Thursday, December 30, 2010

SSA Notice of Awards

The Social Security Administration (“SSA”) sends a Notice of Award (“Notice”) if a disability claim is approved. The Notice provides information such as the amount of the monthly and/or retroactive benefits. The Notices regularly contain errors, such as incorrect disability onset dates, and therefore they should be reviewed carefully.

One of my clients sent me a Notice that she received today. Despite the fact that the SSA knew that I was representing the claimant, had called me about the claimant several times, and had sent me a dozen pieces of correspondence concerning her claim, the Notice revealed that the SSA failed to withhold the attorney fee.

I immediately notified the claimant about the SSA error. The claimant was happy to learn about the Notice’s mistake before spending her award. There have been many other occasions where the SSA failed to send me Notices, which resulted in delaying informing the claimant that the attorney fee had not been deducted from their retroactive benefit check.

It seems the longer it takes the claimant to learn about such errors, the more they feel as if they “lost” benefits. It is in everyone’s best interest to rectify these discrepancies as soon as possible. I always advise claimants to let me know when they receive Notices for this and other reasons. For example, earlier this month I was able to get the SSA to correct the Notice’s disability onset date and issue three additional months of benefits before the benefits were processed, which avoided a protracted process had they already been processed.

Tuesday, December 21, 2010

SSA Doctors

The State agency, also known as the Disability Determination Service, usually threatens that an application for disability benefits cannot be approved unless the claimant is examined by an agency doctor. Some of my earlier blogs have addressed the reasons why the regulations provide that the state agency's threats are wrong.

I received two fully favorable decisions yesterday that reinforce the reasons why state agency medical exams are not mandatory in most circumstances. Each decision said that because there was no agency medical opinion, Ruling 96-6p did not apply. That Ruling addresses the weight to be accorded state agency medical opinions.

Ruling 96-6p does not mandate exams by state agency doctors. The two decisions approved disability benefits while explicitly referencing the absence of state agency medical exams. Thus, not only do the regulations explain why state agency medical exams are usually unnecessary, but there is no Ruling that requires them either.

Monday, December 13, 2010

Protective Filing Date

A protective filing date is the date when a person first contacts the Social Security Administration (the “SSA”) about filing for benefits, which may be used to establish an earlier application date than the date the SSA claims it received the signed application. An earlier application date can result in additional benefits.

On January 29, 2010, a fifty one year old former professional recruiter consulted me about filing for Social Security Disability (“SSD”) benefits. She told me that she became disabled on August 17, 2007, and that she first contacted the SSA about filing for SSD benefits well over a year ealier, but neither she nor the SSA had a record of that contact. Since it was the last business day of the month, I advised the claimant to call the SSA to request an appointment to file an application for SSD benefits. I told her to make sure that they would promise to send her a letter to confirm the appointment.

On March 23, 2010, I filed the claimant’s application SSD benefits by certified mail. Nonetheless, the SSA claimed that the claimant’s application was filed April 9, 2010, even though it had date stamped the application in its own file with a date of March 24, 2010.

An Administrative Law Judge (“ALJ”) was assigned the case to resolve the filing date. At the hearing, the claimant testified that she first contacted the SSA about applying for SSD benefits in January 2008, and then restarted the application process again in February of this year. I then produced a copy of a letter that the SSA sent in February this year about the claimant’s appointment for seeking SSD benefits.

The ALJ’s decision today found that the claimant had a protective filing date of February 1, 2010, which effectively is the same as a January 29, 2010 protective date because in either case February 2010 is the first month that counts towards the five month waiting period for SSD benefits to begin. This means that the claimant’s SSD benefits will begin as of July 2010; whereas, they would have begun October 2010 if April 9, 2010 had been used as the application date. Unfortunately, without written evidence of the 2008 contact, the ALJ would not accept an earlier protective filing date, which resulted in the loss of over a year of SSD benefits.

If you intend to file for SSD benefits and more than 17 months have elapsed since you became disabled, then you should ask the SSA to send a letter confirming that you inquired about SSD benefits, and send the SSA a confirmatory letter as well.

Friday, December 10, 2010

On The Record Requests

One way to avoid hearing delays after a Social Security Disability (“SSD”) claim has been denied is to file a request for a fully favorable decision on the record (“OTR”). The OTR summarizes the medical and vocation evidence, and explains why the rules and regulations show that a hearing is not needed.

