Why Most Social Security Claims Matter to Your ERISA Disability Case

Welcome to Season 6, Episode 2 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of Why Most Social Security Claims Matter to Your ERISA Disability Case.

Most people don’t realize how much their Social Security disability claim can shape the outcome of an ERISA Long-Term Disability case. While these are technically separate systems, ERISA carriers rely heavily on what’s contained in your Social Security file to decide whether to pay benefits, reduce them, or deny them outright. Insurers aren’t just looking at a diagnosis - they scrutinize medical records, treatment history, work background, daily activities, and the statements you made throughout the Social Security process, all with an eye toward consistency. In this episode, we break down why Social Security evidence plays such a critical role in ERISA disability claims. We explain what carriers look for in your initial application and reconsideration filings, identify the key documents within your Social Security file that insurers focus on most, and show how consultative exams, vocational opinions, or missing information can be used against you. We also discuss why timing matters - from when a claim is filed to how denials, approvals, and appeals can impact an ERISA review. By the end of the episode, you’ll understand that securing your Long-Term Disability benefits isn’t just about proving you’re disabled - it’s about documentation, alignment, and knowing exactly how insurers evaluate your Social Security record.

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

One - What ERISA Carriers Look for in Your Initial or Reconsideration Social Security Claim

Two - Congratulations, You Won Your Social Security Case! Now What?

Three - How ERISA Carriers Use a Favorable Social Security Decision to Deny or Terminate Benefits

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.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Navigating Your Social Security Disability Claim. Give it a listen: https://wiessdpodcast.buzzsprout.com/


Resources Mentioned in This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

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

Nancy Cavey [00:00:15]:
 Hey, I'm Nancy Cavey, 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. This podcast is not legal advice. The Florida Board association says I have to tell you that. And now that I've done, I want to tell you that nothing will prevent me from giving you an easy to understand overview of the disability insurance world games that disability carriers and plans play and what you need to know to get the disability benefits you deserve. So off we go. Now, understanding why most Social Security claims matter to your ERISA disability case can be the difference between getting your long term disability benefits and and having them reduced or denied entirely.
 
 Nancy Cavey [00:00:58]:
 ERISA disability carriers or plans are not just looking at your medical diagnosis. They're looking at your medical records, your treatment history, your work history, daily activities and statements that you have made on your Social Security disability claim or reconsideration forms. They're looking for consistency and any gaps in differences between what you've put in your Social Security claim file and your ERISA disability claims file can be problematic. Most disability policies or plans require that you apply for Social Security disability benefits. Why? Because the disability carrier plan gets to reduce your benefits by the receipt of Social Security disability benefits you and your minor children will get. So they've got a big incentive for you to apply for Social Security benefits. And if you say I'm not going to do that, they're going to say, well too bad, so sad. Because the policy says that if you don't apply, we're going to act as if you did and we're going to reduce your benefits.
 
 Nancy Cavey [00:02:02]:
 So that's a double whammy. Your Social Security benefits are non existent because you didn't apply and your ERISA disability benefits are reduced by that non existent receipt of Social Security. So they've got the screws, if you will, to put to you to make you apply for your Social Security disability benefits. But I will tell you, many ERISA disability claims, particularly when we get to the own occupation stage, are going to hinge on what's in that Social Security disability claim file. The carriers are going to use this information to determine whether to pay your benefits, reduce your benefits or even deny your benefits. They're going to be looking at the medical records that were filed with the Social Security Administration and they may not be the same. That or in your ERISA claims file. They're going to look at the Social Security analysis at the initial stage and the request for reconsideration stage.
 
