Fighting the Social Security Administration

If you were awarded benefits, why would you need to fight SSA?

If you were awarded benefits, why would you need to fight SSA?

After completing a two year journey through SSA’s disability determination process you have been awarded Social Security Disability benefits. You made contact with the SSA payment center which set you up to receive your back benefits in installments and your monthly benefits going forward. At some point in time you were told by SSA to continue to provide updates about work, medical updates, and any time at all you have any other income. You were also told that at some time SSA may want to review your case to ensure that you are still disabled. At the time, you were excited about finally generating a source of income which you did not have in the prior two plus years.

Three years go by. You received a number of letters from the Administration which describe staying on disability, reminders of what the requirements are, and what you need to report. These letters are only occasional. One letter you received mentioned something about overpayment, but you remembered having an interview with an SSA worker who determined the dollar amount of your benefits. You have received payments in that amount every month for years now and you never did go back to work or won the lottery, so clearly, you were not overpaid.

Your benefits are monthly and you have adjusted to live within your means. You also try to save the benefit checks where you can so once in a while you can go out to eat, see a movie, or buy gifts at the holidays. It is not easy, especially since you need to keep up with your treatment, but since you are single and without child-related costs  you have managed to save and maintain about $1,800 in your bank account for emergencies.

Two Christmases ago, right after you were awarded benefits, your grandmother Millie sent you a $250 check to help get you back on your feet. That was especially nice of her since she usually only sends a sappy card with a $20 bill in it. You deposited that $250 check at the time and forgot about it.

On the three year and one month anniversary of the award of your benefits, you receive a thick packet from SSA. Inside is a letter asking you to report any income you may have received, a function report for you to complete, a release so that SSA can collect medical records, and a statement showing the payment schedule for your benefits with the cost of living adjustments for the next two years, among other documents. You complete these documents and return them to SSA.

Thirty days go by. Your benefits are not deposited into your account as usual. You try calling SSA and the first time you wait on hold until the Administration’s phone system hangs up on you. You call again and get a front desk person who tells you that they are not sure why your benefits have stopped, but that you can talk to a case worker. You call the case worker several times and leave several messages. At the sixty day mark, you receive a letter stating that you have been overpaid, that you owe SSA $26,000, and that you have no defenses because you knew or should have known that you needed to report earnings and did not do so.

You frantically call and call SSA, the case worker, and anyone that would answer the phone. Eventually, the case worker calls you back. They inform you that SSA performed a continuing disability review on your file, and determined that three years ago in December, your bank account showed an amount of $2,050 for two weeks because of unearned income of $250. The case worker further tells you that to remain eligible for your benefits, you can never have a back account balance above $2,000, that you did, and because of that SSA retroactively determined that you were ineligible for benefits. You were also determined to be ineligible because you had unearned income you failed to report. Because of that retroactive determination, you owe SSA all of the money they paid you from that December to present. The case worker further tells you not to waste everyone’s time trying to appeal SSA’s decision because you will lose any appeal you file automatically.

Is there anything to be done? Can SSA really tell someone they owe $26,000 because of some Christmas money that you received three years ago? Don’t SSA’s case workers have the final word on how your disability benefits get paid? Aren’t they right when they tell you that you will lose any appeal?

Look for the answers in our next post!

If you were awarded benefits and you are currently going through a similar experience to the one above please contact us today!

If you are interested in learning more about Social Security Disability please contact us for a free consultation!

Social Security Disability: Qualifying Conditions

Are there specific conditions that qualify a claimant for Social Security Disability benefits?

The short answer is no. The long answer is a slightly more nuanced no.

On some disability websites, potential claimants may come across lists of conditions like these. Many providers assemble these lists as examples of conditions that could be the basis of an SSDI or SSI claim. This can generally be somewhat misleading in that it can create the false impression that there are specific conditions that one must have in order to qualify for disability. However, this is simply not the case.

Social Security does have the Listing of Impairments. These Listings were created to streamline the disability process a bit by providing a list of common conditions that can lead to a finding of disability. However, what must be understood about the Listings in that they can be somewhat generic. This means that instead of identifying depression as a condition they identify “Affective Disorders,” which is a category of psychological conditions. This is the same for numerous other conditions. In fact, the listings only get specific where they need to be.

