Long-Term Disability Denial Letters and the Appeals Process

Video Transcript:

Welcome to the Four Minute Long-Term Disability Lawyer. A channel where you get straight forward, common sense disability insurance help in more or less four minutes. 

In this video, I’m going to explain some key issues regarding denial letters, and also, talk about the different steps in the administrative appeals process. If you have received a denial letter from your insurance company, here are some basic things that you need to know before you call a lawyer for a free initial consultation.  

First and foremost, you should know that you have 180 days to file an appeal and, that you should not wait very long to contact a long-term disability lawyer.

Ideally, when you call a lawyer, you should know at what stage in the process your case is at.  This will help you in obtaining a better free initial consultation.  You should also be ready email or fax the denial letter to the lawyer relatively quickly.  

Typically, there are only two types of denial letters in long-term disability cases: the initial denial letter and the final denial letter.  The Initial Denial Letter is the first notification to an insured by insurance company, that benefits are being stopped or, that a claim has been denied.   The Final Denial Letter is a second letter that only comes if, and after, the insured has filed an administrative appeal.  

However, changes in the regulations from 2018 have made the clear distinction that once existed, between initial denial letters and final denial letters, somewhat murky.  From 2018 on, insurance companies have been required to provide the insured with the opportunity to present additional commentaries prior to the issuance of the final denial letter.  This change, in effect, has created somewhat of an intermediary appeal step between the initial denial and the final denial letter.  In this intermediary step an insured is typically given the opportunity to respond to the opinion or opinions of the medical and vocational experts hired by the insurance company.

A lot going back and forth can occur in this intermediary step.  For example, the insurance company can decide to request additional medical records or, the insured can decide to ask his or her doctor for a new medical opinion.  

This situation can make it difficult for some insureds to understand at what exact step of the process their case is at.  I feel that sometimes, this confusion can make it harder for a lawyer to provide a good Free Initial Consultation.  I hope that this commentary helps clarify the different types of denial letters and the different steps in the appeals process. 

And, more importantly, help you receive a better free initial consultation from a Long-Term Disability Lawyer.

If you have received a denial letter from your long-term disability insurance company, you can request a free initial consultation from my office by going into my website LongTermDisabilityAppeals.Com.

The Guardian Insurance Ordered to Pay RamosLaw 47K in Attorney's Fees

On September 26, 2018, United States District Court Judge Michael P. Shea ordered the The Guardian Life Insurance Company of America ("The Guardian") to pay RamosLaw, LLC a total of $47,416.35 for the attorney's fees and costs in the case of Kimberly Johnson v. The Guardian,  2018 U.S. Dist. LEXIS 165113. This order granting attorney's fees and costs comes after RamosLaw successfully challenged The Guardian's May 7, 2015 decision to terminate Ms. Johnson's long term disability benefits.

Ms. Johnson's LTD benefits were eventually re-instated as result of a Court order mandating a new evaluation of her claim.  RamosLaw waged a long battle on Ms. Johnson's behalf and was eventually able to persuade the Court that The Guardian's decision to terminate benefits "was arbitrary and capricious because Guardian had not conducted a full and fair review of Johnson's claim, and (2) procedural irregularities in the administrative process suggested that Guardian's decision was influenced by its conflict of interest as the entity that would both determine Johnson's disability status and pay disability benefits".  

The Guardian's conduct in this case was particularly reprehensible because, after paying Ms. Johnson's LTD benefits for approximately five years, it decided to stop the payments shortly before she was about to undergo a very complicated thoracic spine surgery.  Throughout the administrative process, The Guardian failed to give Ms. Johnson a fair and open minded consideration of her appeal.  The Guardian relied on the opinion of two doctors who submitted reports that contained very little or no basis to support their conclusions.   

There used to be a time when The Guardian was considered to be one of he most fair and reliable long term disability insurance companies in the Nation.  In fact, The Guardian was one of the insurance companies that professionals such as lawyers and doctors would rely on the most when looking for LTD coverage.  This is no longer true.  The actions by The Guardian in this case were just as unscrupulous as the practices of other insurers such as Cigna or Unum who have received substantial fines from insurance regulators as a result of their questionable practices.       

Individuals who have been denied LTD benefits often ask their disability lawyer whether they can obtain any punitive damages or penalties against the plan or insurance company for failing to follow the law. Unfortunately, under the law that covers most of these plans (the Employee Retirement Income Security Act of 1974 “ERISA”), these damages are not available.  Given the state of the law, there are very little consequences when a disability plan acts illegally.  The payment of the benefits owed is practically the only remedy available to plaintiffs.  However, even though there are no punitive damages, the Court may force the insurance company and/or LTD plan to pay the plaintiff’s attorney’s fees. In these instances, the imposition of attorney’s fees acts as the only penalty or punitive action that can work to deter LTD plans from violating the law.  

RamosLaw Wins at the 1st Circuit Court of Appeals!