 Nancy Cavey [00:02:57]:
 Looking to see what the state agency's doctor said about your restrictions and limitations and of course, whether that agrees with your doctor's opinion if your doctor rendered one, as they should have, and what their own peer review doctors have had to say. They're also going to be looking at forms that you fill out about your work history. You may have sent pain questionnaires, migraine questionnaires, and there are third party forms that they may send to family or friends to comment on your activities. So they're looking for all sorts of inconsistencies. In addition, of course, to looking at your medical records. Many times if you go to a Social Security hearing, you're going to see that a judge has made a determination as to your physical, cognitive and psychiatric residual functional capacity. In other words, what can you do in their opinion in view of your medical conditions? And more often than not, if it's favorable to the disability carrier plan, they're going to seize on that. If the Social Security judge denied the claim on the basis that they felt you could do your past work or other work, carrier is going to seize on that.
 
 Nancy Cavey [00:04:10]:
 On the other hand, if benefits are awarded, they're going to say, well, wait a second. Age was a factor and age is not a factor in this particular policy. Or they're going to say, you know, that information that that judge had wasn't the same information we had, or that judge ignored things that we thought were important. So we're going to ignore that decision. But nonetheless, you need to understand the impact of that Social Security claim, the application process, and the decision on your ERISA disability claim. So we're going to break this into three parts. First, we're going to cover what ERISA disability carriers or plans are looking for in your initial Social Security application or reconsideration claim. Next, I'm going to go through the nine key items in your Social Security file that insurers pay the most attention to.
 
 Nancy Cavey [00:05:00]:
 And finally, I'm going to explain why the inconsistencies or gaps between your Social Security disability claim and your ERISA claim can make all the difference in whether you keep your benefits or whether those benefits are denied or terminated. So by the end of this episode, you should be able to understand that winning your benefits isn't necessarily just about proving your diagnosis or your disability. It's about documentation, strategy, and knowing exactly what carriers or plans are looking for. So let's dive in. Number one, what ERISA carriers or plans are looking for in your initial or reconsideration Social Security claim. Two, congratulations, you've won your Social Security case. Now what? Number three, how carriers will use a favorable Social Security decision to deny or terminate benefits. Got it.
 
 Nancy Cavey [00:05:49]:
 We've got lots to cover, but let's take a quick break before we get into this episode.
 
 Speaker B [00:05:54]:
 Have you been robbed of your peace of mind by your disability insurance carrier? You owe it to yourself to get a copy of one 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.
 
 Nancy Cavey [00:06:33]:
 Welcome back to Winning Isn't Easy. What are ERISA disability carriers or plans looking for in your initial application or reconsideration application in your Social Security disability claim? Now, as I've said, in most ERISA disability policies or plans, you are required to apply for your Social Security disability benefits. In fact, there are disability carriers or plans that will suggest that you use a certain provider for assistance in getting those benefits. You know, I think that's a wrong move for lots of reasons, but we're not going to talk about that today. What I do want you to understand is that the disability carrier plan can get and often do get a copy of your Social Security claims file. Why? There's a United States Supreme Court case that says, look, the decision of Social Security isn't binding on the disability carrier plan, but you got to consider it. And there are times when the disability carrier plan are going to send you a Social Security release to get your file. And I think under the terms of a policy or plan, you've got to sign that release.
 
 Nancy Cavey [00:07:39]:
 You have a duty to cooperate and that means signing that release. So do you know exactly what's in your claims file? I hope you know part of what's in the claims file because you and hopefully with the assistance of a Social Security attorney, completed an initial application that addresses your work history, your disabling medical conditions, the physicians or providers you've seen, forms that you will also fill out about your symptoms and functionality. In other words, a description of the symptoms that you have that would prevent you from doing your past work or other work, side effects of medications, activities that you used to be able to do that you can't do. All sorts of information in an application that can be used by a disability carrier plan. Now, your initial Social Security disability application is going to be reviewed by a state agency known as Disability Determination Services, dds. Most claims are denied at the initial stage and if that happens, you should be filing within 60 days a request for reconsideration. And if you're not represented at that stage, please get a Social Security disability attorney. Now, that request for reconsideration is going to go back to DDS and a new claims examiner is going to be assigned to review the file again.
 