In some cases, the Listings will not only identify a specific condition, but also specific testing or test results that a claimant would need to have completed in order to meet the requirements of the Listing. For instance, with chronic heart failure, one would need to experience systolic failure, an ejection fraction of 30% or less, and inability to perform an exercise tolerance test at a workload of 5 METs or less due to a decrease of 10 mmHg in systolic blood pressure below their baseline systolic blood pressure in order to meet Listing 4.02 Chronic Heart Failure. So, in this example, a claimant would need to fail a cardiac stress test due to a drop in blood pressure, have an ejection fraction (which can be measured or estimated through a few different tests) that is approximately half of normal, and, though it is not mentioned, a poorly functioning left ventricle.

That seems pretty specific. But, most people do not realize that it is possible to “equal” a Listing. So, with the heart failure example, if a claimant had an ejection fraction of 40% and also had a knee problem limiting his ability to perform a stress test, he or she might be considered to have equaled the listing because, while they did not have exactly what the listing was looking for, they had conditions that combined to equal the severity that the Listing was looking for.

The equals argument can even be applied to conditions that have nothing to do with what the Listing is asking for, but demonstrate a similar level of severity. For instance, the asthma Listing is applicable to a number of different conditions including migraines. So, while you may not have ever had asthma, as long as you are taking a prescribed treatment and still have six migraines within a twelve-month period you would be able to argue that you equal the asthma listing.

The fact is that there are no specific conditions that one must have in order to medically qualify for disability. We have even seen claimants approved who did not have a firm diagnosis, but only confirmation by a doctor that they were experiencing severe symptoms of an unknown origin. In fact, all that is required to medically qualify is to have a severe, medically determinable impairment, that prevents a claimant from maintaining substantial gainful employment in their prior or other work, that is expected to last at least 12 months. If these basics are met, a claimant likely will have a good medical argument for disability.

If you would like further information on how your conditions could qualify you for disability or would like to speak with someone in the office about your claim please contact us!

Social Security Tips: The Mail

One of SSA's most common issues is one that is very basic.

One of SSA’s most common issues is one that is also very basic.

At Omega, we try to make ourselves available to people through various types of media. One of these is Avvo.com. Resources like these are great for asking quick questions or figuring out if you need an attorney to answer a more complex one. These sites also allow us as practitioners to reach people by answering questions. I recently answered a question on Avvo from an individual who had not received a key piece of mail from the Social Security Administration which subsequently caused him serious issues with his benefits.

This raised an issue that attorney advocates and claimants encounter on a frequent basis: the mail.

As individuals, people have almost certainly heard of one thing or another being lost in the mail. However, because they are sending less and less mail through the Post Office these days, losing things in the mail is an occurrence that rarely, if ever, happens. Generally, if we mail something it gets to where it is going reminding us that there is a minimal chance that anything could ever be lost in the mail.

But, if you happen to be sending thousands of pieces of mail per month and millions of pieces of mail per year like the Social Security Administration things will be lost on a regular basis. The question, then, becomes what can a claimant do about lost mail from SSA?

Fortunately, the answer is not the usual lawyerly “it depends.”

The answer is to be diligent and to stay involved with your claim, or if you have already been awarded benefits, to stay in contact with the Administration. For example, the question I answered on Avvo was from an individual already awarded benefits. Aside from receiving his monthly checks this person went about his business like normal with no contact to or from the agency until he received a letter in the mail stating that his benefits were going to be suspended since he was “not cooperating” with SSA. Of course, he would have cooperated if he knew he had to. The lesson to be learned here is that checking in with a field office at least quarterly can help prevent these circumstances.

There are simple reasons why that is. First off, a claimant can tell the field office staff that they have not received any mail from the Administration in a while and ask the office if any has been sent. If some has, since you are entitled to a copy of everything in your file, you can request that SSA re-send anything you missed. Moreover, checking in quarterly puts you in relatively good stead as far as collecting any mail you missed as many SSA deadlines for submitting documents or performing other activities are going to be 30, 60, or 90 days from the date of mailing. So, as long as you are checking in regularly you should be able to collect any missed documents prior to the deadline running out. You also may be able to correct any issues before anyone at SSA realizes that there is an issue.

