Washington Post Features RamosLaw in Article About Disability Hearing Backlog

Today, the Washington Post published an article that discusses the enormous backlog in the Social Security Disability hearing process. Attorney Ivan Ramos was interviewed for the article.  Here is the Washington Post piece with the comments from attorney Ramos:

Short Staffing Leads to Long Waits for Social Security Disability Hearing Decisions

By Joe Davidson

Robert Steers of Southington, Conn., was an Army captain who served in Afghanistan. He also served his country looking for contraband with the Transportation Security Administration.

Now, he’d like to get decent service from the Social Security Administration.

But, as many Americans know, this can be an exasperating experience, filled with endless waits and growing frustration. ...

Steers applied in April 2012 and was denied. To appeal, he requested a hearing with an administrative law judge (ALJ) in May 2013. It took almost two years to be denied again in March 2015. After appealing to federal court, his case was sent back to the administrative law judge in December 2016.

It is now April 2018 — six years after his initial application — and Steers is still waiting to find out if he’ll get the insurance. ...

“I think SSA does not have the staff it needs,” said Iván A. Ramos, Steers’s lawyer in Hartford, Conn. “When you call a hearing office, nobody answers the phone, and when you go to the office you just stand in front of an empty window until someone finally shows up to help you. Many of my clients have trouble paying for food and shelter while they wait for their disability claims to be processed. Seeing what many of my clients and their families have to go through, just to get a hearing, has become the hardest part of my job.” ...

Staffing and service issues have plagued Social Security for years, and President Trump’s proposed budget for fiscal 2019 would make things worse. The disability hearing process can be particularly vexing because there are too few administrative law judges, who hear appeals, and they have too few support staff members. ...

For the full article visit:

https://www.washingtonpost.com/news/powerpost/wp/2018/04/03/short-staffing-leads-to-long-waits-for-social-security-disability-hearing-decisions/?utm_term=.797c84efb2dc
https://www.washingtonpost.com/news/powerpost/wp/2018/04/03/short-staffing-leads-to-long-waits-for-social-security-disability-hearing-decisions/?utm_term=.797c84efb2dc

New Social Security Ruling (SSR 17-4p) is Not Practicable For Social Security Lawyers

A few days ago, the Social Security Administration promulgated a new ruling regarding the duty of Social Security Lawyers to submit evidence in a timely fashion. Unfortunately, the ruling does not provide practicable guidance to Social Security Lawyers or their clients. SSR 17-4p states in part:

[W]e expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to submit or inform us about written evidence unless they have compelling reasons for the delay (e.g., it was impractical to submit the evidence earlier because it was difficult to obtain or the representative was not aware of the evidence at an earlier date). In addition, it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence. Simply informing us of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available, may cause unreasonable delay to the processing of the claim, without good cause, and may be prejudicial to the fair and orderly conduct of our administrative proceedings. As such, this behavior could be found to violate our rules of conduct and could lead to sanction proceedings against the representative. ...  (For a copy of SSR 17-4p click here.)

In response to this ruling, the National Organization of Social Security Claimant's Representatives (NOSSCR) has submitted a letter to Commissioner Berryhill that states in part: 

In many situations, it is not practicable for “representatives to submit or inform us about written evidence as soon as they obtain or become aware of it.” During the lengthy wait from request for an ALJ hearing to receipt of a determination on the claim (the current national average processing time is 627 days), claimants may have dozens or even hundreds of medical appointments, tests, treatments, and hospitalizations. Requesting records each time a claimant with kidney failure receives dialysis or a claimant with schizoaffective disorder sees a psychiatric social worker could require numerous requests per week. In some states, disability claimants are entitled to one free copy of their records but must pay for subsequent requests. In other states, the first few pages of medical records cost more than subsequent pages. Therefore, making frequent requests to providers months or years in advance of the hearing is not just aggravating to the providers, unlikely to be successful in obtaining evidence, and unnecessary given the long delays before ALJs review the file, but also impossibly expensive for many claimants.  (For a full copy of the letter click here.)

As a sustaining member of NOSSCR, I share the same concerns. Evidently, many at the SSA are working hard to make life miserable to those who represent disability claimants. Instead of helping reduce the agency's backlog and provide a fair adjudication process, this new ruling will lead to more delays and unnecessary appeals. 

