New Bureaucratic Realignment at Social Security

Not even the most experienced Social Security Lawyers are able to comprehend what is going on with the latest plans to reorganize the Social Security Administration.  A few weeks ago, in the midst of an astronomical backlog of cases and rock bottom morale among her employees, Social Security Commissioner Nancy Berryhill announced a series of pointless bureaucratic changes aimed at creating a false illusion of progress.  

The changes create a series of new acronyms: The Office of Disability Adjudication and Review (ODAR) will now be the Office of Hearings Operations (OHO).  There will be a newly created office called the Office of Analytics, Review, and Oversight (OARO).  In addition to this new organizational changes, the Office of Budget, Finance, Quality, and Management will now be the Office of Budget, Finance, and Management (OBFM).  Thanks Commissioner for making the Social Security alphabet soup even thicker!  Just what more than one million disabled Americans, who are waiting for a hearing, needed.

From what it seems so far, it looks like the hearing offices (ODAR which now will be OHO) will no longer be under the same umbrella as the Appeals Council (AC).  Exactly what effect this change will have in the appeals process is not yet clear.  We will keep you posted on what effect this changes will have as more details are revealed in the next few months.

How to Find Out if You Have Enough Work Credits to Apply for SSDI

Many potential disability applicants call a Social Security Law Firm to find out if they have enough work credits to be eligible for SSDI benefits. However, since Social Security Lawyers do not have access to your Social Security work history prior to assuming legal representation on your case, a lawyer in not the right person to call to find out this information.  Instead, the best way to find out this information is by contacting the Social Security Administration.

The amount of work credits a person needs to be eligible for Social Security Disability is proportionate to the person’s age. For example, a person who is 50 would need 28 work credits, and a person who is 62 or older would need 40 work credits. In general, younger applicants are expected to have less work experience.  Therefore, more credits are required as person gets older.

A person earns work credits from earning an income subject to the FICA tax. FICA is a payroll tax that all workers must pay. Under-the-table income does not count towards earning work credits. For each $1,300 a person makes, they receive one work credit, and a person can earn up to four work credits per year.

Before applying for SSDI, you need to know how many work credits you have earned. If you know how many work credits you have, you can potentially save the time and effort of completing an application and then finding out that you arebeing denied benefits due to lack of credits. To find out how many work credits you have, you can get your Social Security statement online at:

http://ssa.gov/mystatement/

Social Security information is confidential, and lawyers do not have access to information about a person’s work credits. For this reason, it is important to get your Social Security statement on your own before contacting a lawyer. 

If you do not have enough Social Security work credits to be eligible for SSDI, you can still apply for Supplemental Security Income, or “SSI”. SSI, unlike SSDI, is based off of demonstrated financial need. If you are unsure about whether or not you can receive SSI or SSDI, please call our office to discuss your best options.

Good Cause to File a Late Social Security Appeal

After being notified of a Social Security decision, a claimant has 60 days to file an appeal. If this deadline is missed, the claimant usually has to make an entirely new Social Security claim, but in some cases claimants are allowed to file late appeals.

The SSA will decide if a claimant has a “good cause” for filing a late appeal. “Good” causes include circumstances that prevent a claimant from filing an appeal on time, whether or not the claimant understood what needed to be done, whether or not SSA or CMS misled the claimant, and whether there was a physical, mental, educational, or language limitation that kept the claimant from filing a timely appeal.

Examples of “good causes” for the SSA to accept a late appeal include:

• If you were very sick when the appeal was due and you could not have contacted Social Security yourself or through anyone else. You will need to show that you were seriously ill; otherwise Social Security will find that you could have submitted the appeal paperwork on time or asked someone to do it for you.
• If there was a death or serious illness in your immediate family.
• If records that you needed for the appeal were destroyed by a fire or other accident. You will need to show that the records were destroyed close in time to the appeal deadline and that they were important to your meeting the deadline. For example, if your house burned down the week before your deadline and your denial notice was inside the house, you would have a strong argument that you had good cause for missing the deadline.
• If you were actively looking for evidence to support your claim but failed to ask for an extension of time before the deadline passed.
• If you or your lawyer asked Social Security for more information about its denial before the appeal deadline passed. You would have 60 days after Social Security gave you the additional information to file for reconsideration or for a hearing.
• If Social Security or CMS gave you incorrect or confusing information about appealing your claim.
• If you did not understand that you were required to file an appeal by the deadline or you were not able to appeal because of a physical or mental problem.
• If you did not receive a denial notice. You will need proof that you never got the notice. For example, if Social Security mailed the notice to the wrong address, and you had notified them of the right address, then they might find good cause for your late appeal.
• If you sent your appeal to another government agency within the time limit because you misunderstood that the appeal needed to be sent to Social Security, and the other agency did not forward your request until after the deadline.
• If there were any other unusual or unavoidable circumstances, and you could not reasonably be expected to have met the deadline.

