Monday, November 23, 2015

How to Deal With Non-Wage Earnings Received After the Onset Date

The Social Security Administration takes a very close look at any earnings received by a claimant after the alleged onset date.  However, in may instances, receiving money after the onset does not necessarily ruin a person's chances of winning Social Security Disability benefits. Sometimes, the only problem caused by such earnings is that it can slow down the application process and create confusion among adjudicators and judges who are afraid of granting an application to someone that they suspect might have been working above the substantial gainful activity level.

Social Security Disability claimants must bear in mind that the agency has access to practically all of their financial records.  Therefore, never assume that the agency won't have information about earnings. In my experience, it is much better to be upfront about earnings than to try to hide them.  Note that the only income that can affect your chances of winning are earnings received from wages.  Earnings received after a person has stopped working such as, payments for unused sick leave or vacation time, doesn't affect a claimant's chances of winning.  Income from pensions, long term disability payments or dividends, are not detrimental either to an SSDI claim.

Given these circumstances, I always advise my clients to be proactive and provide the SSA with a clear explanation of the nature of any earnings received after the onset date.  (Be aware that the SSA receives statements of earnings with very little information explaining where the money came from.) This can be done by writings a letter to the Social Security field office, by mentioning it on your remarks section of your initial application or, by asking your Social Security Disability lawyer to address it in his or her representative brief.  You can also complete a form called the "Work Activity Report" (Form SSA-821) and submit it to the Field Office.  You can download a Form SSA-821 by clicking here.  In this form, you can attest that you have not engaged in any "work activity" and provide information about the nature of your earnings. 

Monday, November 16, 2015

Sun Life Buys Assurant's Disability Insurance Division

Sun Life Financial, one of the largest disability insurance companies in the Nation, has acquired Assurant Inc.'s long term disability benefits division, as well as other group benefit divisions, for $975 million.  The deal includes the purchase of Disability RMS, a subsidiary that specializes in managing disability claims and consulting services for life and long term disability plans.  According to Sun Life's executives, with the purchase of Assurant, they become the sixth largest group benefit business in the U.S.    
Sun Life, a Canadian Company, has strong ties to New England.  Its U.S. headquarters are located in Wellesley, Massachusetts and it operates offices in Windsor, Connecticut and Portsmouth, New Hampshire.  According to media reports, most of the operations related to Assurant's disability insurance policies will be conducted out of Portland, Maine.  Assurant's main offices used to be located in Kansas City, Missouri.  
It is not clear at this point what changes, if any, will be implemented in the claims process currently used in Assurant long term disability policies.  Nonetheless, our law office is familiar with the process used by both insurance companies to decide claims and is ready to provide aggressive legal representation to policy holders of either insurer.   

Monday, November 9, 2015

Class Action Filed Against the SSA for Relying on Faulty Doctor

Just a few days ago, I was delighted to hear that a group of San Francisco Bay Area lawyers have brought a class action against the Social Security Administration on behalf of disability claimants who were denied benefits based on medical reports from a doctor who had been previously disqualified by the Agency.

Claimants are often required to undergo a medical examination conducted by a doctor hired by Social Security.  These evaluations are knows as "consultative evaluations" or "CE's". Unfortunately, a large number of CE's throughout the country are performed by highly incompetent doctors who perform inconsistent, cursory examinations of disability claimants. Disability lawyers become frustrated when they see that just one doctor has examined hundreds of their clients and notice that, in practically all of the cases, the CE reports are unfavorable to the claimants.

I hope that the issues raised by the class action Hart v. Colvin help raise awareness of the many abuses that are often committed in CE's.  In Hart, a group of claimants who were deprived of benefits are contesting the SSA's reliance on medical reports prepared by Dr. Frank Chen, a doctor who had been disqualified by Social Security.  These reports were based on unfair examinations conducted usually in ten minutes or less and often referenced tests which were never performed.  Even though Dr. Chen was disqualified, hundreds of claimants throughout the Bay Area were never informed of the doctor's disqualification.  These reports were often cited by judges and other adjudicators as a basis for the denial of benefits.

