Repercussions of the Binder & Binder Bankruptcy

Binder & Binder one of the Nation's largest, and probably the best known, Social Security Disability law firms has filed for bankruptcy.  The firm became known for their tacky T.V. commercials showing attorney Charles Binder wearing a cowboy hat.

The firm's slogan: "We'll deal with the government.  You have enough to worry about."  is well known by those who spend a good part of the day watching day-time television.  Binder & Binder spends approximately $20 million a year in advertising alone.

Now, it is widely rumored that Binder & Binder is pulling all their T.V. ads off the air.  Binder has also announced that it will be closing offices in several cities through out the nation, including Hartford, in an effort to reduce costs.

Over the past two to three years, Binder's exorbitant budget and heavy caseload was used by the critics of the Social Security Disability programs to wrongly allege that the system was being overly generous to claimants.  Such criticism lacked basis.  In fact, Social Security Disability Law Firms have always had to work with a very small margin of profit.  Binder & Binder's bankruptcy debunks the wrong notion the lawyers are getting rich out of the Social Security Trust Fund.  Moreover, all well informed disability lawyers have known that the boom in SSDI applications has been over for quite some time.  (The boom probably occurred from 2010 to 2011.)  As I have explained in previous posts, the boom was the result of the Nation's demographics, not of a system that was overly generous to claimants.  Unfortunately, lousy politicians in Washington don't want to do a serious analysis of Social Security's problems.  They act as if the Nation's demographics had not changed.  Instead, they find it easier to play the blame game and portray disability lawyers as the cause of the crisis.     

Fraudulent Tax Preparers and Social Security Disability

Lately, I have seen a lot of Social Security Disability claimants get in trouble because they have reported self employment income to the IRS in order to receive a refund under the Earned Income Tax Credit. Unfortunately, in many instances, the claimant never really had any self employment income and the only purpose for falsely reporting this income was to get a refund.  Beware! Those who engage in this practice are committing tax fraud!  

In addition, falsely reporting self employment income will kill your chances of winning your Social Security Disability case.  A person who is self employed will, in all likelihood, be found not to be disabled.  Moreover, a person who has made a fraudulent tax return, is not going to be believed at all by a judge.  If a claimant lied in his tax return, why wouldn't he or she also lie in her SSD application? 

Through out the entire Social Security Disability process, is always good to keep in mind the fact that Uncle Sam knows a lot more about you than you think.  Please remember that, you can't get away with telling one thing to the IRS and then telling something else to the SSA.

I suspect that tax preparers are largely responsible for the large number of fraudulent tax returns seeking an earned income tax credit.  The tax preparers that we frequently see aggressively advertising in the inner city, solicit low income people and lead them to believe that there will be no consequences to filing a false tax return.  In many instances, they convince disabled individuals who have been waiting for a long time for their Social Security Disability hearing and are desperate for money.  This is truly unfortunate.  More needs to be done to educate the public, --particularly those who are disabled--, about the consequences of falsely reporting income in order to get a refund.  It would also be ideal if the government took a more aggressive stand in investigating the corrupt practices of tax preparers who induce low income individuals to engage in this practice.    

Nazis Can't Collect Social Security... Anymore

Did you know that, Jakob Denzinger, a 90 year former Auschwitz guard who later became an American citizen, collects approximately $1,500 per month in Social Security payments. Denzinger has renounced his American citizenship and no longer lives in the U.S.  However, he still gets his monthly check.
After it was discovered this past October that dozens of Nazis who have been forced out of the United States are still collecting Social Security, Congress unanimously passed a bill a few weeks ago terminating benefits for these war criminals. 
Even though these Nazis had lost their U.S. Citizenship, under current law benefits can not be stopped.  In order to be able to stop benefits, a higher threshold is required: there must be a final order of deportation against the Social Security recipient.  Now, if the bill passed by Congress becomes law, benefits would be stopped immediately.
According to Forbes magazine, Social Security payments to Nazis could have reached millions.  It is estimated that as of 1999 at least $1.5 million in benefits had been paid.  The lighter side of this story is that at least members of Congress were finally able to unanimously agree on a piece of legislation related to Social Security.      
Since we all need some humor to get through the Social Security Disability process, here is a report from Stephen Colbert on this subject: 

The Colbert Report
Get More: Daily Show Full Episodes,Indecision Political Humor,The Colbert Report on Facebook

Lesbian Widow Sues Social Security

A lesbian widow has a filed a complaint in the Federal District Court in Rhode Island alleging that the SSA illegally denied her survivor benefits.

Deborah Tevyaw married Patricia Baker in Massachusetts in 2005.  Back then, same sex marriage wasn't  legal in Rhode Island.  Patricia died of lung cancer in August 2011.  

After DOMA was struck down by the U.S. Supreme Court in 2013, the Social Security Administration continued to deny Deborah Tevyaw's claim for survivor's benefits.  The SSA alleges that she should be denied benefits because RI would not have recognized their marriage at the time of Patricia's death.    

The Social Security Administration's actions in this case are shocking given that back in June 2013, the U.S. Supreme Court in United States v. Windsor struck down the Defense of Marriage Act: a law that defined marriage as a Union between a man and a woman.  In response to pressure from the media, the SSA has responded with a carefully worded statement essentially saying that it is reviewing its policy with the Department of Justice.  In the meantime, Deborah Tevyaw will have to wait --like some many other claimants who are treated unfairly-- and live on a monthly income of $732 a month.

Get a Copy of Your Long Term Disability Plan Early... or Find Out Whether You Have LTD

If you suffer from a chronic condition or illness, preparing to file for disability benefits is something that you should start thinking about very early on.  Everyone should try to work as long as possible. However, it is better to be safe than sorry.  Don't be passive about your situation.  Get educated as much as possible, and learn what benefits will be available to you in the event that  you can no longer work.

Very often I get calls from prospective clients who are thinking about filing for Social Security Disability.  During my conversations with them, I notice that many persons out there don't know whether or not they have a private disability plan provided by their employer.  Unfortunately, only 30% of employees in the private sector have long term disability insurance.

If you have severe health problems or suffer from a condition that might prevent you from working, it is a good idea to contact your human resources department to determine whether or not you are covered by a long term disability insurance policy.  If you are covered, then you should request from HR a copy of your long term disability plan and the plan summary.  The long term disability plan administrator is required by federal law to provide you with a copy of the plan.  

Once you obtain a copy of the plan and of the plan summary, you should spend sometime reading it and learning how it works.  Don't file for short term or long term disability without first reviewing these documents carefully.  It is also advisable to contact a long term disability lawyer who can sit with you and with a copy of the plan and explain to you how its provisions apply to your particular situation. 

Jail Time and Social Security Disability

Felony convictions can affect your Social Security Disability benefits.  In most instances, a felony will not automatically disqualify you from applying but, serious criminal offenses can result in a suspension of benefits or in loosing your claim.  Here are some examples on how spending time in jail and/or being convicted of a felony can affect your benefits:

• You will be denied benefits if the agency finds that your disability was caused or it was made worse because you carried out a criminal offense classified as a felony.  (For example, you cannot claim that you are disabled because you were shot while robbing a bank.)  Moreover, you do not have a valid claim if you allege that your disability arose or became worse while you were imprisoned.  (I get calls on this one all the time.  I get inquiries like: "I suffer from PTSD because I was incarcerated".  Forget it.  I can't help anyone with that type of claim.  It just doesn't work.)
• If you are receiving SSD, your benefits will stop 30 days after the commencement of an incarceration.  You get free food and shelter while in prison.  Don't expect other programs such as SSDI or SSI to pick up the bill.  Your benefits will be reinstated if you get out of jail before a period of 12 months.  However, if you spend more than 12 months in jail, you will have to re-apply and go through the whole application process all over again.      

