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Ginsberg Law Offices

Will Settling My Workers’ Comp Claim Negatively Impact My SSDI Payments?

I’m getting SSDI. and worker’s comp.The Ins company wants to settle my claim. For 117,000.00. No medical. If I were to take the settlement, will this hurt my SSDI benefits? Have you ever heard of a Social Security savings claws? Thanks John

Jonathan Ginsberg responds:  John, your question raises several issues and your best bet will be to speak with an attorney about your case.   Firstly, I find it somewhat unusual that you are receiving both workers’  compensation and SSDI benefits.  In Georgia, where I practice, workers’ comp offsets SSDI, meaning that if a person is receiving weekly wage benefits from workers comp, his Social Security benefits are offset dollar for dollar.  In most cases, this means that no SSDI payments will be made while the claimant receives comp benefits.

Your State may be different, but if not you need to find out if you have been overpaid and what to do about that.

Similarly, I frequently see cases where a claimant who is receiving or has the right to receive SSDI has to deal with something called a Medicare set-aside (it may go by a different name in other States).   Because Medicare does not want to get stuck with medical costs arising from a comp injury, they require part of your comp settlement set aside to cover future medical costs.  This reduces your settlement check.

The bottom line, in my view, is that you need to speak with a lawyer who handles both workers’  compensation and Social Security disability.

[tags] Medicare set-aside, social security and workers compensation [/tags]

Working After a Favorable Disability Determination – Potential Problems

Jonathan, I have a question I hope you can help me with. I am a 57-year old computer programmer. In March of 1999 I suffered a stroke, and in July 2002 I filed for SSDI benefits. I was initially rejected but was approved following a hearing. My question is; I have been working full-time since mid_oct of last year, except for a two-month break. When I call the SSA, they either tell me that, if I continue working I will be subject to a CDR, or they tell me the exact opposite, that I can continue to work for three more years and still retain my disability status. I would very much appreciate it if you could tell me which is which, since I have to make a decision in the next two weeks whether or not to continue working. Thank you.

–Morris

Jonathan Ginsberg responds:  Morris, I think you are confusing two different issues.  A CDR (continuing disability review) is a review of your medical condition to determine whether you continue to meet the legal definition of “disability.”  In other words, does your medical condition still meet a “listing,” does your functional capacity prevent you from functioning as a reliable employee, or do you continue to meet the medical-vocational guidelines (the grids).   Often times the presence of an earnings record in a disabled person will trigger a CDR.  Again, the CDR is a medical review.

The 36 month issue falls into a different category.  After you start receiving benefits, you are eligible for a “trial work period” for up to 9 months during any 60 month period.  During that trial month period, you continue to receive your regular benefit even while you work.  Once you have used up your 9 months of trial work, you go into an “extended trial work period” of 36 months (which is apparently where you are now).  During that time, you would receive benefits for any month where your work is not “substantial” ($860 earnings per month).   The extended work period looks at your earnings and has nothing to do (presumably) with your medical condition.

Take a look at SSA publication 05-10095 for more information about the extended trial work period.

Another Case of Not Enough Treatment, Part Time Work and Wishy Washy Testimony

I tried a disability case today and left the courtroom very frustrated.  My client is a 58 year old woman with uncontrolled diabetes, numbness in her feet (diabetic neuropathy) and frequent fatigue.  She has had two heart attacks in the last ten years and can barely climb three steps to get to her house.  She has a high school education but limited reading and writing skills and has past work as a sewing machine operator – which requires foot pedal use.

Sounds like a good case, right?  It should be a clear winner, but I have an uphill battle to win.  Here’s why:

First, my client has received very little medical treatment over the past two years.  She has a few emergency room visits and a few visits with a local medical clinic who previously provided indigent care, but no longer does.

When the judge asked her if she has sought other free treatment, my client rambled on a bit about the free clinic only being open from 1 to 3 on Thursdays, and she did not have a home phone, and her daughter did not get home from work  until 3, and she did not know why her daughter has not yet called to make her an appointment.  My impression was that she has not put a lot of effort into getting to a free clinic.

My client also testified that she has not been taking medications because she can’t afford them, and that she can’t see because her vision is blurry, but she hasn’t had an eye exam for new glasses in over ten years.

