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Absence of Political Influence Costs Social Security Disability Claimants

Tom CoburnI have no doubt that a significant percentage of disability claimants denied by Social Security judges do have significant medical or mental health problems that would prevent them from performing competitive work.  Why, then, are these honest but unfortunate men and women receiving denials when they should be receiving fully favorable decisions?

This is a very unsettled time in the world of Social Security disability and there are forces in play that you as the claimant and me as the claimant’s attorney cannot control.

On one hand, we have a President and Congress who are intent on expanding our nation’s social safety net.  Whatever your political leanings, there can be no doubt that the federal government has committed itself to spend trillions of dollars in various social programs.   Politicians of both parties assure us that Social Security and Medicare are sacred and that we will not balance our budget on the backs of seniors and the poor.

At the same time, Congress regularly holds hearings to identify instances where disability claimants have defrauded the system, or where judges have approved 99% of cases brought before them.  I recently highlighted the efforts by Oklahoma Senator Tom Coburn to crack down on fraud and inefficiency in the disability decision making process.  You can view that video here.

The press regularly reports that the disability trust fund will run out of money in 2016 “unless something is done.”  Here is an example of one such article from the Washington Post. Continue reading →

Claim Review Doctors at Social Security Overworked, Underqualified and Underpaid

Social Security medical review system under strainIf you have received a claim denial notice from Social Security, you are familiar with the language used in these denials:

We have determined that your condition is not severe enough to be considered disabling.  In deciding this, we considered the medical records, your statements, and how your condition affects your ability to work….Doctors and other people in the State agency who are trained in disability evaluation reviewed the evidence and made the determination based on Social Security law and regulations….

Now it turns out that these “doctors and other people” are not so well trained, nor is it likely that they spent more than a few minutes reviewing your file.

Continue reading →

Appeals Court Awards Claimant 30 Years Worth of Past Due Benefits

Frusher Social Security appealA federal circuit court of appeals has awarded a widow 30 years worth of past due benefits on her late husband’s claim.  The case involved the claim of Dr. Richard Frusher, a Rhode Island resident who applied for benefits based on mental illness in 1975.

Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970’s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him. Continue reading →

Lost Documents at Social Security: An Epidemic?

incompetent Social SecurityOver the past six months, I have experienced six (6) separate instances of significant problems arising from SSA personnel losing documents or failing to send out notices with deadlines.

In three of these instances, neither my client nor I received notice of a reconsideration denial.  In another case, my client received the denial but did not inform me (my client has significant mental limitations and did not know what to do with the denial notice).

In two of these cases, my client’s case was dismissed and they have to start over with a new application.  In the other two cases, we were able to get the appeal filed within the 60 day deadline.

When I called Social Security they claimed that that had mailed the notices (in 2 of the cases) or that my name was not associated with the case as the lawyer (I have a registered mail receipt proving that I mailed my entry of appearance and notice of representation).

In two other cases, I did not receive my fee because someone in the payment center did not see my Form 1695 (request for direct payment of fees).  In these cases, my client will see his monthly benefit check reduced by SSA to correct their mistake.

It seems that document mismanagement at the Social Security Administration is getting worse, not better.  For those of you who represent claimants, are you seeing the same problems?

 

These Questions Always Get Asked at Hearings

In my practice, I always try to schedule an in-office, in-person meeting with my client prior to his/her hearing.   Usually, I try to meet a week or two before the actual hearing date to discuss the hearing procedures and to practice answering the questions that are likely going to be asked.

I want my client to understand the hearing procedure so he can focus on what he needs to say.  The less uncertainty about the process – the better.

In Atlanta, which is my primary area of  practice, we have two live hearing offices and one video hearing location.   Between these hearing offices, there are around 20 judges that I see on a fairly regular basis and a few more that I see less frequently.  While every judge has his or her own style of conducting hearings, I have noticed one trend – judges seem to be relying more on me (the attorney) to ask the direct examination questions.   This may not be the case in every hearing office or every attorney, but this is what I am seeing.