My advise to all claimants is to stay out of trouble.  I have successfully represented claimants whose benefits have been terminated because they were incarcerated.  However, I must be frank and state clearly that, in most circumstances, I cannot take these type of cases.  I only get paid if I win and these cases are a huge risk for any Social Security Disability Lawyer.  

Finally, if you were caught dealing drugs or committing an economic crime while receiving SSI or SSDI, you probably will not have much of my sympathy.  (And I'm probably going to yell at you when I take your call!)  I take pride in what I do and feel offended when I see that money that is designated for those who are severely disabled is being wasted or misused.    

The Work Activity Report (Form SSA-821)

Once in a while, one of my clients receives a letter from Social Security asking them to complete a form known as the Work Activity Report or the SSA-821 Form.  This form is only requested in certain circumstances when the claimant has received income or, it appears that he or she has worked after the date of filing for disability benefits.  If you have received this form, it is important that you understand the purpose that it serves in the disability claims process.

You should also be aware that the SSA knows a lot more about you than you think.  If Social Security is requesting that you complete SSA-821, it is probably because they have found out that you have had earnings after the date of your alleged onset date.  Simply stated, you get this form because it is very difficult to hide earnings from the Government.  Remember, Uncle Sam is watching you at all times!  For example, if you sold an expensive item after filing for disability, --such as a work or art--, it is possible that this transaction will appear in the government's computer.  Moreover, if you have done some minor work for someone, it is likely that that person has issued a 1099 and that your income has been reported.

If you have received this form, be honest and complete it as soon as possible.  In all likelihood, a properly completed 821 is going to help your case.  Don't panic.  Be aware that selling assets such as stocks or works of art does not affect your eligibility for SSDI.  If you have sold an expensive asset, you should state it somewhere in your Work Activity Report.  This way you might expedite your claim and avoid confusing the SSA staff.  (If you are not open about your earnings, they might become suspicious and delay your claim.)  Keep in mind that the only income that affects your eligibility for SSDI, is income generated from wages, not income from other sources.  

Moreover, you should also clarify any earnings received from pensions,unused sick time and vacation pay or, from severance packages.  This income is often confused as wages because it comes from your former employer.  However, if you explain it properly to the the SSA, you will avoid complicating your claim.  

Finally, you should clearly document any work performed after the date of the commencement of your disability.  Get copies of all your paystubs and explain the type of work that you did.  If you made more than $1070 a month in wages in 2014, you are in obvious trouble.  However, if you made less, you should explain exactly what you were doing in your job.  It is important to explain any work accommodations given to you during this work period and the difficulties that you had in being able to fully function at the job.  Questions 5 and 6A in the form ask you about any special accommodations that you received at your job.  These two questions are perhaps the two most important questions in the form.  Unfortunately, many claimants leave it blank.  Understand that if you were working without any king of accommodation during the period of disability, it is going to be harder for your to prove that you can't work.  Be a wise and, if possible, use these sections to emphasize how the work that you performed during the disability period was just a small occupation that you held to be able to get by while your application was pending.   

While Nearly 1 Million Americans Wait, Existing Beneficiaries Get a $20 Increase in Benefits

This week, The Washington Post came out with a lengthy article on the huge backlog faced by the Administrative Law Judges of the Social Security Administration.  Most of the findings of the article are no big surprise to me.  The article states that ALJ's are 990,399 cases behind.  The Post described the process as "The Biggest Backlog in the Federal Government".  It notes that the SSA's Office of Disability Adjudication and Review (ODAR) has a much bigger backlog than Veteran's Affairs, that has 526,000 vets waiting and, than the patent office, that has 606,000 patents pending.

As most of the readers of this blog know, the experience of waiting in the backlog is extremely painful.  Disability claimants must wait without any financial resources until their cases are heard. Here is a link to the article:  The Biggest Backlog in Federal Government.  I suggest that you read it and send a copy with a little note to your Congressman and Senators.  

On other not so great news, on January of next year SSDI beneficiaries will get a 1.7 cost of living increase or COLA.  It is estimated that this increase represents an average of $20 extra a month per recipient.  What does this cover?  Not even the cost of one prescription...  Congress enacted this automatic increases in 1975, when inflation was high and there was a lot of pressure to regularly raise benefits.   

Benefits for Disabled Widows or Widowers

The loss of your spouse can be a devastating event specially if you suffer from an illness or condition that does not allow you to support yourself financially.  Under Social Security rules, you may be eligible for disability benefits based on your spouse's earnings record if your spouse was fully insured under the SSDI program at the time of his or her death.  

Moreover, to be able to receive benefits under your spouse's record you must also meet the following criteria:

• You must be at least 50 years old.
• You must show that you are disabled.  Note that the criteria used to determine whether you are disabled is the same one used to determine eligibility for all other adult applicants.  (SSA will use the 5 step sequential evaluation process.)
• Your disability started between the age of 50 and 60, and
• Your disability began before your spouse's death or within 7 years of his or her death.

Widows and widowers who are eligible to receive this benefit get 71.5% of the SSDI benefit that their spouses' would have received if they were alive.  Also, if you divorced prior to your spouse's death, you might be eligible for benefits if your marriage lasted 10 years or more.  However, if you were married to your spouse at the time of his or her death but your marriage lasted 9 months or less, you will not be eligible for benefits.  There are some exceptions to this rule.  For example, if you were married for 9 months or less, you might still be eligible for benefits if you are the parent of your spouse's child. 

Unfortunately, you cannot apply online for widow or widower benefits.  (Don't ask my why.  Its just the way the SSA bureaucracy works.)  You need to call by telephone and make an appointment or, visit your local SSA field office.       

What Can We Learn from the Council for Disability Awareness Annual Long Term Disability Claims Review?

Since 2005 a non-profit organization known as "The Council for Disability Awareness" (CDA) has conducted an annual review of long term disability claims among workers in the U.S.  This organization, based in Portland, Oregon, is directed by 18 member companies that provide long term disability policies and/or administer long term disability plans.  The 18 member companies are: Aetna, Ameritas, The Guardian, Lincoln Financial, Ohio National, The Standard, AIG, Assurant, The Hartford, Mass Mutual, Principal Financial, Sun Life, American Fidelity, Disability RMS, Illinois Mutual, Met Life, Prudential and Unum.  Long term disability industry giants such Cigna and Liberty Mutual are not part of the organization.

The "2014 Long Term Disability Claims Review" provides an interesting analysis of the current trends in the disability claims process, including detailed data analysis of the Social Security Disability Claims program.  A copy of this report can be found here.   

The data analysed by the report is highly relevant to debate taking place in Congress regarding the solvency of the Social Security Trust Funds and SSD.  Many correlations can be made between the rise in Social Security Disability claims between 2009 and 2011, and the number of claims made during this period under long term disability policies.

One of the aspects of the report that caught my attention was the data regarding the percentage of claims by gender.  It has been said that the entrance of women into the workforce in the past four decades accounts for the sharp rise in the number of persons receiving Social Security Disability. The data gathered by the CDA confirms this theory.  In fact, the 2014 report found that "Fifty-six percent of new disability claims approved during 2013 were for women and 44 percent were for men. The percentage of claims for men increased in both 2012 and 2013 after claims for women increased in 2010 and 2011."

What is "Residual Functional Capacity" or RFC?

In preparing your Social Security Disability case you probably have come across the technical term "Residual Functional Capacity" or RFC, and are probably wondering what it means.  The federal regulations define this term as follows:

"Your residual functional capacity is the most you can still do despite your limitations."   20 CFR 404.1545; 20 CFR 416.945

Residual functional capacity is the level of functioning that your are still capable of after taking into account all of the physical and mental problems that your condition(s) causes you.

Social Security considers two different types of RFC: physical and mental.   Social Security will look at your physical RFC in terms of sedentary, light medium, heavy or very heavy.  On the other hand, your mental RFC is summarized as less than unskilled, unskilled, semiskilled, or skilled.