Basically, my client painted a picture of herself as someone who has some legitimate medical problems but who is too lazy or unmotivated to seek any sort of free treatment.  Yes, free clinics are not particularly desirable – you generally have to wait in line and the quality of care is very basic.  But Social Security judges expect someone who wants a check from the government to make an effort – and that is not happening  here.

What else is wrong with this case.  My client testified that she babysits her two grandchildren, age 4 and 18 months.  She is not paid for this work.  To a Social Security judge, this looks like day care work – if she can do it for her 2 young grandchildren, could she not do this for a daycare center.   It very well may be that this work – and remember, she is not getting paid for it – may be the reason her case is denied.

Finally, this claimant’s testimony was awful.  Despite extensive preparation, my client was unwilling to rule out returning to a sewing machine operator job.  "Maybe" she could still operate foot pedals.   "Maybe" driving 30 minutes at a time is not a big problem.

Here is the lesson to learn from all this.  When you apply for Social Security disability, you have to be unable to work.  "Maybes" don’t work.  Part time work suggests that you the capacity for employment.  Your main focus needs to be seeking medical care that will make you better, even if that means going to the emergency room every few months.  You have to find a way to get your medications, even if it means sitting in line at a free clinic.  You need to realize that if you volunteer your time at a work like activity, a judge will most likely think you could work.  The bottom line here – you have to act in a manner consistent with a disabled person.

I argued successfully to the judge that my client needed to be seen by a Social Security doctor for a consultative evaluation.  Non-mental health consultative evaluations rarely help a case, but who knows.  I feel bad for my client that she has done so little to help herself but sometimes that is the way it goes.  My sense is that she would not be a very reliable or effective employee – hopefully at the end of the day, our judge will sense that as well.

[tags] Social Security hearing, uncontrolled diabetes, consultative examination, Social Security disability, Social Security hearing [/tags]

Awaiting Kidney Transplant – Do I Qualify?

if you are in kidney failure and need a transplant are you eligible for Social Security?
–Maureen

Jonathan Ginsberg responds:  Maureen, generally speaking if you have the level of kidney failure that requires a transplant, you most likely meet a "listing" under the Genitourinary listings.  The specific listing for kidney failure and transplant is at 6.02, which you can ready by clicking on the link.

In my practice, I would create a checklist form that tracks the listing and perhaps adds some job reliability questions.  Then, I would submit the questionnaire to your treating doctor.  Assuming that the doctor agrees that you meet the listing, I would advise the Social Security claims rep/adjudicator – you should not have any issues getting approved based on your medical condition.

Note that even if you qualify medically, you still have to have enough credits to qualify on your earnings record.

[tags] kidney disease and social security disability, kidney transplant and social security disability, listing 6.02, qualifying for disability because of kidney failure [/tags]

Is it Legal for a Creditor to Garnish the Bank Account Where my SSDI Payment is Deposited?

How often to i get a rise in income ? I have Canser & diabetes only get under 1,000 per month and need a place to live. A bill collector started taking 200.00 per month for afender bender and take it straight off the top of my living money I think they are wrong I cant work with my disability .I would like you to look into this mater .Because if I could work I would now very depressed with no place to live now.They even wrote and said dont even think about tell Social secuity more or less that it would be useless to try to stop them.I say it was not my faulty but they are taking over 8,000 dollar from social secuity check I never got a court order to go to court who are these people ganster above the law?

–Roy

Jonathan Ginsberg responds:  Roy, your SSDI payment is calculated based on your earnings during the time you were working.   The amount of your Social Security payment is not based on the severity of your condition, nor do you get more based on your financial needs.  You do get a cost of living increase every year, but that is the only time your payment from SSDI will go up.

The garnishment you describe should not be happening.  Social Security disability benefits are not subject to a garnishment seizure, nor are Social Security disability funds that are placed into your bank account by direct deposit.  You should immediately contact your bank to advise them that the wage garnishment is illegal because all of the funds going into that account are from Social Security disability. 

If you have funds from other sources going into your Social Security account, the non-Social Security funds would be subject to a garnishment.

You should also contact the lawyer who has been seizing your money and advise him that your funds need to be returned since these funds were Social Security money.  You may need to ask for help from a lawyer or perhaps Legal Aid since this concept that SSDI money is protected may not be fully understood by the collection lawyer.

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