A strong argument for having an OTR approved is that disability is required under a Medical-Vocational Rule. I represent a 52 year old former quality control engineer whose OTR was approved in less than two months. I submitted a report from the claimant’s physiatrist, as well as the treating chiropractor, that he claimant was unable to perform sedentary work. The OTR pointed out that even if the claimant were capable of sedentary work, in light of the claimant’s adverse vocational factors, he would have to be found disabled pursuant to Medical – Vocational Rule 201.14.

The Attorney Advisor’s opinion accepted the argument for the application of Rule 201.14, and approved the OTR. As a result, the claimant did not have to wait for a hearing, which typically takes well over a year. For most SSD claimants, receiving the SSD benefits sooner is important because cash flow becomes a problem when they no longer have a steady income.

SSA Delays

Statistics from the Social Security Administration (“SSA”) state that the majority of Social Security Disability (“SSD”) claims are denied initially. The next step in the process is either reconsideration, or a hearing. In some places, such as New York, reconsideration has been eliminated, which is no real concern because few cases were approved at that stage. The newest SSA statistics state that it takes an average of 426 days to process a claim at the hearing level.

Given the time frames typically associated with SSD claims, it makes sense to pursue them as aggressively as possible as soon as possible. That is why I always try to obtain and submit multiple supporting medical opinions before the SSA makes its initial decision.

I represent a 47 year old former fire marshal and dispatcher whose SSD application was approved in three months after being considered at the initial stage. Among other things, I submitted reports from the physiatrist, internist, and podiatrist that explained why the claimant’s medical conditions prevented him from being able to perform the physical demands of any type of work.

While the claimant had severe injuries, he was under 50 years of age, which is a significant reason that leads to claims being denied initially. It is likely that the claimant’s SSD application may have been approved at the hearing stage if only one of his doctors’ supporting reports had been submitted. However, having submitted three supporting medical reports apparently explains why the claimant’s application was approved so quickly at the initial stage.

Friday, December 3, 2010

Dialysis & Disability

Kidneys filter waste, excess fluid, and toxins from the blood. When a person’s kidneys stop working fatigue commonly occurs. As the kidney failure progresses the fatigue may prevent a person from working on a full time basis, which could support a claim for disability benefits.

There are two ways for a person with failing kidneys to establish entitlement to Social Security Disability (“SSD”) benefits. A claimant can show that the resulting fatigue prevents them from being able to perform the physical demands of work during an eight hour work day. Alternatively, a claimant can establish that they meet the “listing” criteria for chronic renal disease if the condition requires dialysis.

I represent a former police officer from Queens whose SSD application was approved today without a hearing. The senior staff attorney said he had no problem approving the on-the-record (“OTR”) request I had submitted because there was evidence both that the claimant lacked the ability to work a full day, and met the renal disease listing criteria. The staff attorney contacted me though because he needed an explanation for the officer’s income after his disability onset, for which I supplied a statement that it represented sick time.

Using both methods for establishing disability and offering to assist the staff attorney overcome any issues he perceived enabled the officer to avoid a protracted wait of months if not years for a hearing. Moreover, a hearing did not necessarily guaranty that the SSD application would be approved.

Thursday, December 2, 2010

Disability Opinions & Medical Tests

Claimants are frequently surprised when their disability claims are denied even though their doctors provided a letter stating that claimant was disabled or was unable to work. A conclusory disability statement by a physician is rarely sufficient by itself to justify a finding of disability.

I represent a former police officer who had been seeing an orthopedist who stated the officer should refrain from working. The Social Security Administration (“SSA”) denied the officer’s application for Social Security Disability (“SSD”) benefits even though there were diagnostic tests showing significant cervical spine abnormalities.

In preparing the officer’s appeal, I obtained detailed functional assessments from the treating pain management specialist and neurosurgeon. Both of the specialists’ reports identified the clinical examination and diagnostic test findings that limited the officer’s ability to perform physical work demands.

I received a fully favorable decision today from the SSA. The decision cited the findings and conclusions of the officer’s pain management specialist and neurosurgeon, but not the treating orthopedist.