Social Security has published these examples of “good causes” to file late appeals, but this list is not exhaustive. If you believe you have a good cause for filing a late appeal to your SSI or SSDI decision but it isn’t on the list, Social Security may still accept it. The later an appeal is filed, the less likely it is that Social Security will accept it.

To make a late appeal, you must attach a written document with the reason for the late submission to the appeal form. Social Security is obligated to consider your late appeal request, but has the right to deny the request if they find there is no good cause. Even if the request is denied, Social Security may consider the date you made a late appeal request as a protective filing date for the next time you apply for benefits.

Study Shows That Disability Insurance Income Saves Lives

A recent study showed that disability insurance can decrease the mortality of its recipients. The research for this study was supported by grants from the Social Security Administration and the SSA Disability Research Consortium at the National Bureau of Economic Research.  The study was published by Alexander Gelber from UC Berkeley, Timothy Moore from the University of Melbourne and Alexander Strand from the SSA.

This study was the first to detail the positive impacts that disability income has on its recipients' health and lifespan. Previous studies on income's effect on health and mortality have not focused specifically on disability insurance recipients, and other studies have only focused on disability benefits' effects on the workforce. Many recipients of disability benefits already understand the improvements in quality of life after receiving disability income, this study confirms those testimonies and proves why disability income is necessary for millions of Americans.

A complete copy of this study can be found at:

https://www.dropbox.com/s/d9eunmqasy4ku8z/gelbermoorestrand_mortality_072017%20nber1.pdf?dl=0

Disability insurance recipients have high mortality rates and low average income, which is a unique demographic situation. This causes disability beneficiaries' health to be affected significantly by their level of income. Disability payments can greatly impact the recipient's health. The study found that $1,000 in annual disability payments decreases the annual mortality rate of low-income beneficiaries by 0.1 to 0.2 percentage points. This means that people with disabilities are living longer while on disability payments.

To many, this findings of this study aren't surprising. Many of our clients live with less stress and live healthier lives after winning disability benefits.

Nebulizer Treatments and RFC Determinations In Social Security Disability Cases

In every Social Security Disability case, the adjudicator must determine the claimant’s residual functional capacity, otherwise known as the “RFC.” Unfortunately, disability lawyers and judges often forget the importance of nebulizer treatments when determining RFC.

The judge in an SSD case makes an RFC determination by evaluating the most a claimant can do despite their limitations. The judge is required to consider all relevant evidence, including medical records, physical and mental abilities, and a claimant’s subjective evidence of symptoms. Usually, lawyers and judges think of a person’s ability to lift, walk, and stand when determining the RFC. However, going through frequent treatments also plays a large part in a person’s ability to work.

Nebulizer treatments tend to require frequent usage and are not easily portable. One client at Ramos Law needed to use a nebulizer every 4 to 5 hours during the day, which, a vocational expert determined, would prevent him from performing any job. The judge, who decided the case before Ramos Law became involved, initially overlooked the claimant’s need for regular nebulizer treatments and denied the case. The case is now pending at the Federal Court level.  

Unfortunately, the effects of therapies such as the need to use a nebulizer are often overlooked.  For this reason, it is important to provide sufficient evidence to prove that the claimant’s treatments affect their RFC.  In an ideal situation, a client would need records of specific medical treatment and prescriptions by a doctor, and proof that the claimant actually needs and uses the treatment. Usually the treatment must be provided by a specialist, and there must be documentation of the treatment’s continuation throughout their visits with the doctor. The treating physician should also provide a written opinion stating the need for the treatments. Insurance records could also serve as proof that the claimant purchased the prescribed treatment and that its medical necessity has been established by an independent party.

As mentioned above, cases where judges overlook the effect nebulizer treatments in the RFC determination are not uncommon.  Here are a few examples of Federal District Courts cases where the courts have emphasized the importance of considering nebulizer treatments in RFC determinations:  

Deso v. Astrue, 2011 U.S. Dist. LEXIS 137646 (D. Vt. 2011);

Holland v. Apfel, 1998 U.S. Dist. LEXIS 15674 (E.D. Pa. Feb. 23, 1998); (Approved and adopted in  Holland v. Apfel, 1998 U.S. Dist. LEXIS 5891 (E.D. Pa. Apr. 28, 1998)); and Konoloff v. Comm'r of Soc. Sec., 2016 U.S. Dist. LEXIS 42127 (N.D. Ind. Mar. 30, 2016)

Moreover, an ALJ cannot impose in his own lay opinion of the claimant’s need, or lack thereof, for nebulizer use.  This is the case even when the evidence in a case might reflect that a pulmonary condition is well controlled.  See  Begolke v. Astrue, 2007 U.S. Dist. LEXIS 41747, 2007 WL 5555951 (W.D. Wis. June 7, 2007)

New Regulations Make it Harder for Disabled Veterans to Win Social Security Disability Benefits

Veterans in the United States, especially disabled veterans, frequently have trouble receiving the government benefits that they deserve after surviving the physical and psychological injuries they might have experienced while serving their Country. In light of some new changes to the Social Security regulations, Disability benefits are becoming increasingly difficult for veterans to win.

