Monday, December 5, 2016

December 2016 Social Security Disability Briefing

Here are some of the top stories and issues affecting Social Security Disability Lawyers and their clients:

  • New HIV Listing:  The Social Security Administration has published a new listing for claimants who suffer from HIV / AIDS.  The revisions in the HIV listing reflect the great medical advances in treating this condition.  This new rule becomes effective on January 17, 2017.  For a complete version of the new listing click here.
  • Congressman Larson Might Become the Ranking Democrat in the House Social Security Subcommittee:  Just a few days ago Congressman Xavier Becerra, the top democrat on the House SSA subcommittee, announced that he was leaving Congress to become California's Attorney General.  Connecticut's John Larson is the second ranking member on the Committee. However, it is not clear yet if he will become the ranking member on the next Congress. Congressman Larson's office is just a few doors down from RamosLaw.   We will keep you posted .  We want him to take the job!  Our Congressman is the person that we need protecting Social Security.
  • The National Organization of of Social Security Claimant's Representatives (NOSSCR) is interested in any stories about the five day rule and good cause exception harming Region I claimants: for example, situations where the ALJ did not find there was good cause for late submission of probative evidence, and the case needed to be appealed causing delays for the claimant or the claimant lost back benefits by reapplying.  Please send your stories (without any personally identifiable information about the claimant) to Lisa.Ekman@nosscr.org by noon on Thursday Dec. 8th.
  • Commissioner Colvin and Other Top SSA Officials Expected to Resign on Inauguration Day: According to the "ALJ Discussion Forum" Acting Commissioner Colvin has informed SSA employees that she will be stepping down on inauguration day.  According to the rumors "many other" SSA employees will follow her.  This has not happened before.  Anyway, expect more backlogs and more staff reductions in the next administration.  Thanks Republicans! 

Monday, November 21, 2016

Anti Social Security Activists Part of the Trump Transition Team

During the past hours it has become evident that Donald Trump is about to break his campaign promises regarding Social Security.  Generally, it has been assumed that Trump was far more supportive of Social Security than most Republicans in Congress.  Now, it is evident that the right wing of the Republican party which favors major cuts in Social Security has taken control over the Trump transition team and is influencing the way that the Social Security Administration (SSA) will be run in the next four years. 
During the presidential campaign Donald Trump promised to protect Social Security and repeatedly stated that, if elected, he would not make any changes to the program.   He said that he would do everything within his power "not to touch Social Security, to leave it the way it is".  
Today, CNN has reported that Trump has named Tom Leppert, former major of Dallas and a well known proponent of privatizing Social Security, to the "landing team" for the SSA.  (For the CNN article click here.)  "Landing teams" are groups designated by presidents elect to interact with federal agencies in helping to set up the government after the new President is sworn into office.
Other news sources have also reported that other well know anti Social Security activists are at Trump Tower actively working to wreck the SSA an its programs.    Here is a list of these other right wing policy makers who also have a long history of hostility towards Social Security:
  • Mike Korbey, former senior advisor to the principal deputy commissioner in George W. Bush’s SSA.
  • Former Reagan SSA commissioner Dorcas Hardy.
  • Former SSA Inspector General Patrick O’Carroll.
  • Former SSA General Counsel David Black.
Korbey is an ultra conservative who falsely claims that Social Security is “broken and bankrupt.” He was part of a group called United Seniors Association that favored Bush’s Social Security failed privatization plan.



Monday, November 7, 2016

Letter to Commissioner Colvin Re: Proposal to Change Treating Physician Rule

November 7, 2016

Carolyn ColvinActing Commissioner
Social Security Administration


   6401 Security Boulevard
   Baltimore, MD  21235-6401

Submitted on www.regulations.gov

Re:  Notice of Proposed Rulemaking on Revisions to Rules Regarding the Evaluation of Medical Evidence, 81 Fed. Reg. 62559 (September 9, 2016), Docket No. SSA-2012-0035

Dear Acting Commissioner Colvin:

Thank you for the opportunity to comment on the proposed regulations contained in above referenced Notice of Proposed Rulemaking (NPRM).  I am writing to express my strong opposition to the SSA’s proposal to eliminate the treating physician rule and the 9th Circuit’s credit-as-true doctrine. 

I believe that the proposed rules would unduly burden our Federal Court system and the legal staff at the U.S. Attorney’s Office.  Moreover, claimants and your staff at the SSA will also be adversely affected as a result the likely delays caused by these revisions.  As proposed, the new rules will lead to more federal court appeals, more delays and substantially more remands for a new hearing. 