This also solves the problem of good cause should you happen to miss one of these deadlines. Generally, SSA will keep a log of every time you call into them. If you have a pattern of checking on your claim to show them, if you miss a deadline because something was lost in the mail you will be far more credible and are much more likely to be granted good cause for a missed deadline than simply saying, “I didn’t get it.”

There are other ways to be diligent in ensuring that mail is received as well. Remember, that the loss of mail goes both ways, so things you send to SSA can also be lost. Here are a few more tips that should help no matter which way the mail is going:

  • Never send SSA originals of any of your own documents if you can at all possibly avoid it
  • Only send Social Security’s own forms back to them as originals(they require “wet” signatures on some documents), but keep a copy for yourself
  • If you are going to provide an address to Social Security because you only have a temporary living situation, provide one where a friend, relative, or other responsible person lives that can contact you if you receive mail
  • If you are sending something very important send it with a return receipt even though that costs a little bit more
  • If you have the ability to, and even if SSA only wants a wet signature, fax a copy of the document you are mailing to the office that requested the mailing
  • If you feel like you are regularly missing mail from SSA, call them and change your address
  • If you move, forward the mail from your old address via the Post Office and call the Administration to change your address
  • If the agency asks you for something, try to send it back within the time period they gave you
  • Even if you would leave a form mostly blank send it back to SSA
  • Do not expect that your attorney will complete documents asking for information from the claimant, you, without any input from you
  • Do not ever rely on SSA to do anything to ensure that you received mail they sent you
  • Do not ever assume that they will tell you that they did not receive something you sent before it that is causing a problem. If you mail something, wait a week, and then call them.

Ultimately, the mail might be the biggest cause of unnecessary problems for Social Security Disability claimants. Staying involved in your claim is the best way to do this. Of course, it also helps to have a good attorney, so contact us today!

SSI/SSDI Appeals Process: A/C and Level 5

One thing that any new applicant for disability benefits will hear about shortly after submitting their application is the disability appeals process. It can sound like a daunting and difficult process filled with claimant participation and, occasionally, claimants can come to feel that they are doing more for their case than their representative is doing. Many times, however, these feelings come up because claimants are unaware of what is happening behind the scenes and that their representative . This post will take readers through the last two appeal levels in the SSI/SSDI appeals process.

Level 5 takes you to federal court

Level 5 takes you to federal court

The Appeals Counsel

This level of appeal is generally reserved for SSI and SSDI claims that have been denied by an Administrative Law Judge (ALJ). The appeals counsel has other responsibilities as well, however, most claimants will encounter the Appeals Counsel after a denial. If a claimant disagrees with an ALJ’s decision he or she can write a letter or submit an appeal form saying so. However, having a representative to argue the appeal can be a tremendous advantage because many times the appeals counsel will side with an ALJ if the judge’s reasoning appears to be sound on its face. A representative can point the Appeals Counsel to areas where the judge misconstrued the Agency’s rules, missed a piece of evidence, and other issues that may require a second hearing to resolve.

The claimant’s role in at this level of appeal is greatly reduced. He or she can and should submit medical updates to their representative, but generally the appeals counsel will be deciding the appeal based on the information provided by the claimant at the prior three levels. The only real exceptions to this occur when an ALJ made a decision before an important piece of evidence was received or the claimant underwent new tests or procedures which revealed that their conditions were of a greater severity than initially believed by their doctors. In these cases, the new or missed evidence should be submitted to the representative who can submit the information to the Appeals Counsel.

In addition to submitting any relevant new information from the claimant, the representative’s primary role is to brief the appeals counsel on the issues of that which generated the appeal. Most of these issues will be related to the decision made by the ALJ, however, it can also include procedural missteps such as not allowing a certain witness at a hearing or ignoring medical records because of an erroneously enforced local rule.