 Nancy Cavey [00:09:01]:
 What's important, of course, is that any updated medical information be supplied to them, including, in my view, the applicable residual functional capacity form that we Social Security lawyers have developed and we want physicians to complete. There is a wealth of information in that claims file at the initial application stage and the recon stage. And there are, I think, at least nine things that they are interested in looking at at that stage of the claim now. So what are they? Number one, what did you put on your application about the medical conditions you claim that are the basis of the disability claim and are they consistent with what you claim in your ERISA disability claim? Number two, what did you put on your application about your work history and is that consistent with a disability insurance claim? I will tell you that the work history form that Social Security has now developed and has implemented is pretty darn comprehensive. It's a huge improvement in the form that was used before. And I think that's important because it will help ultimately the Social Security vocational evaluator classify your work under the dot, but hopefully it will assist the carrier's ve vocational evaluator in coming up with the right DOT description of your occupation. And there are times, quite frankly, when the DOT may say that the work is performed like at a sedentary level, when in fact you're performing it at a different level. Depending on the definition of disability and whether occupation is defined based on the dot.
 
 Nancy Cavey [00:10:41]:
 That can be a huge advantage so that you can argue at the own occupation stage that you really can't do all of the material and substantial duties of your occupation. Next, what did you put on the application about the medical providers you treat it with and is that consistent with your insurance claim? Next, what medical records did Social Security consider in denying your claim? And what are those? The same records in your disability insurance file? I will tell you as a Social Security disability attorney that I often see denials and they didn't get 2/3 of the medical records or if they got some of the medical records, they didn't get the complete chart. So often we find that Social Security doesn't have all the medical records. We want to make sure that both Social Security and your ERISA disability carrier plan has all of your medical records. Social Security next does get consulted exams. We try to avoid those by having Social Security agree that the treating physician could be the consultative examiner, but that's not always the case. And I will tell you I have cases on a regular basis where a person's back injury is being evaluated by a pediatric physician or by an obgyn or maybe even a podiatrist. Not necessarily consistent with the nature of the disabling conditions.
 
 Nancy Cavey [00:12:02]:
 We of course argue about that in the context of the Social Security case. But those consultative exam reports can be used and will be used against you in your ERISA disability claim. Next, did the Social Security doctors conclude that you had restrictions and limitations different from those assigned by your own doctor when this claim is evaluated? Initially, Social Security has, I'm going to call them, ancient doctors who no longer practice and who shouldn't even be reviewing Social Security claim files. Look at a claims file and give a preliminary analysis of your residual functional capacity, be it physical, cognitive or psychiatric. Hopefully your doctor has commented in the reports or has done an RSC form that will address those restrictions. But many times the Social Security doctors conclude that there is an ability to do a person's past work and or other work. So the question becomes, did the Social Security doctors conclude you had restrictions or limitations different assigned by your own doctor? And how are we going to explain that? Next, Social Security, like any disability carriers, often looking for improvement in your medical condition. And so if they see improvement and you report, hey, I'm doing fine, I'm doing better, Social Security, and even the disability carrier plan is going to seize on that and say, hey, improvement, no longer disabled.
 
 Nancy Cavey [00:13:26]:
 Now, the DDS examiner, as I said, is going to be looking at your medical records. And they generally don't have all the medical records. So it's a little thin baloney slice type analysis of your medical records. And they conclude that you can do your past work. We need to know about that. And the DDS using that same slim baloney analysis, may conclude that you could do other work in the national economy. And these are things that the carrier can seize on. So why is the disability carrier plan looking for this information? They're looking for inconsistencies between what you put on your application and what you told Social Security about your work history.
 
 Nancy Cavey [00:14:05]:
 They're looking for inconsistencies between the medical records and what they have in the file. They are going to be examining those consultative exam reports for restrictions and limitations that are less than what your doctor assigned. They're going to be looking for improvements in your condition to argue that you don't meet the policy definition of disability. And they will evaluate conclusions about your ability to do your past work or perform other work based on the DDE doctor and the consulting examiner reports. So they've got two potential sources of alternative medical opinions about your functional restrictions and limitations. So obviously the disability carrier plan is not in the business of paying benefits either generally or for the life of the claim. They're going to be looking for reasons to deny or terminate benefits. And one of those weapons that they have in their denial toolbox is the Social Security disability claim.
 