Determining your RFC is key in your disability case.  Social Security reviews your medical records and other evidence to determine your RFC.  In many cases, the RFC determination is made using an opinion submitted by one of your doctors that explains your ability to engage in specific activities such as your ability to sit, stand, walk or lift.

The Importance of Your SSA Decision in Your Long Term Disability Insurance Appeal

It is fairly common for disability insurance carriers to deny a claimant his or her long term disability benefits even after a favorable Social Security decision has been made in the case.  In their denial letters, LTD carriers usually state in very vague terms that the standards under the insurance policy are different from the standards used by Social Security.  While the standards are different, a favorable SSDI decision is far more relevant to your case than insurance companies want you to know.

In fact, the legal standard used by the Social Security Administration to determine whether you are disabled or not is, in some instances, more rigorous than the standard contained in the disability policy. 

In any event, disability insurance companies are required to consider the SSA's determination and articulate why it should not be given significant weight in your case.  I submit that the standard boiler plate language that insurance companies are inserting (cut and pasting) in most denial letters, will not stand up to scrutiny at the Federal Court level of review.  For example, consider the statements made by the Southern District Court of New York in a case involving UNUM:   

"the fact that UNUM assisted plaintiff in obtaining disability benefits from the SSA, reaped financial benefits from this decision, and then failed to explain why it reached a disability conclusion at odds with the SSA's findings contributes to the conclusion that UNUM's determination was arbitrary and capricious."  Zurndorfer v. UNUM Life Ins. Co. of Am., 2008 U.S. Dist. LEXIS 26278, *53 (S.D.N.Y. 2008).

If your long term disability carries is telling you that the favorable Social Security decision is your case does not really matter that much in your LTD claim, don't despair.  Take your denial letter to a competent long term disability attorney and let him or her tell you whether the insurance company's argument can be defeated in an appeal or in a court action.  

Will Enrolling in College Courses Affect Your Chances of Winning SSDI?

Recently, a client who has a pending Social Security Disability case asked me whether enrolling in college will hurt her chances of winning her case.  Although there isn't a specific prohibition against going back to school, it is very likely that her decision will affect her claim in a negative way.  Keep in mind that since there there aren't any specific rules in this area, the effect that going back to school will have varies greatly from case to case.

One of the things that Social Security pays the most attention to in your case are your daily activities. If you are engaging in a lot of activities in your daily life --particularly activities that are challenging--, Social Security will infer that you are able to function in a working environment.  For example, if you are taking care of children, doing yard work or cooking complex meals, Social Security will assume that you still have the capacity to do some kind of work.  Social Security might agree that you cannot work in a day care or, become landscaper or a cook but, will probably infer that you still have some residual capacity to do other jobs that are more simple.  Likewise, if you are taking tests, sitting in class, reading and writing papers, Social Security might infer that you can work as a clerk in an office or in a data entry job.

The effect that going to school has on an SSDI case varies greatly on the specific nature of the course work taken by the claimant or the beneficiary.  Is the person enrolled in full time or part time school? Are the classes in a classroom environment or online?  How complicated are the courses taken? And, most importantly, is the educational institution providing any kind of accommodation for the claimant?   

Remember that there is more to going to school that simply going to class.  Beware of the potential issues that might arise if you decide to go back to school and be ready to document any special circumstances why going back to school is not indicative that you can also function in a work environment.

Your Social Security Disability Can be Reduced if You Have Not Paid Your Student Loan

If you are receiving Social Security Disability and have failed to pay you student loans, the government may reduce your monthly benefits.  According to the Government Accountability Office, 155,000 Social Security beneficiaries had their payments reduced during 2013 because they had defaulted on their student loans.  Every year since 2002, the government has become more aggressive in seeking repayment of student loans.  Unfortunately, these aggressive tactics are becoming a nightmare for thousands of disabled Americans who rely on Social Security Disability as their only means of financial support.  

71 % of those who saw their benefits reduced are SSDI beneficiaries.  The rest are receiving Social Security retirement.  There are many critics of these aggressive student loan collection practices.  The obvious question raised is why, is the government going after people who have demonstrated that they cannot work due to a physical condition or illness.  

Its important to note that the amount of the offset in these cases is significant.  The average Social Security monthly payment is $1,200 and the usual amount taken away from the monthly check of those who have not paid their student loans is $180.  

This issue has caught the attention of Massachusetts Senator Elizabeth Warren, who introduced a bill earlier in 2014 to allow better refinancing of student loans.  Unfortunately, her initiative did not go very far.

New Rules on How to Object to a Video Hearing

As I have explained in previous posts, Social Security conducts some its hearings via video.  Some claimants don't feel comfortable testifying this way and prefer to have an in person hearing.  The claimants have always had the opportunity to object to a video hearing and request that a in person hearing be conducted.  However, --beware--, the process to object to video hearing has just been changed.

Effective today, the Social Security Administration will implement new rules on the process that a claimant must follow in order to object to a video hearing.  Here are the changes:

Before the office of hearings (ODAR) schedules a hearing, it will send a letter to the claimant stating that it may schedule him or her to appear by video. This notice will be part of the hearing request acknowledgment. The official hearing notice with the date and time of the hearing will be sent at a later time.  It is very important to note that under the new rule:  Any objection to a video hearing must be made in writing within 30 days unless the claimant can show good case for missing the deadline. 

The claimant or his/her lawyer only needs to respond to this notice if they object to a video hearing. If the claimant agrees to a video hearing or doesn't really care, no response is needed. Everyone will get the notice; it does not mean that a video hearing will definitely be scheduled in your case.  It just means that the claimant agrees to a video hearing if one is ever scheduled.  Social security asks that lawyer send responses in the business reply envelope that SSA will provide or to the SSA special fax number (included in the document entitled “Electronic Disability Claims Processing”) rather than bringing the response to SSA or ODAR offices.   Please do not upload these responses to the Appointed Representative Services site, which might delay processing.

Do You Need Objective Evidence to Win?

Many of my client's are extremely concerned over the fact that they don't have objective evidence to support their claim.  While objective evidence is important and it can help significantly in convincing the judge or Social Security of your limitations, such evidence is not always possible to obtain.  

Many examiners in the SSA will state that the claimant has not submitted objective proof of either a diagnosis or of the claimant's limitations.  This argument is usually made in cases involving condition such as chronic migraines or mental illness.  

As some of you know, besides practicing in the area of Social Security Disability law, I also represent individuals who have been denied long term disability benefits by private insurance companies.  In the area of long term disability law, there is a line of federal court decisions that provide a pretty good rule as to when a claimant should be required to present objective evidence.  Even though  these cases don't deal with SSDI per se, they provide a good argument that can be used in Social Security cases.  

Federal Courts in long term disability cases have found that disability examiners can demand objective evidence from a claimant only when objective evidence is possible.  If the objective evidence is not possible to obtain, this evidence cannot be required.  

In Miles v. Principal Life Ins. Co., 720 F.3d 472, 487 (2d Cir. 2013) the Court found that Principal's request for objective evidence was unreasonable because, "plan administrators may not impose unreasonable requests for objective evidence.  Here, the record suggests there is no objective test to prove the presence of tinnitus.  It was unreasonable for Principal to request objective evidence of impairment when it had not identified any such test that exists."   

Don't Believe all the Hype About SSDI's Supposed Depletion in 2016

Important Article About the Solvency of Social Security Disability on U.S. News and World Report

In the aftermath of the misleading and ill-intentioned news stories about Social Security Disability aired by Sixty Minutes and Fox News, the U.S. News and World Report has published a great article debunking the false allegations being made about the programs projected depletion in 2016. 

