Monday, September 1, 2014

Do You Need Objective Evidence to Win?

Many of my client's are extremely concerned over the fact that they don't have objective evidence to support their claim.  While objective evidence is important and it can help significantly in convincing the judge or Social Security of your limitations, such evidence is not always possible to obtain.  
Many examiners in the SSA will state that the claimant has not submitted objective proof of either a diagnosis or of the claimant's limitations.  This argument is usually made in cases involving condition such as chronic migraines or mental illness.  
As some of you know, besides practicing in the area of Social Security Disability law, I also represent individuals who have been denied long term disability benefits by private insurance companies.  In the area of long term disability law, there is a line of federal court decisions that provide a pretty good rule as to when a claimant should be required to present objective evidence.  Even though  these cases don't deal with SSDI per se, they provide a good argument that can be used in Social Security cases.  
Federal Courts in long term disability cases have found that disability examiners can demand objective evidence from a claimant only when objective evidence is possible.  If the objective evidence is not possible to obtain, this evidence cannot be required.  
In Miles v. Principal Life Ins. Co., 720 F.3d 472, 487 (2d Cir. 2013) the Court found that Principal's request for objective evidence was unreasonable because, "plan administrators may not impose unreasonable requests for objective evidence.  Here, the record suggests there is no objective test to prove the presence of tinnitus.  It was unreasonable for Principal to request objective evidence of impairment when it had not identified any such test that exists."   

Monday, August 25, 2014

Don't Believe all the Hype About SSDI's Supposed Depletion in 2016

Important Article About the Solvency of Social Security Disability on U.S. News and World Report

In the aftermath of the misleading and ill-intentioned news stories about Social Security Disability aired by Sixty Minutes and Fox News, the U.S. News and World Report has published a great article debunking the false allegations being made about the programs projected depletion in 2016. 

Chad Stone from the Center on Budget and Policy Priorities has written a great piece outlying the facts on how the anticipated shortfall was largely anticipated and how it can be managed if proper measures are taken.  He notes that in the past, measures have been taken to fix similar shortfalls in the Social Security Disability programs without any major controversies.  It is obvious that now, some in Washington are trying to create a big hype around the projected deficit in 2016 for political gain.  Chill out and don't believe the hype.  Read the article from the U.S. News and World Report here:

http://www.usnews.com/opinion/economic-intelligence/2014/08/22/social-security-disability-insurance-is-not-out-of-control


Monday, August 18, 2014

How Soon Will My SSI/SSDI Case be Reviewed?

The guidelines used by the Social Security Administration to determine when an existing beneficiary's eligibility will be reviewed are fairly subjective.  However, when a claimant receives a fully favorable decision from an Administrative Law Judge (ALJ), the decision usually states a specific time period when the case will be reviewed again by the SSA. 
Lately, ALJs have been setting very short periods for disability reviews.  This all seems to be part of a trend at the national level, to make Social Security Disability guidelines stricter than ever before.  (Don't be fooled by the ramblings of those who are maliciously leading everyone to believe that obtaining SSD is easy.) 
For example, just a few days ago I got a fully favorable decision that stated that the claimant's case had to be reviewed again in 12 months.  This is an extremely short period.  In reality, most cases that are granted are reviewed between 18 to 36 months. 
When a case is granted prior to a hearing with an ALJ, the SSA uses certain specific guidelines for determining when a case will be reviewed.  However, the exact interpretation of these rules can be a bit subjective.  Here is the terminology used by Social Security used to determine when a case will be reviewed.  At what point in time your case will be reviewed, depends of where your expected medical improvement falls in relation to the following terms: 
  • If "medical improvement" is "expected", your condition will be reviewed within 18 months.
  • If "medical improvement" in your case is "possible", your case will be reviewed in approximately 3 years.
  • If "medical improvement" is "not expected", your case will be reviewed in 5 to 7 years.

Monday, August 11, 2014

The Dangers of Hiring a "Social Security Disability Mill"


Be aware that some "Social Security Disability Mills" are now posing as "local law firms" 

