Ginsberg Law Offices

R.I.P. Judge Albert Feldman

I was reading this morning’s paper and I saw in the obituary section that retired Social Security judge Albert Feldman passed away this past Wednesday, July 22, 2009. With your indulgence I would like to take a break from my usual blog posts – that speak about case strategies, changes in the law, etc. to reflect on the influence that this kind, compassionate and extraordinary man had on me, and I suspect many others.

Although my relationship with Judge Feldman lasted for only about 10 years and solely in the context of Social Security hearings, it was not difficult to sense immediately what type of person he was. To claimants he was, without exception, polite and respectful. Although I am sure that there must have been times when he would look at a file and recognize immediately that the claimant before him did not qualify for benefits, he was always willing to listen and give every one that appeared before him his or her day in court.

I remember one case in particular – I had a client who had been diagnosed with HIV, who, at the time of the hearing, was suffering debilitating symptoms of full blown AIDS. Unfortunately, my client’s date last insured for Title II disability had run some five years previously and the medical and other evidence clearly indicated that this gentleman did not meet the requirements of disability at that time. Social Security hearings provide for direct questioning by a judge to the claimant and that day Judge Feldman spent about 20 minutes talking to my client, patiently explaining to him why he did not qualify for Title II disability, and offering suggestions about community resources that might be avialable to him. At one point the claimant needed a recess to go to the bathroom. Judge Feldman could have ended the hearing right then and there as he had enough information to render a decision but instead he waited for the claimant to return to continue the hearing.

I remember thinking then, as I reflect now, how compassionate that gesture was. The judge sensed (correctly) that my client had only months to live and that he deserved the dignity of being heard. My client, emaciated, with skin lesions and a hacking cough, most likely did not get the time of day from most people. But here was a federal administrative law judge, struggling with a busy schedule, who took a few minutes extra out of his day to look my client in the eye – human to human – and express empathy and listen to him. This was the man that was Albert Feldman. Continue reading →

What “Theories of Disability” Work to Win Cases?

As a large federal bureaucracy, the Social Security Administration has a dizzying array of procedures and forms that it uses to process disability cases. Social Security procedure manuals require disability adjudicators and judges to use something called a “sequential evaluation process” to evaluate every disability case. In case you are interested, the five steps of the process are as follows:

Are You Working?
Is Your Condition “Severe”
Does Your Condition Meet a Listing?
Can You Perform Your Past Relevant Work?
Can You Perform Any Work

Hundreds of words have been written about each step of this process and the Appeals Council and District Courts produce voluminous written opinions that explain what each of these words mean and how they should be applied.
As a busy attorney dealing with disability cases on a day to day basis, I don’t have the time or patience to deal with the minutia of Social Security jurisprudence. I worry about what it takes to win.

With apologies to the drafters of Social Security’s POMS – Programs Operation Manual System, it has been my experience that there are 3 ways to win a case:

Meet a listing
Prove that your functional capacity for work (i.e. Residual Functional Capacity) is less than sedentary
Meet a grid rule

You can read more about how I apply these three “theories of disability” in a back case by clicking on the link.

In my experience about 15 of cases that end up at hearings are decided under a listing theory and about 15% are grid rule cases. That leaves approximately 70% of the cases that I try as RFC cases. Note that my percentages may be similar or different that what you might experience where you live.

In my view, Social Security disability practice fits fairly neatly into this three theory box. I use this approach in every case in my office and I am always able to fit the facts of any particular case into one, two or all three of these arguments.

For this reason, it was a little troublesome when I received the following email from one of my readers:

I have a lawyer handling my disability case. My problem is that she doesnt seem to know some of the disability language. For instance she didn’t know what a RFC form was. She wanted to know where I get this language from.I told her that i research disability on the internet andthats where I get a lot of information. She said there is no such thing and that my doctor will make a narrative report on me. Is there any such thing as an RFC form or is the language different now?

My answer to the reader is “no, Social Security has not changed its language.” An RFC form is a checklist that Social Security personnel use to evaluate a claimant’s RFC. Here is a copy of the RFC form that Social Security uses internally. In my practice I edit this form to include a number of additional questions that I know will help me win my case. You can find a copy of my practice form along with suggested responses in my book, the Disability Answer Guide.

Now, a narrative report will work but I think that an functional capacity form is a superior instrument in that it conforms to Social Security’s internal procedures and “speaks SSA’s language.” Narrative reports – in which a doctor writes a letter that identifies specific limitations and diagnoses – is a document more often seen in personal injury or workers’ compensation cases.

I would like to give my reader’s attorney the benefit of the doubt – perhaps she is familiar with Form 4734 and doesn’t call it an “RFC form.” I would suggest, however, that any claimant or attorney not familiar with the term “RFC” may want to take a few minutes to learn about this concept since it is frequently the basis of Social Security hearing decisions.

A brief, shameless plug: I am teaching a course about building a Social Security disability practice at Solo Practice University. If you are a lawyer looking to add Social Security or one of a number of specialties to your law practice I would strongly suggest that you take a look at the SPU web site and consider enrolling.

What are the Responsibilities of a Representative Payee

Sometimes Social Security judges award benefits but require that benefit payments go to a “representative payee.” The judge may do this if the claimant is a child, is legally incompetant, suffers from mental health or medical problems that would make it difficult for the claimant to manage money or in cases where the claimant requests a payee.

Representative payees assume a great deal of responsibility. They are responsible for handing the claimant’s money and for filing periodic reports with the Social Security Administration. I have seen at least one case in which the rep payee was sued by Social Security because of an overpayment – the claimant went back to work and lost eligibility for benefits but Social Security did not find out for several years.

It has also been my observation that claimants often become angry with their representative payees when the payee refuses to allocate money for an item or service that the claimant deems necessary but the payee does not. If you are thinking about serving as a representative payee I advise you to research and carefully consider the obligations of this position.

I recently received a question from a prospective payee named Celeste that touches on some of the issues faced by rep payees:

My friend just recently won her disability case, but the judge said she had to have a payee, which is me. I have a few questions that I would like for you to answer for me if you don’t mind. Continue reading →

Does LTD Carrier Have a Claim on Auxillary Benefits Paid to Your Kids

I regularly receive questions from unhappy Social Security claimants who are facing the prospect of having to send their lump sum Social Security disability checks to their LTD carriers. Many LTD policies, especially group policies, include provisions that offset LTD payments by any amount received by Social Security. In other words, if the LTD benefit is $1,800 per month and Social Security awards $1,500 per month, the LTD carrier’s obligation becomes only $300 per month once SSDI is awarded.

Since the lump sum payment arises from months in which the claimant was also receiving long term disability, the LTD carrier contractually requires the claimant to turn over his Social Security lump sum payment to the LTD insurance company.

Not surprisingly, folks subject to this type of arrangement are not very happy about it. Why should the LTD carrier swoop in an grab that $25,000 or $30,000 check?

As I noted in a 2007 blog post about LTD offsets to Social Security claims, the LTD carriers justify this money grab by contending that the price of the group LTD policy reflects an expectation of a Social Security offset. In other words, the cost of group LTD insurance would, in theory, be higher if there was no offset.

Whether you believe this or not, I think it is safe to say that group LTD policy handbooks do not feature this offset obligation. Often the first time that SSDI claimants learn that their struggle and stress of pursuing Social Security result in zero dollars is after their SSDI hearings.

Now, apparently, there is a new twist. Continue reading →