The Different Types of Social Security Disability Programs

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

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

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

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

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

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

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

Different Sub-Types of Title II Benefits:

DIB-Disability Insurance Benefits

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

CDB-Childhood Disability Benefits

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

DWB—Disabled Widow’s Benefits

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

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

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

Different Sub-Types of Title XVI Benefits:

DI—Disabled Individual

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

DS—Disabled Spouse

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

DC—Disabled Child or Children's SSI

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

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

Effective today, the Social Security Administration will implement a new ruling regarding the evidence needed by judges to make a finding of "medical equivalence".  For a copy of SSR 17-2p (click here.)   

Under Social Security regulations, a person may be found disabled if he or she "meets" or "equals" the requirements of a listing of impairments (listings).  If an individual meets all the criteria of the listing, then the person is found to be disabled.  However, a person can also be found disabled when the person does not meet all of the requirements of the listing but has a medical condition that is of "equal" duration and severity.

Through SSR 17-2p, the Social Security Administration (SSA) has elaborated on what type of evidence a Judge must obtain in order to make a finding that a listing has been equaled.  It is clear that with this new ruling, the SSA has made it harder for judges to make this finding.  Here is a list of the evidenciary requirements; 

To make a finding that a listing has been equaled the administrative record must contain:

1. A prior administrative medical finding from an MC [Medical Consultant] or PC [Psychological Consultant] from the initial or reconsideration adjudication levels supporting the medical equivalence finding, or

2. ME [Medical Expert] evidence, which may include testimony or written responses to interrogatories, obtained at the hearings level supporting the medical equivalence finding, or

3. A report from the AC’s medical support staff supporting the medical equivalence finding.

This new ruling seriously erodes the judicial independence of administrative law judges.  In essence, the agency has stripped judges of their ability to make independent decisions regarding medical equivalency and instead, has given these powers to doctors and personnel from the Appeals Council. This ruling is also detrimental to claimants in that it allows judges to find that a person does not equal a listing  without having to provide any explanations on the decision.

Trump's Budget Director Wants to Cut SSDI

Last Sunday, Donald Trump's Budget Director Mick Mulvaney stated his desire to cut Social Security Disability.  Appearing at the CBS program "Face the Nation", Mulvaney launched a baseless attack on SSD. His statement is plagued with falsehoods.  Here is what he said:

“Do you really think that Social Security disability insurance is part of what people think of when they think of Social Security? I don’t think so. It’s the fastest-growing program. It grew tremendously under President Obama. It’s a very wasteful program, and we want to try and fix that.” 

I will address his baseless allegations one by one.

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

Second, his claim that SSD is "the fastest growing program" is completely false.  Here is a graph from the Social Administration that shows that SSD enrollment has been dropping since 2014:

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

Warning: Social Security Disability Phishing Scheme

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

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

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

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

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

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

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

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

In his complaint, Judge Suttles alleges that he has had a "sterling work record" in his career as an administrative law judge.  However, he fails to mention that he was investigated after he unfairly treated a Gulf War veteran who appeared before him in a disability hearing.  The veteran alleged disability as a result of war related PTSD.  According the the Washington Post and the Austin American-Statesman, the 44-year old veteran had served as a fueler on an aircraft carrier. Judge Suttles mocked the veteran's claim by stating:

"I mean, hey you were in the Navy.  You weren't fighting on the ground...  To me it would have been exiting.  What do you mean stressful?"

Even though veterans' groups condemned Judge Suttles remarks, the Social Security Administration refused to suspend or remove him from his job.  Hopefully, any Social Security Disability Lawyer with an LGBT client who appears before Judge Suttles will demand that he recuse himself from the case. 

      

Now Non-Medical Appeals Can be Filed Online

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

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

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

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

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

New Rules Regarding Medical Evidence Issued (But Halted by Trump)

On January 18, 2017, the Social Security Administration issued new rules regarding the evaluation of medical evidence.  These new rules eliminate the "treating physician rule": a doctrine that for many years has been a cornerstone of the Social Security Disability evaluation process.  The new rules were supposed to become effective on March 27, 2017.  

However, on January 20, 2017 the Trump administration issued a memorandum ordering a freeze of all regulations issued within 60 days of the inauguration.   Furthermore, all agencies were ordered to postpone the effective date of the new regulations for at least 60 days from the date of the memorandum.  It is not clear whether the new rules will be subject to any changes under the new administration.

