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No Jail if You Refuse to Use SSDI Money to Pay Court Ordered Obligations

contempt of courtThe Michigan Court of Appeals recently issued an interesting decision in a case called In re Robby Lampart about the right of a state agency to go after a claimant’s Social Security disability to enforce a criminal restitution order.  In a tightly written opinion which you can read here, the Michigan appellate judges held that a trial court could not use its power of contempt (i.e., putting a defendant in jail) to coerce that defendant to use Social Security funds to pay his obligations.

Usually, of course, the payment dispute involves child support rather than criminal restitution. My sense is that if other courts adopt the Lampart court’s reasoning in child support cases, custodial parents would not be able to use contempt actions to incarcerate disabled non-custodial parents although they could use contempt actions to find out what other assets that non-custodial parent might have.

Here’s what happened in the Lampart case.

Lampart’s mother, Diana Alexandroni, was ordered to pay criminal restitution of $28,210 at rate of $250 per month. The trial judge ordered Ms. Alexandroni to submit to a wage garnishment of $62.50 per week from her job with the funds payable to the State of Michigan. Continue reading →

SSA Overpayment Issues Can be Difficult to Handle

SSA overpayment claimIf you need a lawyer to help you with an overpayment issue, you are going to have a hard time finding help. Overpayment cases arise when Social Security discovers that they have paid you too much – sometimes for years – and now they want their money back.

In most cases, you will receive a letter that says something like this:

We are writing to give you new information about the disability/retirement/survivors benefits which you receive on this Social Security record. We have determined that you were overpaid in the amount of $30,000. Please refund this overpayment within 30 days.

An explanation of the overpayment will be included. And, to show that they have some compassion, they do include an envelope. If you do not send them the full amount due they will withhold your monthly benefit check for as many months as it takes to recover the overpayment.

Obviously if your Social Security money is your only source of income, this can be a huge problem.

An overpayment can happen for several reasons.

  • Perhaps you were found disabled then returned to work under the Ticket to Work or a trial work period program. Social Security may have continued to pay you disability benefits even after you returned to work.
  • You could be an SSI recipient whose income and resources exceeded the stingy limits of that program.
  • You could be a disabled widow who was receiving benefits under a deceased spouse’s earnings record and now you have remarried.
  • The mistake could have been on SSA’s end – they may have advised you that you were eligible for a particular type of benefit but later concluded that you were not so eligible.

Whatever the reason, it is probably a safe bet that you don’t have $10,000, $20,000 or whatever the overpayment number is claimed. What can you do? Continue reading →

Will I Win if the Judge Does Not Use a Vocational Witness or Medical Expert?

what are your chances of winning a case at a hearing when there is no voc rehab guy or medical specialist to assist the alj in a decision.

My response: Lamont, I think that yes you can win if the judge does not use a VE or an ME.   Here is how I would analyze:

First, what is the custom in your hearing office?  In Atlanta, where I practice, all but one or two judges regularly use vocational expert witnesses.  There are a couple of judges who almost never use them.   If a judge who always uses a VE hears a case without VE testimony, it most likely means that the issue is fairly clear cut one way or the other.

In the Atlanta hearing offices, judges rarely use medical experts – in my practice I would estimate that ME’s appear about 15% of the time.  The absence of an ME would be of less concern to me here in Atlanta. Continue reading →

Rheumatoid Arthritis Claimant Gets Denied – What Can She Do Next

I just got unfavorable decision for my SSI Disability and I can hardly walk or use my hands. I have RA and my doctor said I was permanently disabled. So why am I being denied?
– LaTrica

My response: LaTrica, firstly you should understand that there is an appeal you can filed to challenge the unfavorable decision.  In most jurisdictions, the appeal would be to the Appeals Council in Falls Church, Virginia.   In some limited jurisdictions the appeal would be directly to federal district court. Continue reading →

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.


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.

Correcting a Rent Offset in an SSI Claim

This morning, I received an email question from a woman named Elena.  I’m not sure if Elana is an attorney, a non-attorney rep or a relative of the claimant, but she raises an interesting issue about SSI offsets.

