The Intersection of SSDI and ERISA, P1 - The Vocational Games That Are Played in an ERISA Case

Welcome to Season 4, Episode 27 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "The Intersection of SSDI and ERISA, P1 - The Vocational Games That Are Played in an ERISA Case." 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses the intersection of SSDI and ERISA claims. While SSDI and ERISA are completely different things, they do share some similarities in process, and are often intertwined in the course of applying for disability. Often, when you're applying for one, you are required to apply for the other. That is why it is vital to be knowledgeable regarding both. In the first part of this multi-part series, your host Nancy L. Cavey will be diving into the specifics of the vocational games that carriers will play in ERISA claims, and how that correlates with the process of SSDI.

In this episode, we'll cover the following topics:

1 -  The ERISA Golden Rule

2 - Step 4 Overview

3 - Step 5 Overview

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Need help with your Long-Term Disability or ERISA claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Speaker A [00:00:15]:
 Hey, I'm Nancy Cavie, national ERISA and individual disability attorney. Welcome to winning isn't easy before we get started, I've got to give you a legal disclaimer. The Florida Bar association tells me that I have to say that this podcast is not legal advice, but nothing will prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Those who are seeking ERISA disability benefits are often required to also apply for Social Security disability benefits during the course of their claims. And I'm going to be talking about the intersection between these two, as well as covering the vocational games that can be played during your case. I'm going to talk about three things today. First, the ERISA golden rule.
 
 Speaker A [00:01:09]:
 Secondly, the step four overview of a Social Security case and how it compares to the own occupation standard for an ERISA claim. And at our third segment, I'm going to talk about the step five overview of a Social Security claim and how that compares to the any occupation standard in an ERISA disability claim. Got it? Let's take a break before we get started.
 
 Speaker B [00:01:35]:
 Been robbed of your peace of mind by your disability insurance carrier. You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long term disability claims process. Request your free copy of the book@kvlaw.com today.
 
 Speaker A [00:01:59]:
 Welcome back to winning isn't easy. Let's talk about Erisa's golden rule. Have you ever heard of the Erisa golden rule? Well, you won't find it in an ERISA statute, in ERISA regulations, or even in court decisions. The ERISA golden rule is not the golden rule that we learned when we were growing up. ERISA disability carriers or plans collected the policyholder or plan beneficiary's premium. The goal. And when the policyholder or the plan beneficiary files a claim or seeks the continuing payment of shorter long term disability benefits, the carrier plan rules that they're not entitled to the benefits or wrongfully terminate benefits. Then, of course, they demand repayment of any Social Security disability benefits that the policyholder or plan beneficiary or their dependents got, which created an overpayment.
 
 Speaker A [00:02:53]:
 So they're asking not for the Social Security benefits to be repaid, but rather for the overpayment to be repaid. Now, I have to tell you, Social Security has a similar golden rule. What do I mean by that? Well, to be insured for Social Security disability purposes. Generally, you have to contribute to the Social Security system by working 20 out of the last 40 quarters so there's money coming out of your paycheck so that you become insured for Social Security disability purposes. Far too often, the Social Security Administration will deny a valid Social Security claim for all sorts of reasons, ruling that notwithstanding the person's contribution to the Social Security system, that they're not entitled to their benefits. Sound familiar? Let's start by talking about own occupation denials or terminations. One of the primary tools that disability carriers use is vocational in nature. In ruling that a policyholder or plan beneficiary can perform their own occupation, the carrier or the plan will use their in house liar for hire peer review doctor who will comment on your restrictions and limitations notwithstanding what your doctor had to say, and then they will have their in house captive vocational evaluator look at the file.
 
 Speaker A [00:04:10]:
 I find they make a number of mistakes which can lead to a denial or termination. First, they'll misinterpret your work history based on the jobs that you listened on your work history form that you completed when you applied for benefits, and so they will misinterpret your work history to arrive at the wrong occupation. Why is that important? Because in the Erisa world, you didn't insure your job, you insured your occupation. So the vocational evaluator is translating your job into an occupation. And that, of course, is the second mistake. That translation is wrong. Or they will actually just misclassify the occupation totally. And the third thing they'll do is misapprehend the occupational duties as that term is identified by the policy or plan so they don't get, in fact, what the occupational duties are so that they can correctly determine from a vocational standpoint whether you can do those duties.
 
