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

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.       

SSDI for Persons Who Have Low Vision or are Blind

I receive frequent calls from persons who want to know whether they qualify for Social Security Disability Benefits based on their poor vision.  Most people don't seem to be aware that the legal requirements needed to qualify for disability benefits due to this condition are fairly strict. 

 

With respect to blindness and Social Security Disability, there are two important points that must be kept in mind:  First of all, Social Security determines whether a person qualifies for benefits based on their vision on the better eye.  Therefore, if you are completely blind in one eye but have 20/20 vision on the other, you will not meet the blindness listing.  Second, Social Security determines whether you are blind based on your corrected vision, not on the vision that you have when you are not wearing glasses.

 

In essence, Social Security will find that you are eligible for benefits if your vision cannot be corrected better than 20/200 in your better eye, or if your visual field is 20 degrees or less, even with a corrective lens.

 

If you do not meet the definition mentioned above, you may still be able to qualify if other health problems combined with your age prevent you from working.  There are a number of Social Security Rulings that evaluate a person's ability to do work if they have problems with visual acuity.  In this respect Social Security Ruling 96-9p states:   

 

    Visual limitations or restrictions: Most sedentary unskilled occupations require working with small objects. If a visual limitation prevents an individual from seeing the small objects involved in most sedentary unskilled work, or if an individual is not able to avoid ordinary hazards in the workplace, such as boxes on the floor, doors ajar, or approaching people or vehicles, there will be a significant erosion of the sedentary occupational base. These cases may require the use of vocational resources.

 

If you feel that low vision or blindness is preventing you from working, you should talk to an experienced Social Security Disability Lawyer as soon as possible.  Most Social Security Lawyers like me provide free legal consultation and don't charge any fees unless we are able to get benefits for you.  As you can see from this posting, Social Security Rules with respect to blindness can be quite complicated and it is never a good idea to go at it alone.

Social Security Disability for Veterans: An Update

Our office takes great pride in helping disabled veteran’s obtain Social Security Disability Benefits.  Many veterans who are applying for veteran’s disability benefits do not seem to be fully aware that they may also be eligible for SSDI.  In fact, some of the findings made by the VA in a veteran’s disability case may be very persuasive in convincing the Social Security Administration that the Veteran is also eligible for Social Security Disability.   

Veterans who are applying for VA disability benefits should also contact a Social Security Disability Attorney who can evaluate their case and determine whether they should also apply for SSDI.  There are approximately 9.5 military veterans receiving Social Security Disability; which means that almost one in every four adults receiving SSD has served in the military. 

Recently the VA has come under fire due to its large backlog in processing and adjudicating disability claims.  In March 2013, the backlog was estimated to be 600,000, with over 900,000 pending to be processed.  In response to this problem, the Veternan’s Adminstration and the Social Security Administration have enacted the following initiatives:

• VA Secretary Eric Shinseki claims to be implementing a new automated system to try to get rid of the old inefficient paper based system that has contributed to the backlog.  The VA Secretary has announced that this initiative is yielding positive results and that between March and December 2013, the backlog decreased by 36.5 percent.  However, it is important to point out that over 50 percent of the VA disability claims are still waiting to be processed.

• Acting Social Security Commissioner Carolyn W. Colvin has announced a joint initiative with the Department of Veterans Affairs to give high priority to veterans with 100-percent VA disability ratings. This will allow Veterans that have very severe conditions to receive a much faster processing of their SSDI claims.  This new program is supposed to start in just a few weeks.

Are My Social Security Disability Benefits Taxable?

For the most part, Social Security Disability benefits are not taxed in their totality.  You will never have to pay federal taxes on more than 85% of your Social Security Disability benefits.  In most cases, you only have to pay taxes on your Social Security when you have other substantial income such as dividends, past wages or other taxable income.  Moreover, SSI payments are never taxed.  

As a general rule, you only have to pay federal taxes on your SSD benefits when you report more than $25,000 on your individual filling.  If you file jointly with your spouse, you will only have to pay taxes if your combined income is more than $32,000.

