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Hernia Patient Asks if Her Case is Strong

i have a medical max of no lifting, pushing, pulling of no more than 5lbs.  i have had multiple hernia operations.  i have worked in the capacity of housekeeping, nurses aide, and a ward secretary all of which i was hurt while working with a jackson pratt drain in,  pulled on a drawer that did not open and pulled apart my abdomen which resulted in another operation at ohio state university hospital.  i have had 7 previous operations.  the county in which i live has also deemed me disabled.  do i have a good case?
–Vicki

Jonathan Ginsberg responds:  Vicki, based on what you say, it would appear to me that you have a good case.  The issue in yours or any other disability case has to do with your capacity for work.  In your case, I think you would also have to satisfy the duration requirement – in other words, has your condition lasted 12 consecutive months or is it expected to last 12 months.

If your treating doctor is willing to go on record to say that your abdominal weakness is such that you are not likely to regain sufficient strength and stamina to perform even a simple, sit down job on a regular, reliable basis, then your case would be stronger.

I suspect that you may have received treatment from many doctors over the years.  I think that you would benefit if your records contain a clear summary of your medical history from one or two doctors who can address the physical activity limitations and will cooperate with your lawyer in completing a functional capacity form.

Finally, you want to approach your hearing with the attitude that you would work if you could.  Sometimes when claimants have been undergoing medical treatment for an extended period of time, they begin to think of themselves as "disabled."  Judges like to see claimants who are fighting the entire concept of disability and who have no desire to be classified as such.

[tags] hernia operations and disability, duration requirement in disability case, mental approach to disability case [/tags]

How Do I Know if my SSDI Monthly Benefit Payment Amount is Correct?

I have found your site and have been reading your comments.  I have been on SSDI since 2002.  I was a registered nurse for 15 years- always working with no lapses.  At on point I was working two full time jobs (no sleep). I worked the two full time jobs for about a year and 1/2.  I earned a very decent living.  I saw in one of your posts that SSDI is usually about $1500 a month.  Mine started at $1200/month- now it is up to $1300/month.  Why the difference in amounts?  I would desperately like to go back to work- but it doesn’t look good.  Every penny counts now.  In this situation does a person have any recall?  Thanks.
–Deb

Jonathan Ginsberg responds:  Deb, thanks for your question.  Your SSDI benefit amount is a calculation based on how much tax you paid into the Social Security system.  Your disability benefit is calculated based on something called your Primary Insurance Amount (PIA).  Your PIA calculation is an exercise in fuzzy math.   You can read more about the PIA calculations on the SSA.gov web site.

I wish I could refer you to a reliable resource that could double check SSA’s PIA calculations but I know of no such resource.  If any of my readers does know of such a resource, please let me know.

What I would recommend is that you request a copy of your earnings and benefit statement.  This statement, which is available to you free of charge from Social Security will show your estimate benefit payment and it will also identify your earnings and contributions to Social Security during those earnings years.  If you see that SSA has failed to credit you for certain earnings or for Social Security tax contributions, you would have the basis to ask for a review of your account and a correction to your record.

LTD Carrier Misleads Claimant About Repayment Obligation – What Next?

This blog post is a little off topic but I have included it because it serves as a warning to SSDI claimants who are also collecting long term disability benefits.  Thanks to Mike the gentlemen who wrote me to describe a problem he is having with his LTD carrier.  Mike apparently had long term disability (LTD) coverage at the time he became unable to work.  Many LTD policies, especially those provided as a benefit by your employer, contain provisions that (1) require you to apply for Social Security benefits and (2) that if you are approved and are awarded past due benefits, that you must repay the LTD carrier when you receive your lump sum back benefit check.  In addition, going forward, your LTD benefit will be reduced by whatever you receive from SSDI.

Here is an example.  If your LTD benefit is $2000 per month and your SSDI benefit is $1,800 per month, once the SSDI kicks in, the LTD carrier will only pay you $200 per month – you get the higher of the two benefit amounts, but not both.  As an aside, some private LTD policies do not have an offset or repayment provision, whereas most employer provided policies do.

As you might imagine, SSDI claimants are not very happy about having to turn over their lump sum payments.  I once asked an LTD underwriter about this type of repayment requirement and his response was that the offset/repayment policy was built into the premium structure – presumably the cost of the policy would be significantly higher if the insurance company could not take advantage of your SSDI award.

Therefore, if you are collecting LTD benefits and you filed for SSDI, find out whether an offset and repayment provision applies to you. 

