Lupus Disability Claims

September 16, 2014

Systemic Lupus Erythematosus (SLE) is an autoimmune disorder that can affect the skin, joints, kidneys, brain, and other organs. Symptoms can vary in severity, but SLE may be severely disabling. If SLE causes disability, then it is essential for the proper documentation to be gathered in order to support a disability claim.

SLE almost always causes joint pain and swelling. Other symptoms may include chest pain, fatigue, fever, malaise, hair loss, mouth sores, sensitivity to sunlight, skin rash, swollen lymph nodes, headaches, numbness, tingling, seizures, vision problems, personality changes, abdominal pain, nausea, vomiting, abnormal heart rhythms, coughing up blood and difficulty breathing, Raynaud's phenomenon, swelling in the legs, and weight gain. If a patient only has skin symptoms, then this is called discoid lupus; not systemic lupus erythematosus.

Because of the wide range of symptoms, autoimmune disorders can be very challenging to diagnose. For a clinical diagnosis of SLE, a patient must have 4 out of 11 common signs of the disease. 11 of the common signs of the disease are malar rash, discoid rash, photosensitivity, oral ulcers, nonerosive arthritis, pleuritis or pericarditis, kidney disorder, neurological disorder, blood disorder, immunologic disorder, and positive antinuclear antibody (ANA) testing. Objective testing is available to diagnose lupus, although no single test can diagnose lupus. Testing includes antibody tests (such as ANA panel), complete blood count, chest x-ray, echocardiogram, kidney biopsy, and urinalysis. About 95% of patients with lupus test positive for ANA, although ANA testing is not conclusive to diagnose lupus.

If SLE is causing a disability, a claimant needs to see the appropriate specialist and undergo all relevant testing. Rheumatologists are the appropriate specialists to diagnose and treat lupus. If a claimant suffering from SLE applies for disability and has not treated with a rheumatologist, then it will be challenging for them to prove a disability. Even though there is no cure for SLE, regular treatment is necessary to control symptoms. If a claimant does not maintain regular treatment, then their claim may fail to show the severity of their symptoms. Therefore, it is critical for a claimant with SLE to regularly see their doctors, including a rheumatologist.

Continue reading "Lupus Disability Claims" »

Improper Insistence on "Objective Evidence" to Prove Fibromyalgia

September 8, 2014

The O'Ryan Law Firm has represented numerous clients suffering from fibromyalgia in the disability claims process. Usually, the client contacts our office after their disability claim has been denied and all too often the insurance company or claims administrator has denied the claim because there is "insufficient objective medical evidence" to support the claim. It is improper for your disability insurance company to insist that you produce objective medical evidence to prove that you have fibromyalgia because it is impossible to supply the insurance company with objective evidence that doesn't exist.

Fibromyalgia is a disease the Seventh Circuit has characterized as "common, but elusive and mysterious." Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996). In an evaluating fibromyalgia in the context of a disability claim, the court in Sarchet described the disease as:

Its 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. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.

According to the American College of Rheumatology:

Fibromyalgia is a chronic health problem that causes pain all over the body and other symptoms. Other symptoms that patients most often have are:

• Tenderness to touch or pressure affecting joints and muscles
• Fatigue
• Sleep problems (waking up unrefreshed)
• Problems with memory or thinking clearly

Some patients also may have:

• Depression or anxiety
• Migraine or tension headaches
• Digestive problems: irritable bowel syndrome (commonly IBS) or gastroesophageal reflux disease (often referred to as GERD)

• Irritable or overactive bladder
• Pelvic pain
• Temporomandibular disorder--often called TMJ (a set of symptoms including face or jaw pain, jaw clicking and ringing in the ears)

Symptoms of fibromyalgia and related problems can vary in intensity, and will wax and wane over time. Stress often worsens the symptoms.

