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Category Archives for Disability Lawyers

Solving the Social Security Disability “Workers’ Compensation Problem”

If you have an active workers’ compensation case you most likely will find it difficult or impossible to find a Social Security disability lawyer to take your case. In this article I want to explain why this is and what you can do about it.

As you know workers’ compensation comes into play if you are hurt on the job performing an activity related to your job. Every state has its own workers’ compensation law and there is even a federal workers’ compensation system for federal employees. The common feature of all workers’ compensation laws is that you do not have to prove fault.

If you are hurt on the job, workers’ compensation is supposed to kick in automatically. If you are hurt and cannot work, workers’ compensation will (or is supposed to) provide you with employer paid medical treatment and weekly lost wage payments as long as you are unable to work.

If you have been involved in a workers’ compensation case you know that the insurance companies or agencies that oversee medical treatment and lost wage payments often do not act in good faith and many times you will have to fight to recover your benefits.

For purposes of this article, let’s assume that you were hurt on the job and that you are receiving “temporary total disability” financial payments for your missed wages. Let’s also assume that your injury is serious enough to qualify you for Social Security disability – not only can you not return to your job but your injury would prevent you from performing any job.

Does the law permit you to collect from both your state’s workers’ compensation system and Social Security disability?

Unfortunately, the answer to this question is “no.” Continue reading →

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 →

“I’m 34 Years Old with Serious Medical Problems but Still Hanging on at Work. Should I Quit and File for Social Security Disability?”

should I file for disabilityAs a Social Security disability attorney, I frequently receive emails like pose this question – from a man or woman in their 30’s or early 40’s with a long standing medical condition that makes work a real struggle.

Sometimes the issue is chronic pain – in the back, the knees or even a generalized body pain (like fibromyalgia). Sometimes the underlying medical condition is a chronic disease like diabetes or kidney disease that saps one’s energy and makes it difficult to function reliably day after day.

I even hear from potential clients who are cancer survivors – the cancer may have been removed surgically but the struggles with long term effects of chemotherapy or radiation remain.

More recently I am hearing from Covid “long haulers” – people who contracted Covid in 2020 and who continue to struggle with cognitive loss, low energy and occasional breathing issues.

And almost every younger person I correspond with has some level of anxiety or depression about how facing a future with likely lifelong medical complications, and stress about how they will support themselves or their families.

Should You Quit Work to File for Disability?

So, if you find yourself in one of these situations, what should you do? Keep working? Quit and file for disability? Work part time and file for disability? Here are my thoughts about the reality of pursuing disability if you are under 50 and still hanging on at work. Continue reading →

Disability Approval Rates Trending Up

Social Security recently released its annual “waterfall chart” showing approval and denial rates for disability claims at various stages in the disability application process.

2020 Waterfall chart

As you can see, SSA approved 39% of applications filed without requiring any appeals at all.  This means that 39% of disability applications applied and were approved within 3 to 4 months.

For those ending up at hearings, SSA judges approved 49% of all claims.  This is up significantly from the 43% and 44% we saw just a few years ago.  The trend is certainly favorable over the past few years – hopefully, for the sake of deserving claimants, this continues.

You may find the idea of labeling yourself as  “disabled” troubling and this is understandable.  But if you cannot work anymore because of a chronic and severe medical problem, you very well may meet SSA’s definition of disability.  If our office can be of help to you in navigating these confusing waters please let us know.

Absence of Political Influence Costs Social Security Disability Claimants

Tom CoburnI have no doubt that a significant percentage of disability claimants denied by Social Security judges do have significant medical or mental health problems that would prevent them from performing competitive work.  Why, then, are these honest but unfortunate men and women receiving denials when they should be receiving fully favorable decisions?

This is a very unsettled time in the world of Social Security disability and there are forces in play that you as the claimant and me as the claimant’s attorney cannot control.

On one hand, we have a President and Congress who are intent on expanding our nation’s social safety net.  Whatever your political leanings, there can be no doubt that the federal government has committed itself to spend trillions of dollars in various social programs.   Politicians of both parties assure us that Social Security and Medicare are sacred and that we will not balance our budget on the backs of seniors and the poor.