Mike has a big problem because an employee of the LTD carrier gave him incorrect information, as you can see from his email to me:

i was just approved for ssd after 3 years, i called my ltd insurer and told them i wanted to get thier money back i had gotten 38,000  i told my claim worker i had not heard from them so i was calling to find out what was going on, she told the paper work was in the mail then she said she could tell me how much i owed i said ok she told me 18,000 so i thought i was blessed.  i started paying back friends and family wo help me thru the 3 years and paid bills in the end i spent what i thought was my i have thier 18,000 but they want the 38,000 what can i do they told me wrong and by the time she called me back and said she told me wrongthe money was spent , i kept the phone call where she admits she told me wrong , what can i do give them the 18,000 and let them not pay me until it is sall paid back please help me, mike

 I think that Mike has an argument that the LTD representative entered into an oral contract with him to repay only $18,000.  I suspect that the policy itself has provisions that disclaim the right of any employee to modify the terms of the policy so the insurer will likely try to deny that the written policy terms have been changed.  The LTD carrier certainly has an argument that its repayment policy was in writing and agreed to in writing by Mike.

This might be a situation where Mike and the insurance company end up in arbitration (some of these policies contain a mandatory arbitration provision) or in court.  Perhaps Mike can enter into an agreement whereby he pays the $18,000 and then agrees to pay an additional sum – perhaps $8,000 or $9,000 over a two to three year period.

Mike might also want to contact his State’s insurance commissioner to complain about unfair or misleading treatment.  My guess, however, is that at the end of the day the LTD carrier will likely play hardball.  Mike probably doesn’t want to spend a lot of money hiring lawyers but that  may be his best bet – at least to get an opinion about what his policy says about resolving disputes and about the trend in the law in whatever court jurisdiction applies in this case.

[tags] LTD policy, LTD and SSDI offset, repayment of SSDI lump sum [/tags]

Vocational Rehab Says I Have No Marketable Skills – Is That Enough to Win a Disability Case?

I have been to vocational rehab and they ran some evaluationsand they found that i have no marketable skills and i am going to mental health and i am under a case manager and a phychiatrist. Can i win disability with those problems and i also have degenerative disc disease and scolosis  Can I win disability with those problems?
–Daniel

Jonathan Ginsberg responds:  Daniel, thanks for your question.  It certainly sounds like you would have some significant problems trying to work, but I am not certain that a vocational rehab evaluation would be enough to win a Social Security disability case.  Certainly these evaluations would serve as evidence, but I think you would need support from one or more doctors or mental health professionals like your psychiatrist or phycologist..

You also don’t say how old you are – generally younger claimants have a more difficult time winning disability.

The bottom line – your vocational rehab assessments are good evidence and a judge would certainly consider those conclusions.  If this was a case I was handling, however, I would want more evidence, and medical evidence in particular.

[tags] vocational rehabilitation, will I win my disability case?, marketable skills, psychiatrist [/tags]

Wife’s Income Offset’s Husband’s SSI Benefit Claim

My husband had a spinal cord injury and is totally disabled but SS denied his claim because I(his wife) makes too much money.  I make $62,000 a year and we have a child in college. Does this denial make sense?  He made about $25,000 per year before the injury.  We have gone bankrupt and risk losing the house.
Ms. B

Jonathan Ginsberg responds:  Ms. B, if the denial was based on your household income, it would appear that your husband is not insured for Title II SSDI.  If you husband has an earnings record, then your income would not impact his right to collect benefits.  If he does not have enough earnings credits to qualify for SSDI, he would only be eligible for SSI.  SSI is a welfare program for indigent claimants who do not have enough credits to qualify for SSDI and an SSI claimant’s benefits would be subject to offset based on household income.

I discussed the earnings credit issue on a special page of this blog.   There are also several posts on this blog that discuss SSI and the offset rules.  If you will go to the search box and type in "ssi offset" you will see several posts that discuss SSI.

[tags] SSI offset, SSDI earnings record, making too much money for SSI [/tags]

 

 

Immigration Dispute May Result in Increased Disability Delays

The New York Times reports that a court battle over a Social Security Administration policy designed to punish employers who hire illegal aliens may have the unintended result of increasing delays in the Social Security Disability decision making process.

Earlier this month a federal judge blocked Social Security from sending out letters to employers advising them of discrepancies between workers’ Social Security information and government records.   Illegals often use fake Social Security numbers when applying for jobs.  SSA contends that a judicial requirement that the agency revise the letters or delay mailing them will cause significant harm to Social Security and may interfere with its ability to perform "core functions," including, presumably,  the adjudication and claim management of disabilty cases.

