Long Wait Times Prompt Lawsuit in Miami

Disabled claimants are tired of waiting.  In Connecticut and Massachusetts it takes an average of 12 to 14 months to see a judge once a hearing has been requested. 

Its a long time and its not fair to make some of our most vulnerable citizens go through such an ordeal. 

If you think that Connecticut and Massachusetts wait times are bad, take a look at Miami.  In the Sun City, the average wait for a hearing is 22 months!  This situation has prompted the Miami Law School Legal Clinic to file a lawsuit on behalf of 12 indigent and disabled individuals who have been waiting as long as 26 months to get a hearing before an administrative law judge. 

"The delay defeats the Social Security’s purpose of helping to keep people from poverty, and, in the case our clients, has the harshest impact on the poorest population. Miami has one of the highest poverty rates in the country, which makes the extreme delay in Miami that much more unfair,” said JoNel Newman, Director of the Miami Law Health Rights Clinic.

It is not clear what result this legal action will have, however it is clear that it already has had the effect of bringing awareness regarding some of the injustices in the Social Security Disability system. At least two New England newspapers, the Boston Globe and the Portland Press Herald, have covered the news story.  Moreover, since Florida is such an important state in the upcoming Presidential election, the issues raised by the lawsuit hopefully will be brought up during debates concerning Social Security. 

There are other cities in which waits are almost as bad as Miami.  Brooklyn, N.Y., Spokane, Wash., Fort Myers, Fla, and Milwaukee have a 20-month wait time.  Atlanta, Charlotte, N.C., Cincinnati, Baltimore and Chattnooga, Tenn. have a 19 month wait.  

How to Deal With Non-Wage Earnings Received After the Onset Date

The Social Security Administration takes a very close look at any earnings received by a claimant after the alleged onset date.  However, in may instances, receiving money after the onset does not necessarily ruin a person's chances of winning Social Security Disability benefits. Sometimes, the only problem caused by such earnings is that it can slow down the application process and create confusion among adjudicators and judges who are afraid of granting an application to someone that they suspect might have been working above the substantial gainful activity level.

Social Security Disability claimants must bear in mind that the agency has access to practically all of their financial records.  Therefore, never assume that the agency won't have information about earnings. In my experience, it is much better to be upfront about earnings than to try to hide them.  Note that the only income that can affect your chances of winning are earnings received from wages.  Earnings received after a person has stopped working such as, payments for unused sick leave or vacation time, doesn't affect a claimant's chances of winning.  Income from pensions, long term disability payments or dividends, are not detrimental either to an SSDI claim.

Given these circumstances, I always advise my clients to be proactive and provide the SSA with a clear explanation of the nature of any earnings received after the onset date.  (Be aware that the SSA receives statements of earnings with very little information explaining where the money came from.) This can be done by writings a letter to the Social Security field office, by mentioning it on your remarks section of your initial application or, by asking your Social Security Disability lawyer to address it in his or her representative brief.  You can also complete a form called the "Work Activity Report" (Form SSA-821) and submit it to the Field Office.  You can download a Form SSA-821 by clicking here.  In this form, you can attest that you have not engaged in any "work activity" and provide information about the nature of your earnings. 

Sun Life Buys Assurant's Disability Insurance Division

Sun Life Financial, one of the largest disability insurance companies in the Nation, has acquired Assurant Inc.'s long term disability benefits division, as well as other group benefit divisions, for $975 million.  The deal includes the purchase of Disability RMS, a subsidiary that specializes in managing disability claims and consulting services for life and long term disability plans.  According to Sun Life's executives, with the purchase of Assurant, they become the sixth largest group benefit business in the U.S.    

Sun Life, a Canadian Company, has strong ties to New England.  Its U.S. headquarters are located in Wellesley, Massachusetts and it operates offices in Windsor, Connecticut and Portsmouth, New Hampshire.  According to media reports, most of the operations related to Assurant's disability insurance policies will be conducted out of Portland, Maine.  Assurant's main offices used to be located in Kansas City, Missouri.  