The American College of Rheumatology provides the following criteria for evaluating of fibromyalgia:
Criteria Needed for a Fibromyalgia Diagnosis

1. Pain and symptoms over the past week, based on the total of:

Number of painful areas out of 18 parts of the body
Plus level of severity of these symptoms:
• Fatigue
• Waking unrefreshed
• Cognitive (memory or thought) problems
Plus number of other general physical symptoms
2. Symptoms lasting at least three months at a similar level
3. No other health problem that would explain the pain and other symptoms.

Continue reading "Improper Insistence on "Objective Evidence" to Prove Fibromyalgia" »

Disability Claims Denied by Sedgwick CMS

August 16, 2014

Sedgwick Claims Management Services ("CMS") is a third party claims administrator hired by insurance companies and employee benefit plans to manage disability claims. If your employee benefit plan uses Sedgwick CMS as a claims administrator, then Sedgwick CMS is responsible for deciding whether your disability claim is approved or denied. As well as processing and adjudicating disability claims, Sedgwick holds itself out as providing the following services:

The company specializes in workers' compensation; disability, FMLA, and other employee absence; managed care; general, automobile, and professional liability; warranty and credit card claims services; fraud and investigation; structured settlements; and Medicare compliance solutions (website last visited August 16, 2014).

Sedgwick CMS is headquartered in Memphis, Tennessee and is one of the largest third party administrators in the nation. Many Indiana employers hire Sedgwick CMS to serve as their claims administrator for employee benefits. Employee benefit plans that currently use or previously used Sedgwick CMS include Eli Lilly & Company, AT&T, Comcast, Walgreens, Franciscan Alliance Inc., SPX Corporation, Ascension Health, Hewlett-Packard, PepsiCo Inc., International Paper, UnitedHealth Group, and many others. If employees of these companies apply for short term or long term disability benefits, Sedgwick CMS is responsible for processing the claims and deciding whether benefits should be paid. As a third party administrator, Sedgwick CMS does not actually pay the disability benefits. Rather, the employee benefit plan or insurance company pays disability benefits if Sedgwick CMS approves the claim. Often, the employee benefit plan has little involvement in the disability claims process, if any.

Like disability insurance companies, Sedgwick initially reviews a disability claim by obtaining medical records, requiring the claimant's treating physician to complete questionnaires, and having in-house staff (nurses, doctors, vocational analysts, claims analysts) review the claimant's file. If the claim is denied and the claimant appeals, then Sedgwick's review of the appeal will likely include the use of contracted record reviewing physicians. If the claim is approved, Sedgwick may call or write to the claimant frequently in efforts to obtain more information. Sedgwick may also require the claimant to undergo an "Independent Medical Examination" or "Functional Capacity Evaluation."

Continue reading "Disability Claims Denied by Sedgwick CMS" »

Proper Contents of a Denial Letter

August 7, 2014

The Employee Retirement and Income Security Act ("ERISA") mandates that insurance companies and claims administrators provide claimants with the specific reasons for the denial or termination of employee benefits and the reasons for the denial must be in writing. See Militello v. Cent. States, Se. and Sw. Areas Pension Fund, 360 F.3d 681, 688 (7th Cir. 2004), cert. denied, 543 U.S. 869 (2004). The Department of Labor has promulgated regulations under ERISA which require certain information to be contained in a denial or termination of benefits letter. Specifically, 29 C.F.R. §2560.503(g) states:

Manner and content of notification of benefit determination.

(1)....The notification shall set forth, in a manner of calculated to be understood by the claimant -

(I) Reference to the specific plan provisions on which the determination is based;

(II) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

These requirements ensure that when a claimant appeals a denial to the plan administrator, he or she will be able to address the determinative issues and have a fair chance to present his case. Halpin v. W.W. Granger, 962 F.2d 685 (7th Cir. 1992). Describing the additional information needed, as required by this section, enables a claimant to gain a better understanding of the inadequacy of his claim and to gain a meaningful review by knowing with what to supplement the record. Wolfe v. J.C. Penney Co., 710 F.2d 388 (7th Cir. 1983).

