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Category Archives for They’re trying to stop my benefits

Social Security Ordered to Repay 80,000 Social Security Recipients After Funds Illegally Withheld

The San Francisco Chronicle reports that a federal district court judge has ordered the Social Security Administration to repay over $500 million improperly withheld from over 80,000 disability and retirement recipients from 2007 through 2009.

According to lawyers who filed a class action suit, SSA ordered its staff to withhold benefits from anyone who was named in an arrest warrant for a federal or state felony.   The problem: many of the affected claimants were not aware of any warrants, in many cases the charges were dropped, and in other cases, SSA erred in identifying the individuals affected.

SSA should have limited its program of withholding benefits to those on the run who are attempting to avoid prosecution or punishment.

Can Your Facebook Profile Hurt Your Social Security Disability Case

I recently ran across a very timely post on Jim Reed’s New York Injury Law blog entitled “When Facebook Isn’t a Friend to Your Personal Injury Case.”   Jim correctly points out that the default privacy setting on Facebook is essentially “no privacy” meaning that anyone in your geographic area can view your profile, your photos and comments made by and about you.

What does this have to do with your Social Security disability case?

First, remember that the main issue in most Social Security cases is whether you have the capacity to perform simple, entry level, low-stress, sit-down type of work.  Now, take a look at your Facebook profile.   Does it contain photos of you dancing at a wedding, or on the beach?  Are there comments from friends chatting about that family get-together or class reunion?

Some of my disability clients “friend” me and I always find it interesting to look at their profiles.   I am looking at one such profile right now and it reads as follows: Continue reading →

Will a Work Attempt Cause Me to Lose My Benefits

Many disability claimants are not ready to give up on the idea of working.   Social Security recognizes this and offers a number of programs designed to help disabled claimants transition back into the work force.

I recently received a letter from a such a claimant.  He describes himself as a 53 year old male was was approved for SSDI as of June, 2006.  The basis of his claim is major depression.  He states that in June, 2007 he decided to try to return to work as a commissioned insurance agent.   From June of 2007 through April, 2009, he has earned $10,000 in commissions, but these commissions have not yet been distributed to him.   He states that the work effort has been very difficult and at this point he has decided to discontinue his active work as an insurance agent.

The issue facing him has to do with the $10,000.   He is concerned that if Social Security sees a $10,000 distribution, it might trigger a termination.  What should he do? Continue reading →

How Do Job Training Programs Affect Continuing Disability Reviews

In my practice I do not see very many continuing disability review (CDR) cases.   If you are not familiar with this term, a “continuing disability review” involves a review by Social Security as to whether an approved claimant remains disabled.  For example, there are some medical conditions that can and do improve over time and with treatment.   I have been involved in many cases – especially those in which the claimant is in his 20’s or 30’s – when the judge specifically includes in his decision that a particular claimant should be reviewed in 1 year, or perhaps 3 years.

In theory, every Social Security disability case will be subject to a CDR.  In reality, because of the current backlog, I rarely hear from my clients that their cases are being reviewed.   The few cases that do seem to end up in a CDR typically involve younger claimants.

I am not usually called upon to handle CDR cases because Continue reading →

Should Approved Claimant Report New Medical Problems to Social Security During Continuing Disability Review?

I don’t get a lot of questions about “continuing disability reviews” (CDR).  Here is one that raises an important issue.  For those not familiar with the term, a CDR is the process by which Social Security evaluates approved claimants to confirm that they still meet the requirements for disability under Social Security’s rules.

Sometimes, judges will specifically provide for a review in 12 months.  The official Social Security disability web sites provides that all cases are to be reviewed every 36 months (although it has been my observation that the 36 month reviews have been performed at random).  Although I have not seen any regulations to this effect, I suspect that the cases which are reviewed may be ones where improvement might be most likely.   For example, if your approval is based on a condition that could be corrected by (invasive) surgery, your case might be flagged for review.

You should also understand that disability attorneys like me rarely get involved in CDR cases.  Why?  Continue reading →

Will Social Security Penalize Me if I Refuse Electroconvulsive Treatment?

In Dec. 13, 2007 you responded to my question on your Social Security Disability podcast about non compliance and electroconvulsive therapy (ECT). I had tried numerous antidepressant medications with no success. I was desperate for answers and sought out a new psychiatrist  who specializes in electroconvulsive therapy.  After he conducted my fourth of six ECT treatments. I started experiencing a very weird scary state of mind, almost like I was seeing things in a dreamlike state of mind. I stopped at the fourth ECT for this reason. Its hard to describe such feelings in words but it was a very eery scary feeling.  How will Social Security view my situation?

–Mike

Jonathan Ginsberg responds: Mike, I think that Social Security expects claimants to pursue all reasonable courses of treatment.  This does not extend to invasive procedures (such as surgery), or therapy that involves powerful medications or treatments.  In my view, therefore, your refusal to continue with ECT treatments because of undesireable side effects would not be held against you.