Chad Stone from the Center on Budget and Policy Priorities has written a great piece outlying the facts on how the anticipated shortfall was largely anticipated and how it can be managed if proper measures are taken.  He notes that in the past, measures have been taken to fix similar shortfalls in the Social Security Disability programs without any major controversies.  It is obvious that now, some in Washington are trying to create a big hype around the projected deficit in 2016 for political gain.  Chill out and don't believe the hype.  Read the article from the U.S. News and World Report here:

http://www.usnews.com/opinion/economic-intelligence/2014/08/22/social-security-disability-insurance-is-not-out-of-control

How Soon Will My SSI/SSDI Case be Reviewed?

The guidelines used by the Social Security Administration to determine when an existing beneficiary's eligibility will be reviewed are fairly subjective.  However, when a claimant receives a fully favorable decision from an Administrative Law Judge (ALJ), the decision usually states a specific time period when the case will be reviewed again by the SSA. 

Lately, ALJs have been setting very short periods for disability reviews.  This all seems to be part of a trend at the national level, to make Social Security Disability guidelines stricter than ever before.  (Don't be fooled by the ramblings of those who are maliciously leading everyone to believe that obtaining SSD is easy.) 

For example, just a few days ago I got a fully favorable decision that stated that the claimant's case had to be reviewed again in 12 months.  This is an extremely short period.  In reality, most cases that are granted are reviewed between 18 to 36 months. 

When a case is granted prior to a hearing with an ALJ, the SSA uses certain specific guidelines for determining when a case will be reviewed.  However, the exact interpretation of these rules can be a bit subjective.  Here is the terminology used by Social Security used to determine when a case will be reviewed.  At what point in time your case will be reviewed, depends of where your expected medical improvement falls in relation to the following terms: 

• If "medical improvement" is "expected", your condition will be reviewed within 18 months.
• If "medical improvement" in your case is "possible", your case will be reviewed in approximately 3 years.
• If "medical improvement" is "not expected", your case will be reviewed in 5 to 7 years.

The Dangers of Hiring a "Social Security Disability Mill"

Be aware that some "Social Security Disability Mills" are now posing as "local law firms" 

I spend a great deal of time with first time callers to my office.  I listen to all sorts problems pertaining to their Social Security Disability claims.  Of all the problems that I hear, none is more disconcerting than when a claimant tells me how their lawyers or representatives are mishandling their claims.  

It seems like more and more Social Security Claimants are becoming victims of what I refer to as : "Social Security Disability Mills".  Social Security Disability Mills are large out of state corporate entities that provide none or very little personal attention to their clients.  These entities rely heavily on mass advertising, such as television adds or fancy internet sites, in order to stay profitable.  Their formula for economic success is based on the sheer volume of their case load, rather than on the quality of services that they provide to their clients.  Note that, in most instances, these firms work out of the state where they advertise and have non- lawyer representatives handle your claim.  

Obviously, having non-lawyers represent their clients also saves them a lot of money and helps them stay extremely profitable.  The largest Social Security Disability Mill in the Country uses non-lawyer reps.  It was reported by the Wall Street Journal that this firm makes more than 85 million dollars a year!    

What is more shocking --and more and more claimants need to be aware of-- is the fact that now, we have large out of state "SSD Mills" using local Connecticut and Massachusetts law firms to sign up clients without providing any meaningful services to clients at the local level.  It seems that, as consumers have become more aware of problems with out of state SSD Mills, the mills have develop new tactics to try fool consumers into signing up with them.  In fact, one of the largest Personal Injury law firms in Connecticut --which is notorious for their aggressive television commercials-- is also claiming to represent Social Security Disability Clients. Unfortunately, as soon as this Personal Injury law firm takes an SSD client, they transfer the case to a Mill in North Carolina.  Over the past year, I have been getting numerous complaints from clients or former clients from this firm.  

In many instances, once the out of state firm screws up a claim, it is very hard for a good local and hardworking lawyer to save it.  Therefore, I urge the readers of this blog and all prospective SSD claimants out there to be aware of this practice.  Before signing up with a Social Security Disability lawyer or representative, ask what kind of individual attention you will receive in your case and whether your case be handled by someone near your.        

Should My ERISA LTD Insurance Company Handle My Social Security Claim?

If you are disabled and can't work, you might have disability benefits provided through your job as part of your package of benefits.  These benefits are generally referred to as ERISA short term disability (STD) or ERISA long term disability (LTD) plans.  ERISA stands for the Federal Law that covers these type of disability benefits: the Employee Retirement Income Security Act of 1974.  STD and LTD benefits are usually provided through a policy or a self funded plan administered by an insurance company.  Some of the major players in the STD and LTD insurance business are: CIGNA, The Hartford, MetLife, Sun Life, Unum, Liberty Life, Prudential, the Standard and Aetna.  

Besides representing claimants in Social Security Disability cases, our office also represents individuals who are seeking or have been denied ERISA STD or LTD benefits.  Recently, a prospective client asked me whether it was a wise decision for an  LTD claimant to allow his or her LTD insurance company to also handle their Social Security Disability case.  Here are my views on the subject:     

The vast majority of ERISA LTD plans have provisions that allow the insurance company to offset the money that they pay a beneficiary by the amount that the beneficiary receives in Social Security Disability benefits.  Moreover, most plans also provide that a beneficiary is required to apply for Social Security Disability in order to be able to received LTD benefits.  These provisions are completely legal.  However, LTD beneficiaries are free to determine who handles their Social Security Disability claim.  The insurance company does not get to choose who will act as the claimant's lawyer or representative.  Unfortunately, it is clear that, in most cases, insurance companies do not respect a claimant right to choose his or her own lawyer or representative before Social Security.  Instead, they steer or even strong arm beneficiaries into hiring companies like Allsup, Advantage 2000, Ocudanta and Disability Services, Inc. to handle their Social Security Disability claims.  These companies are agents of the insurance company and do not owe a duty of loyalty to the claimants.  Their goal is to help the insurance company, not to help you.  For this reason, I urge all LTD claimants who are also applying for SSDI, to obtain their own lawyer.  Social Security Disability Lawyers work on a contingency basis and will not charge you any money unless they are able to get benefits. In addition, the insurance company is required to give you credit for the contingency fee paid in the case and are not allowed to include that portion as part of the offset.   

Ideally, you should hire a law firm like ours that handles Social Security Disability as well as ERISA STD and LTD claims.  This way, the law firm can gather evidence and develop arguments that will help you in both cases.  A competent disability lawyer that concentrates in disability law is also going to be able to counsel and advise you on issues that might affect the interest of the insurance company.  (Remember that insurance companies make profits by denying benefits.)  On the other hand, Allsup, Advantage 2000, Ocudanta and Disability Services, Inc., are required by the terms of their contract to be tight-lipped as to any information that might prejudice the economic interests of the insurance company.     

I Want My Retro Check Right Away!