In my view, having control of the questioning is a positive development because I can better prepare my client for his hearing.   I know what I will want to ask, and here are the areas of questioning that I cover.   In any case, whether I ask the questions or the judge asks the questions, there is certain information that every claimant should know and be able to discuss clearly and accurately – there is no reason to be surprised by any of this:

Personal background

  • state your full legal name and social security number
  • state your mailing address
  • how tall and you and how much do you weigh?
  • how far did you go in school and have you had any education or vocational training beyond high school?

Work background

  • are you now working?
  • have you tried to work since your onset date?
  • describe your unsuccessful work attempt(s) – who was the employer, what did you try to do, how long were you able to stay and why were you unable to remain on that job? Continue reading →

What Does it Mean When a Judge Wants to Change Your Onset Date

As I noted this past November, I am starting to see more instances when a judge will want to change the “onset date” for my client’s disability.  What does this mean and should you be concerned?

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled.  Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work.  This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date?  Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record.  For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date.  Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony. Continue reading →

Jonathan Appointed to Faculty of Solo Practice University

Faculty @ SPU I am pleased to announce that I have been asked to join the faculty of an innovative and new online learning center called Solo Practice University.    Founded by Susan Cartier Liebel, a lawyer and editor of the Build a Solo Practice blog, SPU offers lawyers training about how to go into business – something definitely not taught in law school classrooms.

Solo Practice University™ is a revolutionary new web-based educational community that picks up where your legal education left off.

Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:

* Plan, build and grow your private practice
* Differentiate yourself from the competition
* Attract and engage new clients more easily

… and much more. They just can’t teach you that in law school.

I will be teaching a class about how to set up and build a Social Security disability practice.   The doors to SPU will open on March 20, 2009 and when you enroll you will have access to practice building training in a variety of disciplines, including bankruptcy, commercial litigation, personal injury, malpractice, criminal defense, trusts and estates and more.  In addition, Susan has lined up several highly respected experts in essential practice development areas such as marketing, blogging and office technology.

If you are a new lawyer, or if you are a more seasoned lawyer contemplating starting your own practice, I can’t think of a better resource to shorten the learning curve than SPU.   Over the years I have taught continuing legal education courses about Social Security and most of the questions I get have to do with the practical side of lawyering – what books or computer programs should I get?  How do I get paid?  How do I spot good cases?  SPU goes a long way in filling this gap. Continue reading →

Social Security Hearing Exhibit Files Now on Compact Disk

Jonathan Ginsberg with Social Security CDJonathan Ginsberg with Social Security CD

Over the past year, Social Security has made meaningful strides in reducing hard copy paperwork and improving the efficiency of the disability adjudication process.  One of the most noticeable changes has been the gradual elimination of cardboard and paper files, which are being replaced by compact disks.  Social Security personnel now scan medical records and burn the files to compact disc.   Employees at the hearing office mail the discs to the attorney for pre-hearing review.  From the perspective of an attorney the CD system avoids the hassle of scheduling time to review the files or hiring someone to physically photocopy the files.

The only “fly in the ointment” has to do with the format of the files on the CD.  Instead of using a PDF format that everyone else in the free world uses, Social Security has decided to use a format called a TIFF format.  TIFF files are larger, harder to print and require a different type of file reader.

Although files in PDF format would have made a lot more sense, I sincerely applaud Social Security for what appears to be a success in reducing the blizzard of paper that has long been associated with disability claim files.

What to do if You are Getting the Run-around from your Lawyer’s Office

I frequently get emails from frustrated disability claimants who are upset at the long delays.  Often the claimant expresses frustration with his lawyer because of the delays.  Earlier this week, for example, I received an email from an individual who is suffering with a fairly significant medical problems and who is about to lose her home – she wanted to fire her lawyer and retain me.  I responded by telling the claimant that the delays were not her lawyer’s fault and to stay the course.  In that case, I happened to know the lawyer and I also told her that she had very capable counsel.