The new new rules make the following changes to the evaluation of medical evidence:

• Adjudicators will give not special weight to opinions from treating sources.  Instead, adjudicators will evaluate these opinions based on persuasiveness, consistency and supportability.
• Physicians Assistants (PA's) and Advanced Practice Registered Nurses (APRN's) will now be considered acceptable medical sources.
• Adjudicators will no longer give special weight to decisions from other agencies, including the VA.

In general, these rules are bad news for claimants.  Veterans will be particularly affected by the provisions that allow adjudicators to disregard VA disability determinations, including unemployability ratings.  Trump promised over and over again during his campaign to take good care of veterans.  I wonder whether his administration will step in and help veterans by amending the part of the rule that adversely affects them.  There is still a lot to learn about these new regs.  I will keep my readers updated.  I also anticipate that these rules will be thoroughly discussed at the next NOSSCR conference this Spring in Washington D.C.

Social Security Commissioner Colvin Announces Resignation

Last Friday, Acting Social Security Commissioner Carolyn Colvin submitted a letter to President Obama stating that she will be leaving her position at the end of his term on Friday, January 20th. Commissioner Colvin's decision comes as no surprise.  She has been serving as acting commissioner since February 14, 2013.

Social Security Commissioners are appointed by the President to serve six year staggered terms. They must be confirmed by the Senate.  Colvin was never confirmed and was working on an acting capacity.  No one seems to know who will be appointed by Donald Trump or if he has any potential candidates under consideration.  In the meantime, I understand that Nancy Berryhill, who now serves as Deputy Commissioner for Operations, will be the new Acting Commissioner until the next Commissioner is appointed.

Although I have been very critical of Commissioner Colvin, I must clarify that many of the problems that her agency has had stem from the Republicans' refusal to give her the budget that she needed. Currently, there is an astronomical backlog of disability cases with 1.1 million claimants waiting for a hearing. 

Commissioner Colvin has always been a firm believer in Social Security's programs.  In her letter to President Obama she stated:

Social Security is the most important social program ever implemented in this country.  The agency distributes almost $1 trillion to 65,000,000 people each year.  Millions of our fellow Americans rely on these benefits and the services we provide.  Indeed, many of our seniors would be in poverty if they did not receive their Social Security benefits each month.  

Colvin's appreciation of the importance of Social Security stands in sharp contrast with the statements made by many Conservatives who constantly trash talk the program calling it a "Ponzi Scheme". Donald Trump promised during his campaign that he was the only Republican who would not change Social Security or medicare.  Now, he must keep his promise and appoint a new Commissioner who fully supports Social Security.   

The "Co-Signature" of a Physician in a Social Security Disability Medical Opinion

In social security disability cases, the opinion of a treating doctor is given controlling weight unless it is contradicted by substantial evidence in the record.  Social security lawyers know that many doctors do not actually complete the medical opinions that are submitted in support of a claim.  Very often, they simply co-sign the questionnaires which are completed and signed by nurses or PA's in their offices.  (Obviously, it is always better when the treating doctor is the one who actually writes the opinion and signs the paperwork.) 

Given these circumstances, it is somewhat unclear what weight is given to medical opinions that are co-signed by an M.D.  Should these opinions be given "controlling weight" even when the physician did not examine the claimant?

A case recently decided in the Connecticut District Court addressed this question.  In Baldwin v. Colvin, 2016 U.S. Dist. LEXIS 165596 * (D. Conn. Dec. 1, 2016), Magistrate Judge Joan Margolis ruled that Hartford ALJ Peter Borre  erred in ignoring the "co-signature" of a physician.  The case was remanded for a new hearing with the following instructions:

[U]pon remand, the ALJ shall consider "whether . . . [the co-signed] opinion[] [is that] of an acceptable medical source[.]" and "explicitly consider the treating physician factors so that [the ALJ] may comprehensively set forth [his] reasons for deciding whether to give the opinion[] controlling weight[.]" Johnson, 2016 U.S. Dist. LEXIS 19515, 2016 WL 659664, at *3-4, and if the ALJ does not assign controlling weight to the opinion of the treating provider, explain the weight given to the opinions of the State agency consultant by considering the relevant factors set forth in the Regulations. 20 C.F.R. §§ 404.1527 and 416.927.

Ignoring the co-signature of a physician is is a legal error even when the doctor who co-signs a form has not treated a claimant.  In accordance with social security disability regulations, the ALJ must make specific findings explaining the weight given to the opinion.

