Thursday, November 15, 2012

Finding of Incompentency in VA Disability Case.

Generally, the VA will pay veteran's disability benefits directly to the veteran who is entitled to them. However, in cases where a veteran has been found to be incompetent, or is otherwise ineligible to receive benefits, the VA is authorized to appoint a fiduciary to receive the and spend funds on the veteran’s behalf.
 When the VA first proposes to appoint a fiduciary, a veteran can object to a finding of incompetence. However, once a fiduciary has been appointed, the relationship falls solely within the jurisdiction of the VA. This means that veterans who were assigned irresponsible or incompetent fiduciaries have found themselves with no remedy. However, a recent decision from the Court of Appeals for Veterans Claims indicates that this may be changing.
 On April, 26 2011, the Court of Appeals for Veterans Claims issued a decision in Henderson v. Shinseki stating that the assignment of a fiduciary is subject to judicial review. The Court explicitly authorized veterans to challenge the appointment of a fiduciary by filing a Notice of Disagreement and appealing to the Board of Veterans Appeals. While the extent of the right to appeal is unknown, this decision is a very encouraging sign for veterans who find themselves at odds with the VA’s Fiduciary Program.

Monday, July 09, 2012

The “Secret” Disability Program

Disabled Adult Child – someone who is disabled by Age 22

The two programs that come to mind when people think about Social Security Disability are Title II (“regular”) and SSI (needs-based).  But there is also another less-known program: Disabled Adult Child (DAC).
How does someone qualify for Disabled Adult Child benefits?  You need to prove to Social Security that the individual was disabled before his or her 22nd birthday.  You must also have a parent who is collecting Social Security Disability benefits, or a parent who is on SS retirement benefits or a parent that has deceased. This does not mean that the decision must be made by the 22nd birthday, but just that Social Security accepts that the disability existed by that time.
Why would someone want Disabled Adult Child benefits? In a situation where a claimant has worked in the past, the amount of his or her disability benefit is based on what they had earned. (This is the Title II program.) Where there are no earnings or limited earnings, benefits are based on financial need. (This is the SSI program.)  Younger people generally have no earnings or low earnings and so the cash amount of their disability benefits is low.
The DAC program calculates benefits based on a parent’s earnings.  In most situations, the dollar amount of benefits from a parent will be greater than the amount paid by the SSI program. Medicare (rather than Medicaid) is included under the DAC program, as well.
When can someone receive Disabled Adult Child benefits?  DAC benefits are paid when a parent qualifies for Social Security benefits (either through retirement or the parent’s own disability), or if the parent is deceased.  But this does not mean that people should wait to apply for disability benefits!  An individual should apply for disability benefits as early as possible.  Social Security will pay under the applicable program (Title II or SSI) until it is time to transfer the benefits to a DAC claim.
What should I do?
• Apply for disability benefits as soon as possible under all programs that you qualify for.
• Try to prove that you were disabled before you turned 22 years old. 
Use medical records, school records, and letters from relatives, friends and clergy/youth group leaders, employers or volunteer opportunity supervisors, etc. 
• Shortly before a parent retires, or when a parent begins receiving Social Security Disability benefits or dies, tell Social Security that you need to file a Disabled Adult Child’s Application. The Application is just a formality and does not involve as much paperwork as your first disability application. (You will need to know the Social Security number of your parent.)   Make sure to file a DAC Application as soon as you can. If you wait, you might not get all the benefits you are entitled to, since Social Security looks at the date of the Application when it processes payments.
By Risa Rohrberger, Esq.

Risa is an attorney at Kazmierczak & Kazmierczak, LLP. a Social Security Disability law firm.

Friday, May 18, 2012

Social Security Disability Eligibility Through Work Credits

Protect Yourself:  Paying Taxes On Earnings of $4,520 A Year Secures Your Title II Social Security Disability Benefits. 

By Tracey E. Cahn Esq. of Kazmierczak & Kazmierczak, LLP.

