Monday, April 3, 2017

The Different Types of Social Security Disability Programs

When a prospective clients calls my office looking for help, my staff tries to determine right away whether the caller meets the non-medical requirements of any of the Social Security Disability programs.  This is why in the initial consultation process, my office always asks extensive questions about the callers' work history and financial resources.   

Essentially, there are two different types of Social Security disability programs: Title II and Title XVI. Both programs use the same medical requirements. However, these programs have different non-medical requirements.  Before we agree to take a case, we need to determine whether the person meets the non-medical requirements. Unfortunately, we cannot be of any help unless the person meets the non-medicals.  

The be eligible for Title II, a person must have worked long enough and recently enough.  Generally, a person must have worked 5 out of the last 10 years.  Therefore, a person who calls our office looking for help for the first time should be ready to provide us with a fairly accurate work history. In an initial consultation, it is ideal to obtain a fairly good notion of how long the person worked in each one of his or her jobs in the last ten years.  Gaps in work, reduced hours and periods of unemployment can affect eligibility for Title II.  

Title XVI is a needs based program which is generally available for persons who are poor and have not been able to work.  To be eligible for Title XVI a person must have less than $2,000 dollars, one car and one house.  Bear in mind that sources of income and assets such as pensions and 401K plans can affect eligibility for Title XVI benefits.  More importantly, if a person has a spouse who works or has significant assets, he or she might not be eligible.  For these reasons, anyone who calls our office for the first time looking for help with a Title XVI case should be ready to give us information about their finances.  

Here is a brief explanation of Title II and Title XVI benefits and the sub-types of benefits available under each program:

Title II: Also Called Title 2 or DIB or SSDI (Social Security Disability Insurance)

A person is only eligible for Title II benefits if he or she has a sufficient work record (generally must have worked 5 out of the last 10 years.) Usually, the work record is of their own, but it can be that of a disabled or deceased parent(s) or spouse.

Different Sub-Types of Title II Benefits:

DIB-Disability Insurance Benefits
This is the most common type of benefit.  This is a claim on the applicants own employment record and social security taxes paid.

CDB-Childhood Disability Benefits
An individual may be eligible for CDB benefits if they are found disabled between the ages of 18 and 22 and they are the child of a wage earner who is receiving retirement benefits, disability benefits, or is deceased. They must also be or had been dependent on the wage earner and unmarried.

DWB—Disabled Widow’s Benefits
Surviving disabled widows or widowers may be eligible for disability benefits based on a deceased or surviving divorced spouse’s record.


Title 16: Also Called Title XVI, DI or SSI (Supplemental Security Income)

Persons applying for Ttitle XVI benefits must meet an income and resource test prior to qualifying for benefits. The Social Security Office determines eligibility.

Different Sub-Types of Title XVI Benefits:

DI—Disabled Individual
This is the most common type of Title XVI benefit. The claimant or applicant qualifies for benefits based on their limited income and resources.

DS—Disabled Spouse
A claim labeled as DS serves as an indicator that the claimant’s spouse is disabled and receiving benefits. The claim is worked the same as a DI claim.

DC—Disabled Child or Children's SSI
A DC claim is a disability claim for a disabled child under the age of 18. The child’s parents or guardian’s income and resources must be limited for the child to qualify for benefits. 

Monday, March 27, 2017

New Social Security Ruling on Medical Equivalence (SSR 17-2p)

Effective today, the Social Security Administration will implement a new ruling regarding the evidence needed by judges to make a finding of "medical equivalence".  For a copy of SSR 17-2p (click here.)   
Under Social Security regulations, a person may be found disabled if he or she "meets" or "equals" the requirements of a listing of impairments (listings).  If an individual meets all the criteria of the listing, then the person is found to be disabled.  However, a person can also be found disabled when the person does not meet all of the requirements of the listing but has a medical condition that is of "equal" duration and severity.
Through SSR 17-2p, the Social Security Administration (SSA) has elaborated on what type of evidence a Judge must obtain in order to make a finding that a listing has been equaled.  It is clear that with this new ruling, the SSA has made it harder for judges to make this finding.  Here is a list of the evidenciary requirements; 

To make a finding that a listing has been equaled the administrative record must contain:
1. A prior administrative medical finding from an MC [Medical Consultant] or PC [Psychological Consultant] from the initial or reconsideration adjudication levels supporting the medical equivalence finding, or
2. ME [Medical Expert] evidence, which may include testimony or written responses to interrogatories, obtained at the hearings level supporting the medical equivalence finding, or
3. A report from the AC’s medical support staff supporting the medical equivalence finding.
This new ruling seriously erodes the judicial independence of administrative law judges.  In essence, the agency has stripped judges of their ability to make independent decisions regarding medical equivalency and instead, has given these powers to doctors and personnel from the Appeals Council. This ruling is also detrimental to claimants in that it allows judges to find that a person does not equal a listing  without having to provide any explanations on the decision.



