Ginsberg Law Offices

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????
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.

Will Social Security Penalize Me if I Refuse Electroconvulsive Treatment?

In Dec. 13, 2007 you responded to my question on your Social Security Disability podcast about non compliance and electroconvulsive therapy (ECT). I had tried numerous antidepressant medications with no success. I was desperate for answers and sought out a new psychiatrist who specializes in electroconvulsive therapy. After he conducted my fourth of six ECT treatments. I started experiencing a very weird scary state of mind, almost like I was seeing things in a dreamlike state of mind. I stopped at the fourth ECT for this reason. Its hard to describe such feelings in words but it was a very eery scary feeling. How will Social Security view my situation?

–Mike

Jonathan Ginsberg responds: Mike, I think that Social Security expects claimants to pursue all reasonable courses of treatment. This does not extend to invasive procedures (such as surgery), or therapy that involves powerful medications or treatments. In my view, therefore, your refusal to continue with ECT treatments because of undesireable side effects would not be held against you.

I recall having this discussion with one of the judges in my local hearing office. He gave me an example using his wife as an example. The judge revealed to me that his wife had a bad case of hemorrhoids, which could be easily treated with a 30 minute outpatient procedure. He indicated that if his wife was appearing before him claiming disability arising from pain associated with those hemorrhoids, he would want to know why she had not sought out such a readily available cure.

I think that this judge raised an interesting issue. I think that a judge would be reversed by the Appeals Council if he denied a claim because a claimant refused open heart surgery or a spinal fusion because it is entirely reasonable to decline treatment that carries with it a risk of permanent damage or death. I think that ECT treatments fall into this category.

On the other hand, I think that a judge would be justified in denying a claim for visual impairment if the claimant refused to wear glasses.

What about those cases where a claimant has moral or religious grounds to refuse treatment. Would a diabetic who refuses insulin on religous grounds or because of a fear of needles get approved? Would that hemorrhoid patient be denied because she feared any type of surgery, no matter how minor?

Judges are human beings and they expect that claimants will make a real effort to improve their health and rejoin the workforce. Judges sense when claimants are trying to avoid work, so, in general, if you have refused treatment, I think you need to be prepared to give a legitimate reason why.

I also think that if you refuse treatment, you should not expect to stay at home waiting for your check. Judges expect you to seek out whatever treatment you can handle and that you can afford. In Mike’s case, I think he is justified in refusing ECT because of the side effects, but I also think that he needs to continue with whatever other treatment has been prescribed – therapy, medications (if applicable), etc. Even if some of those alternatives don’t seem to be effective, it is important to build an on-going, long term medical treatment record.

Will Filing a Bankruptcy Affect My Social Security Disability Case?

In my law practice, I have handled both bankruptcy and Social Security disability cases. Unfortunately, with delays in the Social Security system approaching 3 years, more and more of my disability clients find themselves considering bankruptcy.

What happens, therefore, if you decide to file for bankruptcy while you are waiting for your Social Security decision? What happens if your SSDI or SSI case is approved the week after you file for bankruptcy? Can you keep your past due “lump sum?” Does your attorney get paid?

If you have a pending Social Security application, you need to let your bankruptcy lawyer know about it. Bankruptcy lawyers hate surprises and pending Social Security benefits are certainly relevant to a bankruptcy evaluation.

Under the current bankruptcy law, Social Security benefits are not countable for means test purposes but they may be countable for budget purposes. So, if you do get approved for benefits while your bankruptcy is still active, you may need to amend your budget.

In my view, bankruptcy works best when there are no changes during the course of your case – whether you file Chapter 7 or Chapter 13. The addition of, say, $1,500 per month to a bankruptcy budget will change things and you need to know in advance what this change will mean.

The question on the mind of most Social Security applicants has to do with the lump sum payment – which represents months or years of “past due benefits.” Can you keep this lump sum? The answer is “it depends.” It depends on your State’s exemption laws and the practice and procedure in your local bankruptcy court.

In the Northern District of Georgia, where I practice bankruptcy, I have successfully argued that my client’s Social Security disability payments are exempt assets pursuant to Georgia’s exemption statute, which makes exempt a “debtors right to receive a Social Security benefits.” I take the position that the monthly benefits would have been exempt and that the debtor should not lose his lump sum check because Social Security took two to three years to issue payment.

Every State has its own exemption rules. And every bankruptcy filing jurisdiction has most likely reached a consensus about this issue. I suspect that in some jurisdictions, the trustee will ask for some of the lump sum. Perhaps there are some where the entire lump sum is in play. The point – ask your bankruptcy lawyer. It may change when your file and what bankruptcy chapter you choose.

Similarly, you need to tell both your Social Security lawyer and your bankruptcy lawyer about both cases. Your Social Security lawyer is entitled to get paid for his efforts. He may need to file a special application in bankruptcy court to be approved as special counsel. He may also need to file a motion for approval of his fees.