Our office works extremely hard and has great success at wining Social Security Disability cases.  Our goal is not just winning your case, our goal is also to get you as much back pay as possible when you win your case. Unfortunately, in many instances, the payment of your "retro check" or past due benefits is delayed by the slow moving Social Security bureaucracy.  At that point, we get numerous calls from our clients wondering what has happened with their past due benefits.  The truth is that we are not always able to explain to our clients why it takes so long to get paid.  We can only guess and speculate what might be causing the delay. Here are some likely reasons why your retro check might be delayed and some of the things that you might be able to do to make the process move a little faster:

• My first word of advise is to be respectful of the fact that, if you have not received payment yet, your lawyer probably has not been paid either.  Don't be demanding or abusive with your lawyer and/or his or her staff. Keep in mind that they probably have not been paid for their services and that their job was to prove your disability not to untangle the complex payment mistakes often made by the Social Security Administration.
• Make sure that you respond to any inquiries by telephone or mail from Social Security.  Keep an eye on your mail and answer all your calls.  
• Make sure that you provide the SSA with a routing number and a checking account number to allow them to deposit your check electronically into your banking account.
• Don't call Social Security repeatedly if you are trying to find out the status of your payment.  Just call once every 30 to 45 days and politely ask if they are missing any information that they need to be able to process your payment.  If they ask you for information, provide it to them as soon as possible. They might need to get information such as: the right spelling of your name, the identities and ages of your children, your tax returns, information on the jobs held during the period of disability, rent payments, welfare payments, workers compensation payments and settlements and income received during the period of disability. Don't question the need for the evidence requested.  Don't act as if you don't have to give them the financial information.  Don't complain about how difficult it is to get this information.  Just get it to them!  You won your case already.  The time to argue is over.  Now, the government has the right to ask you for all this information before they put you on pay status.
• Determine whether your case was an SSI claim or if it included and SSI claim and, whether you received any worker's compensation payments.  If your case involved an SSI claim, the SSA will call you to schedule an interview.  Be ready to address all your finances on the day of that interview.  An ideal claimant should have an itemized statement of his or her finances; outlining all income and expenses made during the disability period.  If you had a worker's compensation claim opened at any point in your life, be ready to provide an accounting of every single penny received from worker's compensation and provide a copy of all records in your comp file including any settlements

There is no guarantee that the SSA will not screw up your retro check even when you follow the steps mentioned above.  Moreover, I urge you to be an active client.  Get all this information on your own or with the help of friends and relatives.  Your lawyer gets paid to prove your disability, not to be your personal secretary or assistant.

Should You Go On Vacation While Your Disability Claim is Pending?

Its vacation time and the question as to whether a Social Security Disability or Long Term Disability Claimant should go on vacation, while his or her claim is pending, keeps popping up.  Unfortunately, most claimants are not even aware that going on a trip could adversely affect their chances of winning disability benefits.  This issue is fairly controversial among disability lawyers.  Here are my thoughts:

I believe that part of the confusion regarding this issue stems from the fact that some people see vacation time as the direct opposite of working.  Many think that the ability to vacation has no bearing at all in the determination as to whether someone can work or not.  This notion is totally wrong.  In fact, most Social Security judges routinely ask claimants during the hearing whether they have gone on a trip during the period of disability.  In the past few hearings that I have been to, it looks as if the judges read this question out of a script that someone else has given them.  I have also noticed that vacations and trips are very often mentioned by long term disability insurance companies as a basis for denial of LTD benefits.  Therefore, be aware that if you go on vacation while your claim is pending, you are complicating your case unnecessarily.  Don't complicate your case.  If you want to err on the safe side, stay home.

However, if you don't want to follow my advise and want to go on vacation despite my recommendation, at the very least, you have to be smart about it.  First of all avoid, at all costs, calling your trip "a vacation".  Remember that a vacation is considered by many as a time of entertainment for those who work.  If you are not working because of a serious illness or condition, it might be a good idea to use a word other than "vacation" when you describe your trip.  Call your trip "a special time to recover and rest".  Without being overly dramatic, you can state some reason  for your trip that reiterates the fact that you are suffering from a disabling condition.  For example, you can say that your bad health made you think of your own mortality and made you want to go back to a special place such as: your hometown, the place were you met your spouse or the place where you went to college.  You can also combine your vacation with some form of therapy or retreat.

Finally, document everything that you did during your trip.  If you needed special accommodations during the trip such as special carts and wheelchairs, document it.  Keep receipts and other documentation and take pictures.  Be very careful on what you say to your doctors about your trip.  Remember that your doctors will transcribe everything that you say during a medical appointment.  Don't cancel or postpone a medical appointment due to your trip.  Moreover, if you are going on a trip due to a death in the family or a family emergency, make sure that such an emergency is reflected on your claim file.  

     

Can the Appeals Council Review a Case on its Own?

Over the past few weeks, I have discussed how an unsuccessful claimant can appeal an unfavorable decision by an administrative law judge (ALJ) to the appeals council and, later on, to federal court.  This week, I will write about a little known fact about social security disability law: the Appeals Council can review a fully favorable decision by an ALJ on its own, even when no one has appealed it.
Receipt of a notification that the Appeals Council is reviewing a fully favorable ALJ decision can be very disheartening, since claimants often wait over 2 years to finally have their cases decided by a judge.  The Appeals Council reviews favorable ALJ decisions on its own motion in very few cases.  Moreover, the decision to review a case on its own is usually determined by a random process.  This process is more specifically described in 20 CFR 404.969.
If you are one of the few unfortunate claimants whose fully favorable decision is being reviewed by the appeals council, here is quick guide of what to expect in this process:

• The Appeal Council has 110 days to make a decision on your case.  During this period of time the claimant will not be paid benefits.
• If the Appeals Council does not make a decision within 110 days, the claimant is allowed to receive "interim benefits".  The claimant will not have to pay back these interim benefits in the event that the case is eventually lost.
•  In the Appeals Council reviews the case, it can make one of three determinations: 1.  determine that the ALJ was right in grating you benefits  2.  Send the decision back to the judge to be corrected  or, 3.  the Appeals Council can decide on its own that the ALJ made the wrong decision and deny you benefits without a new face to face hearing with an ALJ.  

Announcing Our New Connecticut Location!

 

255 Main Street, Suite 401, Hartford, CT

We are two buildings down from the old office and continue to have the same convenient parking.

This larger and more comfortable location will allow us to better serve our disability and personal injury clients. We will continue to serve our Massachusetts clients at our other location at 101 State Street, Suite 723, Springfield, MA.

Appealing a Social Security Disability Case to Federal Court

Two weeks ago, I wrote about the process of appealing a case that had been denied by an administrative law judge to the Appeals Council.  This week I will describe the process of appealing the case, one step further, to Federal District Court.  

If a case is denied by the Appeals Council, you have the right to ask that the Federal Court review your case.  You have 60 days from the date of the Appeals Council decision to file your complaint in Federal Court.  Following Court rules can be quite complicated and, for this reason, it is advisable that you  hire a competent Social Security Disability Lawyer to represent you.  A disability lawyer will not charge you any up front legal fees and will only get paid only if he or she is able to win benefits for you.  A Social Security Lawyer will get paid out of your past due benefits and/or through fees awarded under the Equal Access to Justice Act (EAJA).  EAJA is a Federal Law that allows lawyers to petition the Court to order the Federal Government to pay attorney's fees.

An action in Federal Court is commenced by the filing of a complaint.  A complaint is a brief statement of the case that sets forth the basis for your case.  If you do not have enough funds to pay court fees, you or your lawyer can ask the judge to waive these costs in your case by filing a "Motion to Proceed in Forma Pauperis", which is a Latin legal term that literally means "in the form of a pauper", referring to poor plaintiff who is allowed to file a case for free.

Under Federal Law the case must be filed against the person who happens to be the Commissioner of Social Security.  You cannot sue the Social Security Administration or the U.S. Government.  You must also serve the Commissioner at the designated Office of the Regional Counsel for the state where you live.  In Connecticut and Massachusetts this office is the Region I office in Boston. 

Once your case is submitted before the Federal Court, your lawyer will file a brief explaining your position to the Court.  No new evidence may me added to your case beyond the evidence presented before the Administrative law Judge.  When the judge decides your case he or she may do any of the following: affirm the ALJ's decision, remand the case back to the ALJ for further proceedings or reverse the ALJ's decision and award your benefits.    

President Obama Nominates Colvin as Commissioner of Social Security

 Last Friday, President Barack Obama nominated Carolyn W. Colvin as Commissioner of the Social Security Administration.  Colvin had been acting commissioner since February 2013 when Commissioner Michael Astrue's term ended.   

The nomination comes at a time when the Social Security Administration is facing a long standing backlog, loss of positions due to attrition and the closing of dozens of field offices across the country. 