The class action seeks to reopen all prior determinations made by the SSA in which it relied on CE's conducted by Dr. Chen.  Plaintiff's demand an opportunity for a new hearing with the option to have a new exam from a qualified medical professional.

Plaintiffs are represented by Morrison & Foster LLP, the National Senior Citizens Law Center and the Legal Aid Society of San Mateo County.

Monday, November 2, 2015

Budget Deal Saves SSDI

The budget deal approved by the U.S. Senate on October 30th saves Social Security Disability beneficiaries from a 20 percent cut in benefits.  The bipartisan agreement transfers funds from the retirement fund to the disability program.  This averts cuts that could have been disastrous for the 11 million recipients of SSDI benefits.
Earlier this year, Republicans had opposed the transfer of any monies from the retirement fund to the disability fund.  Republicans argued that they would only agree to the transfer, if cuts were made to the disability program.  The passage of this legislation is seen as the first significant piece of legislation that has been passed under the leadership of incoming House Speaker Paul Ryan (R-WY).
The budget bill includes 144 pages of legislation solely devoted to the Social Security Disability program.  The new legislation contains several provisions to prevent and fight social security fraud. It provides additional funds to create new task forces of agents who will go after individuals who abuse the system.
The legislation also makes significant changes to the program's work rules.  Currently, if a Social Security Disability beneficiary makes more than $1,090, he or she is automatically disqualified from receiving benefits.  Under the new rule, applicants can work above the SGA level (which is currently $1,090) and continue to be eligible.  From now on, benefits will be progressively offset on a 2 to 1 ratio for every dollar made in excess of $1,090.  However, I suggest that all Social Security Disability applicants must still consult with their lawyer prior to going back to work.  It is not yet clear how this new rule could affect an applicant's chances of winning SSDI. 
There is also a provision in the bill that requires all states to develop a medical screening process at the initial stage of a disability claim.  In the past, approximately 20 states were allowed to grant disability benefits simply through a review by state medico vocational analysts.  Advocates of the disabled have argued that this part of the legislation might result in even longer delays during the initial application process.  In many circumstances, medical records provided by a claimant are clear cut evidence that a person is disabled.  Unfortunately, this new requirement will prolong the wait suffered by many who suffer from very severe physical and mental limitations.
Finally, the bill provides additional funding to hire new Administrative Law Judges.  Acting Social Security Commissioner Carolyn Colvin was extremely pleased with this part of the bill.  She has announced that she will increase the number of ALJ's from 1,450 to 1,925 by 2017.  Hopefully, this measure will help alleviate the backlog at the hearing level which currently exceeds one million cases.

Monday, October 26, 2015

Jessica Smith From RamosLaw Will Attend the Fall 2015 NOSSCR Conference

Social Security claimants' representatives and attorneys from all over the Nation meet twice a year to share their knowledge with one another and learn the best practices in the field.  This event is a four day conference hosted by NOSSCR (the National Organization of Social Security Claimant's Representatives).  
This week, our very own Jessica Smith will be flying out to Denver, Colorado, "the Mile-High City", to further develop her skills in the ever changing world of Social Security Disability law.  Many of you who have used the services of RamosLaw know how well informed Jessica is and how eager she is to share this knowledge with all of our clients.  Her trip to Denver is a wonderful opportunity to continue sharpening her skills.  Note that, the event is an intense seminar: there's no time for golfing or playing shuffleboard.  Work hard Jess, our client's need you more than ever!
NOSSCR has been a pioneer in teaching advocacy skills to lawyers and legal professionals who work on behalf of the disabled.  Its first conference was held in 1979 in New Orleans with about 100 participants. Today, NOSSCR has grown strong and it counts with more than 4,000 members, many who are actively lobbying in Congress to protect our disability programs. 
This tine around the keynote speaker, on the Thursday morning general session, will be Theresa Gruber, incoming Deputy Commissioner, ODAR.   
We are all excited for Jess and wish her a great trip!