As an attorney who works with a disabled clientele, I am writing to urge all of you who are healthy to work, at least part-time. 
Why?  Well, while there are many benefits to working, the sole reason I am encouraging you to work is to ensure that you will be eligible for Social Security Title II benefits if there is a substantial period of disability in your future. 
What are the potential Social Security Disability benefits
1. A monthly income,
2. Medicare after 29 months of disability, and
3.  Additional monthly income for your minor-aged and/or disabled children
The amount you receive may not be enough to live on, but it will be helpful. 

How does it work? 
 In general terms, if you have worked “enough” within five (5) years of becoming disabled, your Application for disability benefits can be considered by the SSA (Social Security Administration). Without “enough” recent work, the application will be denied outright at the very start of the process, without consideration of the nature and extent of your disability. 
What is “enough” work? 
 In 2012, it means earning a little more than $4,500 a year. Social Security awards “credits” for earned taxable income.  The maximum number of credits that can be earned in a year is four (4).  In 2012, for every $1,130 you earn and pay taxes on, you receive one (1) credit; when you earn $4,520 in 2012, you will have earned the maximum number of credits allowed in that year.  Just remember -   You must report your income and pay taxes to get the credits!   
 These credits gradually expire.  The general rule of thumb is that if the  claimant has barely worked in the five (5) years prior to disability, the  likelihood is great that she has a date last insured problem.  (If in doubt,  you can always contact your local Social Security Office and make an  inquiry.)
Is the date last insured important? 
 The date last insured is critical because if you cannot prove that your medical condition has been substantially disabling, since before your date last insured, you will not be eligible for Social Security Disability benefits even if you are now obviously disabled.   The situation is akin to dropping your fire insurance just before your house goes up in flames.  There is no doubt of three things:  1. if you had fire insurance, you would get a check; 2. you no longer have fire insurance; and 3. you will not get a check. 

• Janet last worked in 1999.  She was 30 at the time, and had been working for 12 years.  She had just gotten married, and her husband made a good income.  The couple decided that she had “worked” enough.   In 2006, Janet started to feel unwell.  She started dragging her right foot, her hands were cramping up and she felt tired all the time.  She was diagnosed with multiple sclerosis.  This went on for several years, and Janet continued to decline.  She finally filed for Social Security disability benefits in 2011. 
Is Janet eligible for the benefit?
Short Answer:  No.  Janet will receive a letter from Social Security stating that her date last insured was in December of 2004, and there is nothing to support that she was disabled from working since before that date.
 So what should Janet have done to keep her Social Security Disability Insurance from expiring?  She should have continued to work, at least part-time. The current federal minimum wage is $7.25.  At minimum wage, if one works about 12 hours a week, they will earn the maximum credits Social Security allows per year.  And, even if you cannot work that much, if you can earn even one credit a year, that is still worthwhile as it will prolong the time till your date last insured expires. 
 Since Janet’s husband makes a nice income, and can provide medical insurance for her, does it really matter that she cannot get disability benefits? 
I assert that it does.  Financial independence is always preferable.  While Social Security benefits are not overly generous, they help.  And, then there are the “what ifs”:  
• What if Janet’s husband loses his job, and with that, loses the critical medical insurance she heavily relies on;
• What if their financial situation changes for any number of other reasons? 
• What if they get divorced? 
 Janet and her husband need to protect themselves.  So do you.  Therefore, while you are healthy, do your future self a favor, and find some work that you can do, pay your federal income tax obligation and earn some Social Security credits.