The bottom line: advise both your bankruptcy lawyer and your disability lawyer about your respective cases. Ask your lawyer to sketch out in writing what you can expect. I can imagine nothing more frustrating than to hang on for three years waiting for that past due benefit check, only to find that a trustee has grabbed it.

Atlanta North Judge Gets Raw Deal from Social Security Administration

Today’s Atlanta Journal-Constitution printed a front page article entitled Ruling: Judge Slighted Duties. The article reports the finding of an administrative law judge that Atlanta North ALJ Kelly Jennings can be removed from his position as an ALJ because he simultaneously served as an active duty lawyer for the Army.

In addition to firing Judge Jennings, Social Security is also going to attempt to collect over $300,000 in back pay. The ALJ considering this case concluded that because he was working for the army, Judge Jennings was not able to give his Social Security cases his full attention, thus contributing to the backlog in the Atlanta North office.

Excuse my use of the vernacular here, but this ruling against Judge Jennings is a load of crap. First and foremost, I find it incredible that any trier of fact would attempt to blame the Atlanta North backlog on one judge. The problem in Atlanta North does not lie at the feet of the judges; instead, the problem has to do with the lack of staff and Social Security’s slow embrace of technology. Judges are part of the puzzle, to be sure, but if the case files are not put together, if the hearings are not scheduled, if there are not enough writers to prepare draft decisions, and if thousands upon thousands of claims are being filed, there are going to be delays.

I try cases in the downtown Atlanta hearing office, as well as in Rome, Columbus, Macon and Savannah. The Atlanta North office has been the slowest in adopting the paperless exhibit files (exhibits are on CD) the paper files that we do use are usually not numbered or properly prepared for hearings. If Judge Jennings was able to process 10x as many cases as he did, none of this would change. Nothing in the AJC article suggested that Judge Jennings rate of productivity was any less than any of his colleagues.

I also wonder if the ALJ considering this issue took the time to speak to any of the lawyers that appeared before Judge Jennings. In my experience, Judge Jennings was always prepared for hearings and his processing time for issuing decisions was no different than any of the other Atlanta North judges. As an aside, Judge Jennings was considered to be more on the conservative side when it came to approving cases, so I am not writing this out of self interest. However, he was never arbitrary and his approach was always consistent, meaning that going in to a case I pretty much knew what I needed to present my case. In cases that he granted, Judge Jennings would frequently include specific direction to Social Security to review a claim in two or three years. I think he felt a responsibility to the taxpayers to insure that anyone who would be collecting benefits truly deserved them.

Finally, as noted above, Judge Jennings “other” job was as a lawyer for the Army. This was known to everyone at Atlanta North – I remember one occasion in particular, when Judge Jennings had to postpone hearings because he had an active duty deployment. Here, then, we have an individual serving his country in a time of war who is being unfairly singed out as the reason for a backlog problem that is, in truth, the result of widespread and systematic inefficiency.

Is Notice of a Video Hearing by an Out-of-State-Judge a Good or Bad Thing?

What does it mean if you hear from Social Security that your case file is being sent to an out-of-state judge for a hearing? Is that good news or bad news? A reader named Vicki asked just that:

my chart was sent elsewhere for a video hearing. does that mean they really think that i am not disabled? my chart is being sent to another state. i am unable to access the grid rules. thank you, vicki

Jonathan Ginsberg’s response: Vicki, I would not read anything at all into learning that SSA has sent your file to an out-of-state judge for a hearing. Over the past few years, Social Security has undertaken several innovative steps to address the hearing backlog that exists in hearing offices across the nation. Perhaps the most visible of these programs has been the introduction of video hearings to the decision making process.

In a video hearing, you and your lawyer appear at your local hearing office. The judge, who may be located hundreds or thousands of miles away, appears by video camera. The hearing reporter and expert witnesses may be local or they may be with the judge. You can see the judge on a large television screen and he can see you.

In addition to sending files to judges in hearing offices elsewhere in the country, SSA has set up a national video hearing center in Virginia. I suspect that once SSA gets the current backlog reduced down to manageable proportions, they will send files to the national center rather than to judges in various ODAR hearing offices. For right now, however, video hearings may be held before judges located in random hearing offices or they may be held in the national hearing center.

Personally, I have had good results with the video hearings I have tried. At first I was a little concerned about the idea of appearing before a judge who could not interact with my client in person. However, that has not been a problem. I don’t know what criteria are being used to select the judges who get the video hearings but so far, the judges I have seen have been reasonable.

Vicki’s final question was about the grid rules, which are accessible by clicking on the link.

How I Prepare Clients to Testify at a Social Security Disability Hearing

In my law practice, I generally schedule a pre-hearing meeting with my clients prior to any hearing before a Social Security Administrative Law Judge. The purpose of this pre-hearing meeting is for me to spell out the issues that will be addressed at the hearing, to the question and answer process with my client and to answer any questions that my client may have about the hearing process. The pre-hearing meeting also gives me a sense of how my client might testify so that I can adjust my questions accordingly.