I don’t deal a lot with SSI issues on this blog mainly because I don’t take a lot of SSI cases.  If you do not know, there are a number of disability programs administered by Social Security – Title II Social Security Disability (also called SSDI) is one program, and Title XVI Supplemental Security Income (SSI) is the other.

SSDI pays benefits to claimants who are disabled and who have a qualifying earnings record.  To oversimplify, you qualify for SSDI if you have worked for five out of the last ten years.  There are exceptions to this general rule, but basically SSDI applies if you have worked and paid enough Social Security taxes to be “insured” for the SSDI program.

SSI, by contrast, pays benefits to claimants who are disabled but do not have sufficient earnings or assets to qualify for SSDI.  An SSI claimant can be a disabled child, a 20 year old with a serious medical problem and minimal work experience, or a 50 year old housewife who worked for 15 year back in the 1970’s and 80’s but has not worked at all in the last 10 years.

Up until last year, I rarely took SSI cases because Social Security would not withhold attorney’s fees on past due benefits.  Unfortunately, when did take SSI cases, we would win, and the claimant would get a lump sum check, but would not pay me the 25% owed.  As I got busier, I made the decision not to take SSI cases because they were not worth the risk.

Last year, Social Security finally corrected this glitch in the payment process and now they do issue direct payments to attorneys.  However, I am still very careful about taking SSI cases because of the offsets involved.

As noted above, SSI claims are only payable to claimants with limited assets and income.  Social Security will count as income something called “in kind” services, which can be room and board, welfare payments, or support from family.  Also SSI will reduce your benefits if you are living in a household with a spouse or family member who works.  That is why the 50 year old married housewife who lives with her employed husband may qualify medically, but will not recover any benefits because of the “deeming” of household income.

Obviously, SSI claimants have to live somewhere and they need funds for food and transportation as well.   Therefore, in many cases there is an offset of benefits.  Since SSI benefits are set by law and the maximum monthly SSI benefit (for 2008) is $637, it doesn’t take too much in kind support or deeming to reduce that benefit down to nothing.  As a matter of business, I just can’t take on cases where I work for 2 to 3 years, appear at a hearing and expend hours of my time and paralegal time, only to end up with $400 or $500 or, in some cases, nothing.

With that background stated, let me address Elana’s question, which is:

I have a gentleman that lives with daughter and pays $500.00 for rent which he reported to SS. His daughter was asked to complete a form which asked the market value of room.  She put $1,000.00 market rent.  Now SSI benefits were reduced by the value of the $500.00 as income to the man.  How can he correct this.  I thought of obtaining an appraisal by a Real Estate Agent of the rental market value of the room.  If less than $1,000.00 submit this document to SS along with the request for reconsideration.  Do you think this would work?  Do you have any other suggestions to try to correct the market value of the room? I appreciate your input.  Thank you.

Here is my response: In this situation, the claimant is dealing with an offset of his benefits.  Based on the information that the claimant’s daughter provided, she is “giving” her father $500 of value in the form of room and board.  Social Security is reducing his benefit by that in kind support.  Assuming that the father is getting the maximum $637 from SSI, the $500 reduction leaves him with only $137 per month to live on.

Now, the father and daughter need to argue to Social Security that the actual market value of the father’s room is something less than $500.

I think that Elana is on the right track regarding what to do.  I would gather documentation from local real estate professionals.  This could take the form of a notarized statement, or documentation of comperable rental units in the area.

The father needs to look carefully at the documentation he has received from SSI.  I believe that when SSI computes an offset they provide written notice.  He needs to see if that written notice provides for any appeal rights or deadlines.

In any case, I would contact the local SSI office and ask to speak to a supervisor to discuss correcting this error.  Hopefully SSI will be cooperative.  If not, you may need to file for reconsideration of the deduction – my only question is whether the father has missed any applicable deadlines to do so.

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????

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.

Two Disability Claims Pending and Nothing is Happening – What Can I Do?

My husband has Osteonecrosis (AVN), it is death of bone condition in both shoulders and both hips.  We initially hired an attorney in April 2003, claim was denied and it is in the Hearing Stage in Virginia.  We had to reopen a new claim in 2006.  We attached all information needed, even information from the National Assn of Osteonecrosis (this is a relatively new condition).  The claim filed in 2006 was denied once, but to date no other information.  We just called our attorneys office this week.  They are constantly saying in both claims "things are the same", nothing has changed.  Can you please help us?  Our medical bills are piling up. Prescriptions are expensive, etc.

