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Is a Two Year Wait for My Hearing Normal?

My husband filed an appeal in Jan. of 2006. We have not had an appeal hearing nor is one scheduled. We were told that it could take up to 2 years for an appeal hearing is this true? How can we move it along (or can we)?

Jonathan Ginsberg responds: Theresa, thanks for your question. Unfortunately, what you were told about the delays in the system is correct. You may be waiting as long as two years to get a hearing.

Right now, Social Security has a lot of administrative problems. There are not enough judges and Congress has actually cut the Social Security Administration’s budget. In recent testimony before Congress, the Commissioner of SSA told Congress that she needed to hire more than 100 judges, but there is no money to do so.

Social Security is also attempting to eliminate paper files in favor of electronic (scanned document) files. At the same time, they are rolling out a new appeals process.

In my view, the delays and confusion will get worse before it gets better. For claimants like your husband, there is not much you can do other than to continue to treat with his doctor and to keep your lawyer updated as to changes in treatment or medicine.

You may also want to contact your U.S. Representative or U.S. Senator’s office to ask if they can write a letter to your local hearing office about the status of your husband’s case. Sometimes a letter like this may speed things up.

[tags] SSDI hearing, Social Security delays, Social Security appeals [/tags]

Is there a Time Limit for Social Security to Schedule My Consultative Exam?

I applied for SSDI and SSI benefits in March of 2006. I understand there is a 5 month wait period before benefits are awarded. I was requested to take a few "Consultative Exams" in December of 2006, 9 months after I initially appied for benefits, and my attending physician for Juvenile Diabetes sent SSA the information they requested in a timely manner. My question is if there a time limit for SSA to request a CE from the date of the initial application?

Jonathan Ginsberg responds: Don, thanks for your question – you raise a number of interesting points. The short answer to your question is "no," there is no time limit for SSA to request a CE following the date of the initial application.

SSA may have internal policies with suggested time limits for requesting a CE but I know of no formal requirements.

You make the point that you applied 9 months ago. I have found that some adjudicators are reluctant to approve a case until the claimant has been disabled for at least 12 months. The law says that you must be unable to engage in substantial activity (i.e., work) or that your condition is likely to keep you out of work for 12 months. Some adjudicators feel uncomfortable about recommending an approval for a person who has not actually been out of work for 12 consecutive months.

I have seen a few cases where the adjudicator kept the file on her desk until the 12 month date passed then approved. I also think it is a positive sign that SSA is scheduling consultatives for you.

[tags] substantial gainful activity, consultative evaluation, social security disability, 5 month waiting period, disability adjudicator [/tags]

How Can a Long Time Worker Not Have Enough Credits for SSDI?

I filed for disability in 2001 and have not worked since. I recently received a favorable decision-the judge said I was disabled from 2003-now they say I do not have enough credits. I ahve worked and had plenty of credits now they say all I can get is SSI-did I lose my credits since I have been off work since December of 2000 AND the judge just gave me a favorable decision in 2006 but said I was disabled since 2003? thanks

Jonathan Ginsberg responds: Tana, thank you for your question. I think that you need to find out more about your earnings account with Social Security. In order to qualify for SSDI (disability) you must have enough earnings to be "insured" for SSDI. For most adults, you must have 20 earnings credits over the past 10 years.

Every year, SSA publishes a table setting out how much you must earn to gain a "credit." For 2006 you needed $970 for one credit, $ 1,940 for two, $2,910 for three credits and $3,880 for four credits. You can earn only four credits in any calendar year, however, your earnings do not need to be spread out of the year – if you earned $3,880 all in January, 2006, you would be covered for the year.

For 2007, $1,000 earns you one credit, $2,000 – two credits, $3,000 – three credits, and $4,000 – four credits.

I set out the earnings and credit requirements on a special page of this blog.

Because SSA looks at your earnings over a rolling ten year period, you need to find out two dates – the date you were first insured for SSDI and the date you were last insured for SSDI.  If your disability commenced within this date range you would qualify for SSDI.

I sometimes see a situation where a claimant stops working but waits several months or even years before filing and SSA uses the date of the application filing as the "onset date" instead of the date that the claimant stopped working.

In other cases, which may be what happened here, the judge will change the onset date to a date where he feels that the evidence supported your disability. If a judge proposes this in a hearing, I always ask for a brief recess to discuss the consequences before accepting the change. I have also seen judges issue partially favorable decisions with changed onset dates.

You have the right to appeal a favorable or partially favorable decision if you want to argue for an earlier onset date. Because these calculations can be somewhat tricky, I would strongly advise that you seek an experienced disability lawyer to discuss your options in this regard.

