The June 2012 AARP Bulletin has an article called “Time for a Tune-Up” that discusses potential improvements to the Social Security program. One of the suggestions is raising the full retirement age from 67 to 68 or 70. The increases supposedly would result in savings of 18% and 44% respectively, and the justification is increasing life expectancy.
The article cautions that, “a later full retirement age could be onerous for workers with health problems or physically demanding jobs.” However, that concern is already taken into consideration. People who can no longer work due to health reasons can seek disability instead of retirement benefits from Social Security. Moreover, there are certain rules that make it somewhat easier for workers who have more physically demanding jobs to get Social Security Disability benefits.
Monday, June 11, 2012
Sunday, June 10, 2012
How Much Will Social Security Pay You?
Starting in the 1980s, the Social Security Administration (“SSA”) mailed annual statements to workers older than 25 years of age. Last year, the SSA stopped mailing the statements, which provided information about your estimated disability and retirement benefits, in order to save money. The SSA now allows you to get your Social Security Statement online. The Statement will give you an estimate of the retirement and disability benefits you and your family may receive; a list of your lifetime earnings for possible correction; information about qualifying and signing up for Medicare; and a printable version of your Social Security Statement. However, you need to create an account with the SSA to get your information. To create the SSA account, you must go to http://www.ssa.gov/mystatement/ to provide personal information as well as answers to questions that only you are likely to know. You also need to create a username and password to access your online account. If you do not want to create an account, you can try calling your local SSA office or the National Toll-Free number (800) 772-1213 to request your benefit information.
Thursday, June 7, 2012
SSD & Unemployment Benefits
Sometimes a Social Security Administrative Law Judge ("ALJ"), especially any one of the five from the Queens ODAR who apparently are currently in Washington DC for retraining in connection with the bias class action law suit, likes to deny disability benefits for any period of time during which a claimant received unemployment benefits. The ALJs argue that when a claimant goes to the unemployment office to receive a benefit check he or she signs a written statement certifying that he or she is ready, willing and able to work, which shows they are not entitled to Social Security Disability (“SSD”) Benefits. That argument fails as both a factual and legal matter.
I represent a 53 year old former business operation manager with lymphangioleiomyomatosis who retained me after her application for SSD benefits was denied. Her application was approved today based on the favorable on the record decision request that I filed. The decision writer said that it would not hold the receipt of unemployment benefits against the claimant because of the benevolent nature of the Social Security laws and their policy of encouraging people to try to work despite their impairments. Hopefully, the Queens Five will be reminded about that rationale during their retraining.
While the decision writer explained why the receipt of unemployment benefits should not be held against an SSD claimant, there is another reason why the receipt cannot be held against a claimant. The Social Security laws provide that a claimant is disabled when unable to work on a “regular and continuing” basis, which means 8 hours a day, 5 days a week. However, under New York State law, a claimant can receive unemployment benefits even if capable of working only part-time. Therefore, a claimant could be ready, willing and able to work on a part time basis, but the impairment may preclude full time substantial gainful activity. In other words, a claimant can look for part-time work and receive unemployment compensation benefits while still retaining eligibility for Social Security benefits.
I represent a 53 year old former business operation manager with lymphangioleiomyomatosis who retained me after her application for SSD benefits was denied. Her application was approved today based on the favorable on the record decision request that I filed. The decision writer said that it would not hold the receipt of unemployment benefits against the claimant because of the benevolent nature of the Social Security laws and their policy of encouraging people to try to work despite their impairments. Hopefully, the Queens Five will be reminded about that rationale during their retraining.
While the decision writer explained why the receipt of unemployment benefits should not be held against an SSD claimant, there is another reason why the receipt cannot be held against a claimant. The Social Security laws provide that a claimant is disabled when unable to work on a “regular and continuing” basis, which means 8 hours a day, 5 days a week. However, under New York State law, a claimant can receive unemployment benefits even if capable of working only part-time. Therefore, a claimant could be ready, willing and able to work on a part time basis, but the impairment may preclude full time substantial gainful activity. In other words, a claimant can look for part-time work and receive unemployment compensation benefits while still retaining eligibility for Social Security benefits.
Wednesday, June 6, 2012
State Agency-IMA Bad Faith Tactics
Regular readers of my blogs know that I have described how the State agency routinely deceives Social Security Disability claimants into going for examinations by doctors from IMA Disability Services. It seems the State agency is employing new tactics in order to assure that claimants go to these exams.
The first tactic is conveniently failing to notify me when my client has been asked to attend a consultative examination ("CE") by IMA. I first learn about the CE only after I see the claimant's efolder on appeal after the State agency has denied the application. The second tactic is calling the claimant on the telephone to tell them to go to the IMA CE, but mailing the notice to me two days before the 9am CE, which the State agency knows will not be delivered until after the CE. When I ask the claimants why they did not tell me they were going to the CE they said they thought I knew. In fact, one client told me today that they thought it was my office that was telling them to go the CE.
