Monday, July 21, 2014

Should You Go On Vacation While Your Disability Claim is Pending?

Its vacation time and the question as to whether a Social Security Disability or Long Term Disability Claimant should go on vacation, while his or her claim is pending, keeps popping up.  Unfortunately, most claimants are not even aware that going on a trip could adversely affect their chances of winning disability benefits.  This issue is fairly controversial among disability lawyers.  Here are my thoughts:
I believe that part of the confusion regarding this issue stems from the fact that some people see vacation time as the direct opposite of working.  Many think that the ability to vacation has no bearing at all in the determination as to whether someone can work or not.  This notion is totally wrong.  In fact, most Social Security judges routinely ask claimants during the hearing whether they have gone on a trip during the period of disability.  In the past few hearings that I have been to, it looks as if the judges read this question out of a script that someone else has given them.  I have also noticed that vacations and trips are very often mentioned by long term disability insurance companies as a basis for denial of LTD benefits.  Therefore, be aware that if you go on vacation while your claim is pending, you are complicating your case unnecessarily.  Don't complicate your case.  If you want to err on the safe side, stay home.
However, if you don't want to follow my advise and want to go on vacation despite my recommendation, at the very least, you have to be smart about it.  First of all avoid, at all costs, calling your trip "a vacation".  Remember that a vacation is considered by many as a time of entertainment for those who work.  If you are not working because of a serious illness or condition, it might be a good idea to use a word other than "vacation" when you describe your trip.  Call your trip "a special time to recover and rest".  Without being overly dramatic, you can state some reason  for your trip that reiterates the fact that you are suffering from a disabling condition.  For example, you can say that your bad health made you think of your own mortality and made you want to go back to a special place such as: your hometown, the place were you met your spouse or the place where you went to college.  You can also combine your vacation with some form of therapy or retreat.
Finally, document everything that you did during your trip.  If you needed special accommodations during the trip such as special carts and wheelchairs, document it.  Keep receipts and other documentation and take pictures.  Be very careful on what you say to your doctors about your trip.  Remember that your doctors will transcribe everything that you say during a medical appointment.  Don't cancel or postpone a medical appointment due to your trip.  Moreover, if you are going on a trip due to a death in the family or a family emergency, make sure that such an emergency is reflected on your claim file.  
     

Monday, July 14, 2014

Can the Appeals Council Review a Case on its Own?

Over the past few weeks, I have discussed how an unsuccessful claimant can appeal an unfavorable decision by an administrative law judge (ALJ) to the appeals council and, later on, to federal court.  This week, I will write about a little known fact about social security disability law: the Appeals Council can review a fully favorable decision by an ALJ on its own, even when no one has appealed it.
Receipt of a notification that the Appeals Council is reviewing a fully favorable ALJ decision can be very disheartening, since claimants often wait over 2 years to finally have their cases decided by a judge.  The Appeals Council reviews favorable ALJ decisions on its own motion in very few cases.  Moreover, the decision to review a case on its own is usually determined by a random process.  This process is more specifically described in 20 CFR 404.969.
If you are one of the few unfortunate claimants whose fully favorable decision is being reviewed by the appeals council, here is quick guide of what to expect in this process:

  • The Appeal Council has 110 days to make a decision on your case.  During this period of time the claimant will not be paid benefits.
  • If the Appeals Council does not make a decision within 110 days, the claimant is allowed to receive "interim benefits".  The claimant will not have to pay back these interim benefits in the event that the case is eventually lost.
  •  In the Appeals Council reviews the case, it can make one of three determinations: 1.  determine that the ALJ was right in grating you benefits  2.  Send the decision back to the judge to be corrected  or, 3.  the Appeals Council can decide on its own that the ALJ made the wrong decision and deny you benefits without a new face to face hearing with an ALJ.  

Monday, July 7, 2014

Announcing Our New Connecticut Location!

 
255 Main Street, Suite 401, Hartford, CT

We are two buildings down from the old office and continue to have the same convenient parking.

This larger and more comfortable location will allow us to better serve our disability and personal injury clients. We will continue to serve our Massachusetts clients at our other location at 101 State Street, Suite 723, Springfield, MA.

Monday, June 30, 2014

Appealing a Social Security Disability Case to Federal Court

Two weeks ago, I wrote about the process of appealing a case that had been denied by an administrative law judge to the Appeals Council.  This week I will describe the process of appealing the case, one step further, to Federal District Court.  
If a case is denied by the Appeals Council, you have the right to ask that the Federal Court review your case.  You have 60 days from the date of the Appeals Council decision to file your complaint in Federal Court.  Following Court rules can be quite complicated and, for this reason, it is advisable that you  hire a competent Social Security Disability Lawyer to represent you.  A disability lawyer will not charge you any up front legal fees and will only get paid only if he or she is able to win benefits for you.  A Social Security Lawyer will get paid out of your past due benefits and/or through fees awarded under the Equal Access to Justice Act (EAJA).  EAJA is a Federal Law that allows lawyers to petition the Court to order the Federal Government to pay attorney's fees.
An action in Federal Court is commenced by the filing of a complaint.  A complaint is a brief statement of the case that sets forth the basis for your case.  If you do not have enough funds to pay court fees, you or your lawyer can ask the judge to waive these costs in your case by filing a "Motion to Proceed in Forma Pauperis", which is a Latin legal term that literally means "in the form of a pauper", referring to poor plaintiff who is allowed to file a case for free.
Under Federal Law the case must be filed against the person who happens to be the Commissioner of Social Security.  You cannot sue the Social Security Administration or the U.S. Government.  You must also serve the Commissioner at the designated Office of the Regional Counsel for the state where you live.  In Connecticut and Massachusetts this office is the Region I office in Boston. 
Once your case is submitted before the Federal Court, your lawyer will file a brief explaining your position to the Court.  No new evidence may me added to your case beyond the evidence presented before the Administrative law Judge.  When the judge decides your case he or she may do any of the following: affirm the ALJ's decision, remand the case back to the ALJ for further proceedings or reverse the ALJ's decision and award your benefits.    