Continue reading "Proper Contents of a Denial Letter" »

Cigna Disability Claims

July 16, 2014

Cigna, headquartered in Bloomfield, Connecticut, is a global health services organization and its insurance subsidiaries are major providers of medical, dental, disability, life and accident insurance and related products and services, the majority of which are offered through employers and other groups. CIGNA is one of the top health insurers in North America, with medical plans covering nearly 12 million people. Cigna operates in 30 countries, has approximately 40,000 employees and manages around $54 billion in assets.

CIGNA is the parent company of Life Insurance Company of North America. Life Insurance Company of North America ("LINA") offers group life, accident, and disability insurance to employers. LINA was formed in 1956 by Insurance Company of North America (INA), a CIGNA predecessor company. LINA provides group disability insurance to many employers across Indiana including Toyota, the University of Notre Dame, State Farm, Sony Electronics, Covance and many others. Employees of these companies are provided short and long term disability benefits if they become unable to work due to injury or illness. LINA is responsible for processing the claims and making monthly benefit payments if the claimant proves that they are disabled and unable to return to their own occupation.

During the claims process, LINA will have a Nurse Case Manager review the medical records to determine whether an individual meets the definition of Disabled under the terms of the policy. If necessary, the Nurse Case Manager will escalate the review to a Cigna Medical Director who is an employee of Cigna. The Medical Director will also review the medical records and reports to determine whether the restrictions and limitations listed by the claimant's treating physician are supported by the medical records. It is not uncommon for the Nurse Case Manager and Cigna Medical Director to disagree with the treating physician and to find that the claimant is able to return to work despite the medical evidence supporting the claim.

Continue reading "Cigna Disability Claims" »

Disability Due to Spinal Injuries and Disorders

July 15, 2014

Spinal injuries or disorders may cause a great deal of pain or limit a person's movement. There are many causes of spinal conditions, including infections, injuries, degenerative bone changes, spondylitis, scoliosis, and tumors. Some of these disorders can be disabling in nature. Spinal injuries or disorders are relatively common. In fact, spinal conditions and back pain are one of the leading causes of disability.

When a back condition forces someone to miss work, it is necessary to carefully document how the back condition is disabling. First of all, objective testing is required to make a correct diagnosis and reveal the severity of the condition. Objective testing may include x-rays, MRIs, and CT scans, among other tests. One overlooked form of objective evidence is a list of signs observed by the treating physicians. Observable signs may include an abnormal gait when ambulating, pain with movement, and noted areas of the spine which are tender or painful on palpation. Range of motion testing is another type of evidence that is helpful to demonstrate disability. A range of motion test shows the degree to which a person can move each of their joints.

After objective evidence has been used to make a diagnosis, all treatment options must be considered. In most cases, conservative treatment is attempted prior to surgical intervention. Conservative treatment usually means rest, heat or ice therapy, physical therapy or home exercises, pain medications (NSAIDS and/or steroids), injections (nerve blocks and steroids), and non-traditional treatment such as massages, chiropractic adjustments, and acupuncture. If a spinal condition remains severe after conservative treatment and surgery is a possibility, a referral may be made to an orthopedic surgeon or neurosurgeon. Available surgical procedures include laminectomy, discectomy, or a spinal fusion. If surgery is not an option for the patient, then they may be referred to a specialist in pain management.

Continue reading "Disability Due to Spinal Injuries and Disorders" »

Recent Developments in Denied Medical Claim Cases

July 8, 2014

In Kenseth v. Dean Health Plan, Inc., 722 F.3d 869 (7th Cir. 2013), Ms. Kenseth had gastric band surgery in 1987. Eighteen years later, Kenseth's physician recommended a second operation to address the severe acid reflux and other serious health problems that had arisen since the gastric band surgery. The medical policy specifically excluded treatment for morbid obesity; however, when Ms. Kenseth called to get approval for the second surgery, a customer service representative told Kenseth over the phone that the medical plan would cover the procedure subject to a $300 co-payment. Subsequently, all of the medical claims related to the second surgery, totaling approximately $78,0000, were denied by the health plan as being related to morbid obesity.