I expect the confirmation process to be contentious.  I'm sure that the confirmation debate will be accompanied by a barrage of misleading accusations made by those on Capitol Hill who would like to reduce Social Security.  Social Security's problems can be saved, in its present form, if the correct actions are taken.  The looming crisis had been anticipated for many years and its the result of the Nation's demographic changes, not of the particular actions or policies of any particular administration.

"I am grateful for Carolyn's past service in various roles at the Social Security Administration, and I am confident that she will serve the American people well in her new role," the president said in a statement Friday.  "I look forward to working with her in the months and years to come."

Colvin is Obama's first nominee to run the SSA.  Her predecessor, Michael Astrue, was nominated by President George Bush.  If Colvin is confirmed by the U.S. Senate her six year term will run into the next administration.

Appealing an Unfavorable ALJ Decision to the Appeals Council

If you have received an unfavorable decision in your Social Security Disability case from an Administrative Law Judge (ALJ), you can appeal the case by asking for a review from the Appeals Council.  The Appeals Council (AC) is the administrative body within the Social Security Administration that is responsible for reviewing ALJ decisions.     

The Appeals Council is located in Falls Church, Virginia and it consists of 50 Administrative Appeals Judges and more than 50 Appeals Officers.  These Judges and their staff handle Social Security Appeals for the entire country.  If you file an appeal with the Appeals Council, you will not have to travel to Falls Church, Virginia or appear in person before these judges.  All the arguments made in your appeal to the AC must be made in writing.   

If you are in receipt of an unfavorable ALJ decision, you have 60 days to file an appeal with the Appeals Council.  This request must be done in writing using Form HA-520.  It is also advisable to consult with a Social Security Disability Lawyer before filing the appeal.  In most cases a Social Security lawyer will also file a brief on your behalf setting forth the reasons why the ALJ made an error in your case. 

Keep in mind that the Appeals Council will not rehear your case but instead, will determine whether the ALJ made an error in his or her decision.  Therefore there no no new testimony taken in your case and, in most cases new evidence supporting your appeal will not be allowed.  It takes a very long time for the Appeals Council to decide your case.  In many cases it is taking more than a year to hear back from the Appeals Council.

When the Appeals Council decides your case, it can take one of three actions: 1. Deny your request for an appeal, 2.  Remand the case back to the ALJ, forcing the ALJ to have a new hearing, 3.  Issue a decision and award you disability benefits.

If you wish to file an appeal with the Appeals Council, you can do this alone.  However, appeals filed without the assistance of a lawyer are often denied.  For this reason, it is a good idea to request a free initial consultation from a lawyer who handles Social Security Disability Law before deciding to go at it alone.

Social Security Disability Denials are the Highest Since 2008

Winning a Social Security Disability case is getting harder every day.  The latest figures issued by the Social Security Administration show how difficult in the past few years it has become for disability claimants to get their cases approved. 

 

Every spring the SSA releases its statistics from its previous fiscal year that show the percentage of disability claims approved and denied at every step of the process.  2013 figures show that the approval rate at the initial stage of the process went down to 33%, from 36% in 2008.  Moreover, cases granted at the hearing stage dropped to 48 % in fiscal year 2013, from a 63% approval rate in 208.  This represents a 15% drop in the cases won at hearings before administrative law judges! 

 

This latest statistics show why now, more than ever before, it is important to have an experienced social security disability lawyer on your side.  Hiring a lawyer can improve your chances of winning your claim, particularly in these tough times.

 

Don't let the campaign of misinformation against the Social Security Disability programs fool you.  There are more persons currently receiving Social Security Disability than ever before because of the Nation's demographics have changed (more persons are reaching 55 than ever before), not because judges and SSA adjudicators are becoming more lenient.  For this reason, I believe that it is essential that all Social Security Disability claimants hire a lawyer to represent them early on in the claim process.    

Tip of the Week: Keep Your CD-ROM or Request One

The Social Security Administration (SSA) keeps most of its disability claim files in electronic form.  (There are very few exceptions...  Once in a while, a claimant has a paper file.)  This gives the SSA the ability to create CD-ROMS with a claimant's file.  If you are representing yourself in a social security case, you must remember to ask for a copy of your file in CD-ROM format.  Moreover, if the SSA provides you with a disc, you must never loose it.  Having a copy of your files on disc can be very convenient when looking for an attorney, preparing for your hearing or, when you need to a appeal a judge's decision to the Appeals Council.   

At the hearing level, claimants are provided with a CD-ROM by staff employees.  It is important not to throw away the disc.  Keep the disc even if you get a favorable decision.  If your case is denied, the CD-ROM will be needed by any Social Security Disability lawyer who you may ask to evaluate the viability of an appeal.  If you get a favorable decision, you may also need the disc to be able to protect your benefits when the SSA reviews your case.  Moreover, I find that having a complete disc of your SSDI case can be extremely helpful in cases where the claimant also has a pending long term disability claim with a private insurance company.

Opening and reading these discs can be tricky.  They work in most Windows PCs.  However, in many instances the discs are encrypted in order to protect a claimant's privacy.  To open an encrypted file you usually need to write "ssa" in the space that says: "account name".  Your password to open the disc is usually the first four letters of the claimant's first name followed by a pound sign (#) and the last four digits of his or her social security number.

Another reason why you might want to get your disc it to make sure that all the evidence pertaining to your case has been submitted  to the SSA.  Very often, doctor's records are missing or improperly filed.  I have even seen situations where a claimant's records are mixed in with somebody else's.

 

There's a New Lawyer In the Ramos Family!

I am proud to announce that last Friday, my sister Teresita Ramos graduated from Boston College Law.  She is now the fifth member of my immediate family with a law degree!  Of all five, Teresita and I are the closest in age.  Most importantly, we both share a passion for advocating on behalf of persons with disabilities and/or chronic health conditions.

At her law school graduation, Teresita received a special award for her "Exceptional Pro - Bono Service".    Pro bono publico, “for the public good” is a term used to describe professional work done voluntarily and without payment as a public service.  Through out law school my sister spent an extraordinary number of hours providing free legal assistance to disabled children and their families.  Thank you Tere for all the work that you have done on behalf of disabled students!

During her years in law school, my sister developed an impressive resume.  She clerked for the U.S. Court of Appeals for the First Circuit and interned at Massachusetts's Disability Law Center, one of the most prestigious non-profit disability law groups in the Nation.       

After law school, Teresita will be working in in Lawrence, Massachusetts, providing legal services to low-income, immigrant Hispanic children with disabilities to address widespread denial of education rights, and empower parents to enforce their rights through culturally competent advocacy training.  This disability law work will funded by an "Equal Justice Fellowship" that she obtained.    

Teresita is starting her career as a disability lawyer at a crucial point in time when disability programs, particularly SSDI, are under constant political attack.  We need more strong advocates like her.  She comes to this area of the law with an outstanding resume.  She is fluent in five languages: English, Spanish, Portuguese, Italian and Chinese.  She has a B.A. from Wellesley College and a masters in foreign service from Georgetown University in Washington, D.C.  Soon, she will be fighting for the disability benefits of the working class men and women of Connecticut and Massachusetts, who often need a lawyer that can explain the legal process in their native language.  Her experience in D.C. will also come in handy when we go to lobby at the Capitol on behalf of Social Security Disability Claimants.  Those in government and in politics who lately, have been attacking our disability programs, better be ready for my sister Teresita!              

20 Things That Will Kill Your Disability Claim

Here is a list of things that will cause your claim to be denied.  Please read and understand this list carefully before you complete a "Function Report" or attend a Social Security Disability hearing.  If you have a problem with any items on this list, you might end up loosing your case.  I'm sorry to be so harsh but if you are doing any of the things mentioned below, you need to have a serious conversation with your Social Security Disability Lawyer.  Keep in mind that anything that you say to your lawyer is protected by the attorney-client privilege.  However, statements made by you to Social Security can and will be used against you.  Moreover, statements made by you to your doctor will be recorded in the medical record and will eventually end up as evidence in your case.