[tags] title II disability, social security disability earnings requirement, date last insured [/tags]

Is It Too Late to Open a Bank Account for My Social Security Direct Deposit If I Have Already Been Sued?

I am being sued for a debt my brother made on my charge card. I previously was to court and won a judgment on him and I have receipts to prove his charges. I would like some advise on what i should do about my disablity, pension going into the same account. It would be too obvious to move them to another account now. Help

Jonathan Ginsberg responds:  Loretta, I do not think it is too late for you to set up a new bank account.  As you probably know, your Social Security disability check cannot be garnished by a credit card judgment creditor.  This protection remains even when your money lands in your bank account.  I would certainly consider setting up a new account just for your Social Security direct deposit.

You are wise to be concerned, however, that mixing your Social Security money with pension money could be a problem.  I would not trust a bank to know how to separate the funds in your account, especially if you use those funds for living expenses.

You can and should speak to the bank about this.  Perhaps the bank has a policy not to honor a garnishment at all if there is Social Security money involved.  Similarly, your State may have laws protecting pension money.

I also think you might want to speak with an attorney about how to handle the lawsuit.  It seems to me that you might have the right to cross claim your brother so that any judgment issued would go against him and not you.

The bottom line here is that there are a lot of options and you would be smart to consult with a lawyer before you miss any deadlines.  I see from your zip code that you live in New Jersey – most big cities have local bar associations and lawyer referral panels.  I would look to find a lawyer as soon as you can.

[tags] social security money and credit card judgment, social security and garnishment, prohibition against seizing social security money [/tags]

What Happens to My Approved SSI Claim if I Move to a Different State?

I want to know if a person from California who is collecting SSI and wants to move to Washington State, does he have to start over with an SSI claim in Washington State?

Jonathan Ginsberg responds:  No,  you do not have to start over.  Social Security is a federal program.  Once you are approved for either SSI or SSDI, your benefits follow you no matter where you live.

You should however, make sure to notify Social Security about your move so they have a valid address for you.  You should also continue to seek medical treatment for your disability so that you will have an on-going medical record in case SSA reviews your claim.

[tags] moving to a new State and SSI benefits, notifying Social Security about a move, continuing disability review [/tags]

A Winning Strategy For Multiple Sclerosis Social Security Disability Claims

The December, 2006 issue of the NOSSCR Forum newsletter contained an interesting article about how a disability attorney might want to develop an approach in a multiple sclerosis claim.  NOSSCR, by the way, is a national advocacy and education organization for Social Security claimant’s representatives.

Multiple scleroris is a debilitating disease of the central nervous system in which the myelin sheaths that protect nerve fibers is lost and replaced by scar tissue.  Symptoms of MS include poor balance and staggering, blurred or double vision, pain and altered sensations such as pins and needles or "electric shock," and cognitive impairment.

MS symptoms develop over time and sometimes an MS patient will experience periods of remission.  This "waxing and waning" of symptoms can be problematic in a Social Security case because Social Security looks for a specific onset date for a claimant’s disability.  The NOSSCR Forum article referenced the Anderson case from Michigan.   In this case, Ms. Anderson experienced her first debilitating episode of MS in April, 1998, and thereafter had minor episodes.  Her next major flare-up occurred in February, 2003.  Ms. Anderson stopped working after her April, 1998 episode.

Unfortunately, Ms. Anderson’s insured status for Title II Disability expired in December, 2001.  She applied for SSDI in September, 2002 alleging an April, 1998 onset date.  The ALJ (Administrative Law Judge) denied the case on the grounds that Ms. Anderson’s condition improved sufficiently after April, 1998 to allow her to return to work.  Ms. Anderson appealed and won at the federal magistrate court level, but SSA appealed.  The case eventually found its way to the Federal District Court.  Fortunately, Ms. Anderson was represented by an experienced SSDI appellate lawyer, Clifford Weisberg.

The Federal District Court sided with Ms. Anderson in concluding that the ALJ erred in placing undue reliance upon the "brief and temporary interruption of the plaintiff’s progressively disabling condition."   The ALJ erred in relying on the claimant’s activities during periods of remission as evidence of her ability to perform competitive work.

The Federal District Court judge reasoned that MS is a disease that requires what is known as a "longitudinal" evaluation.  Evidence of the 2003 serious flare-up, though occuring after the date that Ms. Anderson was last insured for Title II, was relevant in that this flare-up was relevant to understanding the nature of the disease.  In other words, the Federal Judge concluded that once the claimant demonstrated that her disease was progressive (two severe flare-ups within four years), the remission period should be seen as a temporary exception to the disease and not evidence of a claimant’s ability to work ongoing.

