Monday, March 2, 2015

Check Your Social Security Earnings Before You File for SSDI

Last week, I had the pleasure of representing two ladies who found out, late in the the Social Security Disability process, that not all their employment earnings were being counted towards their benefit amount.  Finding out that not all the earnings were being considered for benefits purposes was a little bit disconcerting, since both of them had a very good earnings record.  One of them had worked for the Puerto Rico Police Department and the other one had worked for the Springfield Board of Education. It turns out, that neither employer made contributions to Social Security (paid FICA Taxes).  
In an ideal scenario, it would have been much better if we had known ahead of time exactly what our client's earning record was and what was the exact amount of SSD benefits that they would be receiving in case of a favorable decision.  Moreover, I believe that it is also a good idea to check my client's record early on in order to determine whether there are any errors in the earning record.  
My suggestion to all my readers is that we should all periodically check our Social Security earnings. Imagine waiting until you are ready to retire or you are to sick to work, to find out that your earnings were not properly recorded by a mistake from the SSA or from your employer.
Another problem is that it is difficult for your Social Security Disability Lawyer to get your earnings record.  To be able to get it on-line, one has to go through a long series of security questions, in order to protect the confidentiality of the records.  For this reason, I encourage all of my clients to get their own record electronically.  To check you Social Security record, you can go online to:
http://www.socialsecurity.gov/myaccount 
I already checked mine :)  Good luck!

Monday, February 23, 2015

What is an MQGE Claim?

Some government employees only make payroll contributions towards the Medicare portion of the Federal Insurance Contribution Act (FICA).  These employee earn quarters of coverage and are insured for medicare purposes only but are not insured for Title II Social Security Disability benefits.  
Former public employees who are disabled and did not pay regular FICA taxes might still be able to make a claim for Medicare benefits if they paid their contributions towards the medicare portion. These types of claims are generally called MQGE Claims or "Medicare Qualified Employment Claims".  However, since these public employees did not contribute towards Social Security, they will not be eligible for retirement, widow(er) or disability benefits. 

Like regular SSDI claims, these claims also have a date of last insured, an equivalent five month waiting period and a 24 month Medicare eligibility period.  Beneficiaries are entitled to a retroactive pay of 12 months.  If the disabled former public employee meets the income and resource guidelines, he or she might also be eligible for SSI benefits.

Monday, February 9, 2015

Senate Social Security Hearings this Wednesday, Feb. 11th

The Senate Budget Committee is holding a hearing on "Social Security Disability Trust Fund Insolvency" on Wednesday, February 11 at 10 AM.  I encourage everyone with time to watch it online at:

http://www.budget.senate.gov/democratic/public/index.cfm/2015/2/social-security-disability-trust-fund-insolvency

The future of the Disability Insurance trust fund is of out most importance.  It is predicted that by the end of 2016, the Social Security Administration will be short on the funds needed to pay 100% of the benefits dedicated to individuals with disabilities.  Unless Congress acts, nearly 10 million disabled persons will see a cut in benefits.

This shortfall is no surprise.  For decades, analysts of the Social Security system have been aware that this would happen.  See   http://www.cbpp.org/cms/?fa=view&id=4168.  This situation arises out of demographic changes in the U.S. population,  See http://www.cbpp.org/cms/index.cfm?fa=view&id=4080.

Please stay well informed and urge your legislators to support the Social Security Disability program. There are many ways for Congress to protect the SSDI program.  Readers of this blog will soon see future postings about how to contact their Senators to express support for SSDI.


Monday, February 2, 2015

What does "In Forma Pauperis" Mean?

As many of you imagine, many disability claimants do not have the funds necessary to be able to file a case in the U.S. District Court.  In order to challenge the decision of a long term disability insurance company or of a Social Security Administrative Law Judge, a claimant must file an action in the District Court.  Although the filing fee in these types of cases is $400.00, there is a way that a claimant who does have these funds can ask the Court to waive these fees.  This petition process is commonly known as a "Motion to Proceed In Forma Pauperis". 
In Forma Pauperis is a Latin term that literally means "in the form of a pauper".  These motions are generally granted by the court without the need of a hearing.  However, it is important to submit to the court and affidavit signed by the plaintiff explaining their dire financial situation.
In addition, in Federal Court a plaintiff who is allowed to proceed can obtain free service of process through the U.S. Marshall's Office.    

Monday, January 26, 2015

The "Own Occupation" vs. "Any Occupation" Definition of Disabliy LTD Cases

All long term disability claimants should have a good understanding of how their disability insurance policy and/or plan operates.  Most ERISA group policies contain similar language describing how it is determined whether a claimant is eligible for benefits or not.  Although the language is almost always very much alike, claimants should carefully read the plan documents, in case there are significant variations.

Here, I will discuss two terms that are almost always found in ERISA group policies: "Own Occupation" and "Any Occupation".  Most plans provide benefits for the first two years if the claimant is unable to perform his or her "Own Occupation" as a result of an injury or illness.  After, these two years, the definition of disability changes.  Thereafter, a claimant will only be able to receive benefits if he or she can show an inability to perform "Any Other Occupation".

It must be noted that the two year period (24 months) coverage under the "Own Occupation" definition is the general rule.  However, I have seen many ERISA plans that provide benefits under the "Own Occupation" provision for 12 months and several other that insure the claimant for 36 months under the "Own Occupation" provision.  I should also clarify that it is common for some plans to use the term "Regular Occupation" instead of the term "Own Occupation".  These two terms are very similar however, once again, I must point out it is important read the plan documents carefully because there can be significant variations.   

