Monday, November 17, 2014

Get a Copy of Your Long Term Disability Plan Early... or Find Out Whether You Have LTD

If you suffer from a chronic condition or illness, preparing to file for disability benefits is something that you should start thinking about very early on.  Everyone should try to work as long as possible. However, it is better to be safe than sorry.  Don't be passive about your situation.  Get educated as much as possible, and learn what benefits will be available to you in the event that  you can no longer work.
Very often I get calls from prospective clients who are thinking about filing for Social Security Disability.  During my conversations with them, I notice that many persons out there don't know whether or not they have a private disability plan provided by their employer.  Unfortunately, only 30% of employees in the private sector have long term disability insurance.
If you have severe health problems or suffer from a condition that might prevent you from working, it is a good idea to contact your human resources department to determine whether or not you are covered by a long term disability insurance policy.  If you are covered, then you should request from HR a copy of your long term disability plan and the plan summary.  The long term disability plan administrator is required by federal law to provide you with a copy of the plan.  
Once you obtain a copy of the plan and of the plan summary, you should spend sometime reading it and learning how it works.  Don't file for short term or long term disability without first reviewing these documents carefully.  It is also advisable to contact a long term disability lawyer who can sit with you and with a copy of the plan and explain to you how its provisions apply to your particular situation. 

Monday, November 10, 2014

Jail Time and Social Security Disability

Felony convictions can affect your Social Security Disability benefits.  In most instances, a felony will not automatically disqualify you from applying but, serious criminal offenses can result in a suspension of benefits or in loosing your claim.  Here are some examples on how spending time in jail and/or being convicted of a felony can affect your benefits:
  • You will be denied benefits if the agency finds that your disability was caused or it was made worse because you carried out a criminal offense classified as a felony.  (For example, you cannot claim that you are disabled because you were shot while robbing a bank.)  Moreover, you do not have a valid claim if you allege that your disability arose or became worse while you were imprisoned.  (I get calls on this one all the time.  I get inquiries like: "I suffer from PTSD because I was incarcerated".  Forget it.  I can't help anyone with that type of claim.  It just doesn't work.)
  • If you are receiving SSD, your benefits will stop 30 days after the commencement of an incarceration.  You get free food and shelter while in prison.  Don't expect other programs such as SSDI or SSI to pick up the bill.  Your benefits will be reinstated if you get out of jail before a period of 12 months.  However, if you spend more than 12 months in jail, you will have to re-apply and go through the whole application process all over again.      
My advise to all claimants is to stay out of trouble.  I have successfully represented claimants whose benefits have been terminated because they were incarcerated.  However, I must be frank and state clearly that, in most circumstances, I cannot take these type of cases.  I only get paid if I win and these cases are a huge risk for any Social Security Disability Lawyer.  

Finally, if you were caught dealing drugs or committing an economic crime while receiving SSI or SSDI, you probably will not have much of my sympathy.  (And I'm probably going to yell at you when I take your call!)  I take pride in what I do and feel offended when I see that money that is designated for those who are severely disabled is being wasted or misused.    

Monday, November 3, 2014

The Work Activity Report (Form SSA-821)

Once in a while, one of my clients receives a letter from Social Security asking them to complete a form known as the Work Activity Report or the SSA-821 Form.  This form is only requested in certain circumstances when the claimant has received income or, it appears that he or she has worked after the date of filing for disability benefits.  If you have received this form, it is important that you understand the purpose that it serves in the disability claims process.
You should also be aware that the SSA knows a lot more about you than you think.  If Social Security is requesting that you complete SSA-821, it is probably because they have found out that you have had earnings after the date of your alleged onset date.  Simply stated, you get this form because it is very difficult to hide earnings from the Government.  Remember, Uncle Sam is watching you at all times!  For example, if you sold an expensive item after filing for disability, --such as a work or art--, it is possible that this transaction will appear in the government's computer.  Moreover, if you have done some minor work for someone, it is likely that that person has issued a 1099 and that your income has been reported.
If you have received this form, be honest and complete it as soon as possible.  In all likelihood, a properly completed 821 is going to help your case.  Don't panic.  Be aware that selling assets such as stocks or works of art does not affect your eligibility for SSDI.  If you have sold an expensive asset, you should state it somewhere in your Work Activity Report.  This way you might expedite your claim and avoid confusing the SSA staff.  (If you are not open about your earnings, they might become suspicious and delay your claim.)  Keep in mind that the only income that affects your eligibility for SSDI, is income generated from wages, not income from other sources.  
Moreover, you should also clarify any earnings received from pensions,unused sick time and vacation pay or, from severance packages.  This income is often confused as wages because it comes from your former employer.  However, if you explain it properly to the the SSA, you will avoid complicating your claim.  
Finally, you should clearly document any work performed after the date of the commencement of your disability.  Get copies of all your paystubs and explain the type of work that you did.  If you made more than $1070 a month in wages in 2014, you are in obvious trouble.  However, if you made less, you should explain exactly what you were doing in your job.  It is important to explain any work accommodations given to you during this work period and the difficulties that you had in being able to fully function at the job.  Questions 5 and 6A in the form ask you about any special accommodations that you received at your job.  These two questions are perhaps the two most important questions in the form.  Unfortunately, many claimants leave it blank.  Understand that if you were working without any king of accommodation during the period of disability, it is going to be harder for your to prove that you can't work.  Be a wise and, if possible, use these sections to emphasize how the work that you performed during the disability period was just a small occupation that you held to be able to get by while your application was pending.   

