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Why Your Long Term Disability Insurance Company Can Demand That You Turn Over Your Social Security Disability Lump Sum Payment

If you are receiving long term disability benefits, you can be certain that your LTD carrier will require you to file for Social Security disability. What is the practical effect of pursuing Social Security disability and how should you handle the insurance company’s request.

Most of the LTD policies I see are company provided. These company sponsored policies are sometimes called “ERISA policies” because the rules that govern how they are administered are set out in a federal law called the Employee Retirement Income Security Act of 1974 (ERISA).

If you worked for a company that gave you the option of purchasing short term and long term insurance as a payroll deduction, you almost certainly have an ERISA policy.

Under the terms of your ERISA policy you are required to apply for Social Security disability if your LTD claim is approved. Why? Because the insurance company has the right to offset what it pays you by what you receive from Social Security.

Here is an example – let’s say that your LTD policy pays you $2,500 per month if you meet the insurance company’s definition of disability. If your Social Security disability benefit is $2,000 per month, then the insurance company will reduce what it pays you to $500 per month since SSA is paying $2,000.

Your monthly payment remains at $2,500 per month but it will come from two sources instead of one. Continue reading →

Your SSI Payment is Not Enough? Can You Apply for SSDI to get More Money Each Month?

If you are receiving SSI payments you know that your monthly check does not go very far. In 2022, the maximum an individual can receive from SSI is $841 per month. Obviously $841 per month does not go very far.

Do you have the option to “upgrade” to SSDI disability benefits?

Unfortunately the answer to this question is most likely “no.”

SSDI is only available if you have sufficient earnings credits based on past work you have done and taxes paid into the Social Security system. If you applied for and were awarded SSI in the past, that means that you met SSA’s definition of “disability” but that you did not have enough credits for SSDI.

Both SSI and SSDI use the same definition of disability – that being a person is disabled if he/she can no longer perform substantial gainful activity due to a medically determinable condition that has lasted or is expected to last 12 consecutive months or result in death. Continue reading →

What is Your Date Last Insured and Why is it Important?

If you have made the difficult decision to file for disability because you no longer have the capacity to work even a simple, entry-level job, you need to start the process by filing a disability application with Social Security.

When you call the toll free number or apply online, SSA will ask you if you want to file for Title II disability (SSDI), Title XVI Supplemental Security Income, or both.

I generally advise my clients to file for both. If it turns out that you own assets, or have household income over the SSI limits, Social Security will determine that you are not eligible for SSI and you can proceed with your SSDI case.

Generally speaking, SSDI is a more robust program in that your monthly benefit will likely be higher, you won’t have to worry about assets you own or household income disqualifying you and you will eventually be eligible for Medicare (as opposed to Medicaid, which is associated with SSI).

In order to qualify for SSDI, however, you have to be insured for these benefits. SSDI is, in fact, an insurance program – the premiums you pay arise from the payroll taxes you have contributed over the years. Continue reading →

New Strategy for Winning PTSD Disability Claims

Under pressureI have changed how I prepare PTSD disability claims involving combat veterans. Over the past few years I have represented dozens of “wounded warriors” – men and women who have served our country in Iraq, Afghanistan and elsewhere in the middle east. Perhaps you or a loved one find yourself applying for disability based on PTSD along with other degenerative physical issues such as chronic back or knee pain.

Many of the soldiers I represent served multiple tours of duty – often I represent retired military clients who served on active duty for 5, 8, 10 years or more.

In the past, an ex-military Social Security disability claimant who had served in combat duty, with a PTSD diagnosis from the VA and a 90% or 100% VA disability rating was almost certain to qualify for SSDI. For a variety of reasons, disability claimants meeting this profile are being questioned more by SSD judges and are getting turned down more often than before.

I think I understand why combat veteran PTSD claims are being denied and I have changed how I prepare my clients for their hearings.

First, judges are seeing more of these claims, so the stories they hear are less “shocking.” I’m not exactly sure how eyewitness reports of seeing your best friend’s body could become anything less than horrifying, but that is what is happening.