Monday, March 20, 2017

Trump's Budget Director Wants to Cut SSDI

Last Sunday, Donald Trump's Budget Director Mick Mulvaney stated his desire to cut Social Security Disability.  Appearing at the CBS program "Face the Nation", Mulvaney launched a baseless attack on SSD. His statement is plagued with falsehoods.  Here is what he said:
Do you really think that Social Security disability insurance is part of what people think of when they think of Social Security? I don’t think so. It’s the fastest-growing program. It grew tremendously under President Obama. It’s a very wasteful program, and we want to try and fix that.” 
I will address his baseless allegations one by one.

First, a Republican President, Dwight Eisenhower, signed Social Security Disability into law in 1956. SSD is certainly part of what people consider to be Social Security, including Republicans. In fact, the states with most persons on SSD are all overwhelmingly Republican.  These states are: Alabama, Tennessee, Kentucky, West Virginia and Arkansas. If Mulvaney messes up with SSD, he is messing up with the white-republican-rural voters who supported Trump. He should think twice before he opens up his mouth again to trash SSD.

Second, his claim that SSD is "the fastest growing program" is completely false.  Here is a graph from the Social Administration that shows that SSD enrollment has been dropping since 2014:
Finally, he claims that Social Security Disability is wasteful.  Disabled workers receive an average of $1,165 a month in benefits.  That is just $13,984 a year!  Disability benefits are extremely hard to obtain.  You can visit a recent article: "'This is not the American Dream' Says Woman Turned Destitute Waiting for Disability"  to learn how difficult and dehumanizing it has become for disabled Americans to win SSD.  Moreover, in 2012 the Social Security Commissioner explained before Congress that a study revealed that the error rate in over payments and under payments is less that 1% of all benefits.

Monday, March 6, 2017

Warning: Social Security Disability Phishing Scheme

Social Security Acting Inspector General, Gale Stallworth Stone, has issued a warning letting disability beneficiaries know that there is an ongoing telephone fraud scheme. Reports across the Nation indicate that persons are receiving telephone calls from individuals posing as Social Security Administration employees or OIG investigators. The fraudulent calls tell beneficiaries that there is an issue or something is wrong with the person's Social Security Account or Social Security number. The caller then directs the person to call a non-SSA phone number to correct the supposed problem.

It appears that the calls contain a recording from someone that states to be "Nancy Jones" an "officer with the Inspector General of Social Security". The recording then states that the person's Social Security account and benefits are suspended, and that he or she should call (806) 680-2373 to correct the issue. Persons are warned that the specific recording may vary. The SSA is letting everyone know that the number provided should not be called.

The Office of the Inspector General sometimes calls Social Security Beneficiaries during the course of investigations. However, personal information such as Social Security numbers is never asked on the telephone. If a person receives one of these calls, he or she can call Social Security at (800) 269-0271 or make a complain online at https://oig.ssa.gov/report.

If a person has any questions about any letter, email or telephone call that claims to come from the SSA, please call 1-800-772-1213 to verify its legitimacy. 


Monday, February 27, 2017

Social Security Disability Judge Refuses to Watch LGBT Video and Sues the Agency

Social Security Disability Judge Gary Suttles from Texas has refused to watch an LGBT diversity training video as was mandated by the terms of his employment.  To avoid getting disciplined or fired, he has filed a lawsuit claiming a "religiously hostile work environment".  

The order to all Social Security Judges to watch the video is an effort by the Social Security Administration to create "better awareness in a diverse and inclusive environment".

On a statement to the hearing office director, Judge Suttles stated that he would not watch the video and said: "I am already fully aware to treat all persons with respect and dignity and have done so my entire life".  I strongly disagree with the Judge.  Judge Suttles is part of a group of "serial denier judges" within the systems whose practices have been unchecked by the agency for many years. Suttles approves the benefits of only 15% percent of the claimants who appear before him.  Over the past three to four years the agency has fostered a culture that favors judges with low approval rates. Very little has been done to review judges, such as Suttles, who have extremely low approval rates.  