The Court was troubled by the health plan leading Kenseth to believe that the second procedure would be covered when Kenseth called for certification and then denying the claims after the surgery. The Court explained that fiduciaries have a duty to disclose material information to plan participants, which includes a duty not to mislead and an affirmative duty to communicate material facts affecting the interests of plan participants. Although negligence of the individual in supplying advice is not actionable as a breach of fiduciary duty, a fiduciary may be liable for failing to take reasonable steps in furtherance of an insured's right to accurate and complete information.

The court in Kenseth reversed the district court opinion noting that where the defendant, by encouraging plan participants to call for coverage information before undergoing procedures, by telling plaintiff that defendant would pay for the procedure, and by not alerting plaintiff that she could not rely on the advice she received, lulled plaintiff into believing that defendant would cover the costs of the procedure...and where plaintiff did not obtain alternate coverage because she believe she was covered, plaintiff could seek make-whole money damages as an equitable remedy under § 502(a)(3) if the administrator's breach of fiduciary duty caused her damages. The Court seemed most bothered by the fact that there was no warning in the medical plan to plan participants that they could not rely upon the advice given to them by the customer service representatives nor was there any clear explanation given as to how a plan participant could obtain a definitive answer on whether a particular procedure would be covered. The Seventh Circuit ended up remanding the case to the district court to determine whether there was a breach of fiduciary duty, whether the breach was the cause of any harm to plaintiff, and what form of equitable relief was appropriate in light of circumstances of case.

Continue reading "Recent Developments in Denied Medical Claim Cases" »

Persistent Lyme Disease Symptoms May Cause Disability

June 30, 2014

The Center for Disease Control (www.CDC.gov) reported 17,730 cases of Lyme Disease in the year 2000 and as of 2012, over 100,000 cases have been reported. Lyme Disease is a growing epidemic in America and was first recognized in 1975 in Lyme, Connecticut, where the first outbreak occurred. Lyme Disease is the illness that results from the bite of an infected tick and it is the most common tick-born infectious disease in the United States.

Several related species of Borrelia cause Lyme Disease (Lyme Borrelia). Virtually all patients in the United States are infected with a single species called Borrelia burgdorferi, the spirochete that infects the deer tick and causes Lyme Disease. Worldwide, there are about 850 tick species and 30 major tick-borne diseases.

The infection usually starts with a painless, spreading "bull's eye" rash where the tick had attached itself to the skin. If you notice your tick bite right away and you are treated with antibiotics, this infection can be cleared fairly easily. If the cause is not found until later, people with Lyme Disease are more likely to feel fatigued, suffer from poor sleep, and muscle and joint pain, even after treatment. Other symptoms might be an acute fever, rash, Bells' palsy (paralysis of the face), headache, and joint and muscle pain. Some patients may complain of sensory symptoms such as burning, shooting pain or numbness. Your doctor may administer blood tests to determine if Lyme Disease is causing your symptoms and to rule out other diagnoses.

Continue reading "Persistent Lyme Disease Symptoms May Cause Disability" »

Eligibility for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI)

June 17, 2014

When applying for Social Security disability benefits, claimants should be aware of the two types of disability programs available. The Social Security Administration (SSA) offers Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI).
For both programs, the SSA reviews whether the claimant meets the applicable definition of disabled. The SSA defines "disabled" as follows:

An individual shall be considered to be disabled for purposes of this title if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.

On the SSA's website, the SSA further describes its standard of disability and how it decides whether the claimant is disabled. If adequate proof of disability is not provided, a claim for either SSDI or SSI benefits will be denied. If a claim for SSDI or SSI benefits is denied, the claimant has a maximum of 65 days to timely appeal.