 Nancy Cavey [00:15:01]:
 So you've got to make sure that you are accurate in your work history, your description of your disabling conditions and medical treatment, your symptoms, and that if you're filling out forms like pain questionnaires, that they are accurate and consistent with what's in your medical records and certainly not an exaggeration and certainly have to be consistent with what you're reporting in your risk of disability claim. And those are reasons why you should really be represented by an experienced ERISA disability attorney who handles Social Security disability cases. And if you can't find one like me, you definitely need to have a Social Security disability attorney to make sure that this is accurately developed. You can make many mistakes in the Social Security initial application process that can doom not only your Social Security disability application, but can have an adverse impact on that ERISA disability claim. So get it right and get it right from the very beginning. Let's take a break. Welcome back to Winning Isn't Easy. Congratulations.
 
 Nancy Cavey [00:16:20]:
 You've won your Social Security case. Now what? Well, you are probably aware that by the terms of your disability policy or plan, you have to apply for Social Security disability benefits. The disability carrier may have offered you, in quotes, an experienced assistance in getting your Social Security disability benefits. I don't think you should ever use any of these services. They will develop medical conditions that can result in the application of policy limitations for the payment of benefits. They can not even develop the right medical conditions. They can make all sorts of mistakes that will not only jeopardize your entitlement to your Social Security disability benefits, but will also jeopardize your ERISA disability claim. Now, once you apply for the benefits, you are going to have some legal obligations under the terms of a disability policy or plan.
 
 Nancy Cavey [00:17:20]:
 You have a duty to cooperate. And part of that cooperation means that you have to give them a release if they ask for it, to let them get your Social Security disability file. And if you don't, they can deny your claim just on the basis that you didn't terminate it, that you didn't cooperate. They'll terminate your benefits. So. So you have a duty to cooperate with them. Remember, there's a wealth of information in a Social Security claim, and particularly if you've gone to a hearing, a wealth of information in the judge's decision that is relevant to that ERISA disability claim. What's some of that information? Well, that information can include your work history, the medical records, the consultative exams, the DDE examiner's analysis of your medical condition in a judge's decision, the vocational evaluator's testimony, the hypothetical that the judge gave, the VE's response to that hypothetical, and whether the judge awarded benefits and if not, why the claim was denied.
 
 Nancy Cavey [00:18:28]:
 Also, another reason why the carrier wants to get your access to your file is that there's something called the primary insured amount pia, and that's the Social Security Administration's calculations regarding the amount of your Social Security benefits at the time of your application and the time of the award. And if you have a favorable decision, ultimately the decision at the initial application stage, recon stage, or even at the judge's stage will result in the payment center for Social Security doing an analysis of the amount of your back benefits, which is subject to an offset under the terms of your ERISA disability policy or plan, the amount of your monthly benefits, which is also subject to an offset, and the family maximum benefit if you have minor children, which is also subject to a limited offset until those children drop off when they reach the age of majority or whatever age is in that disability policy or plan. So we've got three numbers here, and they will generally demand a repayment of any overpayment of benefits for the period of time awarded by Social Security or by a judge. Now, remember, in a Social Security case, you don't get benefits for the first five months. So the carrier plan has no offset rights for the first five months. But after that, when your benefits start, then of course they'll have the right to ask for that repayment in a lump sum. We want it all now. And they're going to be asking for a reduction in your future benefits based on an offset.
 