In his complaint, Judge Suttles alleges that he has had a "sterling work record" in his career as an administrative law judge.  However, he fails to mention that he was investigated after he unfairly treated a Gulf War veteran who appeared before him in a disability hearing.  The veteran alleged disability as a result of war related PTSD.  According the the Washington Post and the Austin American-Statesman, the 44-year old veteran had served as a fueler on an aircraft carrier. Judge Suttles mocked the veteran's claim by stating:
"I mean, hey you were in the Navy.  You weren't fighting on the ground...  To me it would have been exiting.  What do you mean stressful?"
Even though veterans' groups condemned Judge Suttles remarks, the Social Security Administration refused to suspend or remove him from his job.  Hopefully, any Social Security Disability Lawyer with an LGBT client who appears before Judge Suttles will demand that he recuse himself from the case. 
      



Monday, February 20, 2017

The Meaning of "SVP" In Your Social Security Disability Hearing

The Social Security Disability claims process is full of abbreviations and acronyms.  If you have had a Social Security Disability hearing, you probably have heard the term "SVP" used by your lawyer, the judge or, the vocational expert.  

SVP stands for Specific Vocational Preparation.  SVP refers to the amount of time that it takes a person to learn a specific job.  As a Social Security Disability Lawyer, it is my duty to prove to Social Security that there are no occupations that my clients can perform.  My arguments vary greatly depending on my clients' skills and their ability to transfer them to other occupations.  

According to the Dictionary of Occupational Titles, each occupation in the National economy has a corresponding SVP level.  These SVP levels range from 1 to 9.  Here are the nine SVP levels and the corresponding explanations regarding how long it takes to learn the skills of at each level:

SVP 1 Short demonstration only
SVP 2 Anything beyond short demonstration up to and including 1 month
SVP 3 Over 1 month up to and including 3 months
SVP 4 Over 3 months up to and including 6 months
SVP 5 Over 6 months up to and including 1 year
SVP 6 Over 1 year up to and including 2 years
SVP 7 Over 2 years up to and including 4 years
SVP 8 Over 4 years up to and including 10 years
SVP 9 Over 10 years

Here is a short fact pattern that illustrates how SVP numbers are used during a Social Security Disability hearing:

Miroslav  was "tailor" who alleged disability, in part, due to an injury in one hand.  Miroslav knows some English but has difficulty engaging in a full conversation.  At the hearing, the vocational expert (VE) states that the occupation of tailor has an SVP of 7. The VE also states that a tailor must be able to constantly use both hands.  Miroslav's lawyer cross-examines the VE.  He asks whether a person can be a tailor if he or she is limited to less than constant use of both hands. The VE states that he or she cannot. Consequently, the job of tailor is ruled out and it is determined that Miroslav can no longer do his old job.

Miroslav's lawyer must then show that there are no other jobs that his client can perform.  The judge interrupts and asks the VE to identify other jobs with the same SVP level as the job of a tailor. The VE comes up with other jobs such as "store manager", which also has an SVP of 7. On cross examination, Miroslav's lawyer correctly points out that a store manager requires good command of the English language. He also points out that even though the occupation of tailor is highly skilled, it does not have skills that can easily be transferred to other jobs at the SVP 7 level. The Judge then realizes that Miroslav's lawyer is a competent SSD lawyer and agrees to change his question to the VE. Based Miroslav's the lack of transferable skills and his difficulty speaking English, the judge then asks the VE to identify jobs that have an SVP level of 1 or 2, only.  Since jobs with SVP levels of 1 and 2 usually require good use of both hands, Miroslav's lawyer is now in a better position to rule them out.  (Miroslav's hand limitation would have made much less of a difference if the judge had considered jobs at the SVP 3 to 7 levels.)    

Monday, January 30, 2017

Now Non-Medical Appeals Can be Filed Online

Social Security Disability lawyers get swamped with calls from claimants who need help contesting non-medical decisions.  These non-medical decisions include overpayments and reduction of SSI benefit determinations.  Unfortunately, most private Social Security Disability law firms can't help claimant's with these type of appeals.  As general rule, we help claimants prove their cases from a medical perspective and can't provide assistance in overpayment or reduction of benefit cases.   

Until this past December, claimants had great difficulty filing non-medical appeals on their own. Many had to go to SSA field offices in person and wait in line to file their appeals.  Now, the SSA has added a feature in its website that allows claimants to file an electronic appeal on a non-medical issue.  

The website address used to start a non-medical appeal is:

 https://secure.ssa.gov/iApplNMD/start

The person affected by Social Security's decision or someone else on his or her behalf can use the website to file the non-medical appeal.  I am under the impression that in the past many non-medical appeals were lost through the cracks and claimants had great difficulty being heard.  The new electronic system should improve the process and make it easier for claimants to point out common errors such as miscalculations of benefits or correct the input or wrong information on a persons work record.