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DDS State Consultants Lied in their Determination - Do I have any Recourse?

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    DDS State Consultants Lied in their Determination - Do I have any Recourse?

    My case has been mangled from the start. I hired an attorney and filed in Jan 2017, at which time I underwent 2 spinal surgeries in the spring. After recovering from the first surgery, I underwent a new Neuropsych Eval. I had the second spinal surgery and once the DDS obtained the post-op records a few weeks later, they sent the denial letter. Meanwhile, the paralegal assigned to my case had gone off on maternity leave and I was not notified and I was not assigned to a replacement paralegal.

    The office did file an Request for Reconsideration but never asked me if my condition had changed. Because spinal surgery 2 was pending, I had to put things aside for a bit. I found a second attorney and sent in updated records as surgeries and appointments occurred. Shortly after the Initial denial,
    I discovered that the second attorney was behaving in much the same manner as the first...he wasn't submitting the records I was sending him and y phone calls were not being returned. I faxed the record updates directly to the DDS myself and my Request for Reconsideration letter arrived in the mail roughly 2 months after the Initial denial. I fired attorney 2 and went online to file my Request for hearing close to 2 weeks later. The system kept rejecting my Request for hearing and after several phone calls to the DDS, it was discovered that the fired attorney 2 had submitted a request for hearing even though he had been fired weeks ago, and his request for hearing canceled out mine. I called the SSA and asked for a copy of my entire file and discovered that this attorney also marked no change in condition, even though I had been significantly declining since the application had been filed.

    Because my insurer had declined all of my surgeries, I had to focus on trying to resolve that. I called the Office Of Hearing Operations (formerly ODAR) and asked for a status. They told me it would be more than 2 years from the date I filed the Request for Hearing until I would be assigned an ALJ. I had another surgery, as my blew out, and then I finally had time to take a look at my file.

    I read every single page of the Explanation for Denial of the Reconsideration.

    They ignored all of my medical records and any opinions from my treating sources and gave weight to the State agency consultants. I know this is a violation of Regulations, but it gets worse.

    They used CE exams they made me attend 8 years ago for a prior SSDI claim, and applied them to my 2017 claim, as though they were more relevant than my current medical records. As if that weren't bad enough, the State agency consultants picked through my records and found things to use to deny my claim-by lying and misquoting the record... I have so far identified 5 instances where they did this. For example, after my 2nd spinal surgery, I walked as long as I could to see if I could do it. I barely made it home, I was in so much pain. In the Determination, they wrote, "Claimant is fully recovered and has no problem walking long distances." The true quote in my medical record, states, "Patient felt she 'overdid it' yesterday, and had moderate left hip and hamstring soreness."

    The rest of the intentional misquotes involve my Neurocognitive test results and Speech, Language Evaluation. They take a phrase and twist it into the opposite. Like this, "Mild cognitive impairment, and mild memory, visuospatial/constructional, and complex reasoning skills impairment."

    What the Evaluation states is: "Learning and memory were variable. Visual learning and memory was moderately to severely impaired. Most surprisingly, her poorest performance was demonstrated on the visuospatial/constructional and complex abstract reasoning subtests. Moderate impairments in visuospatial/constructional, and complex abstract reasoning skills and moderate-severe impairment in processing speed."

    This was obviously done intentionally, and mainly focused on the cognitive tests. Do they routinely lie like this? I want to as for an Attorney Advisor Review, but maybe asking for an OTR Decision would be better? My MS has progressed to Secondary Progressive since I filed for SSDI over 1 year ago, so there are updated medical records to submit as well.

    #2
    Thisis354,
    Initially, as you have noted that you have counsel, I cannot speak to your specific issues, and suggest you schedule a meeting with counsel to discuss your concerns and his/her case strategy moving forward.

    For the benefit of other readers, however, I note that it is not uncommon for the Disability Determination Services' examiners to misconstrue evidence in a claim. This is how, despite support from a treating neurologist, MS claims are denied at the initial application and reconsideration levels. A further review of the credentials of the medical reviewers will often indicate that they have no neurological background, despite their making life-changing rulings on claims for multiple sclerosis patients.

    The solution in such scenarios is to appeal and make arguments similar to those you have outlined before a judge. This is why, in many circumstances, the best opportunity for approval occurs when a claim is presented before a judge with well-developed arguments.

    Although it is theoretically possible to obtain an 'on the record' decision without a hearing, such decisions have become much more rare in recent years, and are not typically issued in a file where there is medical support for the denial (such as that given by the medical reviewer).Best of luck moving forward!
    Attorney Jamie R. Hall's practice is focused on assisting individuals with claims and appeals for Social Security Disability and Long Term Disability benefits. He has assisted claimants nationwide, approximately half of whom are MS patients, from his Pennsylvania and Ohio locations. **No attorney/client relationship is created by this communication, and information provided herein is not a substitute for formal advisement.**

    Comment


      #3
      My initial denial came even though my neurologist, neuropsychiatrist wrote their support for disability. I also had a great letter from boss that illustrated my work ethic, but declining performance.

      And yes, they took bits and pieces to frame the denial, also using a psychologist, who never saw me, to justify their position and refute my treating physicians. They agreed I couldn't do my current job. (business systems analyst), but could become a movie ticket taker. I had to laugh. The last time I was at a movie, there were no ticket takers. It was automated!

      As for my appeal, it was with an attorney and successful at the ALJ level. It was a long wait, but worth it. As for medical records, my attorney would submit in batches, rather than one offs. I also didn't hear from him much, as nothing to do or say until ALJ scheduled.

      Good luck.
      Kathy
      DX 01/06, currently on Tysabri

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