I spend a great deal of time with first time callers to my office.  I listen to all sorts problems pertaining to their Social Security Disability claims.  Of all the problems that I hear, none is more disconcerting than when a claimant tells me how their lawyers or representatives are mishandling their claims.  
It seems like more and more Social Security Claimants are becoming victims of what I refer to as : "Social Security Disability Mills".  Social Security Disability Mills are large out of state corporate entities that provide none or very little personal attention to their clients.  These entities rely heavily on mass advertising, such as television adds or fancy internet sites, in order to stay profitable.  Their formula for economic success is based on the sheer volume of their case load, rather than on the quality of services that they provide to their clients.  Note that, in most instances, these firms work out of the state where they advertise and have non- lawyer representatives handle your claim.  
Obviously, having non-lawyers represent their clients also saves them a lot of money and helps them stay extremely profitable.  The largest Social Security Disability Mill in the Country uses non-lawyer reps.  It was reported by the Wall Street Journal that this firm makes more than 85 million dollars a year!    
What is more shocking --and more and more claimants need to be aware of-- is the fact that now, we have large out of state "SSD Mills" using local Connecticut and Massachusetts law firms to sign up clients without providing any meaningful services to clients at the local level.  It seems that, as consumers have become more aware of problems with out of state SSD Mills, the mills have develop new tactics to try fool consumers into signing up with them.  In fact, one of the largest Personal Injury law firms in Connecticut --which is notorious for their aggressive television commercials-- is also claiming to represent Social Security Disability Clients. Unfortunately, as soon as this Personal Injury law firm takes an SSD client, they transfer the case to a Mill in North Carolina.  Over the past year, I have been getting numerous complaints from clients or former clients from this firm.  
In many instances, once the out of state firm screws up a claim, it is very hard for a good local and hardworking lawyer to save it.  Therefore, I urge the readers of this blog and all prospective SSD claimants out there to be aware of this practice.  Before signing up with a Social Security Disability lawyer or representative, ask what kind of individual attention you will receive in your case and whether your case be handled by someone near your.        

Monday, August 4, 2014

Should My ERISA LTD Insurance Company Handle My Social Security Claim?

If you are disabled and can't work, you might have disability benefits provided through your job as part of your package of benefits.  These benefits are generally referred to as ERISA short term disability (STD) or ERISA long term disability (LTD) plans.  ERISA stands for the Federal Law that covers these type of disability benefits: the Employee Retirement Income Security Act of 1974.  STD and LTD benefits are usually provided through a policy or a self funded plan administered by an insurance company.  Some of the major players in the STD and LTD insurance business are: CIGNA, The Hartford, MetLife, Sun Life, Unum, Liberty Life, Prudential, the Standard and Aetna.  
Besides representing claimants in Social Security Disability cases, our office also represents individuals who are seeking or have been denied ERISA STD or LTD benefits.  Recently, a prospective client asked me whether it was a wise decision for an  LTD claimant to allow his or her LTD insurance company to also handle their Social Security Disability case.  Here are my views on the subject:     
The vast majority of ERISA LTD plans have provisions that allow the insurance company to offset the money that they pay a beneficiary by the amount that the beneficiary receives in Social Security Disability benefits.  Moreover, most plans also provide that a beneficiary is required to apply for Social Security Disability in order to be able to received LTD benefits.  These provisions are completely legal.  However, LTD beneficiaries are free to determine who handles their Social Security Disability claim.  The insurance company does not get to choose who will act as the claimant's lawyer or representative.  Unfortunately, it is clear that, in most cases, insurance companies do not respect a claimant right to choose his or her own lawyer or representative before Social Security.  Instead, they steer or even strong arm beneficiaries into hiring companies like Allsup, Advantage 2000, Ocudanta and Disability Services, Inc. to handle their Social Security Disability claims.  These companies are agents of the insurance company and do not owe a duty of loyalty to the claimants.  Their goal is to help the insurance company, not to help you.  For this reason, I urge all LTD claimants who are also applying for SSDI, to obtain their own lawyer.  Social Security Disability Lawyers work on a contingency basis and will not charge you any money unless they are able to get benefits. In addition, the insurance company is required to give you credit for the contingency fee paid in the case and are not allowed to include that portion as part of the offset.   
Ideally, you should hire a law firm like ours that handles Social Security Disability as well as ERISA STD and LTD claims.  This way, the law firm can gather evidence and develop arguments that will help you in both cases.  A competent disability lawyer that concentrates in disability law is also going to be able to counsel and advise you on issues that might affect the interest of the insurance company.  (Remember that insurance companies make profits by denying benefits.)  On the other hand, Allsup, Advantage 2000, Ocudanta and Disability Services, Inc., are required by the terms of their contract to be tight-lipped as to any information that might prejudice the economic interests of the insurance company.     

Monday, July 28, 2014

I Want My Retro Check Right Away!

