Saturday, March 30, 2013

Eliminate the SSD Waiting Period

A person must be disabled for five full calendar months before he or she can receive Social Security Disability (“SSD”) benefits, and benefits are not retroactive for the waiting period. Since the waiting period does not begin until after the first day of the month following onset of disability, the waiting period may sometimes be closer to six months. The waiting period was enacted because disability insurance carriers used similar waiting periods before paying benefits, and to provide time for temporary medical conditions to be corrected or show definite signs of recovery. 

As reported in Newsday, Representative Steve Israel held a news conference yesterday during which he announced that he would introduce legislation to exempt the terminally ill from the waiting period. Perhaps the greater question is why should there be a waiting period for anybody? 

The five month waiting period creates hardship for disabled individuals at the worst possible time. It seems unfair that the Social Security laws only requires some claimants to endure a waiting period before becoming entitled to receive disability benefits. 

Disabled workers, disabled widows and widowers, and disabled surviving divorced spouses aged 50 to 65, are subject to a full five-month waiting period before receiving Social Security disability benefits. On the other hand, disabled adult children whose parents are disabled, retired or deceased as well as those who receive Supplemental Security Income benefits are not subject to a full five-month or any waiting period before receiving benefits. 

Time and time again, I have had clients ask, “What am I supposed to do until benefits begin?” The waiting period imposes a severe financial hardship for many, especially since the additional costs of medical care can quickly deplete any savings, which is even truer as many lose their health insurance when they stop working and cannot afford to pay the COBRA premiums. 

The original reasons for the waiting period are unsound. The insurance companies have used waiting periods because they are in the business of making money and reducing their payouts. Social Security is supposed to address the needs of the vulnerable as opposed to seeking profits for shareholders. Social Security recognizes the need to help the disabled by enacting various programs to expedite the possessing of claims. Expediting, but not paying, claims, fails to fully address the problem. 

To receive either SSD or SSI benefits, a person must prove the same medical disability, but the SSI disability program has no waiting period. That seems unfair because it effectively penalizes a person who has worked and paid FICA taxes. Eliminating the waiting period can be done in the same manner as increasing the retirement age. For example, the waiting period can be reduced by one month each year for five years. As people would still need to prove that their condition will be disabling for at least a year, the impact may be smaller than expected.

Thursday, March 21, 2013

Urinary Incontinence

Urinary incontinence can be disabling for many reasons. Lifting and carrying things could trigger the problem, as could changing positions too often or things in the environment that trigger sneezing or coughing. A frequent problem when trying to establish disability is making the adjudicator understand why simply providing easy and regular access to bathroom facilities is insufficient. 

Many occupations cannot be accommodated for instantaneous and at will bathroom access. I represent a 59 year old former teacher with urinary incontinence whose Social Security Disability (“SSD”) application was just approved. However, even though there were a thousand pages of medical records, the claimant had to proceed to a hearing. Fortunately, I had obtained a report from a vocational expert (“VE”) that explained how the claimant’s symptoms precluded her from performing her past or any other occupation on a sustained basis. 

In situations where the claimant’s medical condition is disabling based upon non-exertional factors, such as urinary incontinence, a vocational report is a wise investment. In many such cases, Social Security will pay a VE to testify at the hearing, and more often than not, the VE will find jobs that the claimant can supposedly perform. It is much more difficult for the SSA to deny a case, even if it has a VE testify, when the claimant has already submitted a report from his or her own VE to the contrary.

Thursday, March 14, 2013

SS Retirement or Disability?

If you are nearing the Social Security early retirement age of 62, and can no longer work because of a physical or mental condition, then you should consider applying for Social Security Disability (“SSD”) instead of simply taking early retirement. SSD benefits are paid at a higher "full retirement age" amount, rather than the early retirement amount. If you retire before 2016, there is a 25% difference between early retirement benefits and full retirement age benefits. 

There is no double dipping; you cannot receive both early retirement and SSD benefits. In essence, SSD is a retirement benefit for those who are forced to retire early because of a medical condition. SSD benefits are converted to retirement benefits at full retirement age. There is one exception. If you took early retirement, and then was approved for SSD, Social Security will make up the difference between the early retirement amount and the full disability amount for those months the individual was disabled but receiving early retirement benefits. 

I was retained by a 61 year old former road maintenance worker. When he turned 62 he took early retirement. I just got him approved for SSD. Besides getting an increase in his monthly benefit, his insured status is frozen, which prevents his lack of income because of his disability from counting when calculating his Social Security retirement payment.