It is no secret that the proposed rules are part of your administration’s strong anti-claimant stance.  This proposal shows once again, that you have acquiesced to the Republicans’ pressure to “tighten up the rules” to make it harder for claimants to qualify for disability benefits.  However, I would like to point out your agency’s current proposal will not achieve the results intended by its drafters.  Instead of leading to lower allowance rates, the proposed changes will lead to chaos, waste, and unnecessary delays in the adjudication process.  Moreover, the new rules will foster confusion at the Federal Court level, resulting in an even bigger backlog and far more EAJA fee awards.

The proposed rule removes the responsibility of adjudicators to explain how they weigh medical evidence and how they weight prior determinations made by other administrative agencies.  If enacted, adjudicators will have to weight medical evidence without guidelines or legal standards. The vagueness and uncertainty created by the proposed rules will lead to more prolonged federal court challenges and not, to the “quick and easy unfavorable decisions” wished for by its proponents. 

It is a well accepted legal axiom that specificity and preciseness in legal standards, lead to less challenges at the appellate level.  The vague rules proposed by your agency violate this legal axiom.  In fact, the proposed changes are an outright invitation to lawyers and jurists to develop new case law to fill up the legal void left by the absence of clear regulatory guidelines.

In my experience as a disability lawyer, I have witnessed how the absence of guidelines to evaluate medical evidence can lead to a significant number of remands by the federal courts.  Besides practicing in the area of Social Security Disability, I also represent claimants who have been denied disability benefits under insurance contracts governed by the Employee Retirement Income Security Act of 1974 (ERISA).  In disability insurance cases covered by ERISA, the treating physician rule does not apply and there are no clear guidelines for evaluating medical evidence.  Due to the absence of clear guidelines to evaluate medical evidence in ERISA cases, federal judges are often unable to issue a decision and are forced to issue a remand back to the insurance company for further consideration. 

For the above mentioned reasons, I urge you to withdraw the proposal to change the way that the SSA evaluates medical evidence.

Sincerely,




Iván A. Ramos

Letter to Commissioner Colvin Re: Proposal to Change Treating Physician Rule

November 7, 2016

Carolyn ColvinActing Commissioner
Social Security Administration


   6401 Security Boulevard
   Baltimore, MD  21235-6401

Submitted on www.regulations.gov

Re:  Notice of Proposed Rulemaking on Revisions to Rules Regarding the Evaluation of Medical Evidence, 81 Fed. Reg. 62559 (September 9, 2016), Docket No. SSA-2012-0035

Dear Acting Commissioner Colvin:

Thank you for the opportunity to comment on the proposed regulations contained in above referenced Notice of Proposed Rulemaking (NPRM).  I am writing to express my strong opposition to the SSA’s proposal to eliminate the treating physician rule and the 9th circuit’s credit-as-true doctrine. 

I believe that the proposed rules would unduly burden our Federal Court system and the legal staff at the U.S. Attorney’s Office.  Moreover, claimants and your staff at the SSA will also be adversely affected as a result the likely delays caused by these revisions.  As proposed, the new rules will lead to more federal court appeals, more delays and substantially more remands for a new hearing. 

It is no secret that the proposed rules are part of your administration’s strong anti-claimant stance.  This proposal shows once again, that you have acquiesced to the Republicans’ pressure to “tighten up the rules” to make it harder for claimants to qualify for disability benefits.  However, I would like to point out your agency’s current proposal will not achieve the results intended by its drafters.  Instead of leading to lower allowance rates, the proposed changes will lead to chaos, waste, and unnecessary delays in the adjudication process.  Moreover, the new rules will foster confusion at the Federal Court level, resulting in an even bigger backlog and far more EAJA fee awards.

The proposed rule removes the responsibility of adjudicators to explain how they weigh medical evidence and how they weight prior determinations made by other administrative agencies.  If enacted, adjudicators will have to weight medical evidence without guidelines or legal standards. The vagueness and uncertainty created by the proposed rules will lead to more prolonged federal court challenges and not, to the “quick and easy unfavorable decisions” wished for by its proponents. 

It is a well accepted legal axiom that specificity and preciseness in legal standards, lead to less challenges at the appellate level.  The vague rules proposed by your agency violate this legal axiom.  In fact, the proposed changes are an outright invitation to lawyers and jurists to develop new case law to fill up the legal void left by the absence of clear regulatory guidelines.

In my experience as a disability lawyer, I have witnessed how the absence of guidelines to evaluate medical evidence can lead to a significant number of remands by the federal courts.  Besides practicing in the area of Social Security Disability, I also represent claimants who have been denied disability benefits under insurance contracts governed by the Employee Retirement Income Security Act of 1974 (ERISA).  In disability insurance cases covered by ERISA, the treating physician rule does not apply and there are no clear guidelines for evaluating medical evidence.  Due to the absence of clear guidelines to evaluate medical evidence in ERISA cases, federal judges are often unable to issue a decision and are forced to issue a remand back to the insurance company for further consideration. 

