Put on Purple! Raise Awareness for Lupus

May is lupus awareness month.  During this month there will numerous events throughout the world seeking to raise awareness of lupus and show solidarity for those living with the disease.  There are many ways that you can participate.  This Friday May 15th you can sport your favorite purple wardrobe and ask your friends and co-workers to join you.  Wear purple with pride and tell people why!  You can also use #PutOnPurple on social media to share your support.

On Sunday, May 17th in Blue Back Square in West Hartford, Connecticut, join the Lupus Foundation of America, Connecticut Chapter at the "Walk to End Lupus Now!

The Walk to End Lupus Now is probably the most important event of the Lupus Foundation of America, Inc.  Around 50 different walks will be celebrated across the United States.  Thousands of people will walk and raise funds for research, education and support services. 

The Importance of VA Ratings in SSD Cases

Veteran's Administration rating exam reports and disability ratings can be extremely persuasive in a Social Security Disability hearing.  However, strictly speaking, these determinations are not binding on the SSA.  Pursuant to the regulations, the Commissioner of Social Security must make its own independent finding of disability.  (20 C.F.R. §  404.1504) and (SSR 06-3p)  

Nonetheless, regulations also provide that decisions pertaining to disability by another agency, such as the VA, are considered to be "evidence" in Social Security Disability cases.  More importantly, SSR-06-3p states that Social Security judges must consider the ratings made by the VA and explain the consideration given to the VA determination in the notice of decision.  This means that in all cases where a claimant has received a rating from the VA, the ALJ must make specific findings in the the decision.  If you have received a VA rating and the Social Security Judge has failed to mention it, you probably have grounds to reverse the judges determination.  In addition, the judge is required to explain what weight if any is given to the VA's determination.

Determinations by the VA are particularly persuasive when the veteran has received an "unemployability rating".  This rating is received by the veteran when the VA determines that he or she is  unable to secure or follow a substantial gainful occupation as a result of service connected disabilities.  This standard is obviously very similar to the standard used by Social Security in determining whether a claimant is disabled.  

Due to the similarity between the Social Security rule and the VA rule, four Circuit Court of Appeals have determined that VA disability ratings are entitled to "great weight".  VA disability determinations are entitled to great weight in the 9th, 5th, 11th, and 4th circuit court of appeals.  Moreover, the 3rd Circuit Court of Appeals has stated that VA disability ratings are entitled to "substantial weight".     

The Second Circuit Court's ruling with regarding this issue has not been as categorical as the rulings from the five Circuit Courts mentioned above.  In Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980), the Second Circuit observed “[b]y in effect ignoring the VA’s determination of disability, the ALJ disregarded our suggestion in Cutler v. Weinberger, supra, 516 F.2d at 1286, that ‘(w)hile the determination of another governmental agency that a social security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to some weight and should be considered.’” Id. at 896-97, citing Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975).

New Ruling on Interstitial Cystitis (SSR 15-1p)

The Social Security Administration has issued Social Security Ruling (SSR) 15- 1p, which became effective immediately upon publication. 80 Fed. Reg. 14215 (Mar. 18, 2015). This ruling replaces  SSR 02-2p, which became effective in 2002. 

The new ruling describes interstitial cystitis (IC) as “a complex genitourinary disorder involving recurring pain or discomfort in the bladder and pelvic region.” Some medical providers and organizations, including the American Urological Association, consider the disease synonymous with “painful bladder syndrome” and “bladder pain syndrome.” The SSR states that although it uses the term IC, it is designed to address other medical conditions. IC more prevalent in women.  It can happen at the same time as other diseases including fibromyalgia, chronic fatigue syndrome, irritable bowel syndrome, inflammatory bowel disease, vulvodynia, chronic headaches, Sjögren’s syndrome, endometriosis, or systemic lupus erythematosus. The most common way of diagnosing this condition is by a process of elimination of  other disorders with similar symptoms. Tests used to determine a diagnosis are part of a complex ruling-out process. Tests include urinalysis, urine culture, cystoscopy, biopsy of the bladder wall and urethra, distention of the bladder under anesthesia, and culture of prostate secretions. Doctors are able to treat the symptoms of IC in some patients only.

Much of the SSR applies existing SSA policy to IC. For example, it states that when adjudication occurs less than 12 months before a claimant’s alleged onset date, SSA will use “information about the person’s treatment and response to treatment, including any medical source opinions about the person’s prognosis at the end of 12 months, helps us decide whether to expect an MDI of IC to be of disabling severity for at least 12 consecutive months.” Also, once an individual is found to have an MDI of IC, the adjudicator must proceed through the sequential evaluation process, determining whether the MDI is “severe,” whether the claimant meets or equals a listing (there is no listing for IC itself), and if not, what the claimant’s residual functional capacity is and whether is allows a return to past or other work.

Sheltered or Subsidized Work

In order to win a Social Security Disability case, a claimant must show that he or she is not engaging in a substantial gainful activity (SGA).  The SGA threshold for 2015 is $1,090.  If a claimant makes more than this amount, he or she will be found to be engaging in a "substantial gainful activity" and will be determined to be ineligible for Social Security Disability.