I recall having this discussion with one of the judges in my local hearing office.  He gave me an example using his wife as an example.   The judge revealed to me that his wife had a bad case of hemorrhoids, which could be easily treated with a 30 minute outpatient procedure.  He indicated that if his wife was appearing before him claiming disability arising from pain associated with those hemorrhoids, he would want to know why she had not sought out such a readily available cure.

I think that this judge raised an interesting issue.  I think that a judge would be reversed by the Appeals Council if he denied a claim because a claimant refused open heart surgery or a spinal fusion because it is entirely reasonable to decline treatment that carries with it a risk of permanent damage or death.  I think that ECT treatments fall into this category.

On the other hand, I think that a judge would be justified in denying a claim for visual impairment if the claimant refused to wear glasses.

What about those cases where a claimant has moral or religious grounds to refuse treatment.  Would a diabetic who refuses insulin on religous grounds or because of a fear of needles get approved?  Would that hemorrhoid patient be denied because she feared any type of surgery, no matter how minor?

Judges are human beings and they expect that claimants will make a real effort to improve their health and rejoin the workforce.  Judges sense when claimants are trying to avoid work, so, in general, if you have refused treatment, I think you need to be prepared to give a legitimate reason why.

I also think that if you refuse treatment, you should not expect to stay at home waiting for your check.  Judges expect you to seek out whatever treatment you can handle and that you can afford.   In Mike’s case, I think he is justified in refusing ECT because of the side effects, but I also think that he needs to continue with whatever other treatment has been prescribed – therapy, medications (if applicable), etc.  Even if some of those alternatives don’t seem to be effective, it is important to build an on-going, long term medical treatment record.

Will Graduate Student Work Stipend Cause Paraplegic to Lose SSDI Benefits?

My April 26, 2008 post about attending college and applying for Social Security disability generated a large number of emails and questions.  A reader sent me this question which is about the impact of a stipend and part time job on an SSDI recipient who has already been deemed disabled.

I recently was injured and now am a paraplegic.  Before my injury I was an airline pilot but can no longer fly because of my disability.  I am returning to school to learn a new profession.  My question is “Will accepting aid such as a position as a graduate assistant be considered gainful employment?”  Depending on which school I attend and which program I enter, I will receive a tuition waiver and a stipend of anywhere from $6000 to $20000 a year for working 10 to 20 hours a week.  It is a merit based program; the more competitive I am the more assistance I will receive for basically the exact same duties.  I definitely cannot afford to go to school if I lose my SSDI but would hate to attend a lesser school just to stay under Social Securities’ income limit.  Any information would be greatly appreciated.

Here are my thoughts:  as a paraplegic, you meet the disability listing at 11.04 or under any one of the muculoskeletal listings (Listing 1.00).  At this point, I would assume that medically, there is not a likelihood that you will regain function in your lower extremities, meaning that you will continue to meet the listing on an ongoing basis.

10 to 20 hours a week is not full time employment, although part time employment taken in combination with full or part time school is substantial gainful activity.  It is certainly possible that when your employer reports income to Social Security it will trigger Social Security to review your case.  If you were only working 10 to 20 hours a week, and not attending school, you could argue that your employment was not equal to substantial gainful activity.  If you are getting special accomodations at work because of your medical condition, It would be helpful to document those special considerations.

Taken in combination part time work and school looks like substantial gainful activity –  it would be difficult to argue otherwise.  So, I think that there is a risk that your earnings and college attendance could trigger a continuing disability review, however, I wonder how likely that you will face this.  Your eligibility for benefits is a function of your medical condition and your medical condition is not one that will improve.

The money issue is a separate issue.

You can have earnings and still collect SSDI.   If you earn less than $670 per month, no problem.  If you earn more than $670 in a given month, that month counts as a "trial work period."  You still get your regular benefit check, but you use up one of your 9 trial work period months.  You can also claim necessary expenses against your gross earnings, meaning that your gross can be more than $670.

After you use up your 9 months of trial work, then you move into the "extended period of disability" where SSA will look at your earnings on a month by month basis.

I think you need to look at the eligibility issue and the money issue as separate problems.  SSA does not publish a set "formula" that might tell you what level or earnings and/or activity can trigger a review. 

What are the rules for my trial work period?

Hi, I have been disabled for a few years now and am thinking about returning to work, I would like to stay under the amount necessary to continue my ssd ? How do I do that? and do I report the income to someone at ss?AND what if I want to TRY returning to work full time? –Valerie

Jonathan Ginsberg responds: Valerie, the answer to your question can be found in SSA publication 05-10003. Basically it provides that for 2005, you can earn $830 per month without being considered “substantial gainful activity” ($860 per month for 2006). If you have never tried to work before you have a 9 month “trial work period” where you keep your benefits no matter what you earn. If you earn less than $590 per month ($620 for 2006) it does not count as one of the 9 trial work period months. You must report all earnings to Social Security. You can call your local SSA office or SSA’s national number -800-772-1213.

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