 Nancy Cavey [00:20:10]:
 Many disability carriers will give credit for the payment of the attorney's fee in your Social Security case and use that to reduce, if you will, the amount of the overpayment. And so you need to understand that they're going to be able to get a lump sum potentially for the retroactive payment, which is the overpayment. So I'm going to make up a number. Let's say your recidivity benefits are 5,000amonth. And your Social Security benefits are 3, 5 minus 3 is 2. And so they're going to be saying, well, you know, it took you 24 months to get that award, 24 minus five months of non payment of benefits because of the, I sort of call it an elimination period. So that's 19 months times three. You know, that's, you know, whatever number that is, we want that back and we want it back in a lump sum.
 
 Nancy Cavey [00:21:09]:
 And by the way, you know you're getting $3,000 in Social Security benefits every month. So we're going to reduce your benefits, your Ltd benefits to $2,000 per month. Now remember, if you have minor children, they're entitled to receive Social Security benefits on your record. Once they each reach age 18, each child will drop off. So their carrier is going to reduce your ERISA disability benefits by the amount that you receive and generally by the amount of benefits that your children receive. And that will be subject to the family maximum. So the financial information found in the carrier in the Social Security claim file is going to form the basis of the calculation. I will tell you, however, they often estimate the amount of these benefits incorrectly.
 
 Nancy Cavey [00:21:56]:
 But you can find out this information before you apply for your Social Security benefits. By going to www.ssa.gov and look at your account, you can see how much your estimated Social Security disability benefits would be and you can see how much the family max would be with children's benefits. So you can do your rough calculations knowing that you are, if you're successful, are going to have to repay those benefits. Do you think the carrier is going to forgive that at this stage of a case? Heck no. When we are in litigation, when the carrier has denied or terminated benefits, if there's any outstanding remaining offset, we are using that offset in the negotiation process. Obviously they're going to argue that it reduces the value of benefits and generally it does. But on the other hand, I generally ask them to waive that overpayment. So remember, timing is really crucial here when it comes to handling that Social Security offset question and the impact that it has on your benefits.
 
 Nancy Cavey [00:23:00]:
 Got it? Let's take a break.
 
 Speaker B [00:23:03]:
 Are you a professional with questions about your individual disability policy? You need the Disability Insurance Claim Survival Guide for Professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos that will assist you in submitting a winning disability application. This is one you don't want to miss. For the next 24 hours, we're giving away free copies of the Disability Insurance Claim Survival Guide for Professionals. Order your today@disabilityclaimsforprofessionals.com.
 
 Nancy Cavey [00:23:57]:
 Welcome back to Winning Isn't Easy How ERISA disability carriers or plans will use a favorable Social Security decision to deny or terminate your ERISA disability benefits. Now, you would think that if you received a favorable decision, your ERISA disability carrier would honor it and continue to pay your benefits. But that is not always the case. Unlike an ERISA case where there is no hearing, many Social Security disability cases are decided based on the five step sequential evaluation test used in every case. And by the way, that test is generally unlike the disability test in an ERISA disability policy for own occupation or any occupation benefits. In the context of a Social Security hearing, the judge is going to hear your testimony, the testimony the vocational evaluators and sometimes medical experts. Now, one might think that the judge's findings should carry weight in an ERISA disability claim, but that doesn't often happen. There is a United States Supreme Court decision that says that the disability carrier has to consider that favorable or even unfavorable Social Security disability decision, but they're not bound by it.
 
 Nancy Cavey [00:25:06]:
 And in fact, this decision says that if the claim is going to be denied or terminated, they need to explain why it is. They are not sort of following, if you will, whatever that that favorable award might say. So what are the six ways that an ERISA disability carrier plan will use a favorable Social Security decision to deny or terminate benefits? Number one, they will say, well, the standard of disability is different. Social Security uses that five step sequential evaluation test and that differs from the disability standard in our policy or plan. Number two, a judge may have found you disabled based on a medical listing at step three. That's called a listing level award. But many carriers or plans do not use listings to determine disability. So they'll say, well, that's good for you, but we don't use the step three.
 
