Monday, July 27, 2015

Obama, Guns and Social Security Disaibility

A gun control proposal by President Barack Obama could affect millions of Social Security Disability beneficiaries who have been deemed incompetent to handle their own affairs.  As is the case with most gun issues, the idea has sparked a heated debate.

Unfortunately, there is a great deal of misinformation on this topic.  This ignorance stems largely from the fact a large number of news reporters and public figures don't know much about how SSDI operates.  Since the SSA has the responsibility to insure that monies are properly used, it determines whether beneficiaries are capable of handling their own funds.  If they are deemed to be incompetent of handling their money, they are required to have a representative payee to handle their SSDI or SSI checks.  President Obama's proposal intends to report SSDI beneficiaries who have a payee to the National Instant Criminal Background Check System and prevent them from owning guns. 

About 4.2 million adults receive SSDI checks that are managed by representative payees. Opponents of the President's plan argue that that being incapable of managing funds does not necessarily make a person violent or dangerous.  At first glimpse, this argument seems to make sense.  However, if you have practiced Social Security Disability Law as long as I have, you know how hard the disability determination process has become.  Claimants are routinely denied benefits at all stages of the process based on their capacity to perform simple manual tasks such as: cooking, washing dishes, washing and folding clothes and taking care of pets.  I submit that a person who alleges to be able to handle a firearm is very likely to loose his or her Social Security Disability case.  Lets face it, operating a firearm safety requires a great deal of attention and concentration --far more than its required in simple sedentary jobs.  Moreover, firing a gun requires excellent manual dexterity, coordination and eyesight: all excellent skills that can be used in a wide array of occupations.

Nonetheless, I do recall winning at least one Social Security Disability for a client who was an avid hunter.  Needless to say, it wasn't an easy one.  I would be very concerned of representing anyone in the future who insists of maintaining any hobbies associated with guns (with the obvious exception of a very low key gun collector).  

Consequently, I am not thrilled by those who are defending SSDI beneficiaries' right to bear arms. SSDI is a financial lifeline for millions of disabled Americans.  Insisting on the beneficiaries' right to bear arms, could lead to an eventual denial or cessation of their benefits. For this reason, I believe that, at this crucial point in time, protecting the economic well being of the disabled is far more important than their right to bear arms.


Monday, July 13, 2015

New Listing for Children's Growth Disorders

The Social Security Administration has revised its listing for children with growth disorders and weight loss.  (Listing 100.00 and other sections)  This rule was published at 80 Fed. Reg. 19522 (Apr. 13, 2015) and went into effect on June 12, 2015.  Babies born at at 32 weeks of gestation and weight less than 1250 grams meet the listing.  Babies who weight less than 1200 grams at birth meet a different part of the listing regardless of how many weeks of gestation they had.
There are some new listings regarding children's growth disorders.  For example, section 100.5 pertains to children under 3 who "fail to thrive".  There are also new listings for growth failure caused by chronic respiratory disorders (listing 103.06)  and for renal disease (listing 106.08).  However, some listings were eliminated: (listings 100.02 and 100.03) for growth impairments related to a medically determinable impairment.
The new listing's objective is not to rely anymore on "linear growth" (height) alone, but also on a child's weight to length ratio or body mass index.

Monday, July 6, 2015

Avril Lavigne's Struggle with Lyme Disease

If you have suffered from a severe form of Lyme Disease or know someone who has gone through the ordeal associated from suffering from this condition, you know how hard it is to obtain adequate medical treatment.  Last week, Canadian pop star Avril Lavigne described on television her struggle with Lyme Disease, particularly how difficult it is to get a doctor to even acknowledge that a patient is suffering from this disease.

When I first heard her interview, her ordeal seemed incredibly similar to the experience of many of my disability clients.

Here is a video of her interview:
I hope that her account of her fight with Lyme Disease helps raise awareness regarding the difficulties faced by Lymes patients. In addition to suffering from lack of adequate treatment, these patients are often taken advantage by disability insurance companies and by the Social Security Administration because their doctors are not willing to make an adequate diagnosis,  If someone like Avril was labeled  "crazy" due to her unusual symptoms, imagine what an average disability claimant goes through.  Hopefully her appearance on ABC helps educate disability claims adjudicators that this disease is real and that, at times, it can be extremely disabling.

Monday, June 29, 2015

ERISA Denial Letters Do Not Need to State Time Limit to File Action in Court

It has been clearly established that a claimant has 180 to file an administrative long term disability appeal.  However, once the administrative appeal is denied, there is a great deal of ambiguity as to when a claimant must commence an action in Federal District Court.  In a recent decision,  Wilson v. The Standard Insurance Companythe 11th Circuit Court of Appeals had the opportunity to explain the applicable time limitations in ERISA cases.  
In Wilson, the 11th Circuit noted that “ERISA does not provide a statute of limitations for suits brought under § 502(a)(1)(B) to recover benefits. Thus, courts borrow the most closely analogous state limitations period,” unless the parties have contractually agreed to a different one in the ERISA plan. Northlake Reg’l Med. Ctr. v. Waffle House Sys. Emp. Benefit Plan, 160 F.3d 1301, 1303 (11th Cir. 1998).  In other words, since there is no specific time limit to file an action in court, the statue applied in ERISA cases is whatever statue exists in the forum state.  Therefore, in most long term disability cases, courts borrow the statute of limitations on breach of contract actions of the state where the case is heard.  
However, plan administrator and insurers can specify in the plan or policy document that a different statute of limitations is applicable.  This is in fact what happened in Wilson.  In Wilson, the Standard Insurance Company specified in the disability policy that the time limitation to file an action in Federal Court was 3 years.  However, the applicable statute of limitations for breach of contract cases in that particular forum state (Alabama) was six years.  When the Standard issued its letter denying Ms. Wilson her long term disability benefits, it failed to mentioned that the policy had a three year limitation period. 
Wilson eventually filed an action in Federal Court, 34 months after the three year period had passed. The Standard alleged that the action was time barred because it was outside the three year period contained in the policy.  Wilson contended that the three year period was not applicable because the Standard had failed to point out in the denial letter that there was a three year limitation to bring actions in court.  The 11th Circuit held that the insurance company was not required to inform the claimant of the time limitation to bring action in court.  According to the court, the insurance company is only required to mention in the denial letter the 180 time limitation to file administrative appeals.  Moreover, the Circuit Court of Appeals noted that the plaintiff bears the responsibility of obtaining a copy of the long term disability plan and determining on his or her own what is the applicable time period to file an action in court.