Social Security Disability Insurance (Title II)

SSDI benefits act as a federal insurance program to workers. Taxes are deducted out of workers' payroll checks. The tax deductions serve as a premium to qualify for SSDI. If a worker has earned 20 Social Security credits in 10 years, then they will have enough work credits to be eligible or SSDI benefits. The SSA's website provides more details on how work credits are earned.

To be eligible for SSDI benefits, the claimant must also be under 65 years old. For SSDI claimants, there are no requirements that the claimant have a limited amount of resources. However, as of June 2014, the SSDI claimant cannot be earning $1070 per month in wages. Of course, to be eligible for SSDI benefits, claimants must meet all other work earnings requirements and proof of disability requirements.

Continue reading "Eligibility for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI)" »

Misrepresentations in Applications for Insurance Coverage

June 2, 2014

When completing an application for life, health or disability insurance coverage, an insurance company will ask a broad array of questions designed to determine whether an individual is a good risk and the type of coverage that should be issued. It is important to carefully complete the application form to make sure that all of the answers are 100% accurate; otherwise, the insurance company may later deny your claim. Unfortunately, many people do not find out that they failed to disclose important information on the insurance application until a claim is submitted. The insurance company then denies the claim contending that the insured made a material misrepresentation in the application because the insured failed to disclose important information such as a previous health condition or by their failure to answer "yes" to questions which were answered "no." If the misrepresentation is material to the insurer issuing coverage, the insurance company has the right to deny the claim, rescind the policy and refund the premiums that have been paid.

The falsity of any statement in the application for any policy may not bar the right to recovery thereunder unless such false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer. (IC 27-8-5-5(c)). False representations on an insurance application made by an insured concerning a material fact, which mislead, will void an insurance contract, just as in any other contractual relationship, regardless of whether the misrepresentation was innocently made or made with fraudulent intent. Ruhlig v. American Community Mut. Ins. Co., 696 N.E.2d 877, 880 (Ind. Ct. App. 1998) citing Watson v. Golden Rule Ins. Co., 564 N.E.2d 302, 304 (Ind. Ct. App. 1990); American Family Mut. Ins. Co. v. Kivela, 408 N.E.2d 805, 810 (Ind. Ct. App. 1980); Bennett v. CrownLife Ins. Co., 776 N.E.2d 1264 (Ind. Ct. App. 2002); Jesse v. American Community Mut. Ins. Co., 725 N.E.2d 420 (Ind. Ct. App. 2000).

Continue reading "Misrepresentations in Applications for Insurance Coverage" »

Functional Capacity Evaluations in Disability Claims

May 14, 2014

Functional Capacity Evaluations ("FCEs") are a type of test used to determine the severity of someone's physical impairments. FCEs are common in disability insurance claims, workers compensation claims, and other contexts where the level of a claimant's injury or sickness needs to be evaluated.

FCEs are usually administered by a physical therapist or physician who specializes in occupational medicine. Common measurements during an FCE include how much the claimant can lift, how much they can push and pull, how long they can walk and stand, how long they can sit, the ability to reach in all directions, the ability to grasp and manipulate with each hand, the degree to which a claimant can move all joints, the ability to squat and bend, and the ability to stoop and balance. FCEs can vary in duration: some FCEs are very brief - only a couple of hours - and some FCEs are actually performed over the course of two days.

In long term disability insurance cases, many insurance policies allow the insurance company to request that a claimant undergo an FCE at a facility of their choosing. A claimant's refusal to undergo such testing may give the insurance company grounds to deny disability benefits. Therefore, it is likely that the claimant will have to comply with the insurance company's request for an FCE. However, a claimant may want to consider the following tips before attending an FCE:

Continue reading "Functional Capacity Evaluations in Disability Claims" »

Medical Claims Excluded as Experimental

April 22, 2014

Exclusionary clauses for experimental or investigational treatment may either be included under the "medically necessary" provision of a medical policy or as a separate exclusionary clause in the plan. Either way, exclusions for experimental treatments provide yet another obstacle in getting certain medical claims paid under ERISA plans. In cases where benefits are denied as experimental or investigational in nature, courts are often called upon to interpret whether the language governing the experimental exclusion is ambiguous or whether the insurance company's denial under the provision was arbitrary and capricious.