Monday, June 23, 2014

President Obama Nominates Colvin as Commissioner of Social Security


 Last Friday, President Barack Obama nominated Carolyn W. Colvin as Commissioner of the Social Security Administration.  Colvin had been acting commissioner since February 2013 when Commissioner Michael Astrue's term ended.   
The nomination comes at a time when the Social Security Administration is facing a long standing backlog, loss of positions due to attrition and the closing of dozens of field offices across the country. 
I expect the confirmation process to be contentious.  I'm sure that the confirmation debate will be accompanied by a barrage of misleading accusations made by those on Capitol Hill who would like to reduce Social Security.  Social Security's problems can be saved, in its present form, if the correct actions are taken.  The looming crisis had been anticipated for many years and its the result of the Nation's demographic changes, not of the particular actions or policies of any particular administration.
"I am grateful for Carolyn's past service in various roles at the Social Security Administration, and I am confident that she will serve the American people well in her new role," the president said in a statement Friday.  "I look forward to working with her in the months and years to come."
Colvin is Obama's first nominee to run the SSA.  Her predecessor, Michael Astrue, was nominated by President George Bush.  If Colvin is confirmed by the U.S. Senate her six year term will run into the next administration.

Monday, June 16, 2014

Appealing an Unfavorable ALJ Decision to the Appeals Council

If you have received an unfavorable decision in your Social Security Disability case from an Administrative Law Judge (ALJ), you can appeal the case by asking for a review from the Appeals Council.  The Appeals Council (AC) is the administrative body within the Social Security Administration that is responsible for reviewing ALJ decisions.     

The Appeals Council is located in Falls Church, Virginia and it consists of 50 Administrative Appeals Judges and more than 50 Appeals Officers.  These Judges and their staff handle Social Security Appeals for the entire country.  If you file an appeal with the Appeals Council, you will not have to travel to Falls Church, Virginia or appear in person before these judges.  All the arguments made in your appeal to the AC must be made in writing.   

If you are in receipt of an unfavorable ALJ decision, you have 60 days to file an appeal with the Appeals Council.  This request must be done in writing using Form HA-520.  It is also advisable to consult with a Social Security Disability Lawyer before filing the appeal.  In most cases a Social Security lawyer will also file a brief on your behalf setting forth the reasons why the ALJ made an error in your case. 

Keep in mind that the Appeals Council will not rehear your case but instead, will determine whether the ALJ made an error in his or her decision.  Therefore there no no new testimony taken in your case and, in most cases new evidence supporting your appeal will not be allowed.  It takes a very long time for the Appeals Council to decide your case.  In many cases it is taking more than a year to hear back from the Appeals Council.

When the Appeals Council decides your case, it can take one of three actions: 1. Deny your request for an appeal, 2.  Remand the case back to the ALJ, forcing the ALJ to have a new hearing, 3.  Issue a decision and award you disability benefits.

If you wish to file an appeal with the Appeals Council, you can do this alone.  However, appeals filed without the assistance of a lawyer are often denied.  For this reason, it is a good idea to request a free initial consultation from a lawyer who handles Social Security Disability Law before deciding to go at it alone.

Monday, June 9, 2014

Social Security Disability Denials are the Highest Since 2008

Winning a Social Security Disability case is getting harder every day.  The latest figures issued by the Social Security Administration show how difficult in the past few years it has become for disability claimants to get their cases approved. 
 
Every spring the SSA releases its statistics from its previous fiscal year that show the percentage of disability claims approved and denied at every step of the process.  2013 figures show that the approval rate at the initial stage of the process went down to 33%, from 36% in 2008.  Moreover, cases granted at the hearing stage dropped to 48 % in fiscal year 2013, from a 63% approval rate in 208.  This represents a 15% drop in the cases won at hearings before administrative law judges! 
 
This latest statistics show why now, more than ever before, it is important to have an experienced social security disability lawyer on your side.  Hiring a lawyer can improve your chances of winning your claim, particularly in these tough times.
 
Don't let the campaign of misinformation against the Social Security Disability programs fool you.  There are more persons currently receiving Social Security Disability than ever before because of the Nation's demographics have changed (more persons are reaching 55 than ever before), not because judges and SSA adjudicators are becoming more lenient.  For this reason, I believe that it is essential that all Social Security Disability claimants hire a lawyer to represent them early on in the claim process.