At the same time, Congress regularly holds hearings to identify instances where disability claimants have defrauded the system, or where judges have approved 99% of cases brought before them.  I recently highlighted the efforts by Oklahoma Senator Tom Coburn to crack down on fraud and inefficiency in the disability decision making process.  You can view that video here.

The press regularly reports that the disability trust fund will run out of money in 2016 “unless something is done.”  Here is an example of one such article from the Washington Post. Continue reading →

Claim Review Doctors at Social Security Overworked, Underqualified and Underpaid

Social Security medical review system under strainIf you have received a claim denial notice from Social Security, you are familiar with the language used in these denials:

We have determined that your condition is not severe enough to be considered disabling.  In deciding this, we considered the medical records, your statements, and how your condition affects your ability to work….Doctors and other people in the State agency who are trained in disability evaluation reviewed the evidence and made the determination based on Social Security law and regulations….

Now it turns out that these “doctors and other people” are not so well trained, nor is it likely that they spent more than a few minutes reviewing your file.

Continue reading →

Appeals Court Awards Claimant 30 Years Worth of Past Due Benefits

Frusher Social Security appealA federal circuit court of appeals has awarded a widow 30 years worth of past due benefits on her late husband’s claim.  The case involved the claim of Dr. Richard Frusher, a Rhode Island resident who applied for benefits based on mental illness in 1975.

Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970’s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him. Continue reading →

Lost Documents at Social Security: An Epidemic?

incompetent Social SecurityOver the past six months, I have experienced six (6) separate instances of significant problems arising from SSA personnel losing documents or failing to send out notices with deadlines.

In three of these instances, neither my client nor I received notice of a reconsideration denial.  In another case, my client received the denial but did not inform me (my client has significant mental limitations and did not know what to do with the denial notice).

In two of these cases, my client’s case was dismissed and they have to start over with a new application.  In the other two cases, we were able to get the appeal filed within the 60 day deadline.

When I called Social Security they claimed that that had mailed the notices (in 2 of the cases) or that my name was not associated with the case as the lawyer (I have a registered mail receipt proving that I mailed my entry of appearance and notice of representation).

In two other cases, I did not receive my fee because someone in the payment center did not see my Form 1695 (request for direct payment of fees).  In these cases, my client will see his monthly benefit check reduced by SSA to correct their mistake.

It seems that document mismanagement at the Social Security Administration is getting worse, not better.  For those of you who represent claimants, are you seeing the same problems?

 

These Questions Always Get Asked at Hearings

In my practice, I always try to schedule an in-office, in-person meeting with my client prior to his/her hearing.   Usually, I try to meet a week or two before the actual hearing date to discuss the hearing procedures and to practice answering the questions that are likely going to be asked.

I want my client to understand the hearing procedure so he can focus on what he needs to say.  The less uncertainty about the process – the better.

In Atlanta, which is my primary area of  practice, we have two live hearing offices and one video hearing location.   Between these hearing offices, there are around 20 judges that I see on a fairly regular basis and a few more that I see less frequently.  While every judge has his or her own style of conducting hearings, I have noticed one trend – judges seem to be relying more on me (the attorney) to ask the direct examination questions.   This may not be the case in every hearing office or every attorney, but this is what I am seeing.

In my view, having control of the questioning is a positive development because I can better prepare my client for his hearing.   I know what I will want to ask, and here are the areas of questioning that I cover.   In any case, whether I ask the questions or the judge asks the questions, there is certain information that every claimant should know and be able to discuss clearly and accurately – there is no reason to be surprised by any of this:

Personal background

  • state your full legal name and social security number
  • state your mailing address
  • how tall and you and how much do you weigh?
  • how far did you go in school and have you had any education or vocational training beyond high school?

Work background

  • are you now working?
  • have you tried to work since your onset date?
  • describe your unsuccessful work attempt(s) – who was the employer, what did you try to do, how long were you able to stay and why were you unable to remain on that job? Continue reading →

What Does it Mean When a Judge Wants to Change Your Onset Date

As I noted this past November, I am starting to see more instances when a judge will want to change the “onset date” for my client’s disability.  What does this mean and should you be concerned?

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled.  Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work.  This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date?  Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record.  For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date.  Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony. Continue reading →

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