However, one of the exceptions to this general precept is known as the "Sheltered"or "Subsidized" work rule.  Sheltered or subsidized work is work performed by individuals who work under a special program with special rules.  For example, if a person who is disabled, works for a family member and is given great leeway in determining work schedules and tasks, he or she may be found to be working in a sheltered environment.  This situation often happens when the family is fully aware of the employee's medical condition and decides to provide the family member with extra compensation for their work and/or additional flexibility in performing the demands of the job. Under these circumstances, Social Security does not have to adhere strictly to the specific monetary threshold for SGA and may find that the claimant is eligible for benefits despite the actual amount of dollars earned.  

Another common situation involving sheltered work occurs when the military pays wages to a solider who is disabled and unable to work.  This is prevalent among claimants who are assigned to a "Warrior Transition Unit" while they wait for military discharge.  The discharge process might take many many months and, in many instances, the disabled soldier is not required to work at all.  Under this scenario, the SSA will not count the pay received by the soldier as SGA. 

Convincing Social Security that a claimant is working in a sheltered environment can be a difficult task.  Whenever I have a client who I believe has been working in a sheltered work environment, I obtain letters from co-workers and supervisors stating the specific circumstances under which the claimant performed his or her duties.   It is also advisable to gather evidence such as time sheets, work schedules and pay stubs in order to succeed in a case involving sheltered work.  Never assume that the claimant's statements or testimony are sufficient evidence to win this type of claim.  In this day in age when Social Security is under constant scrutiny, ALJ's and SSA adjudicators feel a lot more comfortable in granting a case where extensive documentation has been submitted by the claimant and his or her attorney.

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Are Long Term Disability Insurance Benefits Taxable?

Its tax season once again!  One of my least favorite times of the year.  During this time, I am often asked whether LTD benefits are taxable.  The answer to this questions depends greatly on who paid for the disability insurance premiums, you or your employer.  The answer also depends on whether the premiums were paid with pre-tax or after tax income.
If your employer paid for 100% of your disability insurance premiums and did not include the amount paid as your gross income, then your long term disability payments are taxable.  Moreover, if your employer paid you directly while you were disabled, these payments are also taxable.
If your employer paid a percentage of your premium and you were responsible for paying the remaining percentage, then you won't have to pay taxes for the amount of benefits that equals the percentage that you paid.  Here is an example on how you will be taxed under this scenario:
Pete pays $40 dollars a month for his LTD policy and his employer pays another $40 per month for this insurance.  Pete becomes disabled and starts receiving $4,000 a month in LTD benefits.  Since he paid 50% of the premiums he is responsible for paying taxes for half of his monthly payments ($2,000).  The other $2,000 is tax free.
As a general rule, expect short term disability payments paid by a self-funded plan to be taxable.  On the other hand, you can also expect benefits froma non-ERISA policy purchased individually to be tax free.  However, please note that different rules might apply to each particular scenario.  This post is intended for general information purposes and should not be construed as tax advise.  As I have said many times in previous posts, I am a disability benefits attorney, not a tax lawyer.  Moreover, I am not an accountant, CPA or tax preparer.  Please consult a tax professional before filing taxes or making any decisions with respect to your particular case.  

New Duty to Submit Adverse Evidence

On March 20, 2015, the Social Security Administration published a "final" rule regarding the duty of Social Security Disability Lawyers to submit all relevant evidence pertaining to a disability claim. These new regulations are available at at 80 Fed. Reg. 14828 (Mar. 20, 2015).  For a PDF version of the rule click here.

 http://www.gpo.gov/fdsys/pkg/FR-2015-03-20/pdf/2015-05921.pdf

Many lawyers expressed concern regarding this new rule because it erodes the attorney-work product privilege that protects certain documents created by lawyers during the course of a judicial or administrative proceeding.  Specifically the new rule states that claimants and their lawyers must "inform us [SSA] about or submit all evidence known to you that relates to whether or not you are blind or disabled,” with two exceptions: (1) material subject to the attorney-client privilege, and (2) the representative’s “analysis of the claim,” a narrow version of the attorney work product doctrine. Therefore, both favorable and unfavorable evidence must be submitted.
 What “evidence” must be submitted?  The claimant and his or her lawyer must inform SSA about “all evidence.” Claimants and representatives must submit everything “relevant” they receive. However, claimants and representatives do not need to request “all evidence.” SSA’s response to comments reiterates the agency’s duty to develop the file. SSA’s response also states that “if claimants or their representatives request only the discharge summary from a hospital chart, we require them to submit only what they receive in response to that request in its entirety. We would not require them to request and pay for all of the other records from that hospitalization.” SSA’s response to comments also notes that medical records for an individual other than the claimant, sent accidentally by a treating source, are not considered relevant. 

What about opinions and questionnaires generated by doctors during a disability claim? In addition to requesting extant medical records, representatives often ask medical providers to write letters or complete questionnaires about a claimant’s impairments. SSA’s response to comments explain that “if a claimant’s medical source sends his or her representative medical records or a written opinion about the claimant’s medical condition, the representative cannot withhold those records or that opinion based on the work product doctrine adopted under these rules.”  Therefore, these questionnaires have to be turned over to the SSA even when they are not favorable to a claimant's case.