For the above mentioned reasons, I urge you to withdraw the proposal to change the way that the SSA evaluates medical evidence.

Sincerely,




Iván A. Ramos

Monday, October 31, 2016

How to Get Your Social Security Statement

Most clients expect their Social Security Disability Lawyers to know the amount of the monthly benefit that they will receive if their cases are won.  Unfortunately, getting to know this amount can be a difficult process. Moreover, in the vast majority cases, the amount of the monthly check is a secondary concern for the attorney.  
Calculations used to figure out the monthly amount are quite complicated.  I often find out the estimated monthly amount once I get the client's electronic file through the electronic file system (ERE) used by the SSA.  If you do not want to wait until your lawyer gets access to your file through the ERE to find out the monthly amount, can can get this figure by creating your own electronic account with the Social Security Administration.  
Social Security Disability Lawyers are not allowed to create these accounts and obtain statements on behalf of their clients.  Clients must set up this account on their own.  In fact, it is illegal for us to set up these accounts for others. 
To set up your own account and get access to you estimated benefit, you must visit: https://secure.ssa.gov/RIL/SiView.do  You need to have your own email address and create a secure username and password. 
  

Monday, October 24, 2016

Social Security, the COLA and the SAVE Benefits Act

Last week it was announced that Social Security Disability beneficiaries will get a tiny cost of living adjustment (COLA) to their monthly check of only .3 percent.  Federal Law mandates that Social Security COLA's must be based on a consumer price index known as CPI-W which relies heavily on oil prices.
This means that the average disabled or senior beneficiary will get only an additional $3 to $4 a month. This is the fifth year in a row of minuscule raises.  In fact, last year there was no COLA at all.
Many Social Security Disability lawyers and advocates have pointed out that the measure of inflation used by the CPI-W is not a proper methodology for measuring the economic reality faced by most seniors and disabled Americans.  CPI-W is meant to be used for wage earners in urban areas.  It was not developed to asses the cost of goods and services most often purchased by retired or disabled individuals.
In response to the unfairness caused by the very small COLA paid to Social Security beneficiaries, a group of prominent U.S. Senators, including Elizabeth Warren (D-Mass), Bernie Sanders (I-VT) and Chuck Schumer (D-NY), have proposed a special one-time payment of $581.  This legislative initiative is know as that the "SAVE Benefits Act.  This figure of $581 represents 3.9 percent of the average annual Social Security benefit. The 3.9 figure was picked by Senator Warren because this was the average raise received last year by top corporate CEO's.  According to the Senator from Massachusetts this small one-time payment could cover three months of groceries for a disabled person or or a whole year of out of pocket expenses for prescriptions.
Last Sunday Senator Schumer met with disabled beneficiaries in the Lower East Side of Manhattan to learn more about their situation and promote the Save Benefits Act.  For a great article about the economic plight of some SSD beneficiaries in NYC click here.


Social Security, the COLA and the SAVE Benefits Act

Last week it was announced that Social Security Disability beneficiaries will get a tiny cost of living adjustment (COLA) to their monthly check of only .3 percent.  Federal Law mandates that Social Security COLA's must be based on a consumer price index known as CPI-W which relies heavily on oil prices.
This means that the average disabled or senior beneficiary will get only an additional $3 to $4 a month. This is the fifth year in a row of minuscule raises.  In fact, last year there was no COLA at all.
Many Social Security Disability lawyers and advocates have pointed out that the measure of inflation used by the CPI-W is not a proper methodology for measuring the economic reality faced by most seniors and disabled Americans.  CPI-W is meant to be used for wage earners in urban areas.  It was not developed to asses the cost of goods and services most often purchased by retired or disabled individuals.
In response to the unfairness caused by the very small COLA paid to Social Security beneficiaries, a group of prominent U.S. Senators, including Elizabeth Warren (D-Mass), Bernie Sanders (I-VT) and Chuck Schumer (D-NY), have proposed a special one-time payment of $581.  This legislative initiative is know as that the "SAVE Benefits Act.  This figure of $581 represents 3.9 percent of the average annual Social Security benefit. The 3.9 figure was picked by Senator Warren because this was the average raise received last year by top corporate CEO's.  According to the Senator from Massachusetts this small one-time payment could cover three months of groceries for a disabled person or or a whole year of out of pocket expenses for prescriptions.
Last Sunday Senator Schumer met with disabled beneficiaries in the Lower East Side of Manhattan to learn more about their situation and promote the Save Beneficiaries Act.  For a great article about the economic plight of some SSD beneficiaries in NYC click here.