I thought it would be helpful to readers of this blog for me to set out briefly what I discuss with my clients in the pre-hearing conference because this discussion really goes to the heart of how to win a case.

1. Main issue – the main issue in your case is going to focus on your capacity for working. Although there are several arguments we can make to win your case, most hearing level cases are won by arguing that your capacity for work has been so reduced by your medical conditions that you would not be a reliable worker in even a simple, non-production oriented, sit-down job.

2. During the hearing, we will identify the specific work type of activities that you cannot perform. For example, if you have a knee problem that prevents you from walking more than 30 minutes in any 3 hour period, this walking limitation would impact categories of jobs that require frequent walking or standing.

3. When I ask you about your ability to perform various tasks – sitting, standing, walking, lifting, carrying, stooping, climbing, etc., don’t answer with generalities. Saying “I can’t walk very far” or “I can’t lift very much” doesn’t tell the judge anything. Saying “I can only walk50 yards before I have to stop and rest,” or “it takes all my strength to carry a gallon of milk from the refrigerator to the table” does convey specific information that can be translated into a job requirement.

4. In almost every disability hearing, the judge will have a vocational expert there to testify. The vocational witness is there to identify the skill level and exertional level of your past work, and to answer hypothetical questions from the judge about other jobs. The more specific limitations we can persuade the judge to include in that hypothetical, the better your chances.

5. Your credibility is one of the main things that the judge will be deciding. Factors that enhance your credibility are a long work history, (unsuccessful) work attempts, and a sense that you would much rather be working than waiting for disability.

6. The medical record in your case will ultimately be the most important factor in determining whether you have a good case. If your record contains reference to drug seeking behavior or malingering, you will most likely not win.

7. Recognize that I cannot lead you when I ask questions. Give detailed and specific answers to my questions.

8. If I ask you about pain, you can use a 1 to 10 scale, with 1 being a mild headache and 10 being a kidney stone. Don’t say that your pain is always at a 10. A better answer – “my pain is always at a 5, but three or four times a week it spikes up to an 8 or a 9 – if I over do it physically or if I am under a lot of stress.”

9. If you are going to testify that you can’t sit for more than 15 minutes because of back pain, don’t come to the hearing and sit quietly for 45 minutes. It is ok to stand up and move around during the hearing if you are uncomfortable.

Will Graduate Student Work Stipend Cause Paraplegic to Lose SSDI Benefits?

My April 26, 2008 post about attending college and applying for Social Security disability generated a large number of emails and questions. A reader sent me this question which is about the impact of a stipend and part time job on an SSDI recipient who has already been deemed disabled.

I recently was injured and now am a paraplegic. Before my injury I was an airline pilot but can no longer fly because of my disability. I am returning to school to learn a new profession. My question is “Will accepting aid such as a position as a graduate assistant be considered gainful employment?” Depending on which school I attend and which program I enter, I will receive a tuition waiver and a stipend of anywhere from $6000 to $20000 a year for working 10 to 20 hours a week. It is a merit based program; the more competitive I am the more assistance I will receive for basically the exact same duties. I definitely cannot afford to go to school if I lose my SSDI but would hate to attend a lesser school just to stay under Social Securities’ income limit. Any information would be greatly appreciated.

Here are my thoughts: as a paraplegic, you meet the disability listing at 11.04 or under any one of the muculoskeletal listings (Listing 1.00). At this point, I would assume that medically, there is not a likelihood that you will regain function in your lower extremities, meaning that you will continue to meet the listing on an ongoing basis.

10 to 20 hours a week is not full time employment, although part time employment taken in combination with full or part time school is substantial gainful activity. It is certainly possible that when your employer reports income to Social Security it will trigger Social Security to review your case. If you were only working 10 to 20 hours a week, and not attending school, you could argue that your employment was not equal to substantial gainful activity. If you are getting special accomodations at work because of your medical condition, It would be helpful to document those special considerations.

Taken in combination part time work and school looks like substantial gainful activity – it would be difficult to argue otherwise. So, I think that there is a risk that your earnings and college attendance could trigger a continuing disability review, however, I wonder how likely that you will face this. Your eligibility for benefits is a function of your medical condition and your medical condition is not one that will improve.

The money issue is a separate issue.

You can have earnings and still collect SSDI. If you earn less than $670 per month, no problem. If you earn more than $670 in a given month, that month counts as a "trial work period." You still get your regular benefit check, but you use up one of your 9 trial work period months. You can also claim necessary expenses against your gross earnings, meaning that your gross can be more than $670.

After you use up your 9 months of trial work, then you move into the "extended period of disability" where SSA will look at your earnings on a month by month basis.

I think you need to look at the eligibility issue and the money issue as separate problems. SSA does not publish a set "formula" that might tell you what level or earnings and/or activity can trigger a review.