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 http://www.myfoxatlanta.com/clip/11228371/its-easier-to-win-a-world-series-than-get-social-security-disability

Monday, March 9, 2015

Social Security Will Expand its Office Hours

In recent years, the Social Security Administration has reduced its Field Office hours due to budgetary cuts.  Apparently due to a new influx of funds, the Agency now claims that it will expand its office hours.  This is obviously good news.  However, I wouldn't start celebrating yet.  Over the past few months I have seen such a drastic decline in the quality of the services provided, that I think that its going to take a major overhaul of the Agency for there to be any meaningful improvement.
"This expansion of office hours reaffirms our commitment to providing the people we serve the option of top-notch, face-to-face assistance in field offices even as we work to expand online services for those who prefer that flexibility," said Carolyn W. Colvin, acting commissioner of Social Security.  
Well Commissioner, how about picking up the phone at ODARs?  (ODAR stands for the Office of Disability Adjudication and Review; these are the offices that handle Social Security Disability hearings.)  ODAR offices routinely let all their calls go into voice mail.  Social Security Disability Lawyers like myself find it extremely frustrating to communicate with the hearing office because they just don't pick up the phone.  
According to a press release from the SSA, Field Offices will be open to the public for an additional hour on Mondays, Tuesdays, Thursdays and Fridays, staring on March 16th.  This supposedly means that an office that is regularly open from 9:00 a.m. to 3:00 p.m. will now remain open until 4:00 p.m.
Offices will continue to close early at noon on Wednesdays.
If possible, I urge claimants not to visit Field Offices and use internet or phone services instead. Although dealing with the Agency is always frustrating, you might be better off if you use their toll free number 1-800-772-1213 or visit their website at www.socialsecurity.gov. 

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.