I have been receiving LTD from Northwestern Mutual for 2 years now while waiting on my SSD hearing. Now I am being told when and if my SSD is approved I will have to pay back all that I drew from LTD from the time SS determined I was disabled until rhe present, thus all back pay from SS would go to Northwestern Mutual. Is this true and if so how can this be? This was a group policy through my employer. Any suggestions or input would be most grateful.
–Janet

Jonathan Ginsberg responds: Janet, the situation you describe is fairly typical with group policies. Several years ago, I brought this issue up in a meeting of lawyers who represent claimants in LTD cases to see if there was any interest in possibly pursuing a class action. I also discussed this issue with my own insurance agent.

Basically the consensus opinion is that this repayment requirement is legal and that the cost of the insurance (the policy premium) reflects the SSDI recovery expectation. According to my agent, the price of the group policy would be higher if there was not a repayment provision. Arguably the employer would be less likely to offer this benefit if the price was higher, thereby the lower cost of the group policy indirectly benefits you.

I am sure that none of this is any consolation to you but I don’t know that you have any argument against the policy. I am also sure that no mention of this repayment provision was made during the time you were working.

What some LTD carriers are doing now is offering claimants the option of a lump sum repayment at the time the lump sum is received or they are proposing to pay the LTD benefits at a reduced rate to account for the expected lump sum. I advise my clients to keep their full LTD benefit and pay the lump sum upon reciept.

One final point – some carriers will not require their claimants to repay the attorney’s fee from the SSDI claim. As you may know if you have a lawyer for your SSDI claim, the fee agreement provides that you must pay 25% of past due benefits.

Given that the LTD carrier benefits if you receive SSDI (your monthly LTD payment will be reduced by your SSDI payment) I think it is only fair that the LTD carrier pick up the lawyer’s fees. If your carrier will not reduce the repayment to account for the lawyer’s fees, you will owe the LTD carrier more than what you have received in your lump sum, so be very careful.

I am sorry that I can’t offer you more favorable information but group LTD policies almost always have this repayment issue. Private LTD policies, by contrast, usually do not require a repayment.
–Jonathan

My wife has cancer known as multiple myeloma and has been treated by doctors been taking medicines that cost a lot.
–Karl

Jonathan Ginsberg responds: First of all, Karl, I am sorry to hear about your wife’s illness. As you know, multiple myeloma is a blood cancer that prevents plasma cells from correctly forming and becoming part of her immune system. There has been a great deal of research into the causes and treatment of multiple myeloma and I hope that your wife responds well to the medical treatment she is receiving.

For Social Security purposes, there are two approaches I would take. First, you should be aware that there is a “listing” specifically for multiple myeloma (listing 13.07). If her doctor feels that she meets or equals this listing, and he is willing to put that opinion in writing, then she will be approved for SSDI or SSI quickly.

If she does not meet the listing because her treatment has been effective or for any other reason, then she still might qualify under a “residual functional capacity” argument. In other words, if her treatment regimen plus the symptoms of the disease and medications – fatigue, nausea, confusion, etc. – leave her unable to perform her job duties, then a Social Security judge would likely conclude that she would not be a reliable employee and therefore eligible for disability.

If your wife is approved for Social Security, she would become eligible for Medicare 25 months after Social Security eligibliity. If she qualifies for SSI (Supplemental Security Income), either because of low income or as a medically needy adult, then she could get Medicaid and its prescription benefits.

Finally, there is an interesting article entitled “Multiple Myeloma and Social Security and SSI Benefits” on R.M Bottger’s Disability Expert web site.  According to the site, Ms. Bottger previously worked as a State Agency adjudicator in Oklahoma and her article discusses a multiple myeloma case from the adjudicator’s perspective.

Best of luck to you and to your wife.

–Jonathan

Once again, SSA has released extensive paperwork describing substantial changes to the disability process.  One of the biggest changes is a new procedure for appeals from unfavorable hearing decisions.  Currently, a claimant who receives an unfavorable hearing decision must appeal to the Appeals Council.  Under the new rules, the Appeals Council is eliminated and appeals would be filed directly to federal court.

The new process also revives an old idea – the use of an Adjudication Officer (now called a Reviewing Officer).  Under the new system, if a claim is denied by the State Agency, it is reviewed by the Reviewing Officer.  The Reviewing Officer therefore becomes the decision maker in what we now call “Reconsideration.”  If the RO denies the claim, it goes to hearing (like it does now).

The most ambitious part of the new process are the proposed time frames.  The RO is supposed to make its decision within 90 days of receipt of appeal and the hearing office is supposed to schedule a hearing within 90 days of receipt of a hearing request.  This expedited procedure will certainly be a neat trick as we are now seeing delays of two years or longer from the time a hearing is requested until hearings are actually scheduled.   You can read more about the new disability adjudication process here.
I recently appeared with a client at a video hearing in a case that had been sent from one of the Atlanta hearing offices to an out-of-State judge.  At the beginning of the hearing, the judge told me that he had not had a chance to look at the file and he expressed frustration that he had been given all these Atlanta files along with pressure to hold hearings and issue decisions quickly.

