lawyers meet to discuss recent legal developments in ERISA law.

This event presents a one-of-a-kind opportunity to meet with colleagues --and opponents-- in a setting outside of our offices and share practical tips, strategies and solutions to the issues that we face everyday.

The conference presents a wide variety of panelists that includes renowned judges, prominent plaintiff and defense attorneys, medical experts and insurance claims professionals.  Some of the companies who we regularly fight are scheduled to participate: The Hartford, CIGNA, Unum, Prudential, The Standard and more.

Some of the major points that will be discussed in this conference include:

• The battle over the standard of review: "de novo vs. arbitrary and capricious".
• Dealing with IME evaluations, treating physicians opinions and Functional Capacity Evaluations.
• Tackling the challenges of mental health claims.
• Strategies and practice tips for successful medication.
• Challenging/defending surveillance evidence.
• Recovery of attorney's fees in ERISA cases.
• Analysis of Vocational issues in disability insurance claims. 

ERISA Long Term Disability: Is the "Risk of Relapse" a Disability?

A recent First Circuit Court of Appeals decision examined whether the risk of relapse by a long term disability claimant, who is addicted to drugs, constitutes  a disability.  In essence, the question present before the First Circuit in Colby v. Union Security Insurance Co. was whether the risk of substance dependence "can swell to so significant level" as to constitute a disability in the same manner that risk into cardiac arrest or risk of orthopedic complications can constitute a disability.

The Court looked at whether the claimant could safely return to her material duties of her regular occupation as an anesthesia doctor once she had successfully completed a drug rehab program.  The Court found that "categorically  excluding risk of relapse as a source of disability is simply unreasonable".  Consequently, it found that the insurance company abused its discretion in denying the claimant's case by not taking into consideration her risk of relapse.

This appellate decision is directly opposite to a decision issued about five years ago by the Fourth Circuit, which held --in an almost identical case-- that not considering risk of relapse by the plan administrator was not an abuse of discretion.  See Stanford v. Continental Casualty Company.   

Given this clear split between the First and Fourth Circuit, I anticipate that in the upcoming months plan administrators, throughout the country, will be amending plan documents to address this particular issue.  Expect new language in the plans specifically excluding the risk of relapse as a valid claim for disability.

Repercussions of the Binder & Binder Bankruptcy

Binder & Binder one of the Nation's largest, and probably the best known, Social Security Disability law firms has filed for bankruptcy.  The firm became known for their tacky T.V. commercials showing attorney Charles Binder wearing a cowboy hat.

The firm's slogan: "We'll deal with the government.  You have enough to worry about."  is well known by those who spend a good part of the day watching day-time television.  Binder & Binder spends approximately $20 million a year in advertising alone.

Now, it is widely rumored that Binder & Binder is pulling all their T.V. ads off the air.  Binder has also announced that it will be closing offices in several cities through out the nation, including Hartford, in an effort to reduce costs.

Over the past two to three years, Binder's exorbitant budget and heavy caseload was used by the critics of the Social Security Disability programs to wrongly allege that the system was being overly generous to claimants.  Such criticism lacked basis.  In fact, Social Security Disability Law Firms have always had to work with a very small margin of profit.  Binder & Binder's bankruptcy debunks the wrong notion the lawyers are getting rich out of the Social Security Trust Fund.  Moreover, all well informed disability lawyers have known that the boom in SSDI applications has been over for quite some time.  (The boom probably occurred from 2010 to 2011.)  As I have explained in previous posts, the boom was the result of the Nation's demographics, not of a system that was overly generous to claimants.  Unfortunately, lousy politicians in Washington don't want to do a serious analysis of Social Security's problems.  They act as if the Nation's demographics had not changed.  Instead, they find it easier to play the blame game and portray disability lawyers as the cause of the crisis.     

Fraudulent Tax Preparers and Social Security Disability

Lately, I have seen a lot of Social Security Disability claimants get in trouble because they have reported self employment income to the IRS in order to receive a refund under the Earned Income Tax Credit. Unfortunately, in many instances, the claimant never really had any self employment income and the only purpose for falsely reporting this income was to get a refund.  Beware! Those who engage in this practice are committing tax fraud!  

In addition, falsely reporting self employment income will kill your chances of winning your Social Security Disability case.  A person who is self employed will, in all likelihood, be found not to be disabled.  Moreover, a person who has made a fraudulent tax return, is not going to be believed at all by a judge.  If a claimant lied in his tax return, why wouldn't he or she also lie in her SSD application? 

Through out the entire Social Security Disability process, is always good to keep in mind the fact that Uncle Sam knows a lot more about you than you think.  Please remember that, you can't get away with telling one thing to the IRS and then telling something else to the SSA.

I suspect that tax preparers are largely responsible for the large number of fraudulent tax returns seeking an earned income tax credit.  The tax preparers that we frequently see aggressively advertising in the inner city, solicit low income people and lead them to believe that there will be no consequences to filing a false tax return.  In many instances, they convince disabled individuals who have been waiting for a long time for their Social Security Disability hearing and are desperate for money.  This is truly unfortunate.  More needs to be done to educate the public, --particularly those who are disabled--, about the consequences of falsely reporting income in order to get a refund.  It would also be ideal if the government took a more aggressive stand in investigating the corrupt practices of tax preparers who induce low income individuals to engage in this practice.    

Nazis Can't Collect Social Security... Anymore

Did you know that, Jakob Denzinger, a 90 year former Auschwitz guard who later became an American citizen, collects approximately $1,500 per month in Social Security payments. Denzinger has renounced his American citizenship and no longer lives in the U.S.  However, he still gets his monthly check.
After it was discovered this past October that dozens of Nazis who have been forced out of the United States are still collecting Social Security, Congress unanimously passed a bill a few weeks ago terminating benefits for these war criminals. 
Even though these Nazis had lost their U.S. Citizenship, under current law benefits can not be stopped.  In order to be able to stop benefits, a higher threshold is required: there must be a final order of deportation against the Social Security recipient.  Now, if the bill passed by Congress becomes law, benefits would be stopped immediately.
According to Forbes magazine, Social Security payments to Nazis could have reached millions.  It is estimated that as of 1999 at least $1.5 million in benefits had been paid.  The lighter side of this story is that at least members of Congress were finally able to unanimously agree on a piece of legislation related to Social Security.      
Since we all need some humor to get through the Social Security Disability process, here is a report from Stephen Colbert on this subject: 

The Colbert Report
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Lesbian Widow Sues Social Security

A lesbian widow has a filed a complaint in the Federal District Court in Rhode Island alleging that the SSA illegally denied her survivor benefits.

Deborah Tevyaw married Patricia Baker in Massachusetts in 2005.  Back then, same sex marriage wasn't  legal in Rhode Island.  Patricia died of lung cancer in August 2011.  

After DOMA was struck down by the U.S. Supreme Court in 2013, the Social Security Administration continued to deny Deborah Tevyaw's claim for survivor's benefits.  The SSA alleges that she should be denied benefits because RI would not have recognized their marriage at the time of Patricia's death.    

The Social Security Administration's actions in this case are shocking given that back in June 2013, the U.S. Supreme Court in United States v. Windsor struck down the Defense of Marriage Act: a law that defined marriage as a Union between a man and a woman.  In response to pressure from the media, the SSA has responded with a carefully worded statement essentially saying that it is reviewing its policy with the Department of Justice.  In the meantime, Deborah Tevyaw will have to wait --like some many other claimants who are treated unfairly-- and live on a monthly income of $732 a month.