December 2016 Social Security Disability Briefing

Here are some of the top stories and issues affecting Social Security Disability Lawyers and their clients:

• New HIV Listing:  The Social Security Administration has published a new listing for claimants who suffer from HIV / AIDS.  The revisions in the HIV listing reflect the great medical advances in treating this condition.  This new rule becomes effective on January 17, 2017.  For a complete version of the new listing click here.
• Congressman Larson Might Become the Ranking Democrat in the House Social Security Subcommittee:  Just a few days ago Congressman Xavier Becerra, the top democrat on the House SSA subcommittee, announced that he was leaving Congress to become California's Attorney General.  Connecticut's John Larson is the second ranking member on the Committee. However, it is not clear yet if he will become the ranking member on the next Congress. Congressman Larson's office is just a few doors down from RamosLaw.   We will keep you posted .  We want him to take the job!  Our Congressman is the person that we need protecting Social Security.
• The National Organization of of Social Security Claimant's Representatives (NOSSCR) is interested in any stories about the five day rule and good cause exception harming Region I claimants: for example, situations where the ALJ did not find there was good cause for late submission of probative evidence, and the case needed to be appealed causing delays for the claimant or the claimant lost back benefits by reapplying.  Please send your stories (without any personally identifiable information about the claimant) to Lisa.Ekman@nosscr.org by noon on Thursday Dec. 8th.
• Commissioner Colvin and Other Top SSA Officials Expected to Resign on Inauguration Day: According to the "ALJ Discussion Forum" Acting Commissioner Colvin has informed SSA employees that she will be stepping down on inauguration day.  According to the rumors "many other" SSA employees will follow her.  This has not happened before.  Anyway, expect more backlogs and more staff reductions in the next administration.  Thanks Republicans! 

Anti Social Security Activists Part of the Trump Transition Team

During the past hours it has become evident that Donald Trump is about to break his campaign promises regarding Social Security.  Generally, it has been assumed that Trump was far more supportive of Social Security than most Republicans in Congress.  Now, it is evident that the right wing of the Republican party which favors major cuts in Social Security has taken control over the Trump transition team and is influencing the way that the Social Security Administration (SSA) will be run in the next four years. 

During the presidential campaign Donald Trump promised to protect Social Security and repeatedly stated that, if elected, he would not make any changes to the program.   He said that he would do everything within his power "not to touch Social Security, to leave it the way it is".  

Today, CNN has reported that Trump has named Tom Leppert, former major of Dallas and a well known proponent of privatizing Social Security, to the "landing team" for the SSA.  (For the CNN article click here.)  "Landing teams" are groups designated by presidents elect to interact with federal agencies in helping to set up the government after the new President is sworn into office.

Other news sources have also reported that other well know anti Social Security activists are at Trump Tower actively working to wreck the SSA an its programs.    Here is a list of these other right wing policy makers who also have a long history of hostility towards Social Security:

• Mike Korbey, former senior advisor to the principal deputy commissioner in George W. Bush’s SSA.
• Former Reagan SSA commissioner Dorcas Hardy.
• Former SSA Inspector General Patrick O’Carroll.
• Former SSA General Counsel David Black.

Korbey is an ultra conservative who falsely claims that Social Security is “broken and bankrupt.” He was part of a group called United Seniors Association that favored Bush’s Social Security failed privatization plan.

How to Get Your Social Security Statement

Most clients expect their Social Security Disability Lawyers to know the amount of the monthly benefit that they will receive if their cases are won.  Unfortunately, getting to know this amount can be a difficult process. Moreover, in the vast majority cases, the amount of the monthly check is a secondary concern for the attorney.  

Calculations used to figure out the monthly amount are quite complicated.  I often find out the estimated monthly amount once I get the client's electronic file through the electronic file system (ERE) used by the SSA.  If you do not want to wait until your lawyer gets access to your file through the ERE to find out the monthly amount, can can get this figure by creating your own electronic account with the Social Security Administration.  

Social Security Disability Lawyers are not allowed to create these accounts and obtain statements on behalf of their clients.  Clients must set up this account on their own.  In fact, it is illegal for us to set up these accounts for others. 

To set up your own account and get access to you estimated benefit, you must visit: https://secure.ssa.gov/RIL/SiView.do  You need to have your own email address and create a secure username and password. 

  

Social Security, the COLA and the SAVE Benefits Act

Last week it was announced that Social Security Disability beneficiaries will get a tiny cost of living adjustment (COLA) to their monthly check of only .3 percent.  Federal Law mandates that Social Security COLA's must be based on a consumer price index known as CPI-W which relies heavily on oil prices.

