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How is this Even Remotely Acceptable?

This is a news story from a Colorado TV station.  If the video doesn’t play this is a news story about a Colorado woman with chronic back problems, sciatica, diabetes with neuropathy and other severe impairments who became homeless while waiting for Social Security to make a decision on her application for benefits.  She waited over a year and a half before receiving a denial notice.

Her attorney was interviewed by the reported and commented that the attorney’s office was having a huge problem getting documents to SSA.  They submitted the same documents – presumably medical records – six times because SSA kept losing the submissions and seemed unable to associate these records with this claimant’s file.

As the claimant’s lawyer noted, delays in disability determinations has skyrocketed over the past few years.  I see this same problem, not  just in Colorado, but in Social Security offices all over the country.

Ten years ago, a disability applicant could expect to wait three or four months for a decision on his/her application.  Now, wait times of nine to twelve months are common, with delays of fifteen to eighteen months not atypical. Continue reading →

What Can You do About a Social Security Disability Overpayment?

Recently I posted an article on this blog about working after being approved for Social Security disability. I pointed out that SSA’s “work incentive” programs are very confusing and extremely hard to navigate.

For example, SSA uses different earnings limit tables for its Trial Work Period program than it does for determining Substantial Gainful Activity.

You can have non-SGA earnings but at the same time exceed the Trial Work Period limits. In such a situation you could easily use up your Trial Work Period months and find yourself in “overpay” status very easily.

Further, since SSA does not monitor your earnings in real time, you may not find out that you are in overpay status for months or years after you cross the line. If you have received a letter from SSA stating “you have been overpaid – please send us $35,000 in the enclosed envelope within 10 days” you know what I am talking about.

You can also find yourself in overpay status if SSA has moved to terminate your benefits due to medical improvement, and you lose your appeal of the cessation action.

So, let’s assume that you have been overpaid – what can you do about it? Continue reading →

Working After You are Approved for Social Security Disability

I previously wrote a post about Social Security’s trial work period program but that was back in 2007 so its time for an update.

One of my YouTube viewers wrote me the following which I decided to answer here.

I was recently contacted by SSDI to verify income they have had reported to them since my onset of 2017. I am currently approved as of 2019 and receive benefits for myself and 2 minor children (auxiliary beneficiaries). All of the income for the first 18 months was from an LTD carrier so I think I can easily explain that.

Here’s my question if you have any time to add a thought. I was able to start very part-time and flexible work Dec 2019-March 2020 and then March 2021-June 2022. The amount per month never exceeded $1500/month. Which I know is over the current SSDI limit. I never enrolled in Ticket to Work and now don’t know how to explain it was very flexible, varied week to week based on appointments and that I had to pay for help to get things done to even work.

Obviously I can write all that back, but wondered your thoughts on how that process normally goes. I couldn’t find anything online about responding. Their letter seemed to give a total per calendar year and didn’t break it down monthly.

Secondarily, the amount of $1470/month is low for some jobs. That is really only 12 hours/week for me given my previous jobs. While that could be full time pay for some. The limit is not always a good indicator of how many hours an advanced desk job could be for very few hours.

I don’t want to do anything wrong and be in a situation where I’m paying back incorrect benefits, but I really only worked very part-time while still struggling with my autoimmune disease.

I love your videos and would love any thoughts/help. Thank you for always putting out such great information.

Here are my thoughts:

When you are approved for Social Security disability benefits, you become eligible for and are encouraged to attempt to go back to work. SSA has a “work incentive” program called the “Trial Work Period” or TWP. Continue reading →

Your SSI Payment is Not Enough? Can You Apply for SSDI to get More Money Each Month?

If you are receiving SSI payments you know that your monthly check does not go very far. In 2022, the maximum an individual can receive from SSI is $841 per month. Obviously $841 per month does not go very far.

Do you have the option to “upgrade” to SSDI disability benefits?

Unfortunately the answer to this question is most likely “no.”

SSDI is only available if you have sufficient earnings credits based on past work you have done and taxes paid into the Social Security system. If you applied for and were awarded SSI in the past, that means that you met SSA’s definition of “disability” but that you did not have enough credits for SSDI.

Both SSI and SSDI use the same definition of disability – that being a person is disabled if he/she can no longer perform substantial gainful activity due to a medically determinable condition that has lasted or is expected to last 12 consecutive months or result in death. Continue reading →

How to Win Your PTSD Social Security Disability Case

Why does Social Security make it so difficult to qualify for SSDI benefits due to PTSD and what do you really need to win?

