Consultative Examinations

Social Security Disability claims are usually denied based on the reports of consultative examinations (“CEs”). I advise my clients not to attend CEs because the regulations provide that the preferred source for performing a CE is the treating physician, and not a doctor selected by the state agency processing the initial application. There are three possible outcomes where a claimant does not attend a CE by a state agency consultant.

The first possibility is that the medical evidence supplied by the claimant and obtained by the state agency is so strong that the application gets approved despite refusal to attend the CE.

The second possibility is that the application will be denied on the grounds of non-cooperation. However, if the state agency is advised how the regulations would be violated if the CE is not performed by the treating physician, and the claimant offers to supply whatever specific medical information the state agency contends is needed to adjudicate the claim, then there is no valid basis for asserting non-cooperation. If then application is denied, the non-cooperation argument does not stand up on appeal.

The third possibility is that the state agency will agree to have the treating physician perform the CE. This is rarely the case, but when it happens, it virtually guarantees that the application will be approved on appeal if the state agency denies the application. I just had a lightning fast approval of such a case.

I represented a client whose application was denied despite the fact that I persuaded the state agency to have the treating orthopedist perform the CE, who concluded that the claimant was totally disabled and could not do any type of work. The day the claim file was transferred to the hearing office I submitted a request asking that the claimant’s application be approved based upon the evidence currently in the file. I argued that all the medical evidence, including the CE paid for by the state agency, showed the claimant was entitled to disability benefits. I received a telephone call in less than a week advising me that the application would be approved, and a written decision was received a couple of weeks later.

Purpose of SSD Hearing

It is a relatively rare situation where the Social Security Administration (the “SSA”) contests a claimant’s alleged medical impairments. While the diagnoses are not at issue, the severity of the claimant’s medical condition is the primary issue at the vast majority of Social Security Disability (“SSD”) hearings.

When preparing for a hearing, it is critical to focus on the real purpose for holding a hearing. A hearing is required when the SSA has determined that the objective medical evidence in the file does not suffice to establish the claimant’s entitlement to SSD benefits. Therefore, a hearing is held to see if the subjective medical evidence, the claimant’s sworn testimony, is enough to establish the claimant’s entitlement to SSD benefits when added to the objective medical evidence.

Since the purpose of the hearing is to assess whether the claimant’s subjective complaints are credible, evidence establishing credibility in general should be provided. I received a fully favorable decision today that illustrates this point.

The claimant was under 50 years of age, had a high school education, and a skilled sedentary job, which qualified her as a young, skilled, well educated person. An application by such a claimant is subject to the strictest standard for entitlement to SSD benefits. While an older, less skilled or less educated person with the same medical records may have been entitled to SSD benefits, my client had to rely on her subjective complaints to augment her claim.

I did two things to bolster the claimant’s credibility. First, I conducted a direct examination eliciting the claimant’s entire work history based on her SSA earnings record, which extended 31 years including the last 13 years with the same employer. I advised the ALJ on the record that the federal courts hold that where a claimant has a long work history of continuous work at the same employer, her testimony as to her capabilities is entitled to substantial credibility, and, that a claimant’s long and honorable work history justifies the inference that when she stopped working she did so for the reasons testified to. I then pointed out that the claimant’s SSD benefits would not come close to the income of her well paying job, and that commonsense dictated that she would have continued working if able to do so.

The other tactic that I intended to use to bolster the claimant’s testimony was to have the claimant’s mother testify as a witness, but the ALJ stated that would not be necessary. That indicated the ALJ accepted the claimant’s credibility and would approve SSD benefits because failing to develop the administrative hearing record by precluding witness testimony would have been reversible error

Overreach For Disability Retirement

In order to obtain disability pension benefits under the New York State Retirement System, a claimant needs to show the inability to continuing working at his or her job. I have succeeded in securing benefits each time I submitted applications by providing evidence that the claimant is incapable of performing ANY work, let alone the claimant’s prior position.

A claim was approved yesterday that illustrates the above strategy. The starting point, which is frequently overlooked, is establishing the vocational demands of the claimant’s job. Obviously, the most physically and mentally strenuous, the easier it is to argue the job’s demands can no longer be met. The claimant worked in law enforcement, which clearly was not a sedentary position. The next step is showing how the medical evidence shows that claimant cannot perform the past work. However, rather than simply obtaining medical records and opinions demonstrating that the claimant could no longer perform her job in law enforcement, I showed how the medical evidence demonstrated the claimant could not perform the demands of any type of work on a full time basis, even sedentary desk work.

While many of my colleagues believe my tactics are excessive, I succeed at the initial application stage. Unlike some other sources of disability benefits, the chances of securing disability pension benefits do not increase at subsequent appeal stages. Additionally, from the client’s perspective, avoiding the time it takes to appeal an initial denial reduces attorney fees, which are typically at least partially contingent.

Insurance Department Complaint

Insurance companies constantly deny and terminate Long Term Disability (“LTD”) claims without any legitimate basis because their decisions are usually subject to deferential review. Even if the basis for the denial or termination is wrong, a reviewing court will not overturn the decision unless it is patently arbitrary. Therefore, rather than paying disability benefits, insurance wrongfully deny and terminate claims because they hope a court will uphold the decision even if it is wrong.