However, as I indicated before, you never have to pay taxes on 100% of your benefits.  For example, if you and your spouse have a combined income between $32,000 and $44,000 you only have to pay taxes on 50% of the Social Security Disability benefit.  If you and your spouse make more than $44,000, then you will have to pay taxes on 85% of your benefit.  

What about large retroactive payments received in 2013?  Fortunately, in 2013 many of our clients received large retro-payments (back pay).  Under these circumstances, your tax rate might be higher than usual because of the lump sum.   This is a tricky situation.   Fortunately, the IRS allows taxes on Social Security Disability retro payments to be spread out over previous tax years using the current tax return and  the good news is that you don't have to file an amended tax return for the prior years.  This will prevent you from paying higher taxes in 2013.  If you received a lump sum, you will see the amount entered in Box 3 of the 1099 form that Social Security will send you.  Apparently, it is easy to make a mistake when you try to figure out how to spread the lump sum payment by yourself.  For this reason, it might be a good idea to hire a tax professional to help you figure this out.  Worksheets provided in IRS publication 915 and tax preparation software can also be used to determine the tax liability of a large retroactive SSDI payment.  

Disclaimer:  I am a Social Security Disability Lawyer, not a tax lawyer or an accountant.  Please consult an expert in tax law for specific advise.

The SSA Has Wrongly Classified Some Beneficiaries as Being in Prison

Social Security disability beneficiaries suffer a great deal from the frequent mistakes and the overall incompetence of the Social Security Administration.  Almost on weekly basis, I see horrible mix ups that cause a great deal of pain and aggravation to disabled individuals.  Unfortunately these days, the media is so concerned with news reports that discredit the importance of the disability benefit programs, that they ignore the pain and suffering endured by those who fall victim to the ineptitude of the SSA.

Take the example of the terrible injustice committed against Fernando Ortiz from Fort Lauderdale, Fla., whose benefits were discontinued twice because the SSA mistakenly believed that he was in prison.  Twice Mr. Ortiz was told that his benefits were being stopped because he was supposedly serving time at the Pondville Correctional Center in Massachusetts.  However, officials from the Massachusetts prison have stated that they don't understand how this mistake could have happened because they don't have any prisoners with that name.  

This problem seems to happen quite frequently.  I recall receiving at least one call from a client in Springfield, Massachusetts regarding a similar problem.  However, in Mr. Ortiz's case, the mistake happened twice within a five month period.  In December, the SSA sent a letter to Mr. Ortiz alleging that he was in prison and that he was liable for a $6,883.60 "overpayment" of his benefits.  The bureaucratic mess dragged into January and Ortiz had to drain his small savings to pay his bills.  Moreover, his Medicare benefits were also discontinued due to the problem, causing him to have to cancel an important doctor's appointment.  

What is most ironic about this story is the fact that, just a few months ago, the enemies of Social Security Disability were claiming that beneficiaries of the program were often overpaid --implying that large numbers of beneficiaries were ripping off the system.  Obviously, these critics were not taking into consideration the fact that in many cases these alleged over payment letters are sent due to errors within the agency and not due to actual over payments received by the beneficiaries.   

The 16th Annual Conference on Litigating Disability Insurance Claims in NYC: I Will be There!

This week, I will be in attendance at the 16th Annual Conference on Litigating Disability Insurance Claims in New York City. 

This is the nation's premier conference on Litigating Disability Insurance claims which is led by an unparalleled faculty of jurists, insurance lawyers and claimant's attorneys.

Over the years,I have had the professional satisfaction of representing disability claimants who have concurrent claims for disability benefits from the Social Security Disability programs as well as from private long term disability insurance carriers such as: Cigna, Prudential, Sun Life, the Hartford, Liberty Mutual and Met Life.  There is great deal of interplay between these two types of disability claims and I find that claimants are better served when they have the same attorney representing them in both the Social Security case and the private long term disability claim.  Unfortunately, I find that many claimants are not fully aware of the strong relation between these two sources of disability benefits an fail to contact an attorney early enough to help them with their claim.  

