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

Veteran's Need Us to Protect Social Security Disability Benefits

Today is Veteran's Day.  Lets honor veterans by strengthening our Social Security disability system for current and future generations. 

 

American veterans need action not empty rhetoric.  Veteran's need us to protect Social Security Disability programs in the midst of all the recent attacks against a safety net that has been vital to them and their families.  Any cuts in Social Security will make life harder than it already has been for the 22 million veterans in the U.S.

 

Did you know that 1 in 5 adult Social Security beneficiaries is a veteran?  Vets and their families make up more than a third of the Social Security beneficiary population. 

 

Currently, there are 3.2 million disabled veterans.  As a Social Security Disability Lawyer, I have seen how difficult it is for veterans to obtain disability benefits.  I have also seen how severely American Servicemen and women have by affected by the wars in Iraq and Afghanistan. 

 

According to a news story published today "The numbers are staggering- more than 1,600 Afghanistan and Iraq war veterans have lost limbs. Over 156 are blind.  More than 177,000 have suffered hearing loss and upwards of 200 need face transplants.

Also, this doesn’t cover the number of silent troops- the ones who experienced horrific things and haven’t spoken up."

 

Click here to read an article about the importance of Social Security for Veteran's.

Do I have to be a U.S. Citizen to get Social Security Disability?

I am often asked whether a person needs to have U.S. citizenship in order to be able to receive Social Security Disability benefits.  The answer depends greatly on the type of Social Security Disability program that is being applied for.  In previous blogs, I have explained that there are two Social Security Disability programs: SSDI and SSI: 

 

The Social Security Disability Insurance (SSDI) program pays benefits to you, if you worked long enough and paid Social Security taxes.  On the other hand, Supplemental Security Income (SSI) is a “welfare type of program” that pays benefits to disabled adults and children who have limited income and resources.

 

When it comes to citizenship requirements, different rules apply to each program:

Citizenship Rules for SSDI:

A person can receive SSDI as long as he or she is lawfully in the United States.  Therefore, a claimant does not have to be a U.S. Citizen in order to be eligible for benefits.  SSDI is based on contributions made by workers in to the Social Security Trust Fund. SSDI is not public assistance or welfare.  This is a benefit that a worker earns based on their contributions.  Typically, a person must work at least 5 out of the last 10 years to be able to qualify for SSDI.

Citizenship Rules for SSI:

A noncitizen may receive Supplemental Security Income (SSI) if the person meets the requirements of the laws for noncitizens that went into effect on August 22,1996 and all the other requirements for SSI eligibility, such as the limits on income and resources.  Under some circumstances, Cuban and Haitian refugees, as well as other political refugees, might be eligible for SSI.

Social Security Increase Will be Low, Once Again

For a second year in a row Social Security increases will be historically low.  Preliminary figures put the raise at about 1.5 percent.

Next year’s raise will be smaller because consumer prices haven’t gone up much in the past year, according to figures from the government. The exact size of the cost-of-living adjustment (COLA) won’t be known until the Labor Department releases September’s inflation report.

 

The report was supposed to be published on October 9th, but the news media has stated that the government shutdown delayed it. The COLA announcement is made in October, so that Social Security and other benefit programs have time to adjust their January payments.

 

While the shutdown has delayed and halted several projects, reports, and payments, social security benefits haven’t been affected. The Social Security Administration hasn’t indicated whether raises will be delayed because of the shutdown either.

4,000 SSDI Cases Will Have to Be Heard "All Over Again" Due to Bias By Judges in Queens

A lawsuit alleging that five administrative judges in Queens, N.Y. were biased against Social Security Claimants has been settled by the federal government.

 

Under the terms of the settlement approved by Chief Judge Carol Bagely Amon, the five administrative law judges will undergo new training and will be monitored for 30 months. 

 

The SSA has not provided any figures about exactly how many cases in Queens will get a fresh hearing. But the lawyers who fought the lawsuit on behalf of plaintiffs in Queens estimate that there are at least 4,000 cases that are eligible for a new hearing based on the period of the settlement agreement, which states fresh hearings for all claims denied by the five judges between Jan 2008 and the date of the settlement.

"Thousands of disabled workers suffering from financial hardship and declining health will now receive long overdue consideration of their claims, said Emilia Sicilia, director of the Disability Advocacy Project at the Urban Justice Center.

 

Plaintiffs’ case was proven based on statistics. The rejection rate for the Queens ALJs was the highest in New York State and the third highest in the nation. The rejection rate for Queens was twice as high as the adjacent borough of Brooklyn. Both boroughs are located on Long Island, NY.

 

Also, the Queens ALJ approval rates for applicants who were immigrants and had been low-income citizens were very different from those who came from a higher income bracket.

What is the "Onset Date" in a Social Security Disability Case?

Even when you are represented by a lawyer, it is good to be aware of some of legal terminology used by lawyers and judges in Social Security Disability cases.  One of the terms that I have noticed that many of my Social Security Disability clients get confused with is the term "onset date" or "disability onset date".

 

The "disability onset date" or the "DOD", as some disability examiners call it, is the date when a claimant has enough medical evidence to prove that he or she meets the definition of disability under the Social Security rules.  The definition of disability under Social Security is very strict and is very different from other programs.  No payments are payable under Social Security for partial disability or for short term disability (less than 12 months).  Therefore, it is important to note that the onset date is not necessarily the date when a person was diagnosed with an illness or condition or, when the person began to feel sick or limited by a disease or physical injury.  The onset of disability is the date when the condition finally prevented the claimant from working. 

 

There is often a gray area as to when a condition prevented a person from working.  This is why Administrative Law Judges (ALJ's) often raise this issue at the hearing.  At this point, I find that it is very helpful if my client is fairly well acquainted with Social Security rules, particularly with the term "onset date".  Judges often may request that a different (usually later) onset date be used in order to allow a favorable decision.  Amending the onset date at the hearing is in some circumstances something positive.  In many instances, an amended onset date results in a favorable decision.  However, the claimant gives up past due benefits owed between the original onset date requested and the amended onset date.