Although this new “streamlined” SSDI decision making process will be rolled out slowly over the next few years, I expect that we will see more and more cases where judges are being pressured to preside over cases they have not reviewed prior to the hearings.

As a claimant’s attorney, I see this pressure on the judges as an opportunity to serve my clients by making sure that the record is updated and by organizing and presenting evidence prior to the hearing.  It would appear to me that this new process will make life even more difficult for unrepresented claimants who will have no idea about how to present their cases to time pressed and frustrated judges.

Can I receieve some grants for diability for me having self harming disabilities and bed wetting I also suffer from anxiety problems.
–Janette

Jonathan responds: Janette, your question illustrates the difference between what appears to be a signficant mental health problem and a vocationally significant mental health problem.

The two questions I would have for you – (1) does your self-harming activity and anxiety impact your capacity for work and (2) do you have a treating psychologist or psychiatrist who would support you in saying that these mental health issues prevent you from being a reliable worker in a job?

My guess is that your mental health problems may very well interfere with your ability to maintain attention and concentration but to win a SSDI or SSI case you need support from a treating doctor or psychologist.

Hello Attorney Ginsberg, My name is Melissa and I have been fighting for my disability since june 2000. I have been turned down alot in the past. I recently had another hearing before the ALJ in charelston wv. My symtoms are as follows. Bypolar, Major depression, with drawyal , Nerve problems, My back is totally messed up, Anxiety, Nerve damage in my legs from the back damage, Mood swings I can be happy one minute sad the next, I had a lot of trauma in my life as I was growing up, Lost my mom with cancer in 1992, My dad got killed in 2000, I was also married to an abusive husband for 10 years. I have no income comming in. I Have alot of medicine that my doctor had me on for my ilesses but I cant afford them no cause I dont have a medical card to cover my medicine. My question to you is do you think the ALJ will award me my disability? There was a social secrurity woman in the room with us . She was trying to name off some kind of jobs she thought I could do. The only one she could find is car washer and the judge and my lawyer said that I wouldnt be able to perform that job either and the woman agreed with them and he asked me some questions about my past relationships and dad and mom I couldnt handle it I started crying , I also have constant crying spells. The judge told me I would get my decision in 2 to 4 weeks through the mail. In your opinion do you think I won my case. Thank you Melissa

Melissa – if the vocational witness testified that there are not any jobs you can do, then there is a good chance that you will be approved.  It certainly sounds like you have been through a lot and I wish you the best.

I chose your letter to add to my blog because I wanted to discuss with my readers something I often speak about – the attitude a claimant brings into a case.

Clearly, Melissa has been through a lot and based her description of symptoms she would most likely have a difficult time working.  However, when you go to a hearing, it is important to present to the Judge and the vocational witness the attitude that you would prefer to be working and that the idea of filing for Social Security is distasteful to you.

From the tone of her letter it is apparent that Melissa considers herself disabled and has concluded that hear mental health problems have left her unable to work.  In psychological terms, Melissa has become “invested” in her disability.

The problem with this is that “disability” is a legal conclusion that must be reached by the judge.  Judges prefer to see claimants who do not want to be disabled and would rather be working.  They are trained to be wary of people who are clearly looking for a check.  Notice that Melissa says “I have been fighting for my disability since June, 2000.”  The obvious question – why isn’t Melissa fighting to get herself better so she can get back to work.

I am not sure how Melissa’s case will turn out nor am I suggesting that she is not deserving, but if she is turned down it may be because her motivations are clearly directed at getting disability money and that type of attitude is not a good one to bring before a Social Security judge.

I live in West Virginia. I work as a clerk in a Library. I am 47 yrs old have COPD,emphasyma, on oxygen at night Dr said I will have to go on it during the day also high blood pressure, seizures, having dizzy spells so bad I cannot even drive, Dr is going to check for heart problems, xanax, seizure medication causes bad side effects. What are my chances of getting disabilty?
–Crystal

Crystal, since your main impairment has to do with breathing, the first place I would look is the SSA “bluebook” to see if you meet a listing. The listing for respiratory diseases is here. I would print out this listing and take it to your doctor and ask him if he feels that you qualify. Even if you do not meet a listing, you may still qualify for disability based on the limitations on your capacity for work.

The only problem I see here is that you are currently working, which means that, by definition, you are not disabled. My sense is that at age 47 with all of the problems you have and support from your doctor you would have a good chance at approval.

–Jonathan

How do you get an administrative law judge’s narrow minded, biased opinon reversed or how do get that opinon nullified? –Thelma

Jonathan’s response: Thelma, I assume from the tone of your email that things did not go your way at the hearing. You have the right to appeal the unfavorable decision, but you must do so within 60 days following your receipt of the unfavorable decision. The appeal goes to the Appeals Council.