Generally, Social Security judges do not look too closely at medical evidence for treatment after the claimant’s date last insured for Title II – in cases involving progressive diseases like MS, this newer evidence should be given a longer look.

I think that decisions like the Anderson case will be important in any number of cases involving progressive diseases, including MS, AIDS, Hepititis, muscular dystrophy and Parkinsons’ Disease.  Judges will have less discretion in pushing back the starting date for benefits because of a brief remission period.

[tags] multiple scleroris and social security disability, MS and disability, onset date, Anderson v. Commissioner of Social Security, Clifford Weisberg, progressive diseases and SSDI [/tags]

Winning a “Failed Back” Case Without a Functional Capacity Form

I tried a case this morning, representing a 50 year old man with "failed back syndrome."  My client was injured when he fell 20 feet off a ladder when he was installing gutters.  He landed on his feet on a concrete slab, but the associated shock has caused extensive damage to his back.  Since August of 2002, when he had the accident, my client has undergone three back surgeries, has tried a spinal stimulator, has tried epidural steriod injections, lumbar facet blocks and radio frequency ablation to deaden the nerves in his back.   He has been on continuous care by a pain management physician since 2003, and has been prescribed everything from methodone to morphine. 

Despite the best efforts of his doctor, he remains in almost constant pain and could barely sit for 10 minutes at the hearing before needing to stand up.

My client initially applied for benefits in April 2003 and his hearing was held on December 14, 2006.  Although I thought that the medical record was compelling, I did not have any completed functional capacity forms from either his surgeon or his pain physician.  Neither of these doctors would fill out a form and wanted to refer my client for a $1,000+ functional capacity evaluation at another facility.

So, even though I felt that the record clearly suggested that my client was disabled, I was concerned going in because I did not have any functional capacity forms.  In addition, our judge is one who usually feels more comfortable with a firm vocational opinion from a treating physician.

The judge in our case asks very little of the claimants at the outset of the case, so I was responsible for eliciting all testimony – starting with swearing the claimant to tell the truth.  I next went through my client’s job history, then we discussed each of his three operations.  I then asked him to describe specific activity limitations – how far could he walk, how long could he sit, how much could he lift.  We spoke about his pain and I asked him to describe his pain on a scale of 1-10.

After about 45 minutes of this, the judge had obviously heard enough.  He turned to the vocational witness and posed a hypothetical question, the last part of which provided that the hypothetical person w ould likely miss 4 or more days a month.  The vocational expert responded that this level of reliability problems would make it impossible for a hypothetical person to return to past work or to sustain any other work at any exertional or skill level.

I resisted the temptation to ask any questions since I knew that my case would be approved.

This is a good example of a case where the claimant’s very credible testimony, a long and stable work history and medical records that are consistent with the testimony resulted in a win, even though we did not have any functional capacity form filled out by a treating doctor.

[tags] failed back syndrome, social security disability, north atlanta office of disability and review, favorable decision [/tags]

Private Health Insurer Refuses to Pay if Medicare Coverage is Available

Paralegal Judy Bledsoe of my office recently received a call from a client of mine who had been approved for disability benefits, but was having Medicare problems.  My client was a longtime employee of a local phone company and continued to receive health insurance coverage through a company plan even after she stopped working because of her disability.

When my client was approved for SSDI, she also became eligible for Medicare.  SSDI claimants become eligible for Medicare 25 months following the onset of their disability.

Here, my client’s eligibility for Medicare started in approximately September, 2004.  However, in order to get the Medicare coverage, my client had to pay the Medicare premium from September, 2004 through the present.  She could have paid this premium from her lump sum past due benefit award. Her future Medicare premium will be deducted from her monthly Social Security payment.

Because my client’s medical bills had been paid by her health insurance company, she declined to pay for the past due Medicare premium.  Recently, however, the health insurer discovered that my client had become eligible for Medicare, they advised my client that they intended to contact all of the doctors and hospitals who they had paid to ask for their money back since Medicare was the primary insurer.  Further, the health insurer advised my client that if she was unable to figure out a way to "undo" her rejection of Medicare coverage from September, 2004 to the present, she would end up responsible for all the medical bills.

My client has used up her lump sum and does not have the approximately $3,000 that would be needed to pay the past due Medicare premium.  If the health insurer recovers its payout for medical services, my client will owe over $10,000.  I am going to contact Medicare to see (1) if my client still has the option of paying her Medicare premium for the past due months and (2) would Medicare consider allowing her to pay her premium at $50 to $75 per month, automatically deducted from her monthly Social Security benefit payment.