Federal District Court

This is the “last” level of appeal for a disability application. But, in point of fact, the Supreme Court of the United States is the definitive last level. There are two reasons for this. First, since the Social Security Administration is an agency of the executive branch of the U.S. Government, appeals that go to the courts of the judicial branch require a lawsuit against the Agency’s commissioner. Secondly, the Supreme Court has jurisdiction over cases within the federal judicial branch, meaning that a suit against the Commissioner of SSA is within the Supreme Court’s jurisdiction. All of this being said, there is a very low probability that any SSI or SSDI application will even reach the federal district court level. Here, the roles of claimant and representative will be similar to those in any other lawsuit conducted by an attorney on behalf of a plaintiff. If a claimant made it through the prior four levels of the process without an attorney and wants to continue to the federal district court level, this would be the time to find one. A skilled attorney at this level will state the issues in a manner that fits the law which is most important since it gives a federal district court judge a better look at why the claimant/plaintiff believes that there is an issue and what remedies would be available to the claimant.

The drawback of “level five” is that it takes years to get there and, as long as the ALJ presiding over the hearing did even a middling job of sticking to SSA’s rules, the court may very well side with SSA. This is one of several reasons why there are very few level five cases. Attorneys are reluctant to take cases against SSA that do not have a clearly appealable issue. While that may not seem fair to claimants, it affords them the opportunity to file a new application where they may very well have a better chance at approval the second time around and cuts off additional months of waiting to a process that has been years in the making. Moreover, most attorneys would have to front the costs for taking an appeal to court and may receive little in the way of reward as attorneys fees are still governed by the Social Security Act. While a disability case may be slightly less expensive, even taking a basic automobile accident to court can cost about $17,000. Since attorney’s fees are capped at $6,000 and can only be increased based upon a fee petition, you can see why many lawyers are reluctant to take a case this high.

Having attorneys wait for bright line issues, though, also means that the cases that do make it to federal district court have a much stronger chance of success. If a case is successful in court, it will be remanded down to the original ALJ for a new hearing with instructions to the ALJ to make proper findings. This process can repeat itself over and over until there is a final disposition, but to avoid such a feedback loop, a case will only be remanded to the original ALJ once. If the ALJ insists on repeating his findings, the case will again be remanded, but to a different ALJ.

If you have been denied at any level of the process, or have read our appeals series and have questions, please contact us!

The Appeals Process: Hearing Level

One thing that any new applicant for disability benefits will hear about shortly after submitting their application is the disability appeals process. It can sound like a daunting and difficult process filled with claimant participation and, occasionally, claimants can come to feel that they are doing more for their case than their representative is doing. Many times, however, these feelings come up because claimants are unaware of what is happening behind the scenes and that their representative . This post will take readers through some brief descriptions of the steps in the appeals process and the roles of the claimant and representative are at each stop.

Today’s post is going to discuss the third level of the SSI/SSDI appeals process.

The Hearing

In some ways, having a disability case at the hearing level is like starting your claim over again. It takes about the same amount of time as the first two levels of appeal, your representative will request as many or more records than they and SSA did in the first two levels, and you generally will also have a new SSA office to speak with since your case will now be at the Office of Disability Adjudication and Review (ODAR). Because there is a substantial wait to even be scheduled for a hearing, many people will lose interest in their cases and some will even forget that they have a pending claim with SSA. However, most claimants are harshly reminded that their claim is pending when they receive a notice that they have been scheduled to appear before a judge.

This can cause some panic for claimants. This can be doubly so when an advocate wants to re-interview them about their medical history and medical providers. This is a very standard and necessary practice. The medical records that SSA would have on file would now be over one year old. Presumably claimants would have received some treatment for their conditions and it is necessary to show that their conditions remain when they reach the hearing by securing updated medical records. It also does not make much sense to try to collect medical records until about sixty to ninety days from the hearing. Many ALJs will require records more or less through the date of the hearing, so requesting them too far out will mean that the advocate will need to do another round of requests. It usually saves everyone time if the records are submitted close to the hearing.

This is the level where the claimant is presented with his or her day in court, and often will have the first real opportunity to explain to a person that would listen what their conditions are and how their symptoms effect them. This is also the part of the process that takes the longest. Generally, the wait for a hearing takes over a year from the date of the request. The reason for this is that, based on 2015’s numbers, there were about 1.1 million claimants that requested a hearing, and about 1,800 judges to hear their cases. That breaks down to about 611 hearings per judge. Since each hearing is about an hour long, that leaves about 1,400 hours in the year (based on a 2,080 hour, i.e. 9-5 job’s work year) for ALJs to write decisions, decide fee petitions, correspond with medical experts, hear overpayment cases, and perform all of their other duties. There are simply not enough judges to hear cases and, so, the process is relatively drawn out.