Our office works extremely hard and has great success at wining Social Security Disability cases.  Our goal is not just winning your case, our goal is also to get you as much back pay as possible when you win your case. Unfortunately, in many instances, the payment of your "retro check" or past due benefits is delayed by the slow moving Social Security bureaucracy.  At that point, we get numerous calls from our clients wondering what has happened with their past due benefits.  The truth is that we are not always able to explain to our clients why it takes so long to get paid.  We can only guess and speculate what might be causing the delay. Here are some likely reasons why your retro check might be delayed and some of the things that you might be able to do to make the process move a little faster:
  • My first word of advise is to be respectful of the fact that, if you have not received payment yet, your lawyer probably has not been paid either.  Don't be demanding or abusive with your lawyer and/or his or her staff. Keep in mind that they probably have not been paid for their services and that their job was to prove your disability not to untangle the complex payment mistakes often made by the Social Security Administration.
  • Make sure that you respond to any inquiries by telephone or mail from Social Security.  Keep an eye on your mail and answer all your calls.  
  • Make sure that you provide the SSA with a routing number and a checking account number to allow them to deposit your check electronically into your banking account.
  • Don't call Social Security repeatedly if you are trying to find out the status of your payment.  Just call once every 30 to 45 days and politely ask if they are missing any information that they need to be able to process your payment.  If they ask you for information, provide it to them as soon as possible. They might need to get information such as: the right spelling of your name, the identities and ages of your children, your tax returns, information on the jobs held during the period of disability, rent payments, welfare payments, workers compensation payments and settlements and income received during the period of disability. Don't question the need for the evidence requested.  Don't act as if you don't have to give them the financial information.  Don't complain about how difficult it is to get this information.  Just get it to them!  You won your case already.  The time to argue is over.  Now, the government has the right to ask you for all this information before they put you on pay status.
  • Determine whether your case was an SSI claim or if it included and SSI claim and, whether you received any worker's compensation payments.  If your case involved an SSI claim, the SSA will call you to schedule an interview.  Be ready to address all your finances on the day of that interview.  An ideal claimant should have an itemized statement of his or her finances; outlining all income and expenses made during the disability period.  If you had a worker's compensation claim opened at any point in your life, be ready to provide an accounting of every single penny received from worker's compensation and provide a copy of all records in your comp file including any settlements
There is no guarantee that the SSA will not screw up your retro check even when you follow the steps mentioned above.  Moreover, I urge you to be an active client.  Get all this information on your own or with the help of friends and relatives.  Your lawyer gets paid to prove your disability, not to be your personal secretary or assistant.

Monday, July 21, 2014

Should You Go On Vacation While Your Disability Claim is Pending?

Its vacation time and the question as to whether a Social Security Disability or Long Term Disability Claimant should go on vacation, while his or her claim is pending, keeps popping up.  Unfortunately, most claimants are not even aware that going on a trip could adversely affect their chances of winning disability benefits.  This issue is fairly controversial among disability lawyers.  Here are my thoughts:
I believe that part of the confusion regarding this issue stems from the fact that some people see vacation time as the direct opposite of working.  Many think that the ability to vacation has no bearing at all in the determination as to whether someone can work or not.  This notion is totally wrong.  In fact, most Social Security judges routinely ask claimants during the hearing whether they have gone on a trip during the period of disability.  In the past few hearings that I have been to, it looks as if the judges read this question out of a script that someone else has given them.  I have also noticed that vacations and trips are very often mentioned by long term disability insurance companies as a basis for denial of LTD benefits.  Therefore, be aware that if you go on vacation while your claim is pending, you are complicating your case unnecessarily.  Don't complicate your case.  If you want to err on the safe side, stay home.
However, if you don't want to follow my advise and want to go on vacation despite my recommendation, at the very least, you have to be smart about it.  First of all avoid, at all costs, calling your trip "a vacation".  Remember that a vacation is considered by many as a time of entertainment for those who work.  If you are not working because of a serious illness or condition, it might be a good idea to use a word other than "vacation" when you describe your trip.  Call your trip "a special time to recover and rest".  Without being overly dramatic, you can state some reason  for your trip that reiterates the fact that you are suffering from a disabling condition.  For example, you can say that your bad health made you think of your own mortality and made you want to go back to a special place such as: your hometown, the place were you met your spouse or the place where you went to college.  You can also combine your vacation with some form of therapy or retreat.
Finally, document everything that you did during your trip.  If you needed special accommodations during the trip such as special carts and wheelchairs, document it.  Keep receipts and other documentation and take pictures.  Be very careful on what you say to your doctors about your trip.  Remember that your doctors will transcribe everything that you say during a medical appointment.  Don't cancel or postpone a medical appointment due to your trip.  Moreover, if you are going on a trip due to a death in the family or a family emergency, make sure that such an emergency is reflected on your claim file.