One way to combat an insurer’s improper claims decision is by filing a complaint with the State insurance regulatory agency. Such a complaint must be filed prior to litigation, while the claim is still subject to administrative review by the insurer. I have a client from Ohio whose claim was approved by Aetna yesterday, not coincidentally after a complaint was filed with the Ohio Insurance Department.

The claimant filed her LTD application by providing all of the information required by Aetna’s application forms, including medical reports from her three treating doctors. Nonetheless, Aetna denied her application. I filed a complaint with the Insurance Department because, among other things, Aetna refused to provide a copy of the claimant’s file other than her medical records. Even though the claimant’s appeal relied on the same medical records from the same treating doctors, the application was approved after the Insurance Department complaint was filed.

If a case proceeds to federal court, in most cases the only risk for the insurer is the possibility of paying the claimant’s attorneys fees. Filing a complaint with the insurance department can result in other types of penalties and the filing itself is a blot on the insurer’s record. Furthermore, filing the insurance department complaint sends a signal to the insurer that the claimant is serious about obtaining disability benefits and most likely will litigate if necessary.

As noted above, insurers frequently risk going to court rather than paying disability benefits because they hope a court will uphold the decision even if it is wrong. Nonetheless, insurers often try to increase their chances succeeding in court by avoiding terminating or denying a claim with well developed evidentiary support. Claims that are prepared in anticipation of litigation, which includes filing insurance department complaints, vigorously rebutting all of the insurer’s arguments, and submitting both medical and vocational evidence in support of the claim, will increase the chances of securing benefits prior to having to proceed to court.

Why Wait?

Some disability attorneys do not submit medical records in support of Social Security Disability ("SSD") claims until after the application has been denied. The rationale is that the State agency that makes the initial determination will disapprove the claim regardless of what medical evidence is submitted. Therefore, medical records are submitted only after the claim file is transferred from the State agency to the Social Security Administration ("SSA") for further processing. I disagree with that approach.

Government statistics indicate that about 30% of SSD claims are approved by the State agency. While the percentage of claims approved by the SSA at the hearing level is higher, it still makes sense to present the strongest case possible at the initial level. I aggressively secure medical evidence and submit it as soon as possible to the State agency, even though it might require me to resubmit it to the SSA if an appeal is required.

I had a client's SSD application approved today after only two and a half months. The client is thrilled because she gets her benefits sooner than expected, which also means that her attorney will be smaller. While aggressively prosecuting claims does not usually result in claims being approved this quickly, not submitting medical evidence until SSA takes over responsibility for the file all but forecloses the possibility of a rapid approval.

No Objective Testing Required for Chronic Fatigue

I took over a Social Security Disability (“SSD”) case from another attorney when the claimant had to go to federal court. The claimant was diagnosed with vestibular disorder and then Chronic Fatigue Syndrome (“CFS”). I succeeded in having the court order another hearing before an administrative law judge (“ALJ”).

The case had been denied for lack of objective evidence. Regarding the vestibular disorder, I pointed out that while the ALJ had cited a normal diagnostic test, he had overlooked five other abnormal tests that substantiated the disorder. Nonetheless, the focus became CFS because the claimant’s infectious disease specialist and family doctor believed the vestibular disorder was symptomatic of the overall CFS.

The treating doctors summarized their clinical findings and conclusions. Their reports also provided detailed functional capacity assessments that precluded sedentary work. However, neither physician cited any diagnostic test data to support their opinions. To the contrary, each stated that there is no diagnostic testing associated with CFS, and that diagnoses, treatment and their disability o pinions were based on their clinical treatment history.

Disability claims are routinely denied or terminated for lack of “objective” evidence. In submitting a case, it is important to note whether there is any diagnostic testing that could possibly be submitted. It is equally important to highlight that physical examination findings are objective medical according to any medical dictionary or treatise.

Non-binding Disability Decision

Many claimants submit applications for more than one type of disability benefit. A reviewing agency or insurance company will always point out that being approved by another agency or insurer for disability benefits is not binding upon it. Nonetheless, a favorable decision should always be supplied because it is still persuasive evidence that must be considered.

Courts repeatedly state that although a Social Security Disability (“SSD”) decision is not binding upon an insurance company in the group long term disability context, it is arbitrary for an insurer to refuse to explain why the favorable SSD decision was wrong. I received a favorable SSD decision that also illustrates an approval should always be brought to the attention of another disability decision maker.

I represent a client whose SSD claim was pending for a year at the initial level. The Social Security Administration (the "SSA) kept raising excuses for refusing to decide the matter. In the interim, I obtained an approval for the claimant’s New York State Disability Retirement Pension. Shortly after I submitted the NYS decision to the SSA, the claimant’s SSD application was approved without explanation, despite threats to deny the SSD claim because the claimant refused to attend a consultative examination. Those threats make it unlikely that it was simply a coincidence that the SSD claim was approved right after the NYS decision was submitted.