Own Occupation or Regular Occupation:


Beware, the insurance company can trick you with the meaning of the term "Own Occupation".  It is extremely important for you as a claimant to define accurately the nature of your own occupation. Do not allow the insurance company to determine on their own what was the specific nature of your job is.  You must state the particular physical requirements of your own occupation, thoroughly.  Present this information as part of your initial application for long term disability benefits.  I see many instances where the insurance company insists in improperly classifiying nature of a claimat's occupation.  In many cases, the insurance company will assume that your job is a sedentary job, unless you explain to them what the physical demands of your job are.  

I see the problem that I described above all the time, particularly in the medical field.  For example: a claimant tells the insurance company that they worked as a "medical secretary".  The insurance company goes ahead and determines that being a secretary is sedentary work, when in reality, the claimant's job required him or her to collect laboratory samples, gather medical records, usher patients (some of them in wheelchairs) and walk all over the hospital.  Obviously, the insurance company has a better chance of successfully denying your claim if they determine that your case is performed at a lower level of physical exertion.

Any Other Occupation:


In many instances, insurance companies fail to tell you that the term "Any Occupation" only deals with occupations that you are "reasonably" suited to perform.  Therefore, under this definition, you are not required to take any specialized training or accept jobs that are too complex for you.  

Moreover, in most policies you can still be found disabled if the other occupations available provide you with an income that is below 60% of your earnings before you became disabled.  It is important that the insurance company perform a thorough market research of the jobs available in your area.  A vocational expert must determine whether the other jobs that the insurance company believes that you can perform can provide you with an income equal to at least 60% of your pre-disability earnings.  

Monday, January 19, 2015

The Illegible Medical Records Problem

Over the years, my office has developed great expertise in deciphering the awful scribbles and poor hand writing of some physicians.  However, in some instances, a doctor's  handwriting is so bad  that it  is impossible use the medical record to support our client's claim.  
Bad handwriting can seriously interfere with your Social Security Disability or Long Term Disability Claim.  If the examiner reviewing your case cannot understand your doctor's notes, your case is less likely to be granted.  The problem of illegible medical records not only causes problems for disability benefit applications.  It is well established that illegible medical notes can also harm patient care.  A 1986 study from the New England Journal of Medicine found that out of 50 outpatient notes, 16% of the all words were illegible.  This means that on an average, one out of every six words could not be deciphered.  Besides affecting your chances wining your SSDI or LTD case, bad handwriting from doctors result in lost time and money, medication errors and bad communication between different providers. 
The solution to problem of bad hand writing is obvious: switch to a computer based system for taking  medical notes. Unfortunately, many dinosaurs in the field of medicine are still unaware of the digital era.
If you are seeking long term disability and/or Social Security Disability Benefits and you have a medical provider that has poor penmanship, here are some suggestions of steps that can be taken to improve the quality of medical evidence presented with your claim:
  • Prepare a questionnaire for your doctor to complete with very specific questions.  In our office we call these questionnaires "Medical Source Statements", however, many disability lawyers also refer to these forms as residual functional capacity "RFC" forms.  In many instances, it is a good idea to have specific boxes that your doctor can check in order to prevent him from writing too many illegible scribbles in the form.  Preparing this questionnaire can help you narrow down some of the specific medical issues in your case and get specific responses pertaining to your medical condition.
  • Try to transcribe some of the medical records and present them to your doctor for his approval. At the end of the transcription, you can provide a space for his signature attesting that your transcription is correct.  You can also be more diplomatic and resourceful and hire your own medical consultant to do the transcription.  Your medical consultant can then write the doctor asking for his approval of the transcription.
  • You can ask your doctor to agree with another medical expert's opinion by signing it.  You can provide him a copy of the other doctor's medical opinion and ask him in writing whether he agrees.  This is a way to, at least, give some weigh to the credibility a medical provider's whose record's would otherwise have very little weight in your case.
  • Finally, under HIPPA laws you are allowed to request that a medical provider make corrections on medical records that are inaccurate or illegible.  The problem with this option is that it might take a while for the doctor or hospital to make this change.  You are probably better off trying to address the issue informally with your doctor and ask him whether he can write a letter for your disability claim explaining the any illegible statements on the record.


Monday, January 12, 2015

I Will be Attending the 17th National Conference on Litigating Disability Insurance Claims

For the second year in a row, I will attend the ACI's 17th National Conference on Litigating Disability Insurance Claims.  This year's conference will be held at The Union League in Philadelphia, PA.  This is the only long term disability insurance law seminar where plaintiff and defense lawyers meet to discuss recent legal developments in ERISA law.
This event presents a one-of-a-kind opportunity to meet with colleagues --and opponents-- in a setting outside of our offices and share practical tips, strategies and solutions to the issues that we face everyday.
The conference presents a wide variety of panelists that includes renowned judges, prominent plaintiff and defense attorneys, medical experts and insurance claims professionals.  Some of the companies who we regularly fight are scheduled to participate: The Hartford, CIGNA, Unum, Prudential, The Standard and more.

Some of the major points that will be discussed in this conference include:

  • The battle over the standard of review: "de novo vs. arbitrary and capricious".
  • Dealing with IME evaluations, treating physicians opinions and Functional Capacity Evaluations.
  • Tackling the challenges of mental health claims.
  • Strategies and practice tips for successful medication.
  • Challenging/defending surveillance evidence.
  • Recovery of attorney's fees in ERISA cases.
  • Analysis of Vocational issues in disability insurance claims.