 Speaker A [00:05:12]:
 And then, of course, they will use the carriers peer review in house providers about your restrictions and limitations in determining whether or not you can perform your own occupation. They will commonly ignore what your physician has to say. They will also fail to consider non exertional impairments, such as issues with bilateral manual dexterity, the need to take breaks, being off pace, the need to change positions, and they will fail to consider non exertional impairments that can erode the ability to perform occupational duties. So that might be, for example, some psychological issues that's got a whole set of problems with it. But non exertional restrictions, limitations can also involve psychological or even cognitive issues. Now, any one of these or a combination of these reasons are used to justify a claims denial or termination, and in my view, they should be vigorously attacked in an appeal letter and in litigation. So let's take a deeper dive into own occupation claims, denials and terminations. So in preparing a claim for benefits, filing an appeal of a wrongfully denied or terminated benefits or filing suit, I want to remind my client, as I said, that they've ensured their occupation and not a job.
 
 Speaker A [00:06:36]:
 The two most important terms in that disability policy or plan are the definition of disability and the definition of own occupation. And remember, you have the burden to prove that you meet the applicable definitions. Now, sometimes there is no uniform definition in the policy or plan. The short term disability may say one thing, a long term disability policy or plan may say something else. And by the way, if you have a life waiver of premium, it may have a different definition of these terms. So you got to know what is the benefit in dispute, and you got to make sure you've got the right plan documents, the summary plan description, and the actual policy or plan because you're looking for the definition. I typically will review the policy or plan and write down the definition of these two terms because they're going to frame the claim, they're going to frame the medical analysis, they're going to frame the vocational analysis, and they're going to frame my thinking about how I'm going to go about writing an appeal letter and developing the necessary medical and vocational evidence to rebut the wrongful denial. Now, we're going to go into this in greater detail in a later episode, but I want you to keep that in mind.
 
 Speaker A [00:07:57]:
 Let's transition a moment to any occupation denials or terminations. But before they do that, I want you to think about how the definition is going to change and what do I mean? Many disability policies or plans start out with an own occupation definition, and at some point in time, normally two years could be short as one year, as long as three years, that the definition will change from an inability to do your own occupation to an inability to do any occupation. Now, if you're fortunate to have an any occupation policy, which are very expensive, that will be the definition definition of disability through the life of the claim. But it's not uncommon for a claim denial or termination to come before the conclusion of the end of the own occupation period or at the transition from own occupation to any occupation and during the any occupation period, as the carrier looks for on an ongoing basis, a way to eliminate their to limit rather their exposure. Now, if benefits are terminated before the transition from owned to any occupation. You obviously want to appeal the wrongful denial of the balance of the own occupation period, and you want to pursue an any occupation claim. So let's rewind this a little bit. One of the primary tools the carriers use in denying or terminating benefits at the any occupation stage is vocational in nature.
 
 Speaker A [00:09:26]:
 Once again, definitions matter. The important definitions in a policy or plan include the definition of any occupation, the requirement that any occupation identified meets a certain geographic or wage requirement. What does your policy or plan say? Because this is going to frame your appeal. Now, in ruling that a policyholder or plan beneficiary can perform any occupation, they are going to use, once again, their in house, liar for hire medical reviewers and their captive vocational evaluators. They will have their medical people determined that you can work at a sedentary level, notwithstanding what your doctor has to say. They're going to misinterpret your work history based on the jobs that you have had to arrive at the conclusion that you have transferable skills that you've learned in these jobs that can be transferred not only from your own occupation to any occupation. Now remember in the earlier segment I talked about how we didn't insure a job, we insured an occupation, but that the vocational evaluator will take the jobs and translate them into an occupation again where they make a mistake. Now they're going to look at whatever your occupation might be and do what's called a transferable skills analysis to look to say that you could perform other occupations based on these skills.
 
 Speaker A [00:10:56]:
 They'll also misinterpret your education history to arrive at the conclusion that you can perform other occupations. They are going to misapply the policy plan definition of other occupation based on policy terms, it might be any occupation is performed in the national economy or in the local economy. So they'll get the geography wrong of the any occupation and as part of that, get the transferable skills analysis wrong. So they will perform an improper transferable skills analysis and then improperly apply it. They will misapprehend the occupational duties of those occupations that are identified in the transferable skills analysis. They'll fail to consider the impact of non exertional impairments on your ability to perform sedentary occupations, and they'll fail to consider whether there are non exertional issues that erode the occupational base to less than sedentary. So an example, the need to alternate sitting and standing, the problem with frequent breaks, the problem with being on pace, problems with bilateral manual dexterity. Those are the kinds of non exertional impairments that can impact and erode the ability to do sedentary work, a seated position to less than sedentary.
 