Jonathan Ginsberg responds:  D, there is no simple answer to your question.  It appears that you have two claims in process – an appeal to the Appeals Council (the Appeals Council is located in Falls Church, VA, which is what I assume you mean by "the Hearing Stage in Virginia") and a 2006 claim filed in Georgia, where you now live.

Claim #1 will cover the time period from alleged onset through the date of the first administrative law judge hearing and Claim #2 will cover the time period from the day after your administrative law judge hearing and on-going.

Here are a couple of observations:

1)  Social Security claims take a long time.  The two Atlanta hearing offices are the slowest in the country – it can take two years or longer between the time you request a hearing and the time a hearing is scheduled.  Your attorney has no control over this.  It is not fair, it is not right, but this the current situation in the Social Security Administration.

Let me also say that there is an effort by SSA to deal with these delays – they are increasingly using video hearings from a National Hearing Center to reduce the backlog – see this press release from SSA.

2) With regard to the case at the Appeals Council.  If you have a case at the Appeals Council or in Federal Court, expect to wait and wait and wait.  You could be looking at five years or longer.  Recognize that at the Appeals Counsel or federal court, the judges are looking at possible errors of law or analysis by the hearing judge.  Appellate judge rarely substitute their decision for the decision of the ALJ.  Instead, they are looking for situations where the hearing judge used the wrong standard or the wrong analysis.  Usually a successful appeal concludes with the appellate judge sending the case back to the ALJ for a new hearing to be decided under the correct standard.

3) My guess is that your claim #2 will be decided much sooner than claim #1 and that any money to be paid will be paid in claim #2 long before payment in claim #1.

Does Trial Work Period Start as of Onset Date or After Expiration of 5 Month Waiting Period?

I just got a fully favorable ruling from an ALJ, but the onset date has been amended.  Without going into a huge amount of confusing detail, I was supposed to get a partially favorable for a closed period, instead I now have a fully favorable with onset date starting Nov. 15, 2007.  To prevent losing my house, I had to start working some.  I am wondering if my trial period starts aftr the 5 month waiting period which would begin in April, or would the trial working period begin with the onset date?

Jonathan Ginsberg responds: Jim, I believe that the trial work period starts as of your onset date.  The 5 month waiting period only has to do with payments.  I wrote about trial work periods on a fixed page on this blog – take a look by clicking on the link.

You should also speak with your lawyer about whether to appeal the decision.  If the judge stated on the record that he identified a closed period, and you start working, you may find yourself with a continuing disability review or an action to terminate benefits.

You only have 60 days to appeal a decision and you could lose your right to the closed period lump sum if you do not appeal.  Maybe it makes sense to appeal and maybe not.  I just think you need counsel about this issue and that you need to be proactive.

Lawyer Claims He Withdrew But I Did not Know About it and Missed a Deadline

What do you do when the attorney you hired did not file your appeal on time and did not notify you until the last minute.  He says that he sent a letter out but I never got it.  Now I have to reapply all over again.

Jonathan Ginsberg responds:  Barbara, at the very least it would appear that there was a lack of communication between you and your lawyer.  As you know, Social Security gives you only sixty days to file an appeal after the date on your denial notice.  You have also learned from this experience that lawyers do not have to go through any formal process to withdraw from representation.  Unlike state or federal court, where a lawyer has to file a motion to withdraw, a Social Security lawyer need only send you a letter and send the Social Security Administration a letter and his representation is over.

In your situation you might want to file the appeal anyway and ask that it be accepted for "good cause."  Include a letter with your appeal stating that there was a communication mix-up with your lawyer and request that your late filed claim be accepted.  At the same time go ahead and start a new application.

For others reading this, take heed that you should ask your lawyer to send you a copy of any appeals filed so that you will know what is going on.  Further, keep track of your appeal deadlines.  If you don’t have a copy of a filed appeal in hand as you approach the appeal deadline, and you can’t get hold of your lawyer or someone in his office, go ahead and file your own appeal paperwork – if you lawyer is not communicating with you he will have to straighten out any duplicate filings.