Just last week I assumed the legal representation for a client who was led to believe by Cigna that she did not need an attorney for her LTD claim.  Moreover, she was steered to use the Social Security Disability advocate chosen by Cigna.  Unfortunately, it was not until her LTD claim was denied that she realized that she should have hired a disability lawyer early on to represent her on her Social Security Disability case as well as her LTD claim.  She did not know that probably it would not have cost her any more money to hire a lawyer earlier rather than later.  Many disability lawyers like me work on a contingency basis and, in many instances, it doesn't cost any more money to hire us early on.   

Social Security Disability Calculators: How to Find Out Your SSI/SSDI Benefit Amount

As a Social Security Disability Lawyer my job is to prove that my clients are found "disabled" under the Social Security Disability rules.  This process involves a great deal of work dealing mostly with medical and vocational issues.  I rarely get to calculate the specific amounts that my clients will receive.  For the most part, mathematical calculations are beyond the scope of what I do.  However, very often clients ask me how they can find out what amount their disability benefit will be if their cases are granted.  In response to this frequent question, I will like to post some links to some very useful calculators, available online, that can help disability claimant's estimate their benefits.     

 

The first link is an SSI/SSDI Calculator App available at Google's Play Store.  You can download this App into your phone totally free of charge:

 

https://play.google.com/store/apps/details?id=com.yottaram.ssicalc

I find that this App is particularly useful when you are trying to determine how much money will be taken from your SSI payments if you receive earnings from part time work.  By using this App, you can make an analysis of how you will end up financially if you decide to take apart time job.  Download the App, use it, play with it, and let me know how it works for you.

 

In addition to this phone App, the Social Security Administration has several calculators in its webpage that can help claimants determine their benefit amounts:

http://www.ssa.gov/planners/benefitcalculators.htm

Note that the SSA has more than one calculator available.  There are different calculators for different types of Social Security benefits.  This variety of calculators is particularly useful for older claimants who are planning their disability benefits in conjunction with their retirement.  This way they can calculate disability benefits and retirement benefits for their spouses.

 

Hopefully my readers will find these electronic gadgets useful.  Please let me know how well these calculators work for you.  

New Social Security Study Explains the "Explosion" in Disability Benefits

Its time to put all the misinformation regarding the Social Security Disability programs to rest.  Fraud or laziness are not the reasons for the explosion in Social Security Disability claims.  A new study conducted by two economist confirms, once again, that this rise in disability claims has been caused by the changing demographics of the American population.

 

A copy of this study can be found here.  Economists David Pattison and Hilary Waldron examined 36 years of demographic data and made the following findings:

 

We find that three factors—(1) population growth, (2) the growth in the proportion of women insured for disability, and (3) the movement of the large baby boom generation into disability-prone ages—explain 90 percent of the growth in new disabled-worker entitlements over the 36-year subperiod (1972–2008). The remaining 10 percent is the part attributable to the disability “incidence rate.” Looking at the two subperiods (1972–1990 and 1990–2008), unadjusted measures appear to show faster growth in the incidence rate in the later period than in the earlier one. This apparent speedup disappears once we account for the changing demographic structure of the insured population. Although the adjusted growth in the incidence rate accounts for 17 percent of the growth in disability entitlements in the earlier subperiod, it accounts for only 6 percent of the growth in the more recent half. Demographic factors explain the remaining 94 percent of growth over the 1990–2008 period.

The "disability incident rate" was lower between 1990 to 2008 than it was between 1972 to 1990

The most significant part of this report is the section where the authors discuss the actual "disability incident rate".  This is the rate at which disability claims increased if one takes the demographic changes out of consideration.  This factor is extremely important because it can shed light as to whether factors other than demographics (i.e. fraud, abuse or lax application of the rules for eligibility) are causing the disability claims to raise.  For this reason, the authors of the study found that it was important "to be able to calculate an incidence rate that shows the changes in disability incidence that are not due to the shifting age composition of insured workers". 

 

The report found that the "disability incidence" rate has been falling over the past 18 years; not "skyrocketing" or "exploding" as critics of the Social Security Disability programs suggest.   