Obtaining disability benefits is getting harder every day.  Denials are up in every stage of the disability process.  Please read this list carefully and make an honest assessment of your particular situation.  Here it is:

1. Taking care of others: children, elderly or disabled
2.  Going on vacation
3.  Not taking your medication or not following prescribed treatment
4.  Missing doctor's appointments
5.  Using drugs and/or alcohol (with the exception of a very occasional drink or two)
6.  Saying silly things at doctor's appointments or things that contradict your claim
7.  Working a semiskilled or skilled job even when its part-time and it pays less than $1040 a month
8.  Working a light, medium or heavy duty job even when its part-time and it pays less than $1040 a month
9.   Doing Yard Work
10.  Preparing complex meals (meals than take more than 10 minutes to prepare)
11.  Doing any significant amount of chores at home (more than 20 minutes a day)
12.  Driving trips longer than 10-15 minutes
13.  Going shopping alone on a regular basis
14.  Not answering your phone
15.  Missing a Consultative Evaluation without a good reason
16.  Not being able to give to the point, short, straight answers to Social Security, the judge, your lawyer or your Doctors
17.  Purposely giving the wrong answer in an IQ test
18.  Making little effort in a physical evaluation
19.  Not remembering anything about your previous jobs
20.  Making false statements of any kind

"Scrap the Cap": Its Time to Eliminate the Social Security Payroll Tax Cap

Did you know that any earnings above $117,000 per year are not subject to Social Security taxes?  Most people don't realize that there is a cap on FICA taxes and that contributions are not made on income beyond this amount.  Once the $117,000 mark is reached, the wealthy stop paying into the system.  This means that, if you are like the vast majority of Americans who make less per year than $117,000, you pay pay a higher percentage than the 5.6 percent who make more.

Opponents of Social Security, particularly of its disability program, make it seem like cutting benefits for the elderly and/or the disabled is the only way to fix Social Security.  However, there is a far more rational proposal that would improve Social Security's solvency: eliminate or --at the very least-- adjust the cap to bring more revenue into the Social Security Trust Fund.

Obviously, the current Social Security Disability program can be preserved, but this can only happen if we defend it.  

Even though eliminating the Social Security cap is not a new idea, somehow the concept has been forgotten in the journalistic coverage of  the debate.  The ongoing campaign of misrepresentations, distortions and outright lies by Fox News has not helped either.

Just a few weeks ago, a new bill was introduced by Sen. Jeff Merkley (D-Ore.) to increase the annual cost-of-living adjustment for Social Security.  The Senator proposed to pay it by raising the Social Security payroll tax rate of the wealthiest Americans (those making over $250,000).  Senators Bernie Sanders (I-Vt.) and Rep. Peter DeFazio (D-Ore.) have also introduced similar bills.  It is also important to note that President Obama made a similar proposal during his 2008 election campaign.  The Chief Actuary of the SSA has indicated that these proposals would reduced the program's long term short fall by 80 percent.

Economists estimate that only about 1 in 18 workers would pay more if the cap were eliminated completely. Moreover, just 1.4 percent (1 in 71 workers) would pay more if the tax were applied to those who make over $250,000. 

As the Social Security Disability programs comes under attack, the campaign to "Scrap the Cap" by having the wealthiest Americans pay the same as the rest of us --deserves our strong support. 

Take Action for Lupus Awareness Month!

May is Lupus awareness month, and as many of you probably know, the fight to end this terrible disease is extremely important to me.   Please consider participating in the events that the Connecticut Chapter of the Lupus Foundation has scheduled for this month.  I am urging all the friends and readers of the Connecticut Social Security Disability Lawyer Blog to make a donation during our Lupus walk on Sunday May 18, 2014 in West Hartford.  I will be raising funds with a team organized by the Board of Directors of the CT LFA.  Please let me know if you can contribute.  Here is a list of events for this month:

1.       Sunday, May 4. The CT Chapter will be featured on the Kim Zachary Show , “Talk of the Town”, WDRC Radio,  6:30 a.m.

2.       Wednesday, May 7, Legislative Advocacy Day at the State Capitol, Room 310, from 10:00 a.m. to 12 noon. Representative Tony Hwang is expected to present a proclamation from the Governor to the Chapter. Although this is the last day of the Legislative Session, we’re hoping that a number of our legislators stop buy our reception. Last year nearly 30 legislators came by to show their support.

3.       Thursday, May 8, there will be a meeting with the Urban League of Southern CT in Stamford to discuss how we can work together to increase support and raise the awareness of lupus in the African American Community.

4.       Saturday, May 10 – World Lupus Day. World Lupus Day focuses on the need for heightened public awareness, improved patient healthcare services, increased research into the causes of and a cure for lupus, enhanced physician diagnosis and treatment of lupus, and better epidemiological data on lupus globally.  

5.       May 12^th:  WRTC interview to talk about the West Hartford walk

6.       May 15 -  NBC Connecticut interview

7.       May 16 – Put On Purple Day. Please show your support…wear something purple

8.       Sunday, May 18, “Walk To End Lupus Now”, Blue Back Square, West Hartford, West Hartford…check in 9:00 a.m., start time ,10:00 a.m….please make every effort to attend.

The Three Pillars of a Social Security Disability Case

In my "other life" as a non social security disability lawyer I am reading "The Three Pillars of Zen" by Roshi Philip Kapleau. Last week, as I finished preparing a claimant for her upcoming hearing and went back home to catch up with some reading, I decided that the title of this week's blog title will be "The Three Pillars of a Social Security Disability Case".  It occurred to me that claimants need straight forward guidance when preparing for their cases.  I believe that every social security disability claimant must focus on three basic aspects or "pillars" in order to win benefits.  Unfortunately, claimants spend too much time wandering around the complicated maze of social security disability law and fail to focus on the most important points needed to succeed.

Here are the three most important areas that a claimant must focus on in order to be able to present a winning case: 1.  Work History and Skills Acquired, 2.  Daily Activities and, 3.  An estimate of Your Limitations Based on Medical Findings.   

A large number of claimants claimants who call my office looking for help are unable to provide me with much information in these three areas.  Most callers seem to be overly concerned about their specific medical condition and their diagnosis.  The actual medical diagnosis not as important as most people think.  This might sound shocking but as long as the claimant is: receiving adequate medical care, follows up with all medical conditions and takes the prescribed treatment; he or she should not have to worry too much about the medical side of the case.  

I believe that claimants would have a lot more success in their cases and would be able to obtain better legal services, if they focused more in these three areas than in any other aspects of their cases.  Here is a brief explanation of each one of these three areas or pillars:      

1.  Provide Your Work History and Skills Acquired:  Social Security looks at the jobs that a claimant performed in the 15 years prior to the time when he or she became disabled.  For this reason, it is essential for all claimants to remember all the jobs held during this period of time.  Claimants who cannot remember what jobs they held during this period of time usually make very bad witnesses.  What is important is the nature of the work performed, not its actual title or the name of the company where it was performed.  Be prepared to describe the specific duties performed with specific emphasis on the physical requirements of the job.  For example, be prepared to answer questions such as whether the job was performed standing up, sitting down and whether it required any lifting of heavy objects.  Claimants will also be required to provide estimates such as the highest weight lifted and the number of hours that the claimant was required to stand or walk.  Also, a claimant must be ready to state the highest grade completed and whether he or she received any specialized training.      

2.  State Your Daily Activities:  Social Security places a lot of emphasis on the daily activities engaged in by claimants.  Based on a claimant's daily activities, social security will infer whether a person is capable of working or not.  If a person states that he or she is able to perform all major house chores without any problems, it is very unlikely that social security will grant him or her disability benefits.  Also, keep in mind that the ability to do activities which are very demanding physically are a clear indication that the claimant is able to work.  Therefore, if a claimant is able to do yard work, take care of children throughout most of the day and go on far way vacations, he or she is probably not disabled.