The standard for what is "experimental" must be defined in the plan and cannot be "a floating standard which could rise or fall in any fact situation." Bucci v. Blue Cross-Blue Shield of Connecticut, Inc., 764 F.Supp. 728, 733 (D.Conn. 1991). Courts may also look to the body of the medical community's acceptance in determining whether a treatment is experimental. An insurer's failure to consider whether a relevant segment of the medical community accepts a procedure as being within a range of appropriate medical treatment may suggest an arbitrary and capricious review of a claim. The Bucci court analogized this review to the malpractice setting, stating, "If the contemporary standards of the medical community would deem the treatment applied or used in the circumstances of the particular case, as consistent with the exercise of medical judgment, in the view of a reasonable number of practitioners qualified to treat the malady in question, then the treatment must be found to be accepted medical practice. If such were the case, then a finding that the treatment was not so accepted could only be arbitrary and capricious." Because the standard for experimental treatment relied upon by the plan administrator was not clearly defined in the plan, the court determined that the denial was arbitrary and capricious.

Continue reading "Medical Claims Excluded as Experimental" »

Disabling Neuropathy

April 15, 2014

As type II diabetes becomes more and more common, many people suffer from peripheral neuropathy, which is a result of nerve damage. Neuropathy may cause weakness, pain, or numbness in the hands and feet, although it may occur in other parts of the body. Sometimes this nerve damage becomes so severe that it prevents people from maintaining their normal lifestyle, including the ability to work.

If neuropathy forces someone to stop working and they apply for disability benefits, there are some important tips to help document the disability. First, establishing treatment with a neurologist is very important. A Neurologist is the appropriate specialist to diagnose and treat neuropathy. If a person does not properly document their neuropathy, they will face a tough challenge in having their disability claim approved. Diagnosis requires considering full medical history, neurological examination (such as checking reflexes, sensation, and coordination), physical examination, and appropriate testing. The testing most commonly used for diagnosing neuropathy includes electromyography, nerve conduction tests, nerve biopsy or skin biopsy, blood tests, MRIs or other medical imaging tests, and lumbar puncture (or spinal tap).

Second, it is necessary for the disability claimant to maintain regular treatment with their neurologist and other medical care providers. If it is shown that the disabled person has not complied with recommended treatment, then disability benefits may be denied.

Continue reading "Disabling Neuropathy" »

The Impact of Surveillance on Disability Claims

March 19, 2014

Disability insurance companies may look to more than just medical records and reports when determining whether a claimant qualifies for disability insurance benefits. Insurers have long used private investigators to perform surveillance of claimants in order to obtain additional information regarding the claimant's restrictions and limitations. Oftentimes, the private investigators are asked to document their observations with video to provide tangible evidence of the claimant's daily activities and abilities. Depending on the information gathered, reports from the investigators' surveillance and the associated video evidence can lead to a denial of disability benefits. Generally, when courts review video evidence they look at whether the observations in the surveillance video are consistent with the claimant's reported restrictions and limitations.

A common strategy for disability insurers is to schedule surveillance at a time when the claimant has a scheduled appointment with their doctor or a previously scheduled medical examination. This provides the private investigators with a known opportunity to observe the claimant outside of their home. Inevitably, this allows the surveillance team to observe the claimant driving or riding in a vehicle. In Mote v. Aetna Life Insurance Co., 502 F.3d 601 (7th Cir.2007), Aetna's decision to deny the plaintiff's disability benefits was upheld by the court. Aetna based their decision in part on video surveillance showing the plaintiff running errands, driving to medical appointments, and loading groceries into her car. This evidence was used to establish that the plaintiff could work in "any occupation." However, video surveillance in Gessling v. Grp. Long Term Disability Plan for Employees of Sprint/United Mgmt. Co., 693 F. Supp. 2d 856, 864 (S.D. Ind. 2010) only showed that the claimant was capable of driving a little longer than the fifteen minutes he reported to a Hartford Life representative. The court in Gessling found that this video evidence "says nothing useful about (the claimant's) ability to work in his own occupation."