 

Pattison's and Waldron's work is specially important at this particular moment, when SSDI is under heavy attacks from uninformed critics like Sen. Tom Coburn from Oklahoma.  The Republican Senator went  on "60 Minutes" and, in a sensationalistic fashion, exclaimed out loud: "where all the disabled people came from?".   Well, Senator, here is the answer!  Read the study!  The Senator's suggestion that the increase in disability claims was a result of fraud or laziness was completely shameful and baseless.

Obtaining Social Security Disability with Interstitial Cystitis

Interstitial Cystitis, which is also called IC or Painful Bladder Syndrome, is a chronic and painful inflammatory condition in the wall of the bladder.  Social Security does not have a specific listing for this condition, however there are different ways that you may be found eligible for Social Security Disability Benefits due to IC.  

Interstitial Cystitis is extremely painful.  Some of its symptoms are:

• Frequent urination
• Feelings of pain and pressure in the bladder, the pelvis or the genital areas
• Pain during sex
• Men suffer from pain and discomfort in the penis and the scrotum
• In most women symptoms get worse around the menstrual cycle

The diagnosis of IC is a difficult one.  Doctors usually make the diagnosis of this condition by excluding all other possible illnesses.  This is in part why social security issued a ruling to address the methodology to be followed by the agency when faced with a case involving Interstitial Cystitis.  (See SSR 02-02p) 

Since there isn’t a listing for Interstitial Cystitis, most Social Security Disability cases dealing with this condition will be evaluated at step 4 and step 5 of the Social Security sequential evaluation process.  At step 4, the claimant must be able to prove that the condition prevents him or her from doing the work performed during the past 15 years (past relevant work).  If you are not able to perform past relevant work, then Social Security will consider your limitations, such as how long are you able to sit without pain, which can make a sedentary job impossible. Pain can also make physical work like lifting or carrying difficult. Side effects from medications, including fatigue and dizziness, may also impact your ability to perform physically at work.  Based on your age, your education and your skills Social Security will then determine at step 5 of the sequential evaluation process whether you still have the capacity to do other work.  If you are not able to do any other work do to your limitations, you will be granted Social Security Disability Benefits.

Sen. Elizabeth Warren's Corageous Speech in Support of Social Security

As a Social Security Disability lawyer who represents claimants in Massachusetts, I am honored to count on a U.S. Senator who is not afraid to support Social Security.  At a time when Social Security is coming under attack, Senator Elizabeth Warren has taken the courageous step of pushing for an expansion of benefits.   

"Social Security works -no one runs out of benefits and the payments don't rise and fall with the stock market,"  Warren said in a speech at the Senate floor.  Warren was particularly brave in that she not only criticised conservative voices such as the Washington Post, but she was also critical of President Obama's plan to change the way that Social Security benefits are calculated by tying them to a different gauge of inflation known as the chained CPI.  The Senator said that using this type of measurement would not keep pace at which the beneficiaries' cost of living.

This defense of Social Security by Senator Warren is much needed at a time when many conservatives voices in Washington are pushing to cut Social Security programs, including Social Security Disability.  Senator Warren is not alone in her fight: Senator Harkin from Iowa, Senator Begich from Alaska and Senator Sanders from Vermont have been working to introduce legislation that would expand this vital program. 

Thank you Senator Warren for fighting to expand Social Security!

The Transferability of Skills Issue at Step 5 (SSR 82-41)

When a claimant is unable to do the work that he or she has performed in the past 15 years, Social Security must then determine whether the claimant will be able to transfer his or her skills to another occupation.  Social Security must review the issue of transferability of skills in light of a claimant's vocational abilities as well as age and education.  In order to provide a more uniform and fair adjudication of the question of transferability of skills, Social Security issued SSR 82-41.  This ruling sets forth some very detailed guidelines that must be used in order to determine whether a claimant, who can no longer perform past relevant work, can perform other jobs in the national economy. 