The State agency's unethical tactics are designed to circumvent my interposing objections to the CE or advising the claimant not to attend. What makes the State agency's tactics all the more unethical is that they have been specifically advised in writing that they are not to contact the claimant directly without my prior written authorization in violation of their own rules - POMS GN 03910.050.
The first tactic is conveniently failing to notify me when my client has been asked to attend a consultative examination ("CE") by IMA. I first learn about the CE only after I see the claimant's efolder on appeal after the State agency has denied the application. The second tactic is calling the claimant on the telephone to tell them to go to the IMA CE, but mailing the notice to me two days before the 9am CE, which the State agency knows will not be delivered until after the CE. When I ask the claimants why they did not tell me they were going to the CE they said they thought I knew. In fact, one client told me today that they thought it was my office that was telling them to go the CE.
The State agency's unethical tactics are designed to circumvent my interposing objections to the CE or advising the claimant not to attend. What makes the State agency's tactics all the more unethical is that they have been specifically advised in writing that they are not to contact the claimant directly without my prior written authorization in violation of their own rules - POMS GN 03910.050.
Monday, June 4, 2012
Why Bother With An Exam By IMA?
When filing for Social Security Disability ("SSD") benefits, the Social Security Administration ("SSA") usually asks claimants to be examined by one of its doctors in what is referred to as a consultative examination ("CE"). In New York, you will probably be sent to a doctor from Industrial Medicine Associates (“IMA”) for the CE.
The SSA requires a CE in the vast majority of cases even though the regulations actually permit CEs in very limited circumstances. If a CE is actually needed, then it is supposed to be performed by a treating doctor. The SSA leads claimants to believe that their SSD application will be denied if they refuse to attend the CE.
A CE is a single exam, with a vague opinion regarding a claimant’s functionality. The courts have ruled that a CE opinion is usually entitled to little or no weight. Therefore, why do we as tax payers pay millions of dollars for CEs?
A 54 year old former electrician retained me after the SSA denied his SSD application. The opinion from the IMA CE included that the claimant must avoid even mild exertion, which indicates that he could not even do sedentary work. Moreover, the IMA CE concluded that the claimant had “moderate” limitations walking, standing, and sitting. Light work requires frequent standing and walking. A moderate limitation would be inconsistent with light work, which requires 6 hours of being on one’s feet out of 8. A moderate limitation could also be inconsistent with sedentary work, which only requires 2 hours of being on one’s feet out of 8. Similarly, a moderate limitation of lifting and carrying would be inconsistent with light work, which requires lifting 20 lbs. A moderate limitation may be consistent with sedentary work, which only requires lifting 10 pounds.
Under the SSA medical-vocational rules, the claimant had to be found disabled even if able to do sedentary or light work. Thus, the claimant had to be able to do medium work, which requires lifting up to 50 pounds, not to be found disabled. Although the CE opinion described above showed the claimant could not do sedentary work, let alone light work, the State agency had denied the application.
When I was retained, I secured a report from the claimant’s orthopedist, which specified the claimant lacked the ability to lift, carry, walk, stand, and sit needed to do sedentary work. I submitted that report when I appealed the State agency decision to the SSA. The SSA approved the application today without a hearing based on the treating orthopedist’s opinion.
The question arises why wasn’t the application approved based upon the IMA CE? The great majority of CE opinions contend that claimants are not disabled, which are accepted as the basis for denying applications. Why then, in the rare situation where a CE shows a claimant is disabled does the State agency still deny the application? What is the purpose of an IMA CE when regardless of its opinion it will be used to deny an application? What is the purpose of an IMA CE when the SSA rejects it as a one time exam that the regulations require be given little weight?
The Wall Street Journal wrote an article that tried to blame the SSA’s financial problems on attorneys representing disabled people. Perhaps that paper’s resources would be more productively spent directing its attention to the CE boondoggle. Whereas attorneys are making sure that the rules and regulations are being applied, CEs are being ordered by the tens of thousands in violation of the rules and regulations.
The SSA requires a CE in the vast majority of cases even though the regulations actually permit CEs in very limited circumstances. If a CE is actually needed, then it is supposed to be performed by a treating doctor. The SSA leads claimants to believe that their SSD application will be denied if they refuse to attend the CE.
A CE is a single exam, with a vague opinion regarding a claimant’s functionality. The courts have ruled that a CE opinion is usually entitled to little or no weight. Therefore, why do we as tax payers pay millions of dollars for CEs?
A 54 year old former electrician retained me after the SSA denied his SSD application. The opinion from the IMA CE included that the claimant must avoid even mild exertion, which indicates that he could not even do sedentary work. Moreover, the IMA CE concluded that the claimant had “moderate” limitations walking, standing, and sitting. Light work requires frequent standing and walking. A moderate limitation would be inconsistent with light work, which requires 6 hours of being on one’s feet out of 8. A moderate limitation could also be inconsistent with sedentary work, which only requires 2 hours of being on one’s feet out of 8. Similarly, a moderate limitation of lifting and carrying would be inconsistent with light work, which requires lifting 20 lbs. A moderate limitation may be consistent with sedentary work, which only requires lifting 10 pounds.