I also sense that SSD judges believe that the VA hands out 100% service connected disability awards based on PTSD to pretty much any combat veteran. I don’t necessary think this is true but I have seen a significant increase in 90-100% VA disability ratings. VA disability ratings are not binding on Social Security. Continue reading →

How Your Hearing Testimony Can Help Win Your Disability Benefits Case

Social Security disability hearings generally last less than an hour, but the agency’s hearing backlog currently averages over 18 months in many locations. When you add the 8 to 12 months it takes for SSA to conduct its administrative review, most disability claimants won’t see the inside of a courtroom for over 2 years from the date they apply for benefits.

If you are waiting 2 to 3 years for your chance to spend an hour with a judge, you cannot afford to waste time or come to your hearing unprepared. Nevertheless, far too many disability claimants waste or misuse the precious time they have with the judge by testifying ineffectually. Continue reading →

Diabetes and Social Security Disability Case Study Posted

This afternoon, I tried an SSDI case involving a 53 year old woman claiming disability based on diabetes and associated complications.  In reviewing the record it appears to me that my client had been diabetic for several years prior to her diagnosis and has most likely suffered permanent vision and nerve damage.  Unfortunately her medical care has been suboptimal and while she has been compliant with treatment the record does not contain enough for me to make an argument based on the listing at 9.08.  Instead I went with a functional capacity argument.

You can read the case study on my Georgia Social Security disability web site.

What are the Responsibilities of a Representative Payee

Sometimes Social Security judges award benefits but require that benefit payments go to a “representative payee.”   The judge may do this if the claimant is a child, is legally incompetant,  suffers from mental health or medical problems that would make it difficult for the claimant to manage money or in cases where the claimant requests a payee.

Representative payees assume a great deal of responsibility.  They are responsible for handing the claimant’s money and for filing periodic reports with the Social Security Administration.   I have seen at least one case in which the rep payee was sued by Social Security because of an overpayment – the claimant went back to work and lost eligibility for benefits but Social Security did not find out for several years.

It has also been my observation that claimants often become angry with their representative payees when the payee refuses to allocate money for an item or service that the claimant deems necessary but the payee does not.   If you are thinking about serving as a representative payee I advise you to research and carefully consider the obligations of this position.

I recently received a question from a prospective payee named Celeste that touches on some of the issues faced by rep payees:

My friend just recently won her disability case, but the judge said she had to have a payee, which is me. I have a few questions that I would like for you to answer for me if you don’t mind. Continue reading →

Am I Getting the Right Amount of Money – Understanding Social Security’s Date Calculations

I received a question from one of my blog readers asking about date calculations.   I wish I could tell you that understanding Social Security’s date calculations and acronyms was easy but I can’ t say that.  I will try to offer some explanation about this confusing area.

i got an amended date signed by the judge but the  social ser, office only went back to 2005 when i had the hearing  and not the amended date that i was told they would go too. can you help me undersatnd this date stuff.
–Sandra

My reponse: Sandra, for sake of this blog post, I am going to talk mainly about SSDI benefits.  I’ll touch on SSI but I’ll make SSI date calculations the subject of a later post.

So that everyone is on the same page, when I speak about SSDI, I am talking about Title II disability – the kind of disability that you receive if you have worked and paid money into the system.  In order to qualify for SSDI, you have to be “insured” and have enough credits.  I am going to assume that Sandra has enough credits and that there is no issue regarding her eligibility for SSDI.

When you apply for SSDI, you will be asked about the “onset date” for your disability.  Since you are contending that you no longer have the capacity to work, I usually find that a good onset date is the day that you left your last full time job.   You can voluntarily change your onset date – sometimes I discover that my client chose a date that was many months after he was able to work and I amend the onset date to an earlier date.   In other cases, I find that my client used an onset date that was two or three years before she stopped working – in that case I might recommend that we amend the onset date forward as it is hard to argue that my client is disabled when she was still working full time. Continue reading →

Can Claimant With Sporadic Work History Collect on Working Spouse’s Earnings Record?

I regularly get calls from potential clients who apply for Social Security disability, only to discover that they do not have enough credits to pursue a Title II SSDI claim.  In such cases, the only other option would be to pursue a Title XVI SSI claim.  However, SSI benefits are usually lower ($674 per month for an individual in 2009) and, more importantly, SSI payments are subject to offset if the claimant has a spouse who works.