The lesson learned from this situation – if you have a health insurance policy in place and you subsequently become eligible for Medicare, Medicare appears to be the primary payor.   Be very careful, therefore, about waiving your right to Medicare coverage for pre-existing months.

[tags] Medicare, medicare and private health insurance, past due benefits Social Security Disability [/tags]

Part Time Work Leads to Amended Onset Date

Last week, I tried a back pain case in a video hearing in Rome, Georgia.  The judge was in a different State, while the claimant, the vocational expert and I were in Court together.

Normally,  I am not a big fan of video hearings because I think that the claimant loses the one to one connection with the  judge that  occurs in an in-person hearing.   This judge, from the Chattanooga hearing office, was very prepared and, in my view, took a very reasonable approach to the hearing.

My client was a 56 year old female with chronic neck and back problems.  There was not a lot of medical evidence in the file as my client could not afford on-going treatment and she could not afford surgery.  She had treated for many years with a chiropractor, but, under Social Security rules, a chiropractor’s records are not given much weight.

Basically the record we had included a number of office records from a family physician and a consultative evaluation by an orthopedist.  The records suggested that my client had very bad degeneration in the cervical spine and most likely needed surgery.

My client  testified that she was in almost constant pain and that most of her time was spent trying to be comfortable.

In 2003, my client stopped working her last  "regular" job but she shortly thereafter accepted a part time position in a retail store.  My client worked there part time until September, 2005 when she had to stop because of the pain.  She testified that she worked between 8 and 30 hours a week and that she worked "as many hours as they would give me."  Interestingly, her earnings in most of those months were below "SGA" (substantial gainful activity).

Earnings above SGA are presumed to signify that a claimant is engaged in work for Social Security purposes.

The judge felt that even though her earnings were below SGA, the only reason she was not earning more was a lack of available hours.  Had more hours been available to her, she would have and could have performed those tasks.  The judge therefore asked us to amend our onset date the last day she worked at the retail store.  I asked the judge for a short recess and after speaking with my client, we agreed to amend the onset date.

I think that this case is relevant for a couple of reasons.  First, we had a judge who was able to look beyond the absence of a functional capacity form or even a clear statement of limitations from a treating orthopedist.  He was willing to listen to the claimant’s testimony and deduced from the record that the claimant’s neck pain was severe and debilitating.

Second, we have another example of how part time work muddies the water.  If you work part time, judges will often assume that a lack of hours rather than a lack of capacity to work kept your earnings down.

Some judges would have denied this case because of the absence of clear objective evidence.  Fortunately, this judge was willing and able to use his insight and common sense.  This is as it should be.  The word "judge" is both a noun and a verb.  Judges who turn a case down because there is no MRI report or orthopedist opinion are not doing their job.  Often the reason there are no objective records has to do with the claimant’s lack of money or health insurance.  A poor claimant is no less disabled than a claimant with good insurance.  I personally think that a judge needs to learn how to read between the lines, listen to the claimant and consider the entire picture.

We had such a judge in this case and I think he engaged in a proper analysis of this case.  What do you think?

[tags] SGA, substantial gainful, Chattanooga OHA, social security disability claimant [/tags]

Approved Mental Health Disability Claimant Worries About 18 Month Case Review

Mr. Ginsberg, I was recently awarded SSDI for mental diorders. PTSD, anxiety, paranoia, and social phobia. They set me up with an 18 month review. It said they expect me to get better. I have been dealing with these issues for well over 10 years and only gotten worse. I am afraid what to expect since the SSA doc might not agree with my psych doc or my therapist. What should I expect? Thanks.

Jonathan Ginsberg responds: Dennis, thanks for your question. I am finding that judges frequently order 18 month reviews in cases involving younger individuals or in cases where the medical records suggest that a claimant’s functioning may improve in the future as medical levels are adjusted.

Hopefully, your capacity to function will improve – you will certainly generate more money working than from Social Security. In any case, you should continue to treat with your doctor or therapist and you should follow all treatment offered. The typical scenarios where mental health benefits are stopped include:

18 month review of treatment record shows absence of on-going treatment
non-compliance with treatment (i.e. refusal to take medicines as prescribed or refusal to participate in therapy)
evidence of alcohol or drug use
evidence of prescription drug seeking behavior
evidence of activity functioning inconsistent with total disability (i.e., enrollment in school, volunteer work)

I would not worry a lot about getting cut off in 18 months – you have successfully convinced the judge to award benefits so the burden is on SSA to cut you off. Continue to go to the doctor and follow his advice and continue to take your medications. Assuming that your medical case file does not show any significant improvement, they will not cut you off.

[tags] anxiety and social security, ptsd and social security, social phobia and social security, 18 month review, continuing disability review [/tags]