 

In this blog, I will to summarize some of the most important aspects of SSR 82-41.  In addition, I would like to point out some of the most important concepts that Social Security Disability Lawyers and their clients must keep in mind whenever the issue of transferability of skills comes up in a case.   

 

1.  Clearly explain the nature and the skills of all the jobs performed by the claimant in the past 15 years.  Go in depth and explain what the claimant was doing in each job and state what skills were used in the performance of this work.  Note that SSR 82-41 states: "job titles, in themselves, are not determinative of skill level."  Therefore, don't allow the vocational expert to make assumptions on skill level based on broad or imprecise job descriptions.

 

2. Skills can only be transferred to other jobs at the same skill level or a lesser skill level.  When a vocational expert testifies at the hearing, it is important to take down the DOT code numbers of any jobs identified as possible jobs that the claimant can perform.  Watch out, in some instances, the jobs identified by the VE are at a higher level of skill that the ones previously performed by the claimant.

 

3.  Skills can only be transferred to other occupations that use "similar tools and machines".  Therefore, it is a good idea to spend sometime asking the claimant about the type of equipment used at his former workplace.  Some very creative arguments can probably come out of such a line of questioning.

 

4.  Skills are generally transferable to jobs using "the same or similar raw materials, products, processes or services are involved."  However, SSR 82-41 states that an exact similarity of all these factors is not required. 

 

5.  Don't forget the medical factors. If factors such as cognitive problems and visual disturbances affect a persons ability to transfer to something new, make sure to point it out.  SSR 82-41 specifically states that these factors must be considered in making a determination of transferability.

 

6.  Age matters greatly.   For example, a 60 year old machinist (medium strength work) who no longer can perform his occupation will likely be found disabled even if he can still perform light strength work.  "For a finding of transferability of skills to light work for persons of advanced age who are closely approaching retirement age (age 60 or older), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry."  SSR 82-41

SSDI/SSI Representative Payees: Rules to Remember

I often get phone calls from individuals, particularly parents, who serve as "Representative Payees" for Social Security Disability beneficiaries.  They ask me to give them information regarding their duties and responsibilities when they serve in this role.  I will use this blog to provide some basic information regarding the role of Representative Payees in the Social Security Disability Process.

 

A Representative Payee is an individual or organization appointed by SSA to receive Social Security and/or SSI benefits for someone who cannot manage his or her money. 

 

It is very important that a Representative Payee keep records of all the expenses incurred on behalf of the Social Security Disability beneficiary, even when the beneficiary is the child of the Representative Payee.  When the SSA requests a report, a payee must provide an accounting to the SSA of how the benefits were used or saved.

 

It is important to note that having a power of attorney, being an authorized representative or having a joint bank account with the beneficiary is not the same thing as being a Representative Payee.  These arrangements do not give legal authority to negotiate and manage a beneficiary's Social Security Disability and/or SSI payments.  Only persons or organizations that have applied and have been appointed by the Social Security Administration can act as Representative Payees.

 

As part of his or her duties, the payee should set up a separate bank account.  A checking account is probably best because this way the payee will be able to obtain cancelled checks and/or statements that show how the funds are spent.  When someone is a payee for a child, the Social Security Administration notifies the payee that the funds have to be placed in a dedicated account.  It is probably a good idea to ask the SSA how much money must be set up in this dedicated account.

 

It is extremely important for Representative Payee's to be aware that the Social Security Administration will send by mail a "Representative Payee Report" once  a year  and that it is important to accurately report all financial information to the Agency.  When the report is received, the Payee should either fill it out promptly and mail it back.  You can also complete the report online if you wish to.  However, you must keep a copy of for your records and have back up documentation showing how the money was spent throughout the year.

   

Immigration Reform Will Boost Social Security

During the May conference of the National Organization of Social Security Claimants' Representatives ("NOSSCR") in Washington D.C., I had the opportunity to listen to several government analysts and Social Security Disability Lawyers discuss the impact that the passage of immigration reform will have on the Social Security Trust Fund.  Back then, most experts were of the opinion that immigration reform would be beneficial for Social Security.  However, most of the studies conducted on this issue were not yet widely available to the general public and the media. 

