Thank you for visiting my blog. I practice long-term disability law throughout the United States. I have created this web log to give useful information about the issues my clients face in the process of recovering their long-term disability benefits.
If you have any questions you would like me to address in this blog, or about your case in particular, please don't hesitate to contact me.
Lately the question of whether a long-term disability carrier can offset Social Security payments to a dependent has been a popular one. Most claimant's are aware that their LTD plans offset Social Security benefits awarded to the disabled individual, but most plans also offset the SSD benefits paid to the dependents or spouse of the disabled individual as well, if those benefits result from the individual's disability. As always it is important to read your plan documents carefully.
A household that receives Social Security benefits needs to be aware of who collects what amount and for what reason. For instance, assume Dad is a disabled individual with an adult disabled child living outside of the home and Mom is the child's designated caretaker. Mom may receive a benefit from Social Security as the child's caretaker. This payment cannot be offset by the LTD carrier however because the payment does not derive from Dad's disability. Explained another way, if Dad is a disabled individual and Child A is disabled as well, any payment from Social Security for reasons of the child's disability cannot be offset by the LTD carrier.
If a member of the household is designated to manage the funds for a disabled person other than the LTD recipient, those funds cannot be offset from the LTD payment because they are not benefits connected with the LTD recipient's disability.
The only time an LTD carrier can offset the Social Security benefit paid to a spouse or dependent is when that payment derives directly from the claimant's status as a disabled person.
Attorney Allen is an associate attorney of Alan C. Olson & Associates, s.c. If you have questions regarding social security disability benefits, please feel free to contact her at: JAllen@Employee-Advocates.com
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The claimant filed an application for Social Security benefits alleging numerous physical and mental impairments including depression and anxiety disorders. During a remanded hearing to reconsider her disability claim, the Administrative Law Judge posed a hypothetical to the vocational expert for a person who was limited to "brief and superficial contact with others in the work place" and no high production goals. Seamon v. Astrue , Slip Copy 2010 WL 323515 (C.A.7 (Wis.)). The ALJ's decision was only partially favorable as he found the claimant disabled because of her age.
The claimant appealed, alleging that the ALJ did not properly consider all her limitations in his hypotheticals to the vocational expert. The Court held that the ALJ's decision was proper because it was supported by substantial evidence. Id. at *3.
An ALJ is only required to create hypotheticals based on limitations with substantial support in the record. It is also in his discretion to determine credibility of the witness. The ALJ cannot simply dismiss a claimant's subjective complaints on the basis that they are not supported by objective medical evidence, but discrepancies between the objective evidence and subjective complaints must be weighed. The Court also reminds ALJ's that they must discuss their reasoning for ignoring any evidence by the treating physician in favor of the Administration's consultative expert. The presumption is always in favor of the treating physician and unless clear evidence is shown to discredit the treating physician, their opinions are to be given great weight.
In this case, the ALJ found the claimant's objective evidence was inconsistent with her subjective statements and posed his hypotheticals to include only the evidence regarding her limitations to be credible.
Attorney Allen is an associate attorney of Alan C. Olson & Associates, s.c. If you have questions regarding social security disability benefits, please feel free to contact her at: JAllen@Employee-Advocates.com
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Last week, long-term disability benefits claimant "Kelly" won her case after a trial against MetLife. Kelly's claim was supported by her physician, Dr. Michael Flaningam, who diagnosed Kelly as having fibromyalgia, with a secondary diagnosis of fatigue.
Fibromyalgia Criteria
According to the American College of Rheumatology, the criteria for classification of fibromyalgia are:
(1) a history of widespread pain, and
(2) pain in 11 of 18 tender point sites.
Dr. Flaningam asserted that Kelly "has total body pain, typically in the muscles, but sometimes in the joints. She is tired all the time and has difficulty concentrating." Dr. Flaningam noted: "I'm skeptical she'll ever be able to work on a daily basis or more than several hours straight."
Claims Administrator Must Let Claimant Know Specifically What Information is Needed
The Ninth Circuit (federal courts of Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands) has clearly held that it is the responsibility of the claims administrator to have a clear dialogue with plan participants and let them know specifically what information is needed. In the present case, Kelly repeatedly requested guidance on the type of evidence MetLife sought. Despite Kelly's specific requests, MetLife never gave hera description of any additional material or information that was necessary for her to perfect the claim, and do so in a manner calculated to be understood by the claimant. The Court held that "MetLife cannot now argue that it was [Kelly's] responsibility to guess at the appropriate objective measurement, if there is even one available."
Kelly also argued that MetLife selectively chose to review her claim as though her job was sedentary despite the fact that MetLife representatives first classified her job as "medium," and then changed it to "light." In other words, MetLife did not have a consistent classification for Kelly's job. The Court concluded that MetLife's inconsistent reporting of the level of her work directly affected the review. For instance, it is not clear whether MetLife's reviewing doctor would have come to a different conclusion if she knew that Kelly's occupation was then categorized as light.
MetLife's Decision to Deny Benefits 
Turning to MetLife's actual decision to deny Kelly's claim, the Court relied on prior case law to find that there is no "objective" method for measuring pain. "Disabling pain cannot always be measured objectively [and] individual reactions to pain are subjective and not easily determined by reference to objective measurements." The Court found MetLife's request for "objective" evidence particularly problematic in light of the fact that Kelly's basic conditions, fibromyalgia and fatigue, are inherently resistant to object verification. In fact, the Ninth Circuit has stated that fibromyalgia is "entirely subjective" and, "fibromyalgia's cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia."