Monday, April 23, 2012

When to Apply for Workers Compensation and Social Security Disability

Workers Compensation or Social Security Disability?  If you have been disabled by a work-related accident, and you have been advised or simply know that you will not be able to do any kind of substantial (full-time) work for at least twelve months, I urge you to consider applying promptly for Workers’ Compensation and applying for Social Security Disability benefits as well. 
What brings me to this topic is the situation of two recent clients who postponed their Social Security cases thinking they needed to get through their respective WC case before applying for Social Security.    Were they mistaken?  I must start by conceding that I do not practice WC law.  However, from my point of view, they did themselves a great disservice.  Their delay cost them thousands in potential recovery from Social Security, delayed their potential Medicare benefits and likely weakened their Social Security cases. 
Lost Benefits:
While there is commonly an offset between Social Security and WC benefits, the recipient of both benefits is ordinarily going to realize considerably more than the recipient of just one of these benefits. 
For example, on 4/12/2012, say employee Ted herniates 3 lumbar vertebrae while trying to lift drywall into his employer’s truck.  The injury prohibits him from lifting and carrying; he cannot stand up straight or stand at all for much of the day; and sitting causes shooting pains down his legs with numbness and tingling.  He will be disabled from his work and all other substantial work for a minimum of 12 months.
He applies for WC on 10/12/2012, but does not apply for his SSA benefits until his WC case is settled three years later on 10/12/2015. 
Question:  Did the postponement of the SSA application cost Ted anything? 
Answer:  ABSOLUTELY.  Social Security will only go back one year prior to the date of his application in affixing retroactive benefits.  Waiting one year would not have cost Ted anything, but waiting three years cost Ted 2 years of SSA benefits. 
 Question:  Since there is an offset between WC and SSA, doesn’t that mean that Ted would have  gotten the same amount even if he had gotten the award from SSA? 
 Answer:  No.  WC is governed by the individual states,  and the offset is not commonly 100%.  In  every state I am aware of, there is still a considerable percentage given above the offset.  In  general, a beneficiary of both programs should expect to receive a 15% better benefit if he is  receiving from both programs.  Furthermore, SSA ordinarily offers more than WC. 
Other benefits – Medicare and Dependent Benefits: 
• If disabled for greater than 29 months, the SSA beneficiary will be offered an option to enter the Medicare system; and
• If the SSA beneficiary has a disabled or minor-aged child or children, those dependents  may also be eligible to receive benefits. [These additional benefits are not part of the WC system.]
Question:  So, what if Ted  had two minor aged children and earned $50,000 a year; what would he expect to receive? 
Answer:  If he was found to be fully entitled to WC benefits, he may expect to receive $32,000 annually.  However, if he received from both programs, after the offset, he could expect to receive considerably more, likely around $40,000 a year for himself.  And, since he has two minor aged children, they may also expect an award of benefits as well. 
Weakened Case:
Another critical factor is that the strength of the SSA case will likely weaken as time goes on.  Getting benefits from insurance companies and from the government takes time and proof.  In both the WC and SSA case, the Claimant has the burden of proof.  Prior to the settlement of the WC case, the injured worker is generally given some level of medical care through his employer’s insurer.  While I find that these doctors commonly dictate reports that are heavily slanted to the benefit of the employer, at least their treatment provides some medical assistance to the claimant, and it also serves to document the disabling conditions.  But, once the WC case is settled, the insurer will stop providing access to care.   When this happens, the treatment stops and so does the documentation of the disability, at least until new doctors are secured; sadly, many in such a predicament, cannot afford to continue any form of treatment.  Thus, even though the Claimant’s condition has remained unchanged, the SSA case has been substantially weakened by the delay in filing.
For all these reasons and more, I urge those of you who have potential claims for both WC and SSA to consider your options and resources, and file wisely: file timely applications for both benefits.

By:  Tracey E. Cahn, Esq.

Wednesday, April 04, 2012

Investigating the wide disparity in allowance rates from Social Security Disability hearings

One of the most frustrating aspects of the Social Security disability process, particularly at the hearing level, is the inconsistency of administrative law judge decisions. The average allowance rate for 2010 was 67% at the hearing level. However, the hearing level approval rate for administrative law judges ranged from 8.6% to 99.7%. The difference between the judge with the lowest percentage of approvals and that of the judge with the highest percentage of approvals is enormous. The Social Security Administration Office of Inspector General, also called OIG, has looked into the situation. It is not all that clear what the OIG plans to do or can do about the situation. One of the reasons there is an appeals Council is to review decisions by ALJ's to make sure the decisions follow Social Security guidelines. One problem I see with this is with the new rules that do not allow a claimant to file appeal to the appeal council and a new application at the same time it is forcing many claimants to make a choice whether or not to appeal their case and many are not appealing the hearing decision in hopes of getting a quicker decision with the new application. It will be interesting to see what steps are taken to correct this problem without interfering with an ALJ's decisional independence. For those of you at the hearing stage, unfortunately, due to new rules from Social Security you will not know which ALJ you will be in front of until the day of the hearing. However, after you have your hearing it may be a good idea to try and find out your particular ALJ's approval rating so that in case you were denied it can help you decide whether or not to appeal or file a new application.