I would strongly advise getting an appellate specialist to file your appeal. Many Social Security trial lawyers are not appeals lawyers – you should ask around for someone comfortable with appeals. A judge’s bias can be grounds for appeal, although that can be a hard road to pursue.

The appeal record will contain a tape of the hearing and if the judge acted inappropriately, that can be brought up in the appeal. One issue to consider – if your appeal is granted, the case is often remanded back to the same judge for a new hearing. Your appeal should request that the case be assigned to a different judge. –Jonathan

Hello, This is great to be able to get a question answered without going through a lot of red tape. My question is i have been on Disibility due to several medical resons. i have been receiving ss disability only. i would like to know what ssi is and if i would qulify. I receive 728.00 monthly. i have purchased a home last year through metro and receive help toward the mortgage through metro, but as you can see surviving on this income is very hard. I receive 10.00 per month in food stamps. i have medicare part d. and i’m on spend down with medicade of 177.00 per month if i need other medical such as a denist. which i cann’t afford. again i don’t know what ssi is and if i would qualify Thank you

Shirley

Jonathan Ginsberg responds: Shirley, thank you for your question. Unfortunately, I do not have the answer you want. SSDI (Disability) and SSI are two of the disability programs operated by the Social Security Administration. SSDI is for people who have paid into the system enough to be “insured” for Disability. SSI (Supplemental Security Income) is basically a welfare program that pays a small monthly benefit to people who do not have enough credits to qualify for SSDI.

SSI benefits are subject to offset from other sources of income as well as resources. Also, the SSI benefit is set by statute – whereas SSDI payments are usually larger and represent a calculation arising from funds paid in to the system. If you are getting $728, it is likely that your SSDI will totally offset your eligibility for SSI. Basically, SSA pays you the higher of the two benefits for which you are eligible. Usually that is going to be SSDI.

You can certainly call your local SSA office to ask, but I suspec that you will be disqualified for SSI because of your SSDI income.

–Jonathan

Yesterday, I tried a case before a very creative Administrative Law Judge and I think that my experience demonstrates the need for disability lawyers to know their files and to know their judges.

My case involved a 55 year old woman with a long history of heart problems.  She has a pacemaker and a defibrilator and experiences extreme fatigue, shortness of breath, and chest pain.  My client also has a long work history, with several jobs lasting almost ten years.  She has two treating physicians – a family doctor and a cardiologist – both of whom fully support her claim for disability.  In fact, both physicians were very helpful in this case and they both provided extensive treatment records as well as functional capacity evaluations.  The file contains at least four functional capacity evaluations detailing activity limitations that clearly preclude any type of competitive work.

So, what was the problem?  In most cases, the formula of (1) a complete set of medical records + (2) one or more functional capacity forms detailing severe work activity limitations + (3) a credible claimant + (4) a long work history equals an approval.

Here, the judge carefully read the medical records and he noted that the objective test results (i.e., the cardiac tests that measure the heart’s pumping capacity) appeared to show only a moderate pumping capacity limitation, whereas the doctor’s notes and functional capacity forms described a severe limitation.

We actually stopped the hearing for a few minutes so I could try to call the two doctors for an explanation of the discrepancy.

The judge gave me a few minutes to address this issue and I was able to formulate an argument that the claimant did have a significant medical problem but that her inability to work arose from associated symptoms, medication side effects and fatigue.

I believe that the judge recognized that the treating doctor’s conclusions were inconsistent with the objective tests.  In such a situation, the Appeals Council could reverse his decision on its own review.  I believe that he recognized early on that my client was disabled, but he had to have a sound justification for issuing a favorable decision.

I also suspect that this judge looks at certain impairments different than others.  Cardiac cases (like pulmonary/lung, liver function cases) yield objective evidence from diagnostic testing.  By contract, back pain cases are often more subjective – two individuals each with herniated disks can have very different pain experiences.

Because this was a case that lends itself to objective evidence,the judge was focused on that.  I learned from this experience that I need to look at the “trees” as well as the “forest.”  I knew I had a winning case and a credible client and I had all the documentation that would result in a “win” 99% of the time.  However, I relied on the assumption that this judge would take a “big picture” approach to this case.  Now I recognize that (for cardiac cases at least) medical opinions about work capacity need to have a clear basis in the diagnostic testing.  And, recognizing that that test results do not always tell the full story, be prepared to present an argument explaning why my client meets the definition of disability.

Fortunately, this judge here used his “judgment” to see in a big picture sense that my client was disabled, and he recognized the need to support his decision by looking at the details.  He will be issuing a favorable decision.
Although this was probably one of the more stressful hearings I have been involved with, I most definitely gained useful knowledge about improving my hearing preparation.  That’s why they say we “practice” law because we are always practicing and hopefully, always improving.

–Jonathan