Monday, November 20, 2017

Income and Disability

There are some circumstances where a disabled claimant can receive Social Security Disability “SSD” benefits even though they are also receiving an income. If the income is not from work activity, then that passive income will not preclude SSD benefits. If the income is from work activity, but is below substantial gainful activity (“SGA”), then SSD benefits also are not necessarily prohibited.

An administrative law judge (“ALJ”) is required to determine if you are engaging in SGA. Therefore, if there is any indication in your earnings record or otherwise that you have income after your alleged onset date (“AOD”), then the ALJ needs to make that determination. In some cases, whether a claimant is working and is exceeding SGA levels may be the only issue that the ALJ needs to decide. Practically on a daily basis, articles are being written about the waiting time for an ALJ to hear an SSD appeal reaching at an all time high.

I recently avoided a hearing by providing the ALJ’s hearing office with a letter explaining that the claimant’s post AOD earnings reflected Short Term Disability benefits that she received through her employer. After receiving that letter, the ALJ approved the claimant’s application without the need for a hearing.

Social Security Backlog Continues

In case you are wondering if the recent hearing on Capitol Hill regarding the backlog of Social Security Disability cases has had any positive affect, it has not.  The wait time for a hearing is close to 2 years.  Thousands and thousands of people, including some of our own clients, have died waiting for their cases to be heard, and there doesn't seem to be an end in sight.

Tips for Retirement Benefits

Most people are unsure of, or unaware of what is the best time for them to apply for their Social Security retirement benefits. The best advise is, the longer you can wait, the bigger your monthly benefit will be.

Tuesday, October 24, 2017

Witness Testimony

The Social Security regulations require an administrative law judge (“ALJ”) to consider all evidence, including information from nonmedical sources, such as a family member. A claimant should always consider having a witness testify at a hearing when appealing a denial of Social Security Disability (“SSD”) benefits. Having a witness testify is especially important when the claimant is impaired from fully testifying. 

I represent a former a financial compliance officer who suffered a traumatic brain injury (“TBI”). The ALJ approved the claimant’s SSD application today after finding oral and written testimony from the claimant’s witnesses to be credible. 

The ALJ granted my request to allow the claimant’s brother to testify at the hearing, after listening to the claimant’s testimony. The brother pointed out the numerous errors and oversights in the claimant’s testimony, many of which were corroborated by the documentary evidence. I also obtained a letter from the claimant’s friend with a liquor store, who had hired the claimant to work for him. The letter explained that the claimant had to be let go because he was unable to remember to perform the simplest of tasks. 

New Social Security rules emphasize the need to show consistency of the evidence supporting an SSD claim. Letters, affidavits and testimony from witnesses help establish that consistency.

Monday, September 25, 2017

Free Medical Records for New Yorkers

On September 13, 2017, Governor Andrew Cuomo signed a bill which allows New Yorkers to obtain their medical records without having to pay a fee if they are needed for the support of an application, claim or appeal for any government benefit program. In the past, claimants applying for Social Security Disability ("SSD"), or Supplemental Income ("SSI") could be charged up to $.75 a page for their medical records by their doctors. This bill will take that financial burden off of the claimant's applying for SSD or SSI, who are usually in financial distress.

Saturday, September 23, 2017

Mental Health Parity Laws

New York and Montana both have mental health parity (“MHP”) laws. The purpose of MHP laws is to ensure that people with mental health problems are treated the same as people with physical problems. Surprisingly, Montana MHP laws provide greater protection for those afflicted with mental health issues than New York does. 

A few days ago, a federal judge in Montana ruled that Montana’s MHP law requires group disability plans to provide claimants with the same benefits for a mental illness as it would if the disability were due to a physical impairment. While New York’s MHP requires group health plans to provide equal coverage regardless of whether the impairment being treated is mental or physical, New York’s MHP does not require group disability plans to provide equal coverage. 

The difference in the States’ MHP is significant because the overwhelming vast majority of group disability plans limit benefits for 12-24 months for mental impairments. In Montana, Sand-Smith v. Liberty Life ruled that group disability insurers cannot enforce plan provisions that limit benefits if the claimant’s impairment is mental. New Yorkers currently lack the same protection. 

New Yorkers should contact Attorney General Schneiderman’s office and the State’s Department of Financial Services to advocate for expansion of the MHP law to apply to disability plans in addition to health plans.

Wednesday, September 20, 2017

OTRs to Reduce Backlog

Yesterday, The Denver Post published an editorial entitled Social Security’s lag time in disability assistance is unconscionable. The editorial noted that thousands of people die waiting for hearings. A couple of days ago, AP News published stating that, “More than 1 million Americans await a hearing to see whether they qualify for disability benefits from Social Security, with the average wait nearly two years — longer than some of them will live.

In the recent past, OTR decisions have been helpful in reducing the hearing backlog in the past. As recently as Fiscal Year 2010, senior attorneys issued more than 54,000 on-the record decisions, and OTRs were not uncommon. However, last year just over 1,000 were issued, with this year following suit. 

Senior attorney or attorney advisor’s would approve OTRs when medical-vocational rules directed awarding benefits, or when a listing was met. I had a hearing today, where the medical expert said the claimant met a listing, and the ALJ indicated that he was accepting that opinion. This case would have been approved by a staff attorney OTR several years ago, and resuming the program to allow them to issue OTRs would be an effective start to help alleviate the backlog.