Acting Social Security deputy commissioner David Rust told the federal judge that SSA expects a significant increase in its workload during the first quarter of 2008 and that the agency is already facing a staffing shortage.

From my perspective as a disability lawyer, I am already seeing hearing files that are not properly prepared, and delays of up to three years for hearings.  A system that is already straining is lurching towards total chaos.

[tags] social security delays, immigration rules and social security administration, Judge Maxine Chesney, David A. Rust [/tags]

 

Does Accepting Unemployment Benefits Hurt My SSDI Case?

Should you accept unemployment benefits while your SSDI case is pending?  My experience has been that Social Security judges will have concerns if you accept unemployment compensation during your wait for your Social Security hearing.

Generally, when you apply for unemployment, you are asserting that you are ready, willing and able to work.  You may also be required to report to your local unemployment office with proof that you have looked for work and you may be required to attend vocational rehabilitation or other programs to help you resume employment.

While I think that unsuccessful work attempts can help your Social Security case by demonstrating your motivation and credibility, my sense is that if you accept money from a state unemployment agency, you demonstrate your belief that you have the capacity to work a full time job.  There are enough claimants out there that manage to find a job that they end up losing, that some judges may feel that a person collecting unemployment is looking for a specific type of job as opposed to any work.  Since Social Security disability looks to your capacity to perform any type of job, your receipt of unemployment compensation may muddy the waters.

That being said, I don’t hear judges asking about unemployment as much as I used to, now that the wait for a hearing can be two or three years.   Still, be aware that if you do apply for and receive unemployment compensation you may be asked to reconcile your claim that you cannot perform competitive work with your assertion that you are ready, willing and able to accept employment.

[tags] Social Security disability and unemployment compensation, unsuccessful work attempt [/tags]

Give Social Security Judges Clear Answers to Simple Questions

Recently I tried a disability case that demonstrates the importance of testifying clearly about your activity limitations.  My case involved a gentleman with chronic  back pain.  During our pre-hearing meeting in my office two weeks prior to the hearing, I reviewed with my client the likely questions that would be asked by the judge at the hearing.  Among the questions that we discussed were questions about his capacity for walking, standing and sitting.

My client explained to me that the answer to those questions depended on a number of factors, including the type of activity he was performing and, most importantly, whether he was well rested.  In other words, if he was well rested and had been lying down for two days, then tried to perform an activity requiring a lot of walking, he would have the capacity to walk for up to two hours at a time.  On the other hand, if he tried to perform walking activity two days in a row, his capacity on day two would only be 30 to 45 minutes.

While this type of answer makes sense to me, I don’t think that it worked very well at the actual hearing.  The judge asked the question "how long can you walk?" and my client went into a 10 minute discussion about how he could walk longer if he was rested, and less time if he wasn’t and that he hadn’t really tried to walk and he wasn’t sure exactly what his limits were because he always stopped if he back started hurting, etc., etc.

I think that a better approach would have been to forget about maximum capacity after two days rest and to interpret the question as looking into his capacity on a Thursday or Friday after a full week’s work.  His best answer would have been "I can walk about 45 minutes then I have to stop because of severe back pain. I need to stay off my feet for at least 30 to 45 minutes before I could walk again.  During the course of the day, I could not walk more than 2 hours total and those 2 hours would put me in bed before the end of the day."

At Social Security hearings, judges are trying to decide what capacity you have for work activity.  Answers need to be fit on a form.  Too many "it depends" or "I’m not sure" create confusion and, as a rule, confused minds say "no."

[tags] hearing strategy, walking capacity, social security disability, odar [/tags]

How Long Do I Have To Wait for My Hearing Decision?

Dear Jonathan,
Hello. I have a question concerning my court hearing please.   On May 17th, 2007, I went to my disability hearing. 2 months later I contacted them to find out my status and they told me the decision was made the day I went to court. I continued to wait and still heard nothing. So I called again today, and they told me there was not a decision made yet. Now I am confused, and I have no money and I’m a single parent. My disbility is social anxiety and depression. I really don’t think I can work at this time, but I don’t know what to do. I first applied for this July 2004. I have a lawyer, but she doesn’t know whats going on. Please help.
Thank you, Barbara

Jonathan Ginsberg responds: Barbara, thank you for your question.  Here is what I think is going on.  In most hearing offices throughout the country, judges are required to follow a procedure set out in operations manuals created for them by the Social Security Administration.   Although you would think that a judge can control how his courtroom operates, Social Security judges do not have as much control or authority as State or Federal Court judges.