 Speaker A [00:12:19]:
 They will also fail to perform a proper labor market survey because many times the policies require that jobs be identified, that these jobs exist in significant numbers, and that they pay a certain wage. Now, not all policy or plan does, but if that's in your policy or plan, expect a game to be played there. You can see that anyone or a combination of these reasons will be used by a carrier to justify claims, denial, or termination, and once again should be vigorously attacked in the appeal process and in litigation. So again, you can do a mental checklist or you can look at that denial letter and sort of just tick off the mistakes that the disability carrier plan has made. Now, these issues also arise in the context of Social Security disability cases. And here's part of the intersection. The Social Security statute, regulations and program operation systems manual systems known as the Palms and case law can be used to successfully attack the disability carrier or the plans wrongful denier or termination. So I actually will turn these Social Security rules and regulations on their heads sometimes or shove them back in the face of the carrier or the plan in preparing and filing not only our disability claim, but also in perfecting that Social Security claim that the carrier wants the claimant to do so.
 
 Speaker A [00:13:50]:
 Because I do both Social Security and ERISA, I am always using what I'm doing in my Social Security case in the context of my long term disability case. And sometimes it goes the other way, particularly if, for example, in the long term disability claim I have gotten a functional capacity evaluation or maybe an IME or a report from a doctor. Since you probably don't have a background in Social Security, in later videos, I'm going to be giving a background of that and explain how some of the things that we do in the Social Security claims process can be used in an ERISA claim. And even if you don't have a Social Security claim for certain reasons, like you may not be insured, we can still use these basic principles, regulations, and case law to our advantage. Let's next talk about the Social Security five step sequential evaluation test. This is important because again, we're going to be talking about the intersection between limited and Social Security. I think it's helpful to understand what it is you need to prove in a Social Security case because it's going to sound familiar with one significant difference. The Social Security Administration uses a five step sequential evaluation test at every stage of a claim, and it's used at the initial application stage, the request for reconsideration stage, and the hearing stage.
 
 Speaker A [00:15:20]:
 The first question they ask is, have you been out of work for a year? Do you have a medical condition that would last at least a year? Number two, is your medical condition temporary or permanent in nature? Number three, do you meet a listing of impairments? And none of that really applies in the context of ERISA. It's really here at steps four and five that you're going to listen to and be amazed at the similarities. At step four, the issue is, can you go back to the past relevant work you've done in the five years before you became disabled? Now it used to be 15. It's being changed in the context of an ARiSA case. They're going to look back to probably the day you graduated from high school to see what your work history is. So work history is important not only in the context of your ERISA case, but your Social Security case. Now at step five, the issue is, can you do other work in the mythical, hypothetical, not real world national economy? Sound familiar? In view of your age, education restrictions, and transferable skills, the big difference here is age. ERISA policies and plans rarely, if ever, consider age.
 
 Speaker A [00:16:29]:
 So we've established a rather lengthy background for you. Hopefully, you've got some fundamental understanding before we move on to more about the intersection between Social Security disability and a risk of disability benefits. Got it. Welcome back to winning isn't easy. Let's talk about the intersection of Social Security disability and ERISA litigation, and particularly comparing step four of the social securities past relevant work requirement and the any occupation requirement of most ERISA disability policies. At step four, your past relevant work, known as PRW, is important because Social Security has to determine whether you can go back to the lightest and simplest job you held in the 15 years before you became disabled. Now it used to be 15, it's being changed to five, and so I haven't got that quite out of my head yet. Social Security is going to review the work history form that you completed, like the work history form you completed in your ERiSa claim.
 
 Speaker A [00:18:07]:
 Hopefully, there is consistency between what you put on your Social Security work history form and your ERISA form, at least as it relates to the last five years. But Social Security is going to look at that work history form and they're going to compare it to the IR's earning records because they want to make sure they understand exactly what your past work is. Next, the Social Security Administration has, in the past used the outdated dictionary of occupational titles to determine your occupation and the job within the occupational trailer. The applicable dot code indicates both the exertional level and the skill level. But guess what? Social Security is now changing that they're not actually going to use the dot because the DOT is really outdated. And a lot of the work that's being performed these days, it requires a significant amount of computer skills and other skills that simply didn't exist or weren't required back in 1991 when the DoT was last updated. But I think this is relevant because there is this exertional level analysis that sounds similar, if you will, to what happens in the context of an ERISA case. Now, what we're trying to determine in the context of a Social Security case is step four is your physical exertional level, and they will make a deterrent termination of that based on a review of your medical records, the opinions of the SSA consulting physicians, and the opinion of the treating physicians.
 
