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.