Call Today: 1-800-890-2262

Ginsberg Law Offices

Last Minute Lawyer Substitution – Is This a Problem?

This is completly frustrating! I wrote a dire need letter to my congressman and got an expidited hearing scheduled for March 5, 2008.  I am homeless, without a job for 3 years, and have a bipolar diagnoses along with other serious physical problems.  I called my lawyer the day before the actual hearing, and was informed he retired.  Someone whom I’ve never met is representing me.  I don’t even know what he looks like.  Isn’t this a fine how-do-ya do!  I was not notified and had I not called his office, I would have been completely uninformed.  How can I expect this replacement lawyer to represent me when we have never met?  What is your suggestion?
–Steve

Jonathan Ginsberg responds:  Steve, it sounds like you have a difficult choice to make.  I would certainly not be happy to learn that my lawyer had retired and transferred my file to someone else without any notice to me.  Most lawyers I know would at least make an effort to contact their clients if closing their practice.  You do say that you are homeless – is it possible that your lawyer was not able to get in touch with you?

With regard to the new lawyer, he may very well be very capable.  On the other hand I would be concerned that he never made any effort to contact you.  From my perspective the fact that the new lawyer has never met you is less important than knowing whether he has thoroughly reviewed your file.  What you don’t want to happen is ending up at a hearing where the medical records are not updated and the lawyer does not have a clear theory of your case.   Periodically lawyers from other States will hire me to represent a client in a Georgia hearing.  As long as I am familiar with the file and know what I want to prove, I can spend an hour with the client prior to the hearing and be sufficiently prepared.

I would suggest that you contact the new lawyer and try to meet with him today or a minimum of an hour before the hearing.  Ask him if the file is  updated and if he has a working theory of your case.  I would also ask him to level with you – if the case is not ready to try or if he is not ready, I’d rather ask for a continuance and wait a couple more months than to lose a winnable case because the file wasn’t updated or the lawyer wasn’t ready.

At the end of the day, you want to win – it doesn’t matter who the lawyer is.  The records in your file and the opinion of your doctors is far more important.  These factors are where I would put my focus.  Good luck and let me know how it turns out.

Finally, Some Good News About the Hearing Office Backlogs

Finally – some good news about the SSA Disability hearing backlog.  In a February 26, 2008 press release, SSA Commissioner Michael Astrue announced that SSA had tendered job offers to 144 of the 175 new Administrative Law Judges that it plans to hire during fiscal year 2008.  The press release notes that the agency has 10% fewer judges that it did ten years ago, while the caseload has doubled.

Commissioner Astrue says that the new judges will begin training in April and should be prepared hear full calendars by the end of 2008.

The press release does not say where the new judges will be stationed, but I presume that the hearing offices with the biggest backlogs – like Atlanta – will likely get new judges.  The downtown Atlanta hearing office recently moved to larger quarters with more hearing rooms, which is a good sign.

Thanks to my loyal reader Mike for bringing this press release to my attention.

How Do Workers Compensation Offsets Affect Social Security Disability Payments?

dear jonathan: i have been recieving ssd since around 2002 and also recieving workers comp (lifetime settlement)i am 53 years old.there is also a small payment from my ltd carrier, in the past they requested 13,000 back in which i paid because of approvel of ssd.i would like to know if ssd will want repayment of any of this money back also, I am over the 80% amount of former salery. i feel traped in this situation .i did use a law firm from the start and they handeled it all but never advised me on the details i described.  to date ssd has never requested information on any other payments recieved .your advice would be appreciated ..thank you jonathan i would think a ssd review could come up in the next year.
–Manny

Jonathan Ginsberg responds:  Manny, thanks for your question.  Generally, workers compensation does offset Social Security.  The question in my mind – does your SSDI payment already reflect an offset for workers compensation?

In Georgia, where I practice, Georgia workers compensation lawyers include special language in workers comp settlements that treats any lump sum settlement as if it was being paid over your lifetime.  In my law firm, my wife Jodi Ginsberg handles workers compensation cases.  If, for example, she settles a case for $50,000 for an individual who has a life expectancy of 30 years (per an actuarial table used in Georgia), this special settlement language treats the $50,000 not as a $50,000 lump sum but as $138.00 per month for 30 years.  In this example, our claimant would see his SSDI reduced by $138 per month.

You need to speak to your workers’ compensation lawyer to see if your State has similar rules and to see if your settlement contains this pro rata payout language.