Here, MetLife never disputed Kelly's diagnosis of fibromyalgia. Instead, MetLife denied Kelly's claim on the basis that her pain did not limit her from engaging in sedentary employment.
MetLife Failed To Prove Malingering
MetLife argued that Kelly showed signs of malingering because she refused to take the medication. However, MetLife did not point to any evidence to show that Kelly's adverse reaction to Lyrica and other medications would discredit her diagnosis or prove that she was not disabled. MetLife also argued that Kelly was able to work because she refused to take weaker pain medications such as ibuprofen. MetLife's claim was unpersuasive because at various points in Kelly's medical history, one of Kelly's doctors prescribed her treatments other than pain medication, such as 20 mg of Feldene and supplements such as flaxseed oil and borage oil, and Kelly's other doctor noted that "I'm not sure that any medicine will bring about significant relief." In fact, MetLife's own reviewing doctors acknowledged that Kelly was "receiving appropriate care and treatment," Kelly was "compliant with the treatment plan," and that "necessary" medications were "being prescribed [ ] for symptom palliation and control of symptoms." Also, MetLife did not take issue during the administrative appeal process with Kelly's reluctance to take medication-but only did so after Kelly filed suit.
MetLife's Doctors Did Not Examine Kelly Personally
Further, at no point did any doctors contracting to work for MetLife engage in an in-person examination of Kelly. Though the lack of an in-person examination is not determinative, it is a relevant consideration, especially with respect to conditions that are not susceptible to objective verification, such as fibromyalgia.
Finally, at trial, MetLife conceded that there is no objective test to measure Kelly's inability to function due to pain. Accordingly, MetLife was requesting objective evidence measuring Kelly's pain despite the fact-well-established in the caselaw- that there is no objective measure for such pain. In essence, then, by requesting "objective" evidence, MetLife "turn[ed] down [Kelly's] application for benefits based on [Kelly's] failure to produce evidence that simply is not available."
This court decision is encouraging to our firm's clients who have been arbitrarily denied their long-term disability benefits by carriers like MetLife that use such capricious tactics.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@GetMyLTDbenefits.com
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Long-term disability ("LTD") claimants who are forced to bring suit against their insurer after
negotiations fail are understandably concerned about the attorney fees and expenses they would incur. The good news is that a claimant's attorney fees and expenses are paid by the in-surance company if and when the claimant prevails. In determining whether to award attorney fees under the Employee Retirement Income Security Act of 1974 (ERISA), a court considers the following:
- the degree of the carrier's culpability or bad faith;
- degree of ability of it to satisfy an award of attorney fees;
- whether award against the carrier would deter other persons acting under similar circumstances;
- amount of benefit conferred on the claimant or other participants; and
- relative merits of parties' position.
Court's routinely award attorney fees to the prevailing claimant. At the outset of the case, claimants are usually offered the option to retain a disability benefits attorney on a contin-gent fee, hourly, or flat fee basis, depending on the needs of the client. The court's fee to file suit is $350 and the process server will charge about $25 to serve the suit on the insurance carrier. These expenses are also recoverable from the carrier pursuant to ERISA.
If I lose do I have to pay the insurance company's legal fees?
The same factorsoutlined above apply to a claimant's duty to pay the prevailing carrier's legal fees. An order for fees against the claimant is extremely rare due to the fact that LTD clai-mants are, by definition, unable to work and unable to pay such fees. More importantly, as long as the LTD claim had arguable merit, i.e. evidence to support the disability claim, the carrier would not be eligible to recover its fees from the claimant. As the courts have held, allowing a counterclaim for fees against the disability claimant would compromise the efficacy of ERISA. If such an award were allowed in an ERISA case, an LTD claimant would be compelled to weigh the benefits of pursuing ERISA claims against the burdens of paying opposing counsel's fees. Requiring an LTD claimant to engage in such a calculation would create a clear disincentive to the assertion of ERISA claims, a result at odds with the statute's purpose and goals. See, e.g., Varity Corp. v. Howe, 516 U.S. 489, 496-98, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (holding that an important purpose of ERISA is to protect employee [disability] benefits).
The purpose of ERISA is to protect long-term disability benefit entitlement. To fulfill this purpose, advocates for long-term disability benefits claimants must be willing to support their client by investing the time and money necessary to pursue the claim aggressively all the way to fruition.
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@GetMyLTDbenefits.com
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While there is no cost of living adjustment for Social Security beneficiaries for 2010, other changes will be effective as of the new year.
Particularly important for any SSDI or SSI claimant are the earnings thresholds. In 2010, an individual must earn $1,120 to be credited a quarter of coverage for SSDI and/or SSI eligibility purposes.
Substantial gainful activity ("SGA") thresholds will also increase for 2010. As discussed previously, substantial gainful activity is the gross income threshold to determine if a person's work is substantial and therefore that person is not disabled. In 2010, a non-blind individual may earn $1,000 a month (gross income) and still be eligible for disability benefits. If the claimant is blind, the SGA threshold is $1,640 per month.
An individual pursuing disability benefits or already receiving disability benefits who attempts work, or enrolls in the Trial Work Period ("TWP") may earn up to $720 per month, a $20 a month increase.
SSI benefit amounts for an individual and couple will remain the same because there is no cost of living adjustment this year.
Any individual pursuing disability benefits should be aware of the SGA threshold limitations. If the individual works, even part-time, he should monitor his gross monthly income and earn no more than the SGA allowable income if he wishes to remain eligible for benefits.
Attorney Allen is an associate attorney of Alan C. Olson & Associates, s.c. If you have questions regarding social security disability benefits, please feel free to contact her at: JAllen@Employee-Advocates.com
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