 Speaker A [00:19:34]:
 Now that sounds pretty similar to what goes on in the context of ERISA. There are five exertional levels, and these exertional levels are used also in the context of your ERISA disability case. There's very heavy, heavy, medium, light, and sedentary. These exertional levels can be impacted by non exertional impairments that can reduce the full range of the physical requirements and that can have an impact. The determination of the occupation, the exertional level and the reduction of the exertional level based on non exertional impairments is really the basis to win a Social Security case to prove that you can't do that lightest or simplest job you held in the five years before you became disabled. Now, the analysis is different in the context of an ERISA case cause they're looking generally at the work that you were doing at the time you became disabled and translating that job into an occupation. I don't think that disability carriers are going to be following the lead anytime soon of Social Security carriers are still going to look at that dictionary of occupational titles, particularly if the policy or plan requires that. That means that they are going to look at the exertional levels and try to classify the physical requirements of your occupation.
 
 Speaker A [00:20:58]:
 They will ignore the non exertional impairments and any reduction in the exertional level based on non exertional impairments. What are non exertional impairments? The need to alternate sitting and stand, the need to take breaks, being off pace, having problems with bilateral manual dexterity. What happens in the context of an ERISA case is that the carrier or the plan has your doctor complete an attending physician statement form that doesn't ask the right questions on purpose. The carrier will have your records reviewed together with the treating physician's opinions about your restrictions to determine in fact what they really believe to be your physical exertional level. And they're going to use peer review reports, independent medical evaluations, functional capacity evaluations to attack the residual functional capacity that your physician opined that you had. Or they'll just cherry pick the doctor's records and disagree with your treating physician. Now, we Social Security lawyers have developed residual functional capacity forms based on different medical conditions to address the right questions in regard to both the exertional and non exertional functional levels. I use these every day in my Social Security cases and I use these as an adjunct to the ERISA attending physician statement forms because those AP's forms don't ask the right questions because carriers don't want to know the right answers, do they? So step four somewhat sounds like the own occupation standard.
 
 Speaker A [00:22:36]:
 So crazy looking at the five years before you became disabled, Erisa carriers or plans are looking at what you were doing at the time of your disability, Social Security is not necessarily using the dot anymore. At step four, carriers will probably continue to use that the dot Social Security looks at both exertional and non exertional impairments. I tell you, they don't always agree with what the treating physician has to say about restrictions and limitations. And on the ERISA world, carriers will ignore the attending physician statements comments for their opinions of their peer reviewed doctors and they will only generally consider physical exertional requirements. So you can see that there is intersection but some difference and ultimately these differences can make a mistake, can result in mistakes from a vocational standpoint. Got it? Let's take a break.
 
 Speaker B [00:23:41]:
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 Speaker A [00:24:41]:
 Welcome back to winning isn't easy. Let's talk about step five in the Social Security world and do a discussion of the intersection between step five and the ERISA any occupation definition of disability. Now in the context of a Social Security case, if you can't perform your past relevant work, the analysis can move on to step five, which is somewhat similar to any occupation analysis in an ERISA case. Step five in the context of a sole secret case, is that mythical test. Is there other work in the mythical, hypothetical, not real world national economy that you wouldn't want to do that does not pay a living wage in view of your age, education, skills, and your restrictions and limitations? And there are some significant differences here. Social Security does consider age, but generally an ERISA policy or plan does not consider age as a factor again, so you've got to go look at the context of your specific ERISA policy or plan. What's the definition in your policy or plan? Because that's the starting point for the analysis. The analysis, I will tell you, is much the same from my perspective as an ERISA and Social Security disability attorney.
 
 Speaker A [00:26:12]:
 I find that there are similar mistakes that are made by Social Security vocational evaluators and by Social Security reviewing or consulting physicians or the opinions of their vocational evaluators that can lead judges to make mistakes. And similarly, the same thing happens in the context of an ERISA disability claim. There is one big difference that you need to understand at step five. There is something called the medical vocational grids, and there is a significant difference in whether you're entitled to benefits in part based on age. If you're over 50, then the grids become applicable. And there are two ways to meet step five. There's to grid out, and if you grid out, that's great. Your benefits are awarded.
 
 Speaker A [00:27:09]:
 But if you don't grid out, then they'll determine your entitlement to benefits based on that mythical hypothetical test. The grids are a chart that are in part based on sedentary, light and medium exertional levels that are matched to your education and age. So literally, it's a grid you can look at the top of, for example, the grid for sedentary work, and you can see what the education level has to be, what the age range is, whether there's transferable skills. And you can look across this grid to see whether or not you are disabled or not disabled. It's a very rote analysis. Not quite so in the context of a ERISA claim, but one of the factors in applying the grids is exertional levels and transferable skills. Now, non exertional impairments can really change the exertional level and can impact transferable skills. And I'm going to be talking about this in later videos.
 