3.  Estimate Your Limitations Based on Medical Findings:  Social Security needs to know your physical and mental limitations.  Therefore, a good claimant must be able to provide estimates in these areas.  For example, a claimant must be able to provide estimates such as: how far he or she can walk or stand or, how long can he or she concentrate.  In order to win the case, these estimates must be consistent with the medical record and the doctors' opinions.    

SSDI Enrollment Has Stopped Growing

Over the past year, Social Security Disability programs have been under intense scrutiny.  SSDI critics have created an atmosphere of hysteria alleging that disability rolls are growing out of control and that in 2016, it will run out of money.  Many conservative business publications such as the Washington Times and Forbes magazine have been instrumental in waging this assault against Social Security Disability.  However, the truth about what has really happened with the raise in disability claims is finally coming out.  This past week, a blog in the Wall Street Journal presented statistical evidence that shows that the raise in Social Security Disability benefit rolls might be hitting a plateau.  (See Has Social Security Disability Enrollment Hit a Plateau? by Damian Paletta and Josh Zumbrun)  

What critics of the Social Security Disability program have failed to explain to the general public is that the sharp raise in claims since 2004, as well as the current plateau that it is currently experiencing, was forecast years ago by program analysts.  The raise in claims was generated by demographic changes, not by fraud and abuse or, by the economic downturn.

While the Wall Street Journal Blog does not fully acknowledge that demographics changes have been the true cause of the sharp rise in disability claims, it certainly confirms that the program is not growing out of control as it had been originally reported.  Another important fact mentioned by the blog is that the amount of money that is being paid to Social Security Disability Lawyers and representatives has definitely declined.  It would be interesting to know whether this decline in fees paid to lawyers is also due to a trend by ALJ's and agency examiners to change the disability onset dates alleged by applicants; this practice has the effect of reducing the amount of back due benefits paid to applicants and the amount of money paid in legal fees. 

   

Social Security Tries To Collect an Overpayment Made 37 Years Ago!

Its tax season and the SSA is, once again, aggressively intercepting the tax refunds of those who they claim have received an over payment of benefits.  However, as most social security lawyers know full well, these attempts to collect old debts are not always fair.  Just a few weeks ago the tax refund of a Mary Grice, a Maryland resident, was stopped because of an alleged over payment that someone in her family allegedly received 37 years ago when she was a minor.  

One of the most troubling aspects about this case is that the SSA has not been able to identify who in Grice's family received the over payment.  (Grice was 4 years old when the over payment was made.)  Grice filed a lawsuit against SSA alleging that the government violated her due process rights by holding her responsible for a debt allegedly incurred under her father's Social Security number.  It was about time someone had the guts and the resources to take the incompetent bureaucrats from the SSA to Federal Court!    

In response to this and other scandalous stories of Social Security's outrageous attempts to collect old debts, Sens. Barbara Boxer (D-Calif.) and Barbara A. Mikulski (D-Md.) have asked the SSA to stop its practice of intercepting federal and state tax refunds to cover overpayments that the agency says it made to families more than 10 years ago. “Grice and other families like hers are unfairly being held responsible for decades-old errors at the Social Security Administration — even though many of these taxpayers were children at the time the error was made,” Boxer and Mikulski wrote. “Too many of these families are now finding themselves trapped in a mess of paperwork and red tape.”  

Thanks to Ms. Grice, her attorney Robert Vogel and, Senators Boxer and Mikulski for taking on this fight on behalf of all of those who are constantly abused by the arrogance and ineptitude of the Social Security Administration.

Social Security Issues New Ruling on Chronic Fatigue Syndrome (CFS)

Effective April 3, 2014, the Social Security Administration will adopt a new ruling regarding the evaluation of Social Security Disability cases involving chronic fatigue syndrome also known as CFS.  (SSR 14-1p)  To read the full ruling click here.  This ruling replaces the prior ruling on CFS issued in SSR 99-2p.  

A Social Security ruling is a decision by the SSA which is supposed to be followed by all disability adjudicators including judges.  However, a ruling does not have the same level of authority as statutes, regulations or case law.       

The purpose of the new ruling is to clarify how social security develops evidence to establish that a person has a medically determinable impairment (MDI).  This new ruling takes into consideration the medical advances and the latest research on the diagnosis and treatment of this condition.  The ruling relies on the definition that the Centers for Disease Control (CDC) uses for chronic fatigue syndrome.  The ruling states that CFS is characterized as "a syndrome that causes prolonged fatigue lasting 6 months or more, resulting in a substantial reduction in previous levels of occupational. educational, social or personal activities".      

SSR 14-1p is very important because it recognizes the existence of a disease that many in the medical community have doubted as a legitimate illness.  The fact that the Social Security Administration has issued two rulings regarding CFS reinforces the idea that this disease is real.  Unfortunately, other diseases such chronic lyme disease have not been acknowledged by a Social Security ruling.  Social Security Disability Lawyers around the country are anxiously waiting to hear whether the SSA will address lyme disease in a future ruling.   

 

Social Security Disability Payees Under Scrutiny

Unfortunately, Social Security Disability beneficiaries often are the victims of predators who abuse them and steal their monthly checks.  Perhaps one of the most dramatic cases involving this problem was the "Tacony Dungeon Case" in Philadelphia where four mentally disabled persons were held captive in a filthy basement in a scheme to steal their benefits.  Now, the Social Security Administration has launched a new initiative that bars persons with a criminal record from serving as a payee for SSI or SSDI beneficiaries.

However, it is not clear how well Social Security employees will be able to carry out this new initiative given the fact that they are understaffed and don't have access to the FBI's criminal database.  Instead, agency employees are going to be relying on private third party databases and other public records.  

Pursuant to the new program, representative payees who collect payments for those who are unable to handle their own finances would be rejected if they have committed one of 12 crimes: human trafficking, false imprisonment, kidnapping, rape/sexual assault, first-degree homicide, robbery, fraud to obtain government assistance, fraud by scheme, theft of government funds,/property, abuse/neglect, forgery and identity theft.

In some cases non-profit corporations act as payees for social security disability beneficiaries who cannot handle their own finances.  Just this week, sad news came in from Portland, Oregon where a non-profit group called Safety Net is under investigation for mismanaging the funds of the disabled. A federal warrant has closed Safety Net's facilities and now approximately 1,000 Social Security Disability beneficiaries are in danger of loosing their next check.  Obviously, much more needs to be done to prevent payee fraud and mismanagement.  Unless immediate action is taken to address this problem and appropriate funds and resources are assigned to implement the new initiative, it is likely that this problem will continue.       

Support "The Social Security Fraud Prevention Act of 2014"

Ranking member of the Ways and means Social Security Subcommittee Xavier Becerra (D-CA) has announced that he is introducing legislation to give the SSA the real effective tools to fight fraud and abuse of the disability benefit programs.

While many opponents have wasted time and efforts criticizing the Social Security disability programs, H.R. 4090 provides "a secure stream" of funds to allow the agency to implement a system of fraud prevention.  This bill will give the SSA the funds it needs to perform much needed continuing disability reviews (CDR's).  Currently there is a backlog of 1.3 million cases that have not been reviewed by the agency as they were supposed.  

This proposed bill would require the Social Security Commissioner to create "Cooperative Disability Investigations Units" in all 50 states and its territories by October 1, 2017. 

I applaud Congressman Becerra's efforts and urge the Connecticut and Massachusetts Congressional Delegation to support H.R. 4090.  To see Congressman Becerra's statements before the Ways and Means Committee watch the video below:

https://www.youtube.com/watch?v=83AuSRqlIBw