If Social Security did not take your workers compensation settlement into account, there could be issues – you will need to seek counsel to evaluate how to deal with this problem.  I have seen some instances where a  workers’ compensation settlement has been reopened and the special language put in, and I have seen situations where a claimant successfully asked Social Security for a waiver of the overpayment obligation.  There is also a possibility that you could file bankruptcy to discharge any repayment obligation to Socal Security.

Strategy for Winning a Seizure Disorder Case

Jonathan, I have an appeals hearing on 1/30/08 with an ALJ. I have multiple medical problems, the worst of them being a seizure disorder. I take medicine and have not had a grand mal seizure since 11/10/06, but continue to have petit mal seizures several times a week, sometimes everyday. I also have rheumatoid arthritis in my right wrist & a dropfoot which now is effecting my knee & hip. What is the best wat to present my case?
Mark

Jonathan Ginsberg responds:  Mark, last week I appeared before a judge with a client who had a seizure problem.  In her case, she was producing micro tumors that were releasing hormones that triggered seizures.   There is no treatment or cure for her condition.

The medical expert present at the hearing stated that she met Listing 11.03, which basically says that an individual is disabled if he has petit mal seizures at least once a week for a minimum 3 months duration despite prescribed medical treatment.  What you describe sounds similar, at least in a general sense.

It would seem to me that the seizure issue you describe might be a strong argument for you.  If you can enlist the help of a treating doctor to describe these seizures and to support your claim that these seizures leave you tired, disoriented, incapable of on-going concentration and focus that would help.

In a similar vein, if you can get a treating doctor to identify specific activity limitations (lifting, carrying, walking, standing, sitting) arising from your rheumatoid arthritis, that would help eliminate many categories of possible employment.

Obviously, without reviewing your medical record specifically I have no way of knowing whether your doctors support you or how the medical record addresses the severity of your problems, so my suggestions should be taken as general advice only.  I do hope this helps you get a sense about how your case could be analyzed.

A Disturbing Explanation for Why Hearing Schedules are So Far Behind

If you have read various posts on this and other Social Security disability blogs, you will note that there has been a lot of discussion about the delays that plague the system.  In the Atlanta hearing offices, for example, hearings are now just being scheduled for applications that extend back two or three years.

Social Security acknowledges the problems and contends that these delays are the result of personnel shortages and growing numbers of claimants.

Let me tell you about a different explanation – one that comes directly from the mouth of a sitting Social Security hearing judge.

I am not going to name this judge for obvious reasons, but I can tell you that he does not work out of the Atlanta hearing office – in fact, the hearing office where he works has a better than average wait time – in his office, hearings are usually scheduled within 9 or 10 months after the hearing is requested.

My case had actually taken a lot longer – my client had been waiting over 2 and 1/2 years.  After the hearing, the judge explained why. 

It seems that my case involved an unusual medical issue – one about which the judge was unfamiliar.  As such, he had noted on the file that he wanted a medical expert to testify.  In my experience, medical experts appear about 25% of the time when a judge needs help understanding the nature of a disease or condition, treatment options and the patient’s prognosis. 

When a medical expert is called, someone in the hearing office has to coordinate the judge’s calendar, the claimant lawyer’s calendar, the medical expert’s calendar, and arrange for a vocational expert.  Further, because medical experts are often hard to pin down, judges like to schedule 4 or 5 cases on the same day with the medical expert.

It turns out that the scheduling clerk in this particular hearing office decided that all this coordination and scheduling was too much trouble.  The clerk gathered up all the cases that were marked as "needing medical expert testimony" and she hid them away in a file cabinet.  The clerk’s deed was only uncovered when someone from the hearing office administrative staff noticed a spike in the "pending cases" statistics and started digging.

What we have, therefore, is a situation where a rogue or incompetant office clerk single handedly caused over a year’s delay in hundreds of serious disability cases.  The judge said to me that he had been instructed to put his existing caseload on hold in order to process through the backlog as quickly as he could.

The judge also told me that he had no staff to help him – and he basically had no liason with attorneys to try to expedite the processing of these cases – in other words, if there was a situation where the judge might need an MRI report or other document, he had no way of communicating this need to the attorney prior to the hearing.  (I did not ask, but I suspect that this judge did not feel comfortable with ex parte communications with claimant’s counsel or that he felt that such communications were support staff duties).