Monday, March 11, 2013

Ignoring Unreasonable Requests

I represent a former office technician whose Social Security Disability (“SSD”) application was approved today without a hearing, and without submitting an “OTR”.  The local office in Freeport had insisted that the claimant submit her original birth certificate, even though that requirement has not been in force since Social Security started accepting applications over the internet. I did not submit the birth certificate because the local offices had a penchant for losing them in the past, and Freeport denied the application two months after it was filed. 

The initial decision stated that SSD benefits were denied because the evidence supposedly did not show that the claimant was disabled. However, that was boilerplate language that is in every initial denial, and the application was denied, after only two months, because I did not submit the birth certificate. 

The application was approved on March 8, 2013, only about six weeks after I requested a hearing. In other words, the application was approved based upon the same information that had been reviewed previously, confirming that the refusal to submit the birth certificate was not a legitimate basis for denying the claim.

Officer Approved in 2 Months

A 51 year old former police officer retained me after her application for Social security Disability (“SSD”) benefits was denied. When I reviewed her claim file, I found hundreds of pages of longitudinal medical records, many from the Veterans Administration, as she had been in the Army Reserves. However, there were no reports explaining the severity of her symptoms and their impact on her functionality. 

The claimant’s primary problem was fibromyalgia. Fibromyalgia claims are often difficult to establish because they are largely dependent on subjective evidence.  Fortunately, the claimant’s rheumatologist and her family doctor were beach familiar with the claimant’s problem, and provided reports explaining how the fibromyalgia not only satisfied the medical criteria for the syndrome, but also limited her functionality. The claimant was approved for SSD shortly after I submitted those medical reports.

PADRO Class Action

During the last couple of years, I have probably written more often about the Padro v. Astrue Class Action than anyone else: 4/13/11, 4/15/11, 4/21/11, 4/22/11, 4/29/11, 7/31/11, 9/23/11, 9/28/11, 3/30/12, 4/9/12, 5/24/12, 8/21/12, 9/19/12, 10/1/12, 1/7/13, 2/11/13. In fact, many of those articles refer to the class action as Bailey v. Astrue class action because my client, Ms. Bailey, became the first named Plaintiff in the lawsuit. The second named Plaintiff, Ms. Thelot, was also my client, and her testimonial discusses the class action. 

I am one of only two attorneys who was willing to submit an affidavit against David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss, who, as the class action complaint detailed, are the biased Administrative Law Judges (the “Queens Five”) who systemically and wrongfully deny Social Security Disability and Supplemental security Income claims at the Queens hearing office. The other attorney was Troy Rosasco. No other attorney was willing to submit an affidavit for fear of retaliation by the Queens Five. 

On January 14, 2013, the class action was settled. While the stated goal of the attorney who filed the pro bono class action was to have the Queens Five dismissed, that did not happen. However, the proposed settlement provides relief to over 4,000 disabled New Yorkers, including new hearings and a combination of other reforms to protect due process rights and ensure the provision of fair and full hearings in future claims. The settlement also provides that for the 30-month period after the court approves the settlement, any claimant denied benefits by the Queens Five will automatically have their claim reviewed by the special review unit, and, if granted a new hearing, will have a right to a new hearing before other ALJs. 

If you receive a class action Notice that you are entitled to a new hearing, feel free to contact our office for additional information. You can retain us even if you previously had another attorney, such as Binder & Binder, who would not submit an affidavit to support the rights of claimants against the Queens Five.

Saturday, March 2, 2013

FCE Spurs Unum Approval


Long Term Disability (“LTD”) insurers use similar tactics to deny or terminate benefits when the treating doctors support the claim.  One of those tactics is sending claimants for a Functional Capacity Evaluation (“FCE”).  An FCE is a battery of tests to see what your physical capabilities are with regard to work.  The results of the FCE are normally weighed against the U.S. Department of Labor standards, as set forth in its Dictionary of Occupational Titles, which classifies work into progressively more strenuous categories sedentary, light, medium, heavy, and very heavy work.

The insurers have arrangements for the same people, normally physical therapists (“PTs”), to perform the FCEs.  In order to maintain those arrangements, I have seen cases where the PTs conducting the FCEs conclude the claimant can perform a certain category of work even when the FCE data fails to support it.  That is precisely what happened in Alfano v. Cigna.  In order to avoid an insurer from relying on a faulty FCE, I sometimes advise my clients to have an FCE.  An independent FCE prevents a PT from giving a conclusion inconsistent with the FCE data. 

I represent a 43 year old securities trader with psoriatic arthritis.  That occupation is light, which requires standing and walking most of the day.  I advised the claimant to have an FCE for his feet, and the data revealed a severe impairment.  The treating doctors concluded the claimant lacked the ability to perform light work based upon the clinical findings.  The LTD claim was approved in three months, which I attribute to the FCE objectively corroborating the treating doctors’ opinions.