Monday, October 17, 2016

What do Disability Lawyers Mean by Exertional and Non-exertional Limitations?

Social Security Disability Lawyers use complicated terminology that very often confuses their clients and other lawyers who do not practice in the area of disability law.  Two of the disability law terms that most people find confusing are: "exertional" and "non-exertional" limitations.  
In analyzing a disability claim, all judges must make a determination regarding what the claimant can or cannot do.  In other words, the judge must determine what are the claimant's limitations.  To reach a proper decision, the judge must separate a claimant's limitations into two different areas: those that are exertional and those that are not.  I will explain these two terms below:
Exertional Limitations: These limitations deal mostly with the strength demands required for a job. The Social Security Administration considers exertional demands to be: sitting, standing, walking, lifting, carrying, pushing, and pulling.  These limitations are used to determine whether a claimant's ability to do work is considered to be at the sedentary, light, medium, heavy or very heavy level. These classifications are fairly straight forward and can assist the judge in making a decision on your case without having to go into other non-exertional limitation, which as you will see, can be more complicated and subjective.
Non-exertional Limitations:  These limitations include areas dealing with much more etherial or subjective matters such as: mental restrictions. environmental restrictions or requirements for changes in posture.  Symptoms related to a medical condition such as pain or fatigue are very common examples of non-exertional limitations.  
Here are several other examples of non-exertional limitations:

  • Difficulty functioning because of depression or anxiety.
  • Difficulty concentrating.
  • Memory problems.
  • Hearing or vision problems.
  • Difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes.
  • Requiring to change positions from sitting and standing.

Monday, October 10, 2016

GOP's Budget Cuts are Killing Social Security

In anticipation of the upcoming presidential election, I urge all of my readers to watch the video below.  Americans who have had to stop working due to a severe disability are being subject to unprecedented hardships as a result of the actions of Republicans in Congress.  As a Social Security Disability Lawyer, I receive calls practically on a weekly basis from persons who are about to go homeless or have ended up in shelters while waiting for their cases to be heard.  I spend a great deal of time explaining the current crisis to callers.  Few of them seem to understand the true cause of this problem or realize that this crisis is not unique to them.  Fortunately, the video and the article cited below will help me back up some the comments and explanations that I give to clients regarding the critical state of affairs at the SSA.

If Social Security Disability matters to you, please watch and the video and read the article below before you vote.  

I encourage everyone to read the wonderful piece written by Nancy Altman, Founder and Co-director of Social Security Works: Slowly Killing Social Security: Death By A Thousand Cuts

Monday, October 3, 2016

Social Security Completely Revamps the Mental Disability Listings

On September 26, 2016, the Social Security Administration finalized a total overhaul of the listings used to evaluate mental disorders and intellectual disabilities.  Most Social Security Disability Lawyers are surprised that these changes have been announced prior to the presidential election.   However, the new rules will not be in effect until January 17, 2017.  This is a major change and a very controversial move by Commissioner Colvin.  For a copy of the new listings click here.
"The Listings" are a long list of medical conditions with specific criteria that the SSA uses to determine whether a condition qualifies as disabling without having to determine whether a claimant can work or not.  If a claimant's conditions meets a listing, then the claimant is found to be disabled without the need to make any findings with respect to his or her residual functional capacity or vocational skills.
The new rules cover practically all mental disorders including: intellectual disabilities, schizophrenia, eating disorders, depression, bipolar disorder, PTSD, anxiety and autism.  Each one of these new listings deserves a separate blog post.  It will take Social Security Disability Lawyers many months to fully understand the impact of these new changes. 
The new listings reflect the terminology used in the DSM-5 (The Diagnostic and Statistical Manual of Mental Disorders) to classify mental disorders.  The DSM-5 is relatively new.  It replaced the DSM-4 on May of 2013.  On a first reading of the new rules, I noted some significant changes.  For example, there is a new listing for trauma which is separate from the listing for anxiety disorders.  On the intellectual disorder listing (12.05), the term "deficits in adaptive functioning", which was the subject of much litigation, has been thoroughly defined.  Another change is that listing 12.05 now requires evidence that the intellectual disability began prior to the attainment of age 22.

Monday, September 12, 2016

Tell Congress to Fully Fund Social Security's Budget

On an average, disabled Americans are waiting 575 days to present their Social Security Disability claims at a hearing before a judge.  A record one million SSDI and SSI cases are currently pending. This is an alarming crisis.  
While disabled individuals wait for a hearing, utility bills go unpaid, families struggle to put food on the table and many face the risk loosing their homes.  
This problem is not happening by mere chance.  This situation has been caused by dramatic cuts in the Social Security Administration's operating budget.  Since 2010, the SSA's budget has been cut by 10%.  In the meantime, the agency's workload has increased due to the rise in the demand for services caused by the ageing of the baby boomer generation.  Services have been cut across the board.   Since 2010, the SSA has closed approximately 60 field offices and 500 mobile offices.
Unfortunately, the Republican controlled Congress is considering even deeper budget cuts.  A proposed bill envisions cutting the agency's budget by over $250 million in 2017.  These additional cuts will aggravate the current crisis even more.
Under the proposed house bill, the Social Security Administration would need to close all its offices for two weeks as a result of employee furloughs. And a looming hiring freeze can lead to even longer wait times and delays in all parts of the Social Security system, including retirement, survivors’, and disability programs. A Senate version containing a similar proposal for cuts provides slightly more funding, but still fails to address many critical agency resource needs.
Social Security advocates across the country are asking everyone affected to contact their representatives in Congress.  President Obama has requested funding for 2017 that would allow Social Security to begin reducing the disability claims backlog and to reduce other agency service delays.
Call your Members of Congress TODAY. You can find their contact information at and (upper right corner of each page).