My case, in fact, was a second hearing – at the first hearing six months prior, the judge announced that he needed to ask a medical expert a few questions and the the "hearing" could be conducted by telephone, and that I could participate at my office.  Instead, a hearing was scheduled, necessitating a multi-hour drive.  When I got there, the judge apologized and said that he had not become aware of the mix up until the weekend before the hearing and had no way to get in touch with me.   Although I ended up winning my case, I lost a good four hours that day driving back and forth for what amounted to a 10 minute conversation with the medical expert.

My point here – Social Security has a real mess on its hands and the solutions are not quite as simple as "adding more personnel."  New and existing staff people need to have some idea what to do and efficient processing systems need to be put into place.  Currently we are far from even minimal competence in these areas.

CBS News Reports on Social Security Disability Claim Delays

CBS News is conducting an on-going investigation into the chaotic Social Security disability system and the outrageous delays that have become commonplace.  The report includes interviews with claimants who are clearly deserving, but who have suffered extreme financial and personal hardship because of extensive delays.

Here is part one of the CBS report.

www.cbsnews.com/sections/i_video/main500251.shtml

 

Here is part two of the CBS report:

www.cbsnews.com/sections/i_video/main500251.shtml

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.
–D

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.

57 Year Old Arthritis Patient Wonders if She Would Qualify for Disability

I am 57 I have been a RN for the past 30 yrs.  I have auto immune arthritis which is severe in my SI joints graded 3+ bilaterally.  I also arthritis in my hands, wrist, elbows, shoulders, knees, feet and ankles.  Along with DMII, IBS, Bilateral Carpal Tunnel, Bilateral Heel Spurs. My dominant hand is now becoming weak and painful to the point, I am having to learn how to redo ADL’s with my non dominant hand.  I can’t sit, stand or lay or long periods of time, I rarely sleep more than 3 hours at a time due to numbness or pain in a joint. I just recently stopped working.

Where would I fit on the Grid, or do I have to suck up the pain and continue to try and work. I only have enough reserves to last me 7-8 months. Thanks for your opinion.
–C

Jonathan Ginsberg responds:  C, thank you for your question.  I am not so sure that the grids would apply here.  Firstly the grids only apply when there is an exertional (physical) impairment.  Here you have both exertional and non-exertional (pain) impairments.   It would appear to me that pain is such a major part of your claim that you could not argue that your limitations are purely exertional.

Second, and most important, the grids factor in education and transferrable skills.  Look at the grid tables.  Even at age 57, an individual limited to sedentary (sit down) work is “not disabled” if she has transferrable skills or more than a high school education.

I think that a better argument would be a straight “residual functional capacity” argument.  Please also take a look at my Arthritis and Disability article on my Georgia Social Security disability web site.  I would focus on reliability issues and limited capacity to get through a workday in any form of competitive employment.

Your 30 year work history also gives you tremendous credibility.  You always want to approach your SSDI claim with the attitude that “I would work if I could, but I can’t” and not an attitude of “entitlement.”

Based on what you write, it appears to me that you have a good case.  You need to enlist your treating doctors for support but I would be surprised if you did not get approved.

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?
–Jim

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.

Can a Rare Medical Condition Like Dupuytren’s Disease Qualify Me for Disability?

I recently responded to a question on Yahoo Answers about a disease called Dupuytren’s Disease.  Dupuytren’s is a disease of the connective tissue in the palm of the hand.  The tissue becomes rigid and immobile, causing the patient’s hands to become fixed in a bent condition.

The person asking the question wanted to know if Dupuytren’s would qualify a claimant for Social Security disability.  My response was that it might depending on how severe the condition was and whether the claimant had one or more treating doctors who would help by completing a functional capacity form.

The question itself was phrased as follows: "is Dupuytrens considered a disability under the Social Security Administration?"  As I typed out my answer it occured to me that the person posting the question was asking the wrong question.  Social Security disability is not "about" any particular disease or condition.  Further, the issue is not whether Social Security recognizes a particular condition, the correct question is "how does my medical condition limit my capacity to perform work like activities."  I have been involved in cases where the medical record is quite vague – sometimes different doctors do not agree on the diagnosis and sometimes the doctor will acknowledge that there are is no test that can be run to definitively document a disease or condition.

Therefore, if you have a rare or unusual disease like Dupuytren’s Disease, you may very well qualify for Social Security disability.  You and your lawyer may need to educate your judge about the condition and you will definitely need support from your doctor.   The important point here is identify the main issue in your Social Security claim and to create a theory of your case that will convince a judge that despite your best efforts, you simply cannot work.

Top