This morning I received a slightly different question about attorneys, which I will reproduce here:

I hired a law firm to help me with my disability appeal. I am at the ALJ stage and needed help filing that appeal, representing me at the hearing. It is going on 3-4 weeks of talking with the lawyers clerk about filing for me. They say they filed one day, then the next say they are going to be filing, this has gone on 4 times now. Although I have not talked to the actual attorney that will be representing me, I don’t mind as long as the person I do talk to knows what they are doing and are truthful about it. What advice can you give me to handle this situation? Should I fire this firm and find another? I appreciate your suggestions, thoughts, advice.

Thanks,
Leighann

My response: Leighann’s question raises a somewhat different issue than delays.  Here, the problem is lack of communication.  Since short (60 day) deadlines are involved, I think that Leighann has the right to be concerened about missing the deadline.

Bear in mind that not missing deadlines is topic #1 in any malpractice or lawyer discipline seminar.  Every law firm should have a solid calendaring system to insure that no deadlines are missed.

Given the run-around that Leighann has been getting, it may be time for becoming a bit more forceful in her communications.  I would advise her to get the name of the paralegal who is assisting her, then write a letter to the paralegal, with a copy to the lawyer who is the actual representative.  The letter should express her concerns (like she did in her email to me) and ask for a copy of the filed appeal paperwork.   Both copies of this letter should be sent by registered mail, return receipt requested.

I don’t know the law firm at issue, but if they handle Social Security cases regularly, I would be surprised if they did not have the appeal deadlines of their cases under control.  However, nothing gets the attention of a lawyer like a registered letter from a client inquring about possible missed deadlines.

How Do I Fire my Disability Lawyer?

My question is this.  I had a lawyer in NC for my disability hearing which I lost. His representation was horrible, not to mention his communication with me. Anyway, I told him I no longer wanted his services for my appeal. He said he would file a form with SSA stating that he was not my lawyer. I ask him to send me a copy 3 weeks ago. He did not. I emailed him again and ask him if he had even sent the form. he sent me a very rude reply with no answer.
I need to let SSA know that this man is not my lawyer. I called and they still have him listed. How do I get him off as my lawyer? He obviously isn’t going to cooperate. He is horrible. Some advice????
Robin

Jonathan Ginsberg responds: As a disability claimant, you have the right to terminate the representation of your attorney.  The attorney doesn’t need any special form to withdraw from representation – all he needs to do is write a letter to Social Security advising them that his attorney relationship with you has ended.   I do not practice in North Carolina but I suspect that under the Bar rules there, your lawyer has an affirmative obligation to withdraw if you have terminated him.  In order to avoid confusion, you should send your lawyer a letter using certified mail, return receipt requested, asking him to notify Social Security that he is no longer your representative.

I would also suggest that you look carefully at the fee contract you signed with your lawyer.  Often the standard fee agreement used by most disability lawyers also allows the lawyer to ask Social Security to approve a fee based on time expended.  Further, be aware that if “Lawyer 1” has filed a form 1696 Appointmetn of Representative, any subsequent lawyer you hire – “Lawyer 2” – will need to file a fee petition setting out exactly what he did and how much time he spent.  The fee petition process is much more time consuming and intrusive than the simple 25% fee agreement system.  I mention this because some lawyers will not take a case if a prior lawyer withdrew and will not waive fees.

Finally, make sure that there is no confusion as to who has the duty to file appeals or respond to communication from the Appeals Council.  You do not want to miss an appeal or file double appeals forms because this issue was not cleared up.

It is unfortunate that your relationship with your lawyer deteriorated.  It is much easier to part ways on a friendly basis.  At this point, however, you may best be served by communicating with your lawyer in writing only and by spending a few extra dollars on certified mail.

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