Monday, July 25, 2016

Social Security Amends the Respiratory Disability Listing

The Social Security Administration has enacted comprehensive changes to disability listings 3.00 and 103.00 for Respiratory Disorders.  See  81 CFR 37138  This listing will be effective for cases filed or pending after October 7, 2016.  This is the first major overhaul of the respiratory listing since 1993. The amendment also changes the name of the of the listing from Respiratory System to Respiratory Disorders.
The new listing places a great deal of emphasis on the tests used to measure lung capacity.  The agency will continue to require spirometry testing to determine a person's forced expiratory volume and forced capacity.  Under the proposed changes proof of equipment calibration will no longer be needed.  One particular aspect to keep in mind is that under the new listing the agency seems to require that tracing results of the spirometry be submitted with the medical records.  If tracing results are not submitted, the SSA may then request the claimant to undergo a consultative examination.  
On positive aspect of the changes includes a reduction in the number of hospitalizations needed in a year in order to meet the listing.  The old listing required six hospitalizations but the new listing has reduced them to three.  In enacting this change, the agency acknowledged that claimants are not always able to visit a hospital or able to pay for care when they suffer exacerbations of their conditions.  
Under the old listing lung transplant recipients were automatically considered disabled for a period of one year,  The new changes increases this time period to three years. 

Monday, July 4, 2016

Social Security Disability Recipients Can Have Their Student Loans Discharged

As a Social Security Disability Lawyer, clients and other claimants constantly ask me questions on how to make ends meet with the humble income that they receive from their monthly check.  Since I am not a financial adviser, my advise in this are is somewhat limited.  However, as I learn of different programs that can help relieve their financial hardships, I like to pass the information to them through this blog.
One program available to Social Security Disability beneficiaries to help them deal with their financial stress is the "Total and Permanent Disability Discharge of Student Loans".  To learn the specific details about this program click into www.disabilitydischarge.com
Under this program, if you are receiving SSD you might be able to have your entire student loan forgiven.  If approved, you will not have to pay your loan money back.  However, there are numerous exceptions to the program and must seek help from a financial planner before taking the bold step of requesting that your debt be forgiven.
The rules for student debt forgiveness are somewhat like the rules for Social Security Disability.   In fact, they are almost identical except that the "durational" requirement for debt forgiveness is much longer.  Therefore, you must be disabled for a longer period of time or expect to be disabled for a longer time than for SSD in order to be eligible for debt forgiveness.  To be eligible to receive Social Security Disability you must be disabled or be expected to be disabled for twelve months or more. On the other hand, in order to be eligible for student loan forgiveness you must be disabled or be expected to be disabled for 60 months or more.  Please note that individuals who are told by Social Security that their disability awards will not be reviewed in the next five to seven years (those SSD beneficiaries who are considered as "Medical Improvement Not Expected") are automatically qualified for the student debt forgiveness program.  If your case is supposed to be reviewed within the next five years and you want to be eligible, then you must complete an application an provide a certification from a doctor stating that your disability is expected to last 60 months or more.

Monday, June 27, 2016

Madison, Wisconsin Social Security Judge Accused of "Highly Inappropriate" Comments

A Social Security Disability Administrative Law Judge appears to have been suspended in the wake of a scandal involving allegations so sexism and bigotry.  News reports indicate that the the Office of the Inspector General has begun an investigation into the Madison, Wisconsin Office of Disability Adjudication and Review, particularly of ALJ John Pleuss.  Judge Pleuss has allegedly engaged in a pattern of sexual harassment against his staff and made inappropriate comments about claimants who have appeared before him.
According to Watchdog.org, in recent days, Judge Pleuss' hearings have been cancelled amid the Inspector General's Investigation.   See Sources: Social Security judge suspended in wake of Madison scandal By M.D. Kittle / June 16, 2016    Madison ODAR director Laura Hodorowicz has also been out of the office, fostering speculation that she has been suspended also.  
According to reports, employees at the Madison ODAR have blown the whistle at what they claim is a "culture of corruption and cover-up" at their office.  In fact, someone within the office has leaked some of the notes taken by Judge Pleuss during hearings.  These notes reveal a pattern of gender discrimination and bigotry against claimants.  Some of the notes allegedly written by Judge Pleuss state:
“Young, white (female); long brown hair; attractive; looks innocent,” the ALJ wrote.  He described another claimant as “buxom,” and noted that a “young, white (woman) looks like a man.”
“Obese, young, white (female) skimpy black top,” he wrote of another claimant.
Very black, African looking (female),” the ALJ wrote, and parenthetically he added,“(actually a gorilla-like appearance).”
In another document, Pleuss wrote, “I’ll pay this lady when hell freezes over!”  (See article from Watcdog.org)
U.S. Sen. Ron Johnson, R-Wis. has taken an active role in this controversy and has asked Social Security Commissioner, Carolyn Colvin for her agency's unfettered cooperation in this matter.

As this controversy escalates, one must wonder whether the SSA is going to follow the same hard line approach that it has used in cases of alleged corruption where claimants were granted benefits. For example, in cases involving alleged corruption in Kentucky and Puerto Rico, the SSA suspended benefits to claimants even before the allegations of corruption had been substantiated.   Eventually, claimants in Puerto Rico and Kentucky were required to go through a new hearing process in order to re-determine whether they could receive disability benefits.  In light of this harsh stance by the Agency, claimants who received unfavorable decisions from Judge Pleuss have every right to demand that they be given a new opportunity to present their case at a new hearing before a different Administrative Law Judge.   

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)