Monday, September 5, 2016

NFL Player is Denied Long Term Disability Benefits

When it comes to disability insurance claims, it seems like all claimants are subject to the same hassles regardless of their financial status or social class.  Long term disability insurance companies are billion dollar giants that really don't care much about what individual policy holders think about them or about the negative effects that bad publicity can have against their businesses. Take the example of Haruki Nakamura, an Ex-NFL player who was recently denied long term disability benefits.  
Nakamura, a former safety for the Baltimore Ravens and the Carolina Panthers, purchased a 1 million dollar long term disability policy from Lloyd's of London that provided benefits in the event that, due to illness or injury, he became unable to "participate ever again in his occupation of football player". In August 2013, during a Carolina Panthers pre-season game against the Pittsburgh Steelers, Nakamura suffered a hit to the head and was diagnosed with a concussion a few days later. Nakamura was placed on the injured list in September 2013 and two days later was released from his Carolina Panthers contract due to his “concussion.”
In October 2014, Kakamura's treating doctor wrote a report stating that his patient would not be able to play professional football again due to the disabling effects of his concussion.  Despite the well documented evidence of the effects of concussions in football and the medical evidence on record, the insurance company chose not follow the recommendation of Mr, Nakamura's doctor.  Instead, the insurance company invoked its right to conduct its own medical examination by a doctor hired by them.   
After unnecessarily prolonging the application for benfits for more than 18 months, the insurance company denied the claim.  In many ways the actions by the insurance company in Nakamura's claim, resemble many other denials that I see on a regular basis.  The company's decision to deny benefits is typical of the insurance industry's arrogance.   For example, the insurance company claimed that Nakamura could return to play, however their own doctor cautioned Nakamura to consider the “probable long-term effects of repetitive concussions” before making the decision to go back to football.  This leads me to believe that the insurance company knows that it doesn't have a strong case but it denied the claim merely to force Mr. Nakamura to compromise his claim. 
Another aspect of Nakamura's claim that resembles some of the issues faced by my clients is that the insurance company seems to be preying on the highly subjective aspects of disabilities claims caused by concussions.  Nakamura has alleged that due to the concussion he suffers from headaches, vision problems, fatigue, depression and suicidal thoughts.  Unlike usual orthopedic injuries suffered by football players, the subjective effects of head trauma are a lot harder to assess with objective tests.  
Nakamura has filed his complaint in the North Carolina Superior Court.  To read a copy of the complain click here.  Since Nakamura purchased his policy individually, his lawsuit is not covered by ERISA.  As you can see from the complaint, he is entitled to a jury trial and damages for unfair and deceptive practices.  If his claim had been governed by ERISA, such legal remedies would not have been available to him

Monday, August 29, 2016

State Grant Will Help Disabled New Yorkers Fight for Benefits

Denial rates of Social Security Disability claims is at one of its highest points in history.  It is common for some administrative law judges (ALJ's) to approve only 25% to 30% of the cases that they hear.  Due to the high odds of loosing a Social Security Disability case, many disabled claimants are going through the system unrepresented.  This lack of legal representation has lead to many abuses within the system particularly against individuals who are indigent and suffer from intellectual limitations and mental illness. 
Fortunately, the State of New York has announced a $8.2 million grant to assist claimants in the pursuit of benefits such as Supplemental Security Income, Social Security Disability Insurance and other similar Federal programs.  Commissioner Samuel Roberts of the Office of Temporary and Disability Assistance of the State of New York is pleased with the results that the "Disability Advocacy Program" has brought to New Yorkers.  From July 2014 to July 2015 approximately $17 million in benefits were generated for disabled recipients.
Several great non-profit legal legal advocacy organizations are currently participating in this grant. Here is a partial list of the organizations:
  • Legal Services NYC has received $2.29 million -  the largest amount.
  • The Empire Justice Center will provide services in 13 western New York counties.  They will also administer the statewide advocacy program.  The total grant of this organization is $1 million.
  • The Urban Justice Center will receive $819,189
  • New York Legal Assistance Group $794,528
  • Nassau/Suffolk Law Services Committee  $676,858
  • Legal Aid Society if Mid-New York $628,522
  • Legal Aid Society of Northeastern New York $619,023
  • Legal Services of the Hudson Valley $558,493
  • Meighbohood Legal Services $526,371
  • Erie County Department of Social Services $162,242
  • Legal Aid Society of Rockland County $105,323


Monday, August 8, 2016

Social Security Disability Insurance Marks its 60th Birthday!

On August 1956 President Dwight D. Eisenhower signed Social Security Disability Insurance (SSDI) into law.  President Eisenhower stated at the time of signing: "I am hopeful that the new law... will advance the economic security of the American people".  Sixty years later, SSDI has provided injured and disabled workers with a safety net for their economic stability.  
We must all do more to educate the public about the importance of Social Security Disability Insurance.  Please share my blogs and social media posts.  With a backlog of more than a million cases, the Social Security Disability programs need your support more than ever.  
Public opinion polls show a strong support for SSDI.  Nearly nine in ten American's have expressed their support for the program.  (See poll results here.)  Nonetheless, over the past two years a strong minority of ultra conservatives such as Sen. Tom Coburn and Sen. Tom Cotton have done everything possible to undermine the program.