RamosLaw just won a great victory in the First Circuit Court of Appeals against Acting Social Security Commissioner Nancy Berryhill.  On August 10, 2018, the First Circuit vacated the judgment of the Massachusetts District Court and determined that our client was "prejudiced by having his psychiatric treatment ignored by the ALJ."  Torres-Pagan v. Berryhill, 2018 U.S. App. LEXIS 22271.  

This decision shows RamosLaw's commitment to fighting and winning tough battles on behalf of persons with disabilities.  Obviously, this victory required a lot of hard work and perseverance. (The First Circuit Court of Appeals is the federal court one step removed from the United States Supreme Court.)  Very few denied disability cases ever go this far.  However, in this case, such an extraordinary amount of work was necessary in order to protect the rights of our client and create legal precedent that will also protect the rights of other disabled claimants.

In Torres-Pagan we argued that the Administrative Law Judge (ALJ) erred, --when he determined that Mr. Torres-Pagan was no longer disabled--, because the Social Security Administration (SSA) failed to obtain and consider his psychiatric records.  The First Circuit agreed with us and determined that the SSA had a heightened duty to develop the record in this case due to Mr. Torres-Pagan's mental disability.  The decision contains some very eloquent statements supporting the rights of individuals who suffer from mental illness:

[I]ndividuals with psychiatric disorders are often some of the most vulnerable in society and unlike the standard pro se claimant at an SSA hearing, those with alleged disabilities sounding in mental health may be particularly vulnerable when unrepresented by counsel. We are thus satisfied that Torres-Pagan was prejudiced by having his psychiatric treatment ignored by the ALJ.  

Torres-Pagan presented important legal and public policy issues regarding the manner in which the SSA conducts re-determination of benefits evaluations of individuals, who have previously been found to suffer from an intellectual disability, who have difficulty advocating on their own behalf and, very often are unable to obtain legal representation.  We trust that Commissioner Berryhilll will take appropriate measures within her agency to ensure that her staff and the adjudicators that she appoints comply with this decision.    

Washington Post Features RamosLaw in Article About Disability Hearing Backlog

Today, the Washington Post published an article that discusses the enormous backlog in the Social Security Disability hearing process. Attorney Ivan Ramos was interviewed for the article.  Here is the Washington Post piece with the comments from attorney Ramos:

Short Staffing Leads to Long Waits for Social Security Disability Hearing Decisions

By Joe Davidson

Robert Steers of Southington, Conn., was an Army captain who served in Afghanistan. He also served his country looking for contraband with the Transportation Security Administration.

Now, he’d like to get decent service from the Social Security Administration.

But, as many Americans know, this can be an exasperating experience, filled with endless waits and growing frustration. ...

Steers applied in April 2012 and was denied. To appeal, he requested a hearing with an administrative law judge (ALJ) in May 2013. It took almost two years to be denied again in March 2015. After appealing to federal court, his case was sent back to the administrative law judge in December 2016.

It is now April 2018 — six years after his initial application — and Steers is still waiting to find out if he’ll get the insurance. ...

“I think SSA does not have the staff it needs,” said Iván A. Ramos, Steers’s lawyer in Hartford, Conn. “When you call a hearing office, nobody answers the phone, and when you go to the office you just stand in front of an empty window until someone finally shows up to help you. Many of my clients have trouble paying for food and shelter while they wait for their disability claims to be processed. Seeing what many of my clients and their families have to go through, just to get a hearing, has become the hardest part of my job.” ...

Staffing and service issues have plagued Social Security for years, and President Trump’s proposed budget for fiscal 2019 would make things worse. The disability hearing process can be particularly vexing because there are too few administrative law judges, who hear appeals, and they have too few support staff members. ...

For the full article visit:

https://www.washingtonpost.com/news/powerpost/wp/2018/04/03/short-staffing-leads-to-long-waits-for-social-security-disability-hearing-decisions/?utm_term=.797c84efb2dc
https://www.washingtonpost.com/news/powerpost/wp/2018/04/03/short-staffing-leads-to-long-waits-for-social-security-disability-hearing-decisions/?utm_term=.797c84efb2dc

New Social Security Ruling (SSR 17-4p) is Not Practicable For Social Security Lawyers

A few days ago, the Social Security Administration promulgated a new ruling regarding the duty of Social Security Lawyers to submit evidence in a timely fashion. Unfortunately, the ruling does not provide practicable guidance to Social Security Lawyers or their clients. SSR 17-4p states in part:

[W]e expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to submit or inform us about written evidence unless they have compelling reasons for the delay (e.g., it was impractical to submit the evidence earlier because it was difficult to obtain or the representative was not aware of the evidence at an earlier date). In addition, it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence. Simply informing us of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available, may cause unreasonable delay to the processing of the claim, without good cause, and may be prejudicial to the fair and orderly conduct of our administrative proceedings. As such, this behavior could be found to violate our rules of conduct and could lead to sanction proceedings against the representative. ...  (For a copy of SSR 17-4p click here.)

