FBR’s Aba Heiman & Working People Prevail in Landmark Disability Pension Case

On October 19, 2006, the United States Court of Appeals for the Second Circuit (covering New York and other states) decided Demirovic v. Building Service 32B-J Pension Fund . Aba Heiman, Esq. represented Mrs. Demirovic, who is in her late fifties, speaks little English, and, for over 30 years, worked overnights doing heavy manual labor cleaning office buildings. Mrs. Demirovic had stop working because of arthritic knees (with several surgeries), diabetes with neurological changes and problems with her eyes).

Local 32 BJ, which represents building maintenance workers, together with Building Management companies, provided a disability pension plan. To get benefits under this plan a worker had to show that because of their disability they could  not “perform any gainful employment,” whatsoever.

The two doctors who examined Mrs. Demirovic for the Plan both agreed that she could no longer do her job, although from a medical standpoint alone they felt that Mrs. Demirovic was a physically capable of a “desk job.” The Pension Fund told Mrs. Demirovic, that wasn’t enough to get her the pension.

Mr. Heiman sued the Pension Fund in Federal Court, arguing that it was arbitrary and capricious to deny benefits to Mrs. Demirovic when the Fund hadn’t even bothered to consider her “vocational issues” such as her age, limited education, and lack of transferable skills to determine whether Mrs. Demirovic could realistically do any kind of work.  Who would ever hire Mrs. Demirovic, a poorly educated, non-English speaking immigrant, to do a desk job?

The Fund argued that their disability plan’s definition of disability was based only on medical factors, and could not ever consider vocational factors.  The District Judge agreed, concluding the Court must defer to the Fund because under the law the Fund had every right to interpret their Plan to exclude vocational considerations.

Heiman appealed. If the District Court decision was allowed to stand, it would mean that virtually no unskilled worker with a severe disability could ever get a disability pension from the 32 BJ Plan.  Arguing for a common sense application of the law, Heiman was able to persuade a three Judge Court of Appeals panel to unanimously throw out the district court’s decision. The panel found that it was unreasonable to determine disability from “any gainful employment” without considering vocational factors.  It concluded, that Mrs. Demirovic did not receive a full and fair review of her claim.

This decision created a much needed precedent. It compels disability plans to consider the impact of vocational factors when deciding a claim.  Not only was this case a huge victory for disabled workers, but also for Mr. Heiman. Many other attorneys in the field insisted the case was “impossible to win,” and that he was wasting his time in appealing it.

Can you be refused disability if you go to school while disabled?

When Chris Persico found herself disabled, she decided to do something about it. She was young and the last thing she wanted to do was spend the rest of her life on Social Security Disability. So, she went to school to learn a new field that she would be able to perform despite her limitations. She never imagined that she would be penalized simply for trying to rehabilitate herself. Yet, the Social Security Administration denied her application for benefits on the grounds that her going to school was no different that going to work.

Heiman sued the government in United States District Court for the Eastern District of New York (covering Brooklyn, Queens, Staten Island and Long Island).  On March 6, 2006, he obtained an important and instructive decision. The Court’s ruling in Persico v. Barnhart, as Commissioner of SSA was significant for:

1. Defeating the Social Security Commissioner’s erroneous assertion that going to college while you’re disabled, in an effort to train for alternative employment, is the same as engaging in competitive employment, thus making you ineligible to get Social Security Disability;
2. Defeating the Commissioner’s contention that video-surveillance demonstrated that Ms. Persico had active lifestyle and thus wasn’t disabled. Heiman proved that in nine days of video surveillance, the claimant was observed leaving her home on one occasion for only two hours. He successfully argued and such minimal activity does not indicate an active lifestyle and should not prevent a disabled worker from getting Social Security Disability benefits.
3. Chiding the Commissioner for ignoring Social Security’s own Ruling 99-2p, which lays out the guidelines on how to determine claims based upon Chronic Fatigue Syndrome); and
4. Demonstrating that the Commissioner failed to properly evaluate the opinions of Ms. Persico’s treating physicians, who both concluded she was disabled..

Before joining Fusco, Brandenstein & Rada, P.C., Heiman spent thirteen years working with the Social Security Administration. He is nationally known for his many accomplishments in the field Long Term Disability Insurance and Pensions as well as his work in the Social Security Disability arena.