Monday, October 27, 2014

While Nearly 1 Million Americans Wait, Existing Beneficiaries Get a $20 Increase in Benefits

This week, The Washington Post came out with a lengthy article on the huge backlog faced by the Administrative Law Judges of the Social Security Administration.  Most of the findings of the article are no big surprise to me.  The article states that ALJ's are 990,399 cases behind.  The Post described the process as "The Biggest Backlog in the Federal Government".  It notes that the SSA's Office of Disability Adjudication and Review (ODAR) has a much bigger backlog than Veteran's Affairs, that has 526,000 vets waiting and, than the patent office, that has 606,000 patents pending.

As most of the readers of this blog know, the experience of waiting in the backlog is extremely painful.  Disability claimants must wait without any financial resources until their cases are heard. Here is a link to the article:  The Biggest Backlog in Federal Government.  I suggest that you read it and send a copy with a little note to your Congressman and Senators.  

On other not so great news, on January of next year SSDI beneficiaries will get a 1.7 cost of living increase or COLA.  It is estimated that this increase represents an average of $20 extra a month per recipient.  What does this cover?  Not even the cost of one prescription...  Congress enacted this automatic increases in 1975, when inflation was high and there was a lot of pressure to regularly raise benefits.   

Monday, October 20, 2014

Benefits for Disabled Widows or Widowers

The loss of your spouse can be a devastating event specially if you suffer from an illness or condition that does not allow you to support yourself financially.  Under Social Security rules, you may be eligible for disability benefits based on your spouse's earnings record if your spouse was fully insured under the SSDI program at the time of his or her death.  
Moreover, to be able to receive benefits under your spouse's record you must also meet the following criteria:

  • You must be at least 50 years old.
  • You must show that you are disabled.  Note that the criteria used to determine whether you are disabled is the same one used to determine eligibility for all other adult applicants.  (SSA will use the 5 step sequential evaluation process.)
  • Your disability started between the age of 50 and 60, and
  • Your disability began before your spouse's death or within 7 years of his or her death.
Widows and widowers who are eligible to receive this benefit get 71.5% of the SSDI benefit that their spouses' would have received if they were alive.  Also, if you divorced prior to your spouse's death, you might be eligible for benefits if your marriage lasted 10 years or more.  However, if you were married to your spouse at the time of his or her death but your marriage lasted 9 months or less, you will not be eligible for benefits.  There are some exceptions to this rule.  For example, if you were married for 9 months or less, you might still be eligible for benefits if you are the parent of your spouse's child. 
Unfortunately, you cannot apply online for widow or widower benefits.  (Don't ask my why.  Its just the way the SSA bureaucracy works.)  You need to call by telephone and make an appointment or, visit your local SSA field office.       

Monday, October 13, 2014

What Can We Learn from the Council for Disability Awareness Annual Long Term Disability Claims Review?

Since 2005 a non-profit organization known as "The Council for Disability Awareness" (CDA) has conducted an annual review of long term disability claims among workers in the U.S.  This organization, based in Portland, Oregon, is directed by 18 member companies that provide long term disability policies and/or administer long term disability plans.  The 18 member companies are: Aetna, Ameritas, The Guardian, Lincoln Financial, Ohio National, The Standard, AIG, Assurant, The Hartford, Mass Mutual, Principal Financial, Sun Life, American Fidelity, Disability RMS, Illinois Mutual, Met Life, Prudential and Unum.  Long term disability industry giants such Cigna and Liberty Mutual are not part of the organization.
The "2014 Long Term Disability Claims Review" provides an interesting analysis of the current trends in the disability claims process, including detailed data analysis of the Social Security Disability Claims program.  A copy of this report can be found here.   
The data analysed by the report is highly relevant to debate taking place in Congress regarding the solvency of the Social Security Trust Funds and SSD.  Many correlations can be made between the rise in Social Security Disability claims between 2009 and 2011, and the number of claims made during this period under long term disability policies.
One of the aspects of the report that caught my attention was the data regarding the percentage of claims by gender.  It has been said that the entrance of women into the workforce in the past four decades accounts for the sharp rise in the number of persons receiving Social Security Disability. The data gathered by the CDA confirms this theory.  In fact, the 2014 report found that "Fifty-six percent of new disability claims approved during 2013 were for women and 44 percent were for men. The percentage of claims for men increased in both 2012 and 2013 after claims for women increased in 2010 and 2011."

Monday, October 6, 2014

What is "Residual Functional Capacity" or RFC?

In preparing your Social Security Disability case you probably have come across the technical term "Residual Functional Capacity" or RFC, and are probably wondering what it means.  The federal regulations define this term as follows:

"Your residual functional capacity is the most you can still do despite your limitations."   20 CFR 404.1545; 20 CFR 416.945

Residual functional capacity is the level of functioning that your are still capable of after taking into account all of the physical and mental problems that your condition(s) causes you.

Social Security considers two different types of RFC: physical and mental.   Social Security will look at your physical RFC in terms of sedentary, light medium, heavy or very heavy.  On the other hand, your mental RFC is summarized as less than unskilled, unskilled, semiskilled, or skilled.

Determining your RFC is key in your disability case.  Social Security reviews your medical records and other evidence to determine your RFC.  In many cases, the RFC determination is made using an opinion submitted by one of your doctors that explains your ability to engage in specific activities such as your ability to sit, stand, walk or lift.