In response to this ruling, the National Organization of Social Security Claimant's Representatives (NOSSCR) has submitted a letter to Commissioner Berryhill that states in part: 

In many situations, it is not practicable for “representatives to submit or inform us about written evidence as soon as they obtain or become aware of it.” During the lengthy wait from request for an ALJ hearing to receipt of a determination on the claim (the current national average processing time is 627 days), claimants may have dozens or even hundreds of medical appointments, tests, treatments, and hospitalizations. Requesting records each time a claimant with kidney failure receives dialysis or a claimant with schizoaffective disorder sees a psychiatric social worker could require numerous requests per week. In some states, disability claimants are entitled to one free copy of their records but must pay for subsequent requests. In other states, the first few pages of medical records cost more than subsequent pages. Therefore, making frequent requests to providers months or years in advance of the hearing is not just aggravating to the providers, unlikely to be successful in obtaining evidence, and unnecessary given the long delays before ALJs review the file, but also impossibly expensive for many claimants.  (For a full copy of the letter click here.)

As a sustaining member of NOSSCR, I share the same concerns. Evidently, many at the SSA are working hard to make life miserable to those who represent disability claimants. Instead of helping reduce the agency's backlog and provide a fair adjudication process, this new ruling will lead to more delays and unnecessary appeals. 

Puerto Rico Needs Your Help! The SSA Must Consider Accepting More On the Record Requests from Puerto Rico

I must take a break from my weekly Social Security Lawyer postings and ask all of my readers to donate generously to the people of Puerto Rico. The Island is going through a terrible humanitarian crisis in the wake of Hurricane Maria. Below, I will provide a list of some charitable organizations that are collecting funds for the victims of the disaster. 

In the next few days, I also would like to contact my Social Security Lawyer colleagues at the National level to see if we can lobby the Social Security Administration to consider accepting more on the record requests (OTR's) from the victims of Hurricane Maria. I believe that the disaster will increase the case backlog in Puerto Rico and that holding in-person hearings is going to be extremely difficult.  

Here is a list of organizations seeking donations for Puerto Rico:

Fondos Unidos de Puerto Rico
P.O. Box 191914
San Juan, PR 00919
tel: (787) 728-8500
fax: (787) 728-7099
http://www.fondosunidos.org/

Caritas Puerto Rico
201 Calle San Jorge
Esquina Baldorioty de Castro
San Juan, Puerto Rico 00902
P.O. Box 8812, San Juan, Puerto Rico 00910-0812
787 300-4953
www.caritas.pr

Fundación Comunitaria de Puerto Rico
1719 Ave. Ponce de León
San Juan, PR 00909-1905
787-721-1037
https://www.fcpr.org/

Hurricane Maria Children's Relief Fund
Save the Children
501 Kings Highway East, Suite 400,
Fairfield, CT 06825
https://secure.savethechildren.org/site/c.8rKLIXMGIpI4E/b.9535647/k.A2B9/Hurricane_Maria_Childrens_Relief_Fund/apps/ka/sd/donor.asp

Maria & Irma: Puerto Rico Real-time Recovery Fund
ConPRmetidos
1511 Ave. Ponce de León Suite K, La Ciudadela
San Juan P.R. 00909
Phone:787-773-1100
https://www.generosity.com/emergencies-fundraising/maria-irma-puerto-rico-real-time-recovery-fund

New Social Security Ruling Regarding Sickle Cell Disease (SSR 17-3p)

Some Social Security Rulings (SSR's) can be of great assistance to Social Security Disability Lawyers when they encounter a case with a medical condition that is frequently misunderstood or difficult to understand.  This is the case with SSR 15-1p, which deals with interstitial cystitis, and SSR 12-2p, which deals with fibromyalgia. 

Just last week, the Social Security Administration (SSA) published a new ruling regarding sickle cell disease (SSR 17-3p)  For a copy of this new ruling click here.  This ruling gives social adjudicators and judges important background information on sickle cell disease and sets forth how cases involving this condition should be evaluated.  Hopefully this ruling will provide a more consistency in the decision making process.

Sickle cell is the most common inherited blood disease in the U.S..  It is believed that approximately 100,000 Americans have sickle cell disease.  Despite its prevalence, this condition is not always easy to evaluate due to its many different manifestations and complications.  

One of the important aspects of SSR 17-3p is that it instructs adjudicators to evaluate sickle cell disease under the following hematological disorder listing: 7.05, 7.17 and 7.18.  The new ruling also recognizes that sickle cell can impose exertional as well as non-exertional limitations on a claimant. For example, a person with sickle cell may have pain, fatigue and shortness of breath.  The condition may also cause difficulty in maintaining concentration or have difficulty completing tasks due to pain acute pain crises.

The Social Security Administration has indicated that the effective date of this ruling is September 15, 2017, and that the SSR will apply to new applications filed on or after September 15, 2017.  This means that SSA will use this ruling on and after 9/15/17 in any case in which SSA makes a determination or decision. SSA expects that Federal courts will review SSA’s final decisions using the rules that were in effect at the time SSA issued the decisions. If a court reverses SSA’s final decision and remands a case for further administrative proceedings, SSA will apply this SSR to the entire period at issue in the decision it make after the court's remand.