 Nancy Cavey [00:25:58]:
 Do you mean a listing as a test for disability under the terms of our policy or plan? Number three, the judge may have found that you meet what's called the grids based on your age. If you're over 50, Social Security will ask whether you can do other work in the mythical hypothetical, not real world national economy in view of your age, education, skills and restrictions, or alternatively, whether or not you meet the grids based on in part your age, your residual functional capacity, and whether you have transferable skills in view of whatever those restrictions might be. And the grids will tell you the answer. Now, age is a factor in the grids and I will also tell you that the current Administration is thinking about eliminating the grids in the context of a Social Security case, which is not a good thing. But the disability carrier plan will say, well, we don't care about your age. That's not a factor in our definition of disability. The next reason number four, Social Security may have had you undergo a consultative examination which is been rejected by the judge but can be used by the disability carrier plan to support their liar for hire peer review doctors opinions about your restrictions and limitations. The next reason that they may use that favorable decision.
 
 Nancy Cavey [00:27:25]:
 Reason number five is that the judge may have found that you could do lighter sedentary work and that you and that of course potentially can be a case killer. But they will often ignore the exertional and non exertional restrictions and limitations assigned by a by the judge in the hypothetical. So the judge may say I want you to assume that this individual has issues with bilateral manual dexterity, would be off task at least 20% of the time, will be absent at least two times per month, can only do simple routine repetitive tasks, can't have any contact with the public, and only occasional contact with co workers or supervisors. There's a whole laundry list of exertional and non exertional restrictions that can be used by the judge to arrive at a favorable decision but ignored by the disability carrier plan. Now next the carrier is going to be looking at the vocational testimony at hearing. And the vocational expert may have testified that you could not return to your past work or other work, but the carrier is going to cherry pick that vocational testimony apart and will ignore modifications that the judge made in the hypothetical that would clearly support disability and which were agreed upon by the vocational evaluator. So it's not uncommon as we work our way at step five in a Social Security case through the hypotheticals that the judge gives unfavorable hypotheticals based on the Disability Determination Service's doctors who review medical records at the initial stage and render an opinion about a person's physical, cognitive or psychological restrictions. And often they don't have all the records in rendering that opinion.
 
 Nancy Cavey [00:29:17]:
 But the judge will start out with that unfavorable medical opinion that Social Security used at the initial stage to deny a claim. And then they'll work their way through hypotheticals adding restrictions and limitations that they think are applicable. The disability carrier may seize on that first unfavorable hypothetical based on the opinion of the Social Security doctor and say hey, that opinion most closely coincides with our liar for hire doctors. We are going to hang our hat on that vocational opinion. And by the way, that vocational evaluator said you could do your past work or other work. So they're going to cherry pick the expert's testimony. The ability to cherry pick that decision to justify denial or termination requires them to consider the decision. Now many times they will say, hey, we considered it.
 
 Nancy Cavey [00:30:10]:
 When in fact they never even had the blasted decision or they never even got the carrier file. Or what they will say is, hey, we considered it. Like we looked at it and threw it in the garbage can. We considered it and we are going to distinguish that decision based on the policy terms because it's a different standard of disability. Too bad. So sad. Now that doesn't necessarily mean that the carrier or plan is going to get away with it, and we will often challenge wrongful denials or termination of benefits. And based on the carrier's misuse of a favorable Social Security decision, you can see that getting your ERISA and Social Security disability benefits isn't easy.
 
 Nancy Cavey [00:30:50]:
 Without representation and navigating both claims systems, developing the proper proof can help you get your benefits and keep your benefits. All right, that wraps up today's episode of Winning Isn't Easy. Remember, a Social Security decision isn't just a win on its own because because it can directly impact your risk of disability benefits, understanding how disability carriers use this information and having the right strategy can make all the difference in protecting the benefits you've earned both your Social Security benefits and your ERISA disability benefits. Thanks for tuning in to this week's episode of Winning Isn't Easy. If you found this episode helpful, please take a moment to like our page, leave a review and share it with your family or friends and subscribe to this podcast so you'll be notified when a new episode drops. Thanks for listening to this episode, and we look forward to talking with you next week.