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.

Monday, September 29, 2014

The Importance of Your SSA Decision in Your Long Term Disability Insurance Appeal

It is fairly common for disability insurance carriers to deny a claimant his or her long term disability benefits even after a favorable Social Security decision has been made in the case.  In their denial letters, LTD carriers usually state in very vague terms that the standards under the insurance policy are different from the standards used by Social Security.  While the standards are different, a favorable SSDI decision is far more relevant to your case than insurance companies want you to know.
In fact, the legal standard used by the Social Security Administration to determine whether you are disabled or not is, in some instances, more rigorous than the standard contained in the disability policy. 
In any event, disability insurance companies are required to consider the SSA's determination and articulate why it should not be given significant weight in your case.  I submit that the standard boiler plate language that insurance companies are inserting (cut and pasting) in most denial letters, will not stand up to scrutiny at the Federal Court level of review.  For example, consider the statements made by the Southern District Court of New York in a case involving UNUM:   
"the fact that UNUM assisted plaintiff in obtaining disability benefits from the SSA, reaped financial benefits from this decision, and then failed to explain why it reached a disability conclusion at odds with the SSA's findings contributes to the conclusion that UNUM's determination was arbitrary and capricious."  Zurndorfer v. UNUM Life Ins. Co. of Am., 2008 U.S. Dist. LEXIS 26278, *53 (S.D.N.Y. 2008).
If your long term disability carries is telling you that the favorable Social Security decision is your case does not really matter that much in your LTD claim, don't despair.  Take your denial letter to a competent long term disability attorney and let him or her tell you whether the insurance company's argument can be defeated in an appeal or in a court action.  

Monday, September 22, 2014

Will Enrolling in College Courses Affect Your Chances of Winning SSDI?

Recently, a client who has a pending Social Security Disability case asked me whether enrolling in college will hurt her chances of winning her case.  Although there isn't a specific prohibition against going back to school, it is very likely that her decision will affect her claim in a negative way.  Keep in mind that since there there aren't any specific rules in this area, the effect that going back to school will have varies greatly from case to case.
One of the things that Social Security pays the most attention to in your case are your daily activities. If you are engaging in a lot of activities in your daily life --particularly activities that are challenging--, Social Security will infer that you are able to function in a working environment.  For example, if you are taking care of children, doing yard work or cooking complex meals, Social Security will assume that you still have the capacity to do some kind of work.  Social Security might agree that you cannot work in a day care or, become landscaper or a cook but, will probably infer that you still have some residual capacity to do other jobs that are more simple.  Likewise, if you are taking tests, sitting in class, reading and writing papers, Social Security might infer that you can work as a clerk in an office or in a data entry job.
The effect that going to school has on an SSDI case varies greatly on the specific nature of the course work taken by the claimant or the beneficiary.  Is the person enrolled in full time or part time school? Are the classes in a classroom environment or online?  How complicated are the courses taken? And, most importantly, is the educational institution providing any kind of accommodation for the claimant?   
Remember that there is more to going to school that simply going to class.  Beware of the potential issues that might arise if you decide to go back to school and be ready to document any special circumstances why going back to school is not indicative that you can also function in a work environment.

Monday, September 15, 2014

Your Social Security Disability Can be Reduced if You Have Not Paid Your Student Loan

If you are receiving Social Security Disability and have failed to pay you student loans, the government may reduce your monthly benefits.  According to the Government Accountability Office, 155,000 Social Security beneficiaries had their payments reduced during 2013 because they had defaulted on their student loans.  Every year since 2002, the government has become more aggressive in seeking repayment of student loans.  Unfortunately, these aggressive tactics are becoming a nightmare for thousands of disabled Americans who rely on Social Security Disability as their only means of financial support.  

71 % of those who saw their benefits reduced are SSDI beneficiaries.  The rest are receiving Social Security retirement.  There are many critics of these aggressive student loan collection practices.  The obvious question raised is why, is the government going after people who have demonstrated that they cannot work due to a physical condition or illness.  

Its important to note that the amount of the offset in these cases is significant.  The average Social Security monthly payment is $1,200 and the usual amount taken away from the monthly check of those who have not paid their student loans is $180.  

This issue has caught the attention of Massachusetts Senator Elizabeth Warren, who introduced a bill earlier in 2014 to allow better refinancing of student loans.  Unfortunately, her initiative did not go very far.

Monday, September 8, 2014

New Rules on How to Object to a Video Hearing

As I have explained in previous posts, Social Security conducts some its hearings via video.  Some claimants don't feel comfortable testifying this way and prefer to have an in person hearing.  The claimants have always had the opportunity to object to a video hearing and request that a in person hearing be conducted.  However, --beware--, the process to object to video hearing has just been changed.

Effective today, the Social Security Administration will implement new rules on the process that a claimant must follow in order to object to a video hearing.  Here are the changes:

Before the office of hearings (ODAR) schedules a hearing, it will send a letter to the claimant stating that it may schedule him or her to appear by video. This notice will be part of the hearing request acknowledgment. The official hearing notice with the date and time of the hearing will be sent at a later time.  It is very important to note that under the new rule:  Any objection to a video hearing must be made in writing within 30 days unless the claimant can show good case for missing the deadline

The claimant or his/her lawyer only needs to respond to this notice if they object to a video hearing. If the claimant agrees to a video hearing or doesn't really care, no response is needed. Everyone will get the notice; it does not mean that a video hearing will definitely be scheduled in your case.  It just means that the claimant agrees to a video hearing if one is ever scheduled.  Social security asks that lawyer send responses in the business reply envelope that SSA will provide or to the SSA special fax number (included in the document entitled “Electronic Disability Claims Processing”) rather than bringing the response to SSA or ODAR offices.   Please do not upload these responses to the Appointed Representative Services site, which might delay processing.