Under the SSA medical-vocational rules, the claimant had to be found disabled even if able to do sedentary or light work. Thus, the claimant had to be able to do medium work, which requires lifting up to 50 pounds, not to be found disabled. Although the CE opinion described above showed the claimant could not do sedentary work, let alone light work, the State agency had denied the application.
When I was retained, I secured a report from the claimant’s orthopedist, which specified the claimant lacked the ability to lift, carry, walk, stand, and sit needed to do sedentary work. I submitted that report when I appealed the State agency decision to the SSA. The SSA approved the application today without a hearing based on the treating orthopedist’s opinion.
The question arises why wasn’t the application approved based upon the IMA CE? The great majority of CE opinions contend that claimants are not disabled, which are accepted as the basis for denying applications. Why then, in the rare situation where a CE shows a claimant is disabled does the State agency still deny the application? What is the purpose of an IMA CE when regardless of its opinion it will be used to deny an application? What is the purpose of an IMA CE when the SSA rejects it as a one time exam that the regulations require be given little weight?
The Wall Street Journal wrote an article that tried to blame the SSA’s financial problems on attorneys representing disabled people. Perhaps that paper’s resources would be more productively spent directing its attention to the CE boondoggle. Whereas attorneys are making sure that the rules and regulations are being applied, CEs are being ordered by the tens of thousands in violation of the rules and regulations.
Wednesday, May 30, 2012
Workers Compensation & SSD
I represent a 55 year old trucker with back problems whose application for Social Security Disability (“SSD”) benefits was approved today without a hearing based on a request for a fully favorable decision on the record (“OTR”) that I filed. The claimant had also applied for workers compensation (“WC”) benefits, and that affected his SSD claim in two ways.
The State agency had denied the claimant’s SSD application based on the one time consultative exam by a WC doctor named John Waller. The OTR discussed how the case law holds that where the WC insurer paid a doctor, like Waller, to examine the claimant, and it had a vested interest in minimizing the claimant’s impairments. The OTR also pointed out that even some of Waller's own patients do not approve of his services:
terrible doctor. didn't pay attention to my condition.
didn't send a diagnosis to my primary doctor, no
improvement in my condition. somewhat condescending.
More importantly, I highlighted that even the WC Board had rejected Waller’s report, and continues to pay benefits to the claimant. Social security agreed with the arguments in the OTR, and gave greater weight to the opinion of the claimant’s orthopedist.
The other way that the WC application may affect the claimant’s SSD benefits is that it could result in an offset. The Social Security regulations provide that a claimant’s SSD benefits might be reduced if other disability benefits are received, including WC. In general, SSD and WC benefits together cannot exceed 80% of the claimant’s predisability income.
Thursday, May 24, 2012
Hoppenfeld Bias
The Appeals Council rejected ALJ Hoppenfeld’s denial of Social Security Disability (“SSD”) benefits to a claimant for the second time, and ordered that another ALJ hear the case. However, the Appeals Council stated that it "appeared" Hoppenfeld did not display bias on the issue of fibromyalgia because I had the opportunity to cross examine the medical expert. That assertion is a disgraceful misrepresentation of the facts.
I never contended that I was denied the right to cross the examine Dr. Alfred Jonas, who essentially testified that fibromyalgia does not exist. Rather, I argued that one of the indicia of Hoppenfeld’s fibromyalgia bias is that she precluded me from asking Jonas questions concerning the basis for his contention that fibromyalgia does not exist. The Appeals Council’s conflation of the issue is especially troubling in light of the pending Bailey class action, because it shows that the Appeals Council cannot be relied upon to police ALJ bias.
To the Appeals Council’s credit, it referred the fibromyalgia bias matter to “another component” of the Social Security Administration (“SSA”), which is basically an admission that the Appeals Council lacks the ability to investigate bias adequately. Furthermore, while the issue of fibromyalgia bias is intricately interwoven into the claimant’s claim, nothing regarding the bias investigation has been incorporated into the claim file.
The issue of fibromyalgia bias is central to Ms. Thelot’s case, which will include another hearing on remand with medical experts. Accordingly, it is essential that your investigation, which the Order references, be included in the claimant’s efolder. For the reasons stated above, and detailed in my prior letters to you, it is imperative that your investigation be added to the efolder. Otherwise, the entire agency process for addressing bias will be demonstrably evasive and unresponsive. Please provide me with a copy, or add it to the efolder, as soon as possible.
Anyone with a fibromyalgia claim before Hoppenfeld should carefully cross examine the medical experts, their backgrounds, and testimony from other reported cases. Whose claim was denied should raise the issue of bias before it is deemed waived
Subscribe to:
Posts (Atom)
