Monday, April 27, 2015

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, Sj√∂gren’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.

Monday, April 20, 2015

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.

Monday, April 13, 2015

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Monday, April 6, 2015

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.  

Monday, March 30, 2015

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.
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.

Monday, March 23, 2015

The Larson - Blumenthal Plan to Strengthen Social Security

I applaud the efforts of my Congressman John B. Larson and my U.S. Senator Richard Blumenthal for their latest effort to protect the Social Security programs.  

On St. Patrick's day, these two Connecticut Lawmakers presented a great piece of legislation that, if passed, will ensure the solvency of the Social Security Trust Fund for the next 75 years.  This proposed bill is called "The Social Security 2100 Act" (H.R. 5306).  For a summary of this bill click here.

As I have stated in previous posts, the so called "Social Security Solvency Crisis" has been manufactured by right wing Republicans in Congress.  It has been known for several decades that an adjustment to the fund would have to be made when the baby boom generation reached a certain age.  A common sense cost-effective re-allocation can easily be made to ensure the solvency of the Social Security Trust Fund.  Nonetheless, Social Security opponents are trying to create the impression that the crisis is insurmountable and that the only solution to this problem is to completely dismantle our most effective anti-poverty program.

Larson and Blumenthal have proposed a plan that lifts the $118,500 cap.  Unfortunately, many Americans are not aware that individuals only pay Social Security contributions on their first $118,500 in earnings.  This means that those who make wages over $118,500 do not have to make any contributions beyond that point.  Under the plan proposed by Larson and Blumenthal earnings over $400,000 would be subject to Social Security taxes.

The proposed legislation shows that it is completely feasible to save the fund's solvency.  I urge everyone to read the bill's summary and not fall for right wing agenda that has resulted in the widening of the gap between rich and poor and is destroying our middle class. Among other things, the Larson-Blumenthal plan proposes to cut taxes for Social Security beneficiaries (those who need a tax cut the most!). 

Presently, your Social Security benefits are taxed if you have an income exceeding $25,000 for an individual or $32,000 for couples. The proposed plan would raise that threshold to $50,000 and $100,000 respectively.

Monday, March 16, 2015

Winning the World Series can be Easier than Winning Social Security Disability

Baseball was made for kids, and grown-ups only screw it up. -Bob Lemon

When I was 11 years old, baseball was the most important thing in my life.  Back then, I had very little time to think about anything else.  As the month of October approached, my parents worried that my fascination with the game had turned into an unhealthy obsession.  My grades were dropping faster than Guidry's ERA and I didn't seem to get much joy out of life unless the New York Yankees had won the night before.

It was October of 1978, and as far as I can tell, no other 11 year old baseball fan has ever had more fun than me.  The Bombers were in the World Series looking to repeat their 1977 epic victory, when suddenly, it was announced that second baseman Willie Randolph would not be able to play due to an injury.  At first, I felt a sense of despair but, as the Series progressed, I realized that it is moments like this that make baseball --as well as life itself-- such a fun endeavor.  

A seldom used second baseman, named Brian Doyle, came to the Yankees rescue filling in for the injured Randolph.  Doyle had always been a reserve player and was very weak at batting.  He had a dismal .192 batting average that season but, on that World Series, something extraordinary happened. A tenacious Doyle, went 7 for 16, drove in two runs and ended the World Series with a .438 batting average.  

Doyle, a small infielder, became one of the most unlikely baseball heroes of all time.  He might be one of the reasons why, despite being a Yankee fan, I always enjoy rooting for the underdog and why I always like to see something special in those that, at first glimpse, might appear to be less fortunate than the rest.

As a baseball fan and as a person I owe a great deal to Brian Doyle.  Unfortunately this week, I found out through the news, that the great player who once came to the rescue of his team, is now being left behind by his Nation.

Doyle suffers from several severe medical conditions that make it impossible for him to work in any job, including his former job as a coach and as a motivational speaker.  He battled leukemia which deteriorated his bones greatly.  He has had two cervical fusions and, in addition, he suffers from and advanced form of Parkinson's.  

Despite all of the dramatic limitations imposed by Doyle's conditions, his Social Security Disability benefits claim has been denied.  He is currently waiting for his case to be heard by a judge.  

Doyle's Social Security Disability denial has been documented by the Fox News Station in Atlanta. The news story shows that winning the World Series can be easier than winning SSD.  I ask everyone to view the story, --particularly those who are critical of the Social Security Disability programs--, and ask yourselves whether this is the way that we want to treat this Nation's disabled individuals.

It's easier to win a World Series than get Social Security disability