Monday, June 22, 2015

Social Security Amends its Cancer Listing: Section 13.00

Over the years the Social Security listing that pertains to cancers has been known as the listing for "Malignant Neoplastic Diseases".  This listing is contained in Section 13.00.  A few days ago, the SSA made several amendment to this listing and finally renamed it as the "Cancer" listing.
One of the changes of this listing is that it recognizes that treating sources, other than MD's, can provide valid documentation of multimodal therapy.  The new rule states: "While an acceptable medical source may provide this evidence, our existing policy allows us to accept evidence from other medical sources to establish the impairment's severity.  For example, this evidence may come from sources we do not consider acceptable medical sources, such as oncology nurse practitioners who administer chemotherapy and radiation therapists who deliver radiation treatments."
Also, Section 13.00I.6 was amended to change the definition of the term "progressive cancer". Before, progressive cancer was described as a cancer where "malignancy becomes more extensive after treatment".  The new rule states instead: "progressive means the cancer becomes more extensive after treatment; that is, there is evidence that your cancer is growing after you have completed at least half of your planned initial anticancer therapy."
The amendment to the listing also makes amendment to how specific types of cancers are evaluated. Here are some examples:
Primary breast cancer evaluations will under go some changes under the new listing. For example, Secondary lymphedema resulting from anticancer therapy is evaluated under 13.10E if the secondary lymphedema is treated by surgery, but the onset of disability can be earlier that the date of surgery if there is enough evidence to that effect.
Primary peritoneal carcinoma is evaluated under 13.24E for women and 13.15 for men.
Skin cancer listing at section 13.03 was amended to exclude malignant melanoma and directs adjudicators the new section 13.29 to evaluate this cancer.


Monday, June 15, 2015

Disability Report Must be Filed With Appeal by Deadline

Once an initial Social Security Disability application or a request for request for reconsideration is denied, a claimant has 60 days to file an appeal.  In the past, the claimant and his or her lawyer could simply file the appeal electronically using (SSA-i561 or SSA-i501) without the need to included any additional information. However now, pursuant to new rules, the appeal will not be accepted unless it is filed simultaneously with the "Disability Report" (SSA-i3441).

For a long time, attorneys had the practice of submitting the appeal (the Request for Reconsideration or Request for a Hearing Before and ALJ) within the 60 day period and then submitting the Disability Report later on.  However, at a recent NOSSCR conference in Arlington, Virginia, ODAR Deputy Commissioner Glenn Skylar announced that a claimant's appeal will no longer be considered valid unless the Disability Report has been submitted.  This new policy is more specifically described by the Social Security Administration in POMS GN 03101.125.

Another important development with respect to the electronic appeal process is that now claimants and their lawyers can upload documents as part of their appeal.  Now lawyers can attach materials such as medical records, doctor's opinions or Appointment of Representative forms (SSA-1696).

This new policy has its advantages and drawbacks.  On one hand, it prevents irresponsible social security lawyers from doing a quick appeal without doing any work.  On the other hand, it can be very difficult for claimants who obtain legal representation just a few days before their sixty day deadline.  In many cases, claimants who obtain a lawyer in the last minute are unable to remember details of their medical treatment and it can be very difficult to complete the Adult Disability Report. 

It is important to point out that the requirement to file an appeal electronically applies only to to Requests for Reconsideration and Requests for a Hearing.  Appeals to the Appeal Council must still be filed in paper.   

Monday, June 8, 2015

SSD Tip of the Week: Get a Print Out of All of Your Worker's Comp. Payments, ASAP

Social Security Disability Benefits (SSD) are reduced by Worker's Compensation (WC) payments.  If a disabled individual is receiving both SSD and WC, SSD monthly payments cannot be more than 80 percent of the money that the beneficiary got paid during full time employment.  This is commonly referred to as "the worker's comp offset".

Social Security Administration employees who process payments are trained to look for possible worker's comp offsets.  If they find any evidence that there ever were any worker's comp payments made to a claimant, they will stop the payment process until the claimant produces paperwork itemizing all worker's comp payments.  Please be aware that it does not matter how long ago these payments were made or the amount of money involved.  You must assume that SSA field office employees will not process your payment if they don't get a clear explanation of the money that you got in worker's comp.  This situation has become a real nightmare for many claimants in Connecticut and Massachusetts who desperately need their monthly Social Security Disability check, right away.

My advise to all the readers of this blog is that no one should wait until a disability case is won to start looking for worker's comp paperwork.  In fact, it is highly advisable to obtain this information during the initial application stage.  Once an application is filed, a claimant who has received WC benefits should contact the insurance carrier who issued the benefits and request a full print out of all the payments.  Also, it is important to obtain copies of any WC settlement that describes any lump sum payments made to you.  It is might be a good idea to request this information from the lawyer who handled the comp case.

Once this information is gathered, the claimant or his or her lawyer should submit it to the field office with a cover letter explaining that information provided contains the total figures of the amounts of worker's compensation benefits received.