 

Just about a week ago, the independent Social Security Office of the Chief Actuary provided a long-term analysis of the proposed immigration reform bill that demonstrates that immigration reform will bolster the solvency of Social Security over the long-term.  This report follows another recent report generated by the nonpartisan Budget Office which shows the positive impact that immigration reform will have on the general budget.  Almost immediately after these reports were published, the White House issued a statement emphasizing the importance of its findings.  The White House said:  "The Actuary found that the Senate-passed immigration reform bill will keep the Social Security Trust fund fully solvent through 2035."   

 

The main reason why immigration reform will help Social Security is that a new wave of citizens will balance out the "aging population problem".  As I stated in prior blogs, the greatest problem faced by Social Security is that the population of the U.S. is reaching advanced age at a disproportionate rate.  "Never before in history has the U.S. contained so many older people.  Today, one out of every 9 Americans is "old"."   See Blog from Oct. 22, 2012  Statistically, the immigrants that will be allowed into the country as a result of immigration reform are significantly younger than the rest of the population.  In this respect the White House stated that: "Because most immigrants are young, additional immigration helps balance out the increase in retirees-per-worker that will occur when the Baby Boom generation retires."  Moreover, it also pointed out that the new immigrants will bolster the Social Security Fund when currently undocumented workers start paying their share of payroll taxes once they leave the underground economy. 

Some Clarifications on Creditor Garnishments of SSDI / SSI Benefits

One of the good things of having a blog is that I learn a great deal from the feedback that I receive from its readers.  Last week, a learned a lot from the comments made my Paralegal Jessica Smith regarding my last post.  Jess is awesome!  I don't know what I would without her.  My clients are extremely fortunate to have her on their side. 

Jess pointed out that on May 29, 2013, the Social Security Administration issued some "final" rules regarding garnishment from benefits.  Moreover, she made me aware of the fact the rules regarding garnishments are far more complicated than I originally thought.  Under these rules, your bank may be required to protect only a certain amount of your Social Security Disability benefits.  Generally, the rules are intended to protect the last two payment cycles of benefits received by a Social Security beneficiary.  The rule can be summarized as follows:

Upon receipt of a garnishment order the financial institution must review the history of the account and determine what SSDI or SSI benefits were deposited into the account for the two month period prior to the account review ( the "lookback period").

The lessor of the sum of all benefit payments posted during the lookback period or the balance of the account on the date the account review is performed will be deemed the "protected amount".

The financial institution must notify the account holder of the garnishment order and the protected amount and must allow the account holder full access to the protected funds. In the past if there was confusion related to protected benefits being commingled with other funds the account could be frozen and the account holder would have to contest the garnishment in court before they could have access to their benefit money.

Moreover, it should be noted that if the benefit is directly deposited into a checking account and then transferred into a savings account, only the benefit money in the checking account will be considered protected funds.

Can a Creditor Garnish Your Social Security Disability Benefits?

It is common for SSDI and/or SSI beneficiaries to contact their Social Security Disability Lawyers when they are hounded by bill collectors.

Social Security Disability Lawyers are often asked whether credit card, mortgage or auto loan companies can garnish Social Security Benefits to pay a debt. 

Fortunately, the answer to this question is: No.

If a creditor other than the federal government tries to garnish your Social Security benefits, you should inform them that such actions are in violation of federal law.  Section 207 of the Social Security Act (42 U.S.C. 407)

Section 207 bars garnishment of your benefits.  It can also be used as a defense if your benefits are incorrectly garnished.  Our responsibility as Social Security Disability Lawyers is to prevent abuses from creditors against Social Security beneficiaries.  We get a lot of calls regarding these type of problems and can't always provide those in need with legal assistance.  If you live in Connecticut and creditors have tried to garnish your Social Security Disability benefits, we suggest you contact the Connecticut Department of Banking and complete the form on this link.  In you live in Massachusetts, you can consider filing a complaint with the Attorney General's Public Inquiry and Assistance Center.

NOTE: That Supplemental Security Income (SSI) payments cannot be levied or garnished.