Monday, October 19, 2015

No COLA Next Year for Social Security Recepients

The cost-of-living adjustment, or COLA usually provided to Social Security Disability beneficiaries on an annual basis will not be available next year.  Retirees and Disabled Veterans will not receive an increase in benefits either.    This is bad news in light of higher medicare costs.  
In 1975 Congress passed legislation providing for an annual increase in benefits to account for increases in inflation.  However, the formula used to determine inflation uses a consumer price index which relies heavily on gas prices.  Since gas prices have been dropping, figures used to determine the COLA led the government to conclude that there hasn't been any significant inflation that would justify an increase in benefits.  
It is widely accepted that the drop in gas and heating oil prices were the main reason why there will be no COLA in 2016. However, the cost of other items and services that disabled individuals spend a great deal of money on  --such as health care-- went up last year.  Therefore, Social Security Disability beneficiaries will take a big hit as a result of not receiving the yearly boost in benefits.  It is estimated that the prices for medical care increased by 2.4 percent last year.  The prices for other items that disabled beneficiaries need have also gone up.   For example, the price of housing went up by 3.2 and food prices climbed by 1.6 percent.
Advocates for the disabled and the elderly have argued for years that the formula used by the government to determine inflation does not accurately reflect the cost of good and services consumed by this sector of the population.  Instead, advocates favor another price index called the CPI-E (E for elderly), which takes into consideration the specific spending patters of those who are elderly. Congressman Eliot Engel (D-N.Y.) is proposing legislation that would amend the law and require the use of the consumer price index for the elderly instead of the consumer price index being used now.

Monday, October 12, 2015

6th Circuit: Deadline to File For LTD Benefits Does Not Apply When Disability Prevents Claimant from Making Claim

I often get calls from claimants who have failed to make timely claims for long term disability benefits.  A recurrent theme in some of these phone inquiries is that the claimant failed to apply for LTD benefits because their overall mental and/or physical health hindered their ability to advocate on their own behalf.  In many cases, the callers tell me that they were fired by their employers before they could file for disability.
Fortunately, just a few days ago the Sixth Circuit Court of Appeals decided a case on point.  In Waskiewicz v. UniCare Life and Health Ins. Co., the Court of Appeals heard the case of Laura Waskiewicz, a Ford Motor Company employee who was absent from her job due to a "debilitating emotional breakdown".  Ms. Waskiewicz did not inform Ford of her absence and was fired from her job.  Since she was no longer an active employee at Ford, her application for LTD benefits under the company's plan was not accepted.  However, Ms. Waskiewicz's doctor had written a letter stating that his patient's inability to work was due to her medical condition and that her disability had begun on the day of her first absence from work.   
Ms. Waskiewicz contested the denial of her long term disability benefits in Federal District Court. After loosing at the District Court level, the case was heard by the 6th Circuit Court of Appeals which decided, in an unanimous decisions, that her failure to file for LTD benefits was excusable because she was unable to comply with the plan's deadline "due to the very disability for which she sought coverage".   Appellate  Judge Alan E. Norris writing for the three judge panel stated: 

“An insurance policy can hardly be said to provide employee disability ‘insurance’ at all if it protects against sudden disability but not if the employer immediately discharges the employee because of the disability before she gets a chance to apply for the benefits,” Judge Norris said. “Common sense convinces us that the denial of benefits in this case runs contrary to the spirit of ERISA, which is designed to protect employee benefits, not subject them to arbitrary termination — in this case retroactive termination — after the benefit has otherwise accrued.”

This case is undoubtedly a legal victory for disabled claimants.  However, it must be pointed out that a successful outcome in a case such as Waskiewicz  depends greatly in the ability of the claimant and his or her lawyer to obtain medical opinions corroborating that their patient was unable to file the claim on a timely basis due to a disabling physical or mental condition.