It is not clear at this point what changes, if any, will be implemented in the claims process currently used in Assurant long term disability policies.  Nonetheless, our law office is familiar with the process used by both insurance companies to decide claims and is ready to provide aggressive legal representation to policy holders of either insurer.   

Class Action Filed Against the SSA for Relying on Faulty Doctor

Just a few days ago, I was delighted to hear that a group of San Francisco Bay Area lawyers have brought a class action against the Social Security Administration on behalf of disability claimants who were denied benefits based on medical reports from a doctor who had been previously disqualified by the Agency.

Claimants are often required to undergo a medical examination conducted by a doctor hired by Social Security.  These evaluations are knows as "consultative evaluations" or "CE's". Unfortunately, a large number of CE's throughout the country are performed by highly incompetent doctors who perform inconsistent, cursory examinations of disability claimants. Disability lawyers become frustrated when they see that just one doctor has examined hundreds of their clients and notice that, in practically all of the cases, the CE reports are unfavorable to the claimants.

I hope that the issues raised by the class action Hart v. Colvin help raise awareness of the many abuses that are often committed in CE's.  In Hart, a group of claimants who were deprived of benefits are contesting the SSA's reliance on medical reports prepared by Dr. Frank Chen, a doctor who had been disqualified by Social Security.  These reports were based on unfair examinations conducted usually in ten minutes or less and often referenced tests which were never performed.  Even though Dr. Chen was disqualified, hundreds of claimants throughout the Bay Area were never informed of the doctor's disqualification.  These reports were often cited by judges and other adjudicators as a basis for the denial of benefits.

The class action seeks to reopen all prior determinations made by the SSA in which it relied on CE's conducted by Dr. Chen.  Plaintiff's demand an opportunity for a new hearing with the option to have a new exam from a qualified medical professional.

Plaintiffs are represented by Morrison & Foster LLP, the National Senior Citizens Law Center and the Legal Aid Society of San Mateo County.

Budget Deal Saves SSDI

The budget deal approved by the U.S. Senate on October 30th saves Social Security Disability beneficiaries from a 20 percent cut in benefits.  The bipartisan agreement transfers funds from the retirement fund to the disability program.  This averts cuts that could have been disastrous for the 11 million recipients of SSDI benefits.

Earlier this year, Republicans had opposed the transfer of any monies from the retirement fund to the disability fund.  Republicans argued that they would only agree to the transfer, if cuts were made to the disability program.  The passage of this legislation is seen as the first significant piece of legislation that has been passed under the leadership of incoming House Speaker Paul Ryan (R-WY).

The budget bill includes 144 pages of legislation solely devoted to the Social Security Disability program.  The new legislation contains several provisions to prevent and fight social security fraud. It provides additional funds to create new task forces of agents who will go after individuals who abuse the system.

The legislation also makes significant changes to the program's work rules.  Currently, if a Social Security Disability beneficiary makes more than $1,090, he or she is automatically disqualified from receiving benefits.  Under the new rule, applicants can work above the SGA level (which is currently $1,090) and continue to be eligible.  From now on, benefits will be progressively offset on a 2 to 1 ratio for every dollar made in excess of $1,090.  However, I suggest that all Social Security Disability applicants must still consult with their lawyer prior to going back to work.  It is not yet clear how this new rule could affect an applicant's chances of winning SSDI. 

There is also a provision in the bill that requires all states to develop a medical screening process at the initial stage of a disability claim.  In the past, approximately 20 states were allowed to grant disability benefits simply through a review by state medico vocational analysts.  Advocates of the disabled have argued that this part of the legislation might result in even longer delays during the initial application process.  In many circumstances, medical records provided by a claimant are clear cut evidence that a person is disabled.  Unfortunately, this new requirement will prolong the wait suffered by many who suffer from very severe physical and mental limitations.

Finally, the bill provides additional funding to hire new Administrative Law Judges.  Acting Social Security Commissioner Carolyn Colvin was extremely pleased with this part of the bill.  She has announced that she will increase the number of ALJ's from 1,450 to 1,925 by 2017.  Hopefully, this measure will help alleviate the backlog at the hearing level which currently exceeds one million cases.