In a Social Security disability case, the judge takes notes during the course of your hearing and most likely fills out a checklist provided to him.   Included on these checklist forms is a place where the judge selects either "favorable," "unfavorable," or "partially favorable."  After the hearing, the judge gives his checklist and notes to a "decision writer" who will prepare the actual written decision.  The written decisions is Social Security disability cases follow a very structure format.  In other words, hearing decision issued by a judge in hearing office #1 is going to look very similar to a hearing decision issued by a judge in hearing office #2.

In many hearing offices, decision writers are overworked and have backlogs of work.   Because of this, there may be a delay of several weeks to several months before the decision writer is able to produce a draft decision for the judge’s review.   The judge may then review the written decision and compare its text to his notes and checklist forms.  Most judges want to do a good job and they want their written decisions to make sense and to clearly explain their reasoning.

If your case has unusual issues or if the judge needs to hold the record open for evidence or a written brief, the process may take several months.  Some judges may also be very particular about any written decision that goes out under that judge’s signature and that can add weeks or months to the delay.

I know a couple of judges who may take a year or longer to issue a decision, although that is unusual.  Most hearing decisions are issued within two to three months after the hearing.

In your case, I suspect that the judge did make his decision at the time of your hearing, and that the written hearing decision has been prepared in draft form but has not been reviewed by the judge.  

Unfortunately there is not much you can do to force the judge to speed up the process.  If the delay goes on beyond five or six months, your lawyer may want to write a polite letter asking about status and advising the judge that you have a finanical hardship and need a decision. 

[tags] social security disability hearing decision, social security judge, ODAR [/tags]

Is Settlement Advance Funding Available to Social Security Disaiblity Claimants?

With delays in Social Security disability cases reaching three years, it was inevitable that settlement advance funding would be adapted to include Social Security disability cases.  Yesterday, a company called AnyLawSuits.com purchased a site review from me through Reviewme.com, which is a marketplace that allows website owners to purchase blog reviews.  I thought that AnyLawSuits.com’s concept is interesting because they say that any advance issued to a claimant would not have to be repaid if the claimant lost his disability case.

In the personal injury field, settlement advances are usually loans whereby a funding source loans money against an expected settlement.   The lender makes its money by charging an interest rate as compensation for its risk.  Assuming the interest rate is reasonable, settlement advance funding can help cash poor plaintiffs  cover their bills while waiting for their settlement to arrive.

It appears that Social Security disability lump sum funding would work in a similar way.   If , for example, your estimated lump sum receipt after attorney’s fees is $25,000, the settlement lender may advance you a percentage of the expected settlement  with the understanding that you will repay the advance + interest when your lump sum arrives.  Further, if you lose your case, you would not have to repay the advance.

AnyLawSuits.com’s web site doesn’t offer any details about how the advance arrangement works. They do not reveal how they decide how much to loan or what the interest rate would be.   At the bottom of their web page there is a link to a company called Alpine Funding.   It appears that AnyLawSuits.com has a broker relationship with Alpine Funding whereby AnyLawSuits.com earns a commission for any settlement loan they place.

The Alpine Funding site explains that you would have to sign some sort of assignment of your check, but I wonder how enforceable such an assignment would be given that Social Security checks cannot be garnished or seized by judgment creditors.  In addition, Social Security lump sum checks are paid directly to the claimant, unlike insurance claim checks which are sent to the plaintiff’s lawyer.  Alpine Funding’s site is also silent as to what percentage of the anticipated settlement might be loaned or the interest rate to be charged.

I also find it interesting that AnyLawSuits.com’s web site specifically says that they do not advance on SSI or SSD cases.  Why, then, would they purchase a review on my Social Security disability blog with a notation that they offer "social security legal funding?"

If anyone reading this decides to try AnyLawSuits.com, I would advise you to be very, very careful and to consult with your lawyer before signing anything.  I would also be interested in hearing about anyone’s experience with "settlement advance" funding in Social Security disability cases.  I can see how settlement advance funding would be attractive to a cash strapped Social Security disability claimant but like any financial proposal directed to a customer with cash flow problems, the terms of the deal are likely to be weighed heavily in favor of the lender.

[tags] settlement advance funding, anylawsuits.com, advance of social security disability lump sum [/tags]

 

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