At this level, the claimant’s responsibilities will be generally the same as at reconsideration with one notable difference. The claimant will also need to testify at a hearing. This testimony is usually presented through questions asked by both their attorney and the ALJ through questions about their conditions, what treatment they have received, how they spend their days, and many other topics.

The representative will prepare for the hearing in a number of ways. First, they will ensure that any and all relevant medical records have been brought up to date as it becomes the advocate’s responsibility to complete the record. They will also make sure that, not only have the records been received, but that they have been submitted to SSA. The representative will also renew any requests for consultative examinations, respond to those reports, make motions for subpoenas for any non-responsive record providers, collect medical source statements, and write and submit a pre-hearing memoranda to the judge, among others. The representative will also conduct the hearing and will have prepared for it by reviewing all of the records, researching the claimant’s conditions in detail, studying the listings of impairments related to those conditions, and interviewing the claimant to get the best possible idea of how they are effected by their symptoms. The advocate will also have the responsibility of addressing any issues that come up at the hearing through the submission of additional or missing records or post-hearing briefs to the judge on specific topics.

Probably more than any other part of the appeals process, the hearing level is where a claimant will benefit from an attorney’s help the most. Many ALJs will be understanding enough with pro se applicants and will try to get them through a hearing. However, most claimants have no little knowledge of what will and will not constitute evidence of a disability, will not be able to properly brief the judge on their conditions, or how to cross examine a vocational witness. It is by allowing the claimant to leverage their knowledge and experience that attorneys and advocates can benefit claimants.

If you are currently in the appeals process and would like to speak with an attorney contact us today!

 

The Appeals Process: Reconsideration

One thing that any new applicant for disability benefits will hear about shortly after submitting their application is the disability appeals process. It can sound like a daunting and difficult process filled with claimant participation and, occasionally, claimants can come to feel that they are doing more for their case than their representative is doing. Many times, however, these feelings come up because claimants are unaware of what is happening behind the scenes. This post will take readers through some brief descriptions of the steps in the appeals process and the roles of the claimant and representative are at each stop.

Reconsideration

Requesting reconsideration is like asking SSA to redo the work it did during the initial application process. In doing this, SSA will send the application and supporting documents to a different decision maker to see if they come out with a different result. The claimant is allowed to submit additional information or request that SSA go out and get some additional records. This process usually works on the same 3-6 month timeline as the initial application, but can often be quicker since much of the case development was begun in the application stage.

For reconsideration, the claimant should have fewer responsibilities. The most major of these is providing his or her representative with information about recent doctor’s visits, new diagnoses, or new tests. The other important responsibility the claimant will have is completing some paperwork that SSA is going to send to the claimant. These papers can be filled out by the representative, however, most of what the claimant will receive will be questionnaires about their activities of daily living or symptoms they regularly experience making the claimant the best person to complete them.

At this stage, the representative will provide updated medical information to the agency, renew any requests for consultative examinations, respond to the examination reports, and likely add arguments to be presented to the new decision maker(s) reviewing the case. For more severe cases, the representative may also attempt to provide specialist opinions, medical source statements, or vocational opinions that refute the Agency’s reasons for denying at the application stage. Additionally, an attorney or advocate will also spend a good amount of time ironing out issues with medical record providers.

The Social Security Administration ultimately bears responsibility for collecting medical records during the initial application and reconsideration stages of the process. However, most providers are corporations and have requirements for being reimbursed for records. They also seem to assume that SSA is demanding the records for free (despite usually receiving a request for an invoice to be paid by the Administration). Depending upon the state, SSA (and disability lawyers) not only will require that the records be free of charge, but will do so because the state legislatures have enacted laws making it illegal to charge for records meant to support an SSI/SSDI claim. In this type of conflict between law and corporate policy, the law generally wins, but unless someone explains how the laws governing medical records works to a provider, or obtains a subpoena from an ALJ to require them to be released, the records may simply never be returned. Thus, this becomes a time consuming responsibility for your representative during the Reconsideration and hearing stages.