This means that the average disabled or senior beneficiary will get only an additional $3 to $4 a month. This is the fifth year in a row of minuscule raises.  In fact, last year there was no COLA at all.

Many Social Security Disability lawyers and advocates have pointed out that the measure of inflation used by the CPI-W is not a proper methodology for measuring the economic reality faced by most seniors and disabled Americans.  CPI-W is meant to be used for wage earners in urban areas.  It was not developed to asses the cost of goods and services most often purchased by retired or disabled individuals.

In response to the unfairness caused by the very small COLA paid to Social Security beneficiaries, a group of prominent U.S. Senators, including Elizabeth Warren (D-Mass), Bernie Sanders (I-VT) and Chuck Schumer (D-NY), have proposed a special one-time payment of $581.  This legislative initiative is know as that the "SAVE Benefits Act.  This figure of $581 represents 3.9 percent of the average annual Social Security benefit. The 3.9 figure was picked by Senator Warren because this was the average raise received last year by top corporate CEO's.  According to the Senator from Massachusetts this small one-time payment could cover three months of groceries for a disabled person or or a whole year of out of pocket expenses for prescriptions.

Last Sunday Senator Schumer met with disabled beneficiaries in the Lower East Side of Manhattan to learn more about their situation and promote the Save Benefits Act.  For a great article about the economic plight of some SSD beneficiaries in NYC click here.

Social Security, the COLA and the SAVE Benefits Act

Last week it was announced that Social Security Disability beneficiaries will get a tiny cost of living adjustment (COLA) to their monthly check of only .3 percent.  Federal Law mandates that Social Security COLA's must be based on a consumer price index known as CPI-W which relies heavily on oil prices.

This means that the average disabled or senior beneficiary will get only an additional $3 to $4 a month. This is the fifth year in a row of minuscule raises.  In fact, last year there was no COLA at all.

Many Social Security Disability lawyers and advocates have pointed out that the measure of inflation used by the CPI-W is not a proper methodology for measuring the economic reality faced by most seniors and disabled Americans.  CPI-W is meant to be used for wage earners in urban areas.  It was not developed to asses the cost of goods and services most often purchased by retired or disabled individuals.

In response to the unfairness caused by the very small COLA paid to Social Security beneficiaries, a group of prominent U.S. Senators, including Elizabeth Warren (D-Mass), Bernie Sanders (I-VT) and Chuck Schumer (D-NY), have proposed a special one-time payment of $581.  This legislative initiative is know as that the "SAVE Benefits Act.  This figure of $581 represents 3.9 percent of the average annual Social Security benefit. The 3.9 figure was picked by Senator Warren because this was the average raise received last year by top corporate CEO's.  According to the Senator from Massachusetts this small one-time payment could cover three months of groceries for a disabled person or or a whole year of out of pocket expenses for prescriptions.

Last Sunday Senator Schumer met with disabled beneficiaries in the Lower East Side of Manhattan to learn more about their situation and promote the Save Beneficiaries Act.  For a great article about the economic plight of some SSD beneficiaries in NYC click here.

What do Disability Lawyers Mean by Exertional and Non-exertional Limitations?

Social Security Disability Lawyers use complicated terminology that very often confuses their clients and other lawyers who do not practice in the area of disability law.  Two of the disability law terms that most people find confusing are: "exertional" and "non-exertional" limitations.  

In analyzing a disability claim, all judges must make a determination regarding what the claimant can or cannot do.  In other words, the judge must determine what are the claimant's limitations.  To reach a proper decision, the judge must separate a claimant's limitations into two different areas: those that are exertional and those that are not.  I will explain these two terms below:

Exertional Limitations: These limitations deal mostly with the strength demands required for a job. The Social Security Administration considers exertional demands to be: sitting, standing, walking, lifting, carrying, pushing, and pulling.  These limitations are used to determine whether a claimant's ability to do work is considered to be at the sedentary, light, medium, heavy or very heavy level. These classifications are fairly straight forward and can assist the judge in making a decision on your case without having to go into other non-exertional limitation, which as you will see, can be more complicated and subjective.

Non-exertional Limitations:  These limitations include areas dealing with much more etherial or subjective matters such as: mental restrictions. environmental restrictions or requirements for changes in posture.  Symptoms related to a medical condition such as pain or fatigue are very common examples of non-exertional limitations.  

