Monday, September 29, 2014

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.  

Monday, September 22, 2014

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.

Monday, September 15, 2014

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.

Monday, September 8, 2014

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.

Monday, September 1, 2014

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."