I have represented hundreds of clients in PTSD cases – some are military veterans who served our country in Iraq, Afghanistan, Bosnia and many other places. Their PTSD often arises from seeing bombs explode nearby, seeing fellow soldiers or civilians killed by roadside bombs, or sometimes just living for months under unrelenting stress, never knowing from one minute to the next whether your life will be at risk.

Other PTSD cases arise from sexual abuse, physical abuse, and emotional abuse from childhood or from a previous relationship or even a toxic work environment.

Still other PTSD cases arise from severe emotional trauma like losing a child or a spouse to violence or an accident.

How could SSA deny any of these cases? Continue reading →

Filing for Disability After Age 62 – How the Numbers Work

Much has been written about the question of whether to take early Social Security retirement at age 62 or to delay Social Security retirement to age 65 or longer. From a purely economic perspective, taking early retirement at age 62 will result in a reduction of your retirement benefits by around 30%.

SSA provides a calculator at https://www.ssa.gov/oact/quickcalc/early_late.html where you can plug in the numbers to see how early or delayed retirement can impact you.

But how does Social Security disability play into this calculation? If you are working at age 62 or beyond and have not claimed early Social Security retirement but you become disabled, does it make sense to pursue disability benefits in addition to (or instead of) filing for early retirement? What are the considerations?

What Happens When You File for Disability After Age 62?

There are a lot of moving parts in any decision you may make about when to claim your Social Security retirement benefit and you should not make that decision based on disability considerations. That being said, here is what I am telling potential clients close to or over age 62 who have not yet filed for early retirement.

If you file for disability at or slightly before age 62, your disability application will give you the option of also filing for early retirement benefits. By choosing this option, your monthly early retirement benefit will start at age 62. Given that disability cases can take two years or longer to be decided (and there is no guarantee that you will be approved), you will not be waiting for your disability decision with no money coming in.

If your disability decision is ultimately decided in your favor, your monthly benefit will be “bumped up” from the early retirement amount to a benefit payment which is roughly equal to your full retirement amount. In addition, you will be paid a lump sum equal to the difference between early retirement and full retirement for the months you have been waiting.

If the difference between early retirement and full retirement is $500 per month and your disability case takes 22 months from application to decision, you would get a lump sum of 500 x 22, which equals to $11,000. And your future retirement Social Security will be at the full retirement amount. You may also become eligible for Medicare earlier than age 65 (Medicare kicks in for SSDI recipients two years after eligibility for first SSDI payment).

If your SSDI case is denied, then you will continue to get your “discounted” early retirement benefit until you die.

In many situations, therefore, there is not much of a downside to filing for early retirement and Social Security disability at the same time. You can also factor in to the calculation that your odds of winning SSD increase after age 55 (see my website about the “grid rules”).

Changes to the Social Security Attorney Fee Cap – What Does it Mean to You?

The Social Security Administration recently announced a small increase to the maximum attorney fee that lawyers representing disability claimants will be paid. As usual, SSA took a simple idea and made it unduly complicated, causing confusion for everyone.

Currently, if you hire a disability attorney to represent you under a “fee agreement” SSA will withhold 25% of your past due (lump sum) payment with a maximum fee of $6,000 if your case is approved and past due benefits are payable. The lump sum represents your monthly benefits that have accrued while you have been waiting for a decision.

In June, 2022, SSA announced that the fee cap would be raised from $6,000 to $7,200, effective November 30, 2022. This means that in cases decided by SSA prior to November 30, 2022, the fee cap will be $6,000, but in cases decided on November 30, 2022 and thereafter the fee cap will be $7,200.

This increase in the fee cap has been delayed far too long and it does not account for inflation and the increased cost of doing business. The cap was raised from $4,500 to $6,000 back in 2009 (13 years ago). While your lawyer’s earnings may not be at the top of your list of things to worry about when you are unable to work, in pain and struggling to get by every day, SSA’s policies regarding attorneys’ fees does impact you.