Though the Department of Veteran’s Affairs and the Social Security Administration have different criteria for determining disability, in the past, Social Security judges were required to take VA disability ratings into account when making an SSD ruling. Though the SSA was not required to agree with the VA, judges had to provide an explanation for their rulings either way, and they had to specifically explain why they disagreed with the disability determination made by the VA. As of March 27, 2017, SSA judges no longer are required to give any special weight to medical opinions from the VA or from other governmental agencies. This means that VA disability ratings and opinions from VA medical professionals do not hold any special legal weight in SSA hearings.

VA disability ratings can still be considered as evidence, but technically, judges are now legally allowed to completely ignore VA disability ratings. Furthermore, SSA judges are no longer required to provide explanations for their rulings. A judge can overlook evidence provided by the VA without being required to provide a reasonable explanation.

​Many Americans are questioning why the two government agencies have such a “disconnect”. Why do the VA and the SSA have different criteria for determining disability? Why is the SSA allowed to overlook VA findings, when VA medical professionals are presumably more familiar with their disabled veteran patients’ cases than the SSA is?

​Our current Commander in Chief promised to protect veterans. However in light of these recent changes benefits for veterans are only becoming more difficult to attain. A recent article by Andy Pierrotti for WBIR in Knoxville, Tennessee reports on the specific struggle of Daniel Norfleat, a disabled veteran who recently had his Social Security Disability benefits terminated. Norfleat was already receiving SSD benefits when his attorney advised him to apply for additional back payments for a time period before he won benefits. Shockingly, the SSA then denied his request for back payments and also revoked his SSD altogether, claiming he was employable, and completely ignoring the opinions of VA professionals.

Here is a video of Mr. Norfleat’s story:

http://www.wbir.com/news/local/veteran-survives-crash-stroke-heart-attack-but-denied-benefits/458822810
​

Unfortunately, Norfleat’s case is an example of what can happen to veterans who need SSD but are facing great legal challenges under the new SSA regulations. Trump promised to protect veterans, but here is a clear example how government resources are only becoming more difficult for veterans to access under his administration.

Cigna Reinstates LTD Claim After Ramos Law Files Administrative Appeal

Ms. S sought legal representation from a long term disability attorney after Cigna denied the continuation of her long term disability benefits. Ms. S worked at a desk job that required repetitive typing motions.

Fortunately, Ramos Law was able to help her win back her LTD benefits.

Prior to becoming disabled, Ms. S had worked at a large investment services firm until the pain in her hands made it impossible for her to continue with her job.

Ms. S had bilateral carpal tunnel syndrome, trigger finger in multiple fingers as well as other severe issues in her wrists and hands. Ms. S underwent several surgeries and physical therapy sessions for these debilitating conditions. Unfortunately, her hand pain persisted despite aggressive treatment. Ms. S also had several other health issues which caused pain in her back, hips, foot, and ankle. Ms. S complained of pain in her hands, hips, and back both while working and during her long drive to and from the office each day. Ms. S’s doctor also recommended elevating her foot and ankle intermittently throughout the day, which also significantly interfered with her ability to work at the office.

Like many other LTD plans, Cigna’s policy in Ms. S’s case provides disability benefits for a period of 24 months if she is unable to perform the material duties of her regular occupation or “own” occupation. In Ms. S’s case, Cigna denied the continuation of her long term disability benefits, claiming that she was physically able to her own job.

Attorney Ramos thoroughly reviewed Cigna’s denial letter and Ms. S’s entire claim file. He noted that Cigna’s medical and vocational reports contained numerous inconsistencies and did not take into account the progressive nature of Ms. S’s conditions. As part of the administrative appeal that was submitted to Cigna, Ramos Law obtained new medical opinions from Ms. S’s doctors as well as a thorough opinion from a vocational expert.

Hiring our own vocational expert in this particular case was extremely helpful. Through the use of a vocational expert, we were able to prove that Ms. S’s could not perform the material duties of her own job without requiring the use of her hands and fingers at least two thirds of the workday.

Through the use of a more recent medical opinion and a vocational evaluation, Ramos Law was able to prove that Ms. S’s conditions continued to meet the definition of disability under the terms of the policy provided by Cigna. Besides the inability to use her hands on a frequent basis, our appeal also provided substantial evidence which showed that, non-exertional limitations such as chronic back pain did not allow her to maintain the pace and concentration needed to stay on task in an office that deals with challenging financial information.

Once Cigna reviewed the documents that Ramos Law filed in support of Ms. S’s case, Cigna was forced to reinstate her long term disability benefits. Our paralegal Jessica Smith was informed by telephone that Cigna had agreed to grant our appeal and told that a retroactive check had been issued to Ms. S’s for the amount owed in back due benefits.