Similarly, the Northern District of California found that surveillance evidence depicting a plaintiff "walking, driving and doing errands ... for a couple of hours ... does not mean that [that p]laintiff is able to work an eight-hour a day job." Thivierge v. Hartford Life & Accident Ins. Co., 2006 WL 823751, at *11 (N.D.Cal. March 28, 2006). The Eastern District of California reached the same conclusion in a case where Hartford procured surveillance video of the plaintiff driving to the store, visiting a friend, carrying a small bag, and sitting through an interview while taking numerous breaks. Leick v. Hartford Life & Acc. Ins. Co., 2008 WL 1882850 (E.D. Cal. Apr. 24, 2008). The court determined that the plaintiff's documented activity on a "good day" did not contradict that the plaintiff was unable to perform a full-time sedentary job. Id. See also Hunter v. Life Ins. Co. of N. Am., 437 F. App'x 372, 378-79 (6th Cir. 2011) (surveillance of a plaintiff driving to her functional capacity evaluation, as well as other activities of daily living, did not indicate that Hunter can perform all the physical duties of her former occupation).

Key considerations when reviewing surveillance evidence of driving include how long the claimant is operating the vehicle and where they are driving to during the surveillance. Courts seem to understand that driving only 15 or 20 minutes does not reveal much about a person's ability to work in a full-time job. Moreover, if the claimant is driving to a place where they are required to attend, like a doctor's appointment or a trip to the grocery store, then courts have often found this type of activity to be reasonable unless the claimant has reported that they are unable to drive at all.

There have been occasions where a court reviews surveillance evidence of a claimant engaging in activity that is physical in nature. One such case is Holoubek v. Unum Life Ins. Co. of Am., 2006 WL 2434991 (W.D. Wis. Aug. 22, 2006). In Holoubek, Unum obtained surveillance showing the plaintiff engaging in activity including (1) driving an automobile, (2) operating a forklift at a construction site, (3) lifting various objects, (4) walking and bending forward at the waist; and (5) leaving his apartment on four continuous days. In this case, Unum was determining whether the plaintiff could return to his job as a materials manager. Unum terminated the plaintiff's benefits and in the district court's decision, the judge found that Unum's four days of surveillance "is of little value because it fails to demonstrate that plaintiff could sustain such a level of activity on a continuous basis." While relying on the case of Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir.2003), the Holoubek court found that the plaintiff was in a desperate situation and forced "himself to work despite an illness that everyone agree[s] [is] totally disabling." While the court in Holoubek admitted that the surveillance video showed activity inconsistent with the plaintiff's claimed restrictions and limitations, the court ruled that Unum's termination was arbitrary and capricious because Unum failed to explain how plaintiff's observed surveillance activities established that he could perform the material and substantial duties of a materials manager.

Another case examining surveillance footage showing physical activity is Cross v. Metro. Life Ins. Co., 292 F. App'x 888 (11th Cir. 2008). The surveillance footage showed the plaintiff occasionally bending at the waist, squatting, carrying equipment of an unknown weight, and coaching baseball. MetLife characterized the plaintiff's observed activity as "pitch[ing] baseballs to a player in the batting net", although the court's review found that the plaintiff was merely "sitting on a bucket next to a batter and tossing baseballs a few feet up in the air for the batter to hit." MetLife also attempted to bolster its argument by pointing out what the plaintiff was not doing in the video, namely not using braces or supports, not limping, and not exhibiting signs of impairments or pain. Id. The court decided that the surveillance footage is only a "snapshot of Cross's activities throughout the day" and "these snapshots do nothing to disprove Cross's reports of pain." The court noted that the plaintiff increased his dosages of pain medication during his coaching activities since these activities caused him more pain. Even considering MetLife's surveillance video, the Eleventh Circuit held that MetLife's determination that plaintiff is capable of performing his prior occupation is not supported by reasonable grounds.