Here are several other examples of non-exertional limitations:

• Difficulty functioning because of depression or anxiety.
• Difficulty concentrating.
• Memory problems.
• Hearing or vision problems.
• Difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes.
• Requiring to change positions from sitting and standing.

GOP's Budget Cuts are Killing Social Security

In anticipation of the upcoming presidential election, I urge all of my readers to watch the video below.  Americans who have had to stop working due to a severe disability are being subject to unprecedented hardships as a result of the actions of Republicans in Congress.  As a Social Security Disability Lawyer, I receive calls practically on a weekly basis from persons who are about to go homeless or have ended up in shelters while waiting for their cases to be heard.  I spend a great deal of time explaining the current crisis to callers.  Few of them seem to understand the true cause of this problem or realize that this crisis is not unique to them.  Fortunately, the video and the article cited below will help me back up some the comments and explanations that I give to clients regarding the critical state of affairs at the SSA.

If Social Security Disability matters to you, please watch and the video and read the article below before you vote.  

I encourage everyone to read the wonderful piece written by Nancy Altman, Founder and Co-director of Social Security Works: Slowly Killing Social Security: Death By A Thousand Cuts

Social Security Completely Revamps the Mental Disability Listings

On September 26, 2016, the Social Security Administration finalized a total overhaul of the listings used to evaluate mental disorders and intellectual disabilities.  Most Social Security Disability Lawyers are surprised that these changes have been announced prior to the presidential election.   However, the new rules will not be in effect until January 17, 2017.  This is a major change and a very controversial move by Commissioner Colvin.  For a copy of the new listings click here.

"The Listings" are a long list of medical conditions with specific criteria that the SSA uses to determine whether a condition qualifies as disabling without having to determine whether a claimant can work or not.  If a claimant's conditions meets a listing, then the claimant is found to be disabled without the need to make any findings with respect to his or her residual functional capacity or vocational skills.

The new rules cover practically all mental disorders including: intellectual disabilities, schizophrenia, eating disorders, depression, bipolar disorder, PTSD, anxiety and autism.  Each one of these new listings deserves a separate blog post.  It will take Social Security Disability Lawyers many months to fully understand the impact of these new changes. 

The new listings reflect the terminology used in the DSM-5 (The Diagnostic and Statistical Manual of Mental Disorders) to classify mental disorders.  The DSM-5 is relatively new.  It replaced the DSM-4 on May of 2013.  On a first reading of the new rules, I noted some significant changes.  For example, there is a new listing for trauma which is separate from the listing for anxiety disorders.  On the intellectual disorder listing (12.05), the term "deficits in adaptive functioning", which was the subject of much litigation, has been thoroughly defined.  Another change is that listing 12.05 now requires evidence that the intellectual disability began prior to the attainment of age 22.

Tell Congress to Fully Fund Social Security's Budget

On an average, disabled Americans are waiting 575 days to present their Social Security Disability claims at a hearing before a judge.  A record one million SSDI and SSI cases are currently pending. This is an alarming crisis.  

While disabled individuals wait for a hearing, utility bills go unpaid, families struggle to put food on the table and many face the risk loosing their homes.  

This problem is not happening by mere chance.  This situation has been caused by dramatic cuts in the Social Security Administration's operating budget.  Since 2010, the SSA's budget has been cut by 10%.  In the meantime, the agency's workload has increased due to the rise in the demand for services caused by the ageing of the baby boomer generation.  Services have been cut across the board.   Since 2010, the SSA has closed approximately 60 field offices and 500 mobile offices.

Unfortunately, the Republican controlled Congress is considering even deeper budget cuts.  A proposed bill envisions cutting the agency's budget by over $250 million in 2017.  These additional cuts will aggravate the current crisis even more.

Under the proposed house bill, the Social Security Administration would need to close all its offices for two weeks as a result of employee furloughs. And a looming hiring freeze can lead to even longer wait times and delays in all parts of the Social Security system, including retirement, survivors’, and disability programs. A Senate version containing a similar proposal for cuts provides slightly more funding, but still fails to address many critical agency resource needs.

Social Security advocates across the country are asking everyone affected to contact their representatives in Congress.  President Obama has requested funding for 2017 that would allow Social Security to begin reducing the disability claims backlog and to reduce other agency service delays.

Call your Members of Congress TODAY. You can find their contact information at http://www.house.gov/ and http://www.senate.gov/index.htm (upper right corner of each page).