 Speaker A [00:28:14]:
 So if you grid out, that's great. If you don't grid out, then we are now in that mythical hypothetical, not real world analysis. So what are the three types of job skills that Social Security is trying to determine to see whether or not there are transferable skills from past work to other work. This transferable skills analysis is much like what's done in the context of an ERISA case, but I think there are going to be some significant changes. Why? Well, as I've said, Social Security is changing their analysis of past relevant work from the 15 years before somebody became disabled to the five years before they became disabled. In the context of an ERISA case, the carrier or plan is looking at your entire occupational history to determine whether or not they're transferable skills from past work to other work, as those terms are defined in the context of your policy or plan. So there are three types of job skills. They're skilled, semi skilled and unskilled, pretty self explanatory.
 
 Speaker A [00:29:24]:
 But Social Security is going to have a vocational expert at a Social Security hearing to determine if the hypothetical individual has skills that would transfer to other work. And that grid chart is based on exertion levels that match your age, education and skills, and that will direct a finding of disabled or not disabled. Now, grids are used at the initial claim stage and at the recon stage and at the hearing stage. So it is clearly possible for disability determination services, DDS, who reviews claims at the first two levels, to apply the grids. If the claim gets denied and we end up in front of a judge and my clients over 50, I'm always trying to argue that my client grids out. Now, let me give you an example. Let's say you have a back condition that limits you from standing and lifting more than ten pounds. That's going to limit you to sedentary work.
 
 Speaker A [00:30:18]:
 If your skills from your past work doesn't transfer because those skills were performed at a higher, those tasks that were performed at a higher level that would result in transferable skills, then you're not going to be able to have transferable skills to sedentary work and you'll be found disabled. So there is this analysis. I don't, you know what will happen, of course, in the context of an ERISA case is if you win and you win because you've gridded out, the carrier is going to say, well, too bad, so sad. We don't have to take it in into consideration because age was a factor and age is not a factor in our definition of disability. So they'll cut that and slice that Social Security decision any way they want. What's the other way to win at step five? Now, if you're under 50 or you don't grid out, the Social Security Administration analyzes whether there's other work that you can perform based on your education, transferable skills, and functional, physical, and psychiatric restrictions. Limitations. If we have a hearing, there's going to be a vocational expert who is going to be asked questions by the ALJ in the form of a hypothetical to determine whether or not you meet step four and five.
 
 Speaker A [00:31:33]:
 And I will tell you that these hypotheticals can make or break your claim. In fact, that's one of the reasons why you should have an experienced Social Security disability attorney representing you. To challenge the hypothetical the judge gives and to challenge the vocational evaluators testimony, I find that many times, the judge does not ask the right questions about the residual functional capacity, and as a result, the Social Security vocational evaluator will identify other work in the national economy that the claimant is allegedly capable of performing, which exists in significant numbers. And there's a lot of buzzwords there, but those are buzzwords that we Social Security attorneys want to attack if we get an unfavorable vocational opinion. Now, unlike an ERISA case, the amount of money that you can earn at any of these hypothetical jobs is not a factor in determining your entitlement to Social Security benefits. In fact, many times at the sedentary level, vocational evaluators will say things like, your client could work in a laundromat folding towels. Your client could be a surveillance system monitor. Your client could be an addresser.
 
 Speaker A [00:32:43]:
 Your client could sort nuts and bolts or peanuts and pecans. Your client could sit in a restaurant and take that beautiful silverware and wrap it in that nice napkin. Nobody wants to do those jobs. They don't pay a living wage. They don't really necessarily exist, I think, in significant numbers, but nonetheless, I hear those jobs all the time. That is a completely different standard of disability than it is in the context of an ERISA claim. So the game at step five for Social Security purposes is to conclude that you can do at least a sedentary job and you have transferable skills and that the jobs exist in significant numbers. And that's pretty darn close to what the game is in the context of an ERISA claim.
 
 Speaker A [00:33:33]:
 So they want to argue that you can do sedentary light work, you have transferable skills. There are other occupations that you could pay, you could do at a wage such that no risk of disability benefits are payable. So you can see there's this intersection of sorts between Social Security and risk of disability claims. I hope that you have enjoyed this week's episode of winning isn't easy. Please like this episode like our page. Leave a review, share it with your family or friends. Please subscribe to this podcast. That way, you'll be notified every time a new episode drops.
 
 Speaker A [00:34:08]:
 Tune in next week for another insightful episode of winning isn't easy. Thanks.