Thursday, March 01, 2012

Medical Conditions and Social Security Disability Claims

I am frequently asked what someone's chances are of winning a Social Security disability claim if they have a certain medical condition. You can be found disabled for almost any medical condition if it is severe enough and limits your ability to work to the required degree. However, in this post I will discuss some of the most common medical conditions that are awarded SSDI and SSI benefits. The most common medical conditions found in people who are awarded SSDI benefits are in the musculoskeletal system and connective tissue category. As of 2010, this category amounted to 32.5% of people awarded benefits had a musculoskeletal or connective tissue condition. This category includes conditions of the lumbar spine, thoracic spine, cervical spine, arthritis of the joints, amputations, soft tissue injuries and many more. According to the same report, mental disorders were found in 21.4% of those awarded SSDI or SSI benefits. The mental disorders can be broken down further into different types of mental medical conditions. Mood disorders amounted to 11.2% and this includes depression and bipolar disorder. Organic mental disorders amounted to 2.9% this includes mental disorders such as dementia and mental retardation and can be caused by traumatic brain injury, strokes, brain tumors, and getting older. Schizophrenic and other psychotic disorders was 2.1% of those awarded benefits. This category includes among others schizophrenia. Intellectual disability is 1.8% with autistic disorders, developmental disorders, childhood and adolescent disorder not elsewhere classified, and other mental conditions amounting to the remaining 3.4%. So musculoskeletal system and connective tissue and mental disorders combined accounts for 53.9% of those awarded SSDI or SSI benefits. Of those awarded benefits 10.2% had a medical condition involving circulatory system. This category includes heart attacks, strokes and others. Neoplasms were found in 9.0% of awardees. Neoplasms include different types of cancers and tumors. Medical conditions involving the nervous system and sense organs was found in 8.2% of those awarded benefits. All other impairments made up the remaining 18.7% of those awarded Social Security disability benefits. Like I said earlier you can be found disabled based on many different medical conditions if you can document the severity of your condition and how it limits you from being able to work. I felt this statistical information on medical conditions and Social Security disability claims would be interesting to my readers.

Thursday, January 26, 2012

Is The SSDI Program Sustainable?

Congress recently had hearings on the sustainability of the Social Security disability program. Chairman Johnson in his opening statement provided some interesting statistics. "The continuing growth of the program is striking. At a time when workers paying into the system has increased nearly 70% between 1970 and 2010, the number of people receiving disability benefits increased by almost 300%, from 2.6 million to nearly 10 million."  The chairman continued by stating:  "according to the 2011 trustees report, without congressional action, the disability insurance trust fund will be unable to pay full benefits beginning in 2018, just a little over six years from now. The path we are on is unsustainable, and we are putting individuals with disabilities at risk if we do not accept soon."  There would appear to only be a few solutions to this problem. There would either have to be a reduction in benefits or an increase in revenues. I am guessing that we may see a combination of these two. It is a shame that we've gotten to this point of a crisis situation. Congress has been punting this problem for years and years and as usual because of the delay we are now at a point where the changes will be painful to taxpayers and possibly the disabled as well. It is my hope, that our government will take this issue seriously and find a way to make the Social Security disability system sustainable for the long haul. Social Security disability benefits are a crucial safety net for society's disabled. This is a system in which those that are eligible have been paying into, through their taxes from work, with the understanding that if they become disabled or when they retire there will be benefits available to them. All of us who have paid into the system deserve the protection it provides and hopefully Congress can find a solution to this urgent problem.