One case involving Liberty Mutual included three occasions of surveillance video over a four year period. Minix v. Liberty Life Assur. Co., 2005 U.S. Dist. LEXIS 15309 (N.D.Ind.. July 22, 2005). In 1999, the plaintiff, who suffered from ulcerative colitis, was observed performing activity at a horse farm. The surveillance showed Minix enjoyed riding and showing horses on good days. In 1999, Liberty Life did not change its determination that Minix was totally disabled. Id. Again in 2000, the Liberty Life performed surveillance of the plaintiff and he "was observed driving his truck, moving hay, unloading his truck, and sitting in a parking lot for two hours and forty minutes." Id. Still, Liberty Life did not change its opinion that Minix was totally disabled. Yet again in 2002, Liberty performed surveillance and observed Minix riding a "horse for approximately one hour and twenty minutes, walking around, bending at a 90 degree angle to pick up sticks, and sitting on the porch for approximately forty minutes." Id. After the third surveillance period, Liberty terminated Minix's disability benefits claiming that he could return to work in an occupation other than his regular occupation. The court found that the surveillance video did not prove that Minix can return to work and reasoned:

Minix's ability to bend over and pick up sticks, however, is not determinative of whether he is able to perform any occupation. Simply put, ulcerative colitis does not affect these capabilities. Rather, it is Minix's sudden pain and urgent need to use the bathroom which cause interruptions of his work.

In another case involving Hartford Insurance Company, the court reviewed video surveillance of the claimant, among other things, walking for about a mile on five occasions for approximately half an hour. Hanusik v. Hartford Life Ins. Co., 2008 WL 283714 (E.D. Mich. Jan. 31, 2008). Hartford terminated the plaintiff's disability benefits based on this level of activity. The court pointed out that the activities performed by the plaintiff were not ones the Plaintiff alleged she was disabled from performing. The court in Hanusik recognized that the surveillance did not reveal that the plaintiff could perform any single or combination of activities for an eight or four hour period, or strenuously exert herself in consecutive days. The court also did not find the surveillance video reasonably reliable to determine the extent of the plaintiff's fatigue symptoms. Further, the court did not find the surveillance video as credible factual support for Hartford's decision to terminate benefits and therefore the court ruled that the Hartford's determination was wrong.

If your disability claim has been denied in whole or part due to surveillance captured by the insurance company, contact the O'Ryan Law Firm toll free at (855) 778-5055.

Social Security Disability Claims at the Appeals Council and District Court

March 17, 2014

Applying for disability benefits from the Social Security Administration is a layered process. If a claimant is denied initially, then they must file a request for reconsideration. If their request for reconsideration is denied, then they must file a request for a hearing before an Administrative Law Judge. Claimants should be aware that each of these appeals must be filed within 60 days of receiving a denial letter.

At the hearing level, the claimant's chances of success improve. However, even strong claims can be denied by an Administrative Law Judge for a variety of reasons. It is a nationwide trend that more Social Security disability cases are being denied.

Appeals Council

When an Administrative Law Judge denies a claim, then the next step is to request a review from the Appeals Council. This request must be made within 60 days of the denial notice. The Appeals Council is located in Falls Church, Virginia and performs a review of the claimant's evidence. There is no hearing at this stage, and requests for review must be made in writing. Unfortunately, the time it takes for the Appeals Council to make a decision is extremely long. The Social Security Administration's website states that "the average processing time was 395 days" for the period of October 2011 - September 2012.

Continue reading "Social Security Disability Claims at the Appeals Council and District Court" »