Monday, April 25, 2016

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

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

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

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

Practice Tip:

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


Monday, April 4, 2016

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

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

Monday, March 28, 2016

Study Suggests Changes to Representative Payee System

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

Monday, March 21, 2016

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

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

Monday, March 14, 2016

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

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

Monday, March 7, 2016

The Obligation to Exhaust Administrative Remedies in ERISA LTD Lawsuits

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

Monday, February 29, 2016

The Social Security Administration Faces Lawsuit Over Two Suicides

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