How SSA’s Attorney’s Fee Limitations Affect You

The most direct impact of SSA’s fee cap is to force attorneys to be extremely selective in accepting cases for representation. As you probably know, SSD cases often take up to 24 months to be processed by SSA. During that time, your lawyer is paying salaries, rent, utilities, office expenses, insurance and dozens of other costs but receiving no payments. Further, SSD attorneys only get paid if we win past due benefits and that’s if they decide to pay us. I currently have 7 or 8 cases that I have won, with my fees approved by the judge, but SSA won’t release the money. No one returns my calls and who knows if I will ever get paid. SSA even charges attorneys a “user fee” to withhold and pay attorneys our fees directly. Continue reading →

Mental Health Disability Claims: Do You Have a Winning Case?

mental health disabilityI have written about this issue before but, given the stress of the coronavirus pandemic, I think this question deserves another look because just about every case evaluation I see contains allegations of some mental health concern.

I suspect we will be dealing with the repercussions of Covid-19 for years. In Atlanta, where I live, it seems that every night we see news stories of road rage shootings and other violent crimes.

Entire sectors of the economy have been devastated, causing upheavals in the job markets. How many restaurants have closed over the past year? How many men and women in the hospitality, tourism or travel industries are out of work? And for those who remained employed, many had to adjust to working from home while balancing child care and school-from-home obligations.

It is certainly no wonder that daily stress – whether financial, interpersonal or otherwise – has resulted in more cases of clinical depression and anxiety disorders. Hardworking men and women who might have been struggling with depression or social anxiety but was “getting by” now find the pressure of adapting to a post-pandemic world simply too much.

Here is some of what I see from potential clients in case evaluation requests:

“I cannot physically, mentally and at times emotionally work more than a few hours a week. I have noise intolerance with voices, music, and sounds, especially higher pitches. I have to wear noise cancelling ear phones and they don’t fully help. I cry at times from overstimulation which could be even from thinking, planning or riding in a vehicle. I cannot drive.”

“I have severe depression and anxiety and I can no longer focus on my work. And I had suicidal thoughts I am writing this right now it is 4:35 in the morning. I don’t sleep and I am taking antidepressants like mirtazapine 45 mg and am always sleepy and tired.” Continue reading →

How and Why Social Security Makes it Extremely Difficult to Change Lawyers

Several times a month I hear from a potential client who expresses dissatisfaction with their current attorney (or non-attorney representative) and wants me to review their claim for possible representation. In some cases the potential client has already dismissed the representative and is looking for new representation.

Unfortunately Social Security makes it complicated to change attorneys – although it can be done.

Delays in Your Case Arise from SSA’s Massive Dysfunction

First, I would tell anyone who is thinking about firing their current representative to think twice about this step. The Social Security Administration is massively dysfunctional and most of the time the long delays in disability cases is not the representative’s fault.

A recent article in the Washington Post describes this dysfunction in very stark terms – SSA has effectively been closed for in person access for almost two years (since the beginning of the pandemic) with no projected re-opening in sight. SSA employees are working at home, often without necessary equipment or access to needed files.

According to SSA’s own statistics, the “head count” of Social Security employees in 2021 was less than it was in 2008 despite a massive increase in the number of baby boomers retiring and demand for Social Security’s services. Callers to SSA’s “800″ number are routinely put on hold for hours before having their calls disconnected.

If you want to get a sense of what is going on “inside” SSA take a moment to read what a Social Security field office manager has to say about the state of operations. Statements like “we are a disaster and holding it all together on the back of managers that are breaking” and “many agents don’t have updated mail machines so we must weigh envelopes individually and seal them by hand. The process takes hours. After outgoing is done all day – we handle incoming. Hundreds of documents from the public daily in some cases. Items go missing regularly” don’t inspire a lot of confidence. Continue reading →

What does it take to win a Social Security disability claim based on a mental health impairment in 2022?

In my Social Security disability law practice I am seeing an increasing number of case inquiries from men and women struggling with mental health issues like depression, anxiety, and PTSD. This surge in inquiries is in addition to our case inquiries from potential clients who are dealing with more organic mental illnesses like schizophrenia or the after effects of traumatic brain injury.

Like many others, I suspect that the Covid pandemic is a trigger for increasing numbers of depression and anxiety related claims. Onsite work is stressful both because of concerns about becoming infected and because fewer workers are being asked to do more.

Remote work has changed the social dynamic of employment. More people work alone with only occasional electronic interaction with co-workers or customers. Rambunctious school aged children may or may not be home, depending on whether a school system had to close for a week or month.

Every day I speak to several very stressed out potential clients to tell me that they simply do not have the mental energy or capacity to remain in the workforce. Some have quit while others have been fired for excessive absences or lack of productivity. Continue reading →

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