I see this a lot among self employed people, or salespeople who are paid in cash and do not have money withheld for Social Security taxes.   Here is an email I received from the wife of such a claimant:

I have worked and paid into social security since 1965.  My husband worked on and off for the past 30 years, but has not regularly paid in to social security.  Ten years ago he was diagnosed with MS and he has been unable to work at all.  I went to Social Security to ask if I could get disability payments for him and they told me that I earned too much money ($45,000 annually).  I am now about to retire at age 60 and would like to collect disability for him.  I’ve gone through web searches and there is such a mire of information – I don’t know where to begin.  Can he collect against the money I’ve paid in?  He is completely dependent on me.

Jonathan’s response: unfortunately I think that you are out of luck. Continue reading →

Is it Possible to Get an Early Favorable Decision in a Fibromyalgia Case?

Yesterday, I met with a fibromyalgia disability client in a pre-hearing session.  A hearing is scheduled in my client’s case in about 10 days and I met with my client and her husband to discuss what I call the “theory of our case” so my client would have a clear idea about what we were trying to prove.  In addition I use the pre-hearing meeting to practice questions and answers so that my client can avoid easily correctable mistakes.

During our meeting, my client mentioned how frustrating it has been for her to wait over 2 years to get a hearing and she asked me if this type of delay was typical.  My initial response was that fibromyalgia cases were rarely approved at the administrative (initial application or reconsideration) levels because there is no “listing” for fibromyalgia and adjudicators at the State Agencies did not have the expertise or authority to issue early approvals.

After my client left, I thought more about my response – is it possible for a fibromyalgia claimant to get an early approval from a State Agency adjudicator?

I think that it is possible, but a claimant would need strong support from her treating physician.  As I have discussed before on these pages, there are several “theories” or arguments under which a claimant can win his/her case.  The Listing argument constitutes the most straightforward theory.  If your condition meets or equals a Listing, you have consistent and extensive medical treatment records, and your doctor will prepare a narrative or complete a form that tracks the listing, and you make the adjudicator aware that a listing is involved, you greatly improve your chances at an early approval.  Do not, by the way, assume that the adjudicator will recognize your case as a “listing level” case – you need to make that argument clearly when you submit your paperwork.

If there is no listing that describes your condition (such as fibromyalgia), you will need to argue for disability based on another theory.  If you are 50 years old or older with a physical impairment, a limited education and a limited work skill background, you should look at the “grid rules” to see if you can be found disabled based on the grids.  Grid based decisions do not call for judgment and State Agency adjudicators will issue favorable decisions in grid cases.  Here, too, you need to point out that your case is a “grid” case and identify the specific grid.

Fibromyalgia cases can fit within the grids, although my experience has been that most fibromyalgia patients are high acheiving, Type A individuals who often have too much education and work skills to fit neatly within the grids.

If you do not meet a listing or a grid, you’re remaining argument will be a “functional capacity” argument.  It has been my experience that State Agency adjudicators do not often approve cases arising from functional capacity limitations because reaching a conclusion about a claimant’s “residual functional capacity” is a legal decision that requires judgment and adjudicators are not given much authority to make quasi-judicial decisions.

However, if you submit a completed functional capacity evaluation from a treating  physician (or two, or three) along with treatment notes, along with a request that the adjudicator take that functional capacity evaluation to the non-examining State Agency medical consultant and/or the adjudicator’s supervisor, there is a chance that your fibromyalgia case can be flagged for special review.

I hope you have picked up on a theme in what I have written about dealing with the State Agency adjudicators.  You cannot and should not assume that they will find a reason to approve your case.  You need to politely suggest a direction for their actions.  You need to lay out very clearly your argument for disability and you need to explain why a particular item of evidence is particularly relevant.  Finally, you need to realize that the State Agency adjudicators are overworked and underpaid and that they are given limited authority.  Do not hesitate to ask your adjudicator to take your file to a supervisor or to a medical or psychological consultant in the State Agency office.

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