Malingering Tests

Malingering tests are occasionally ordered by an ALJ as part of a psychological examination.  Such tests are inappropriate:  “You cannot prove malingering with tests; there is no test that, when passed or failed, conclusively determines the presence of inaccurate patient self-report.  Even a high likelihood of malingering does not preclude severe limitations resulting from a genuine MDI (medically determinable impairment).”   POMS DI 22510.007D.2, “CE Best Practices: When not to purchase a CE.”  Moreover, in “Disability Determination Services Administrators’ Letter No. 866 (Jan. 26, 2012), SSA instructs that if the DDS receives a request for a malingering/credibility test, “the DDS should not purchase the test. . . .”  (Information obtained from: Social Security Forum, Vol. 34, No. 4 – April 2012).

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Fighting Changes to the Social Security Disability Program

We all have a stake in seeing deserving people with disabilities get the benefits they need and have earned. Remember, the SSDI program provides income to non-elderly adults most of whom have worked in the past and have contributed to the fund-but are determined unable to work now because of a medical condition that is expected to last at least a year or to result in death. The program needs to be protected.

Disability Social Security Substitute Policy

Disability Social Security Substitute Policy benefits are usually sold as private insurance to individuals. Generally, the Policy will provide a monthly benefit for a certain number of years. Like many disability policies, the individual must be “disabled” as defined in the policy.  These policies add an additional requirement that the individual not be entitled to Social Security benefits. The Policy may also require that the individual not elect to receive retirement benefits from Social Security.
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Credibility – Boilerplate Language Insufficient

Often, in the denial of a disability claim at the Hearing level, the ALJ will state: “The claimant’s statements concerning the intensity, persistence, and limiting effects of his symptoms are not entirely credible to the extent they are inconsistent with the above RFC assessment.”  Two recent decisions held that such boilaterplate language is “meaningless”.  See Bjornson v. Astrue, No. 11-2422 ___ F.3d ____ (7th Cir. Jan. 31, 2012); Smith v. Astrue, No. 11-2838, ___ F.3d ___ (7th Cir. Mar. 12, 2012).

ERISA/LTD Discovery

Consult the following cases with regard to the nature and extent of discovery in ERISA/LTD actions:
1. Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008)
2. Firestone Tire & Rubber Co. v. Bruch Systems, Inc., 489 U.S. 101, 115 (1989)
3. Wilkins v. Baptist Healthcare Systems, Inc., 150 F.3d 609 (6th Cir. 1998)
4. Cerrito v. Liberty Life Ass. Co. of Boston (209 F.R.D. 663 (M.D. Fla. 2002)
5. 179 F.Supp.2d 1100 (D.Neb. 2001)
6. 167 F.Supp.2d 846 (E.D.Pa. 2001)
7. Gooden v. Provident, 250 F.3d 329 (5th Cir. 2001)
8. 5 F.Supp.2d 1172 (D.Kan. 1998)
9. Johnson v. Conn. Gen. Life Ins. Co., 324 F.App’x 459 (6th Cir. 2009)
10. 271 F.R.D. 584 (E.D.Tenn. 2011)
11. 746 F.Supp.2d 860 (E.D. Mich. 2010)
12. Calvert v. Firstar Fin., Inc., 409 F.3d 286 (6th Cir. 2005)
13. 581 F.Supp.2d 911 (E.D.Tenn. 9/22/2008)
14. Kalish v. Liberty Mutual, 419 F.3d 501 (6th Cir. 2005)

Treating Source Inconsistent with RFC

See Brook v. Astrue, 2011 U.S. Dist. Lexis 147113, for a decision dealing with an ALJ the finds that the treating source’s opinion is inconsistent with the ALJ’s residual functional capacity finding (RFC). “An ALJ’s RFC finding is not medical evidence and cannot be used to discount a medical opinion.” Kathleen Overton, Social Security Forum, Vol. 34, No. 2 – February, 2012.

Recontacting Treating Sources

Current 20 CFR 404.1512(e) and 416.912(e) are being deleted and replaced with sections 404.1520b and 416.920b concerning recontacting treating sources. At first blush, it would appear that the requirement that an ALJ recontact a treating source when there is a need to address questions concerning evidence submitted by said treating source is being abrogated.  However, that is not necessarily the case. The new rules allow an ALJ to avoid recontacting a treating source if he/she feels said source will not respond or address the issues after a reasonable attempt has been made to contact said treating source.  The news rules also leave in place the requirement that an ALJ make a reasonable effort to contact the claimant’s treating sources before obtaining a consultative examination (CE).  In other words, the ALJ is not supposed to abuse the CE process.  According to the comments, “The reasonable effort requirement to obtain evidence from treating sources applies before SSA can consider the purchase of a CE.”  Moreover, ALJs are expected to document their attempts to recontact treating sources per POMS DI 22505.008B.

SSA Informal Remand Project

On February 1, 2012, SSA began implementation of a new project designed to reduce the disability backlog at ODAR.  The Project will start at the Atlanta SSA Region, which includes Tennessee, Georgia, Alabama, and other regional states.  Basically, cases will be screened by disability examiners to determine if a fully favorable decision can be granted without the necessity of a hearing.  This Project is distinct from the Virtual Screening Unit, which performs a somewhat similar task.  Only fully favorable decisions can be issued.  Apparently, the disability examiner will contact the claimant’s representative on any file reviewed and may ask for additional information, to be submitted within 10 days.  Keep in mind, only electronic cases are being screened.  The review is supposed to take 45 days. During the 45 day review, the case cannot be set for hearing.  Contact with the representative of the claimant is required.

Source: Social Security Forum Volume 34, No. 2 – February 2012; http://secure.ssa.gov/apps10/public/reference.nsf/links/02012012051713PM

If you need help with your Social Security Disability claim in Tennessee or Georgia, contact Patrick Cruise at The Hamilton Firm.

2012 SSA Changes

Check out this website for 2012 changes, including changes regarding SGA: http://www.ssa.gov/pressoffice/colafacts.htm

Want to know how some of our laws get written?

Read this article: http://www.nytimes.com/2012/03/26/opinion/krugman-lobbyists-guns-and-money.html?_r=1&hp