VA IU and Social Security Disability

What is the difference between VA IU and Social Security Disability?  Many veterans ask this question and I will try and give a basic explanation.  The main difference is that Social Security will look at all your medical conditions to determine if you are unable to work.  With veteran's IU the VA will only look at your service connected disabilities to determine if you are disabled.  You can get a better understanding of how each agency determines disability by reading my web pages on Social Security's 5 steps to determine disability and how the VA determines if you are unable to work under VA IU.  What most veterans need to know is that if you have been found disabled for VA IU there is a real good chance you will be able to get SSDI.  Also if you are getting SSDI mainly due to your service connected disabilities, there is also a good chance you can get VA IU as well.  This is a very simple explanation of the difference between these two programs and the website links above should help explain further.  If you are unable to work because you are disabled and you are not sure what you may qualify for then one of the best things you can do is speak to an attorney to see if you may qualify for IU and SSDI or both.  If you would like to ask me feel free to call me at 1-877-527-5529.

Social Security Medical Listing of Impairments

The medical listing of impairments comes into play at the third step of Social Security's 5 step process for determining disability.  If your medical condition meets or equals a listing you will be found disabled.  If you do not meet or equal a listed impairment then you would move on to next step of the process.  To meet or equal a listed impairment it takes a doctor saying you do and explaining why it is your condition meets all the requirements for the listing, or at least why your condition equals the severity of the listing.  If there is a medical expert at your ssdi hearing, one of the first questions usually asked of the expert is if the claimant meets or equals a listed impairment.  You should read the medical listing of impairments as it applies to your medical condition and if you think you meet the listing you can take a copy to your doctor and ask them if they think you meet the listing.  If they think you do ask them to write you a report saying this and it should include why and be backed up with all evidence that supports this conclusion.  If you do not meet or equal a listing it is not the end of the world since you simply move on to next step in the process.  The majority of social security disability cases that win are not based on meeting or equaling a medical listing since these listings were made very hard to meet by design.

Veterans Disability Claims and The Long Wait Times

Most Veteran Disability claims take an extremely long time before they are resolved.  There are many reasons for this.  The Veterans Administration is underfunded, under staffed and has a huge case load.  This can be very frustrating for veterans trying to get their VA disability benefits.  Changes are being made at the VA that I think will start to help with this but I do not expect it to ever be a quick process.  It is important to know this so you can try not to become too frustrated with the process.  VA lawyers, veterans, Congressman and VA employees all wish the process was faster.  One thing the VA is doing to help with this problem is they are trying to get all VA files and claims into electronic format.  This will probably take a while longer before this is a reality but it is a step in the right direction.  Electronic records have helped make an improvement in the Social Security Disability wait times and I would expect it would help the VA disability wait times as well.  The VA has also received more funding to help with staffing issues.  So as frustrating as it can be hopefully things will slowly get better.  If nothing else I hope this article will help you understand you are not alone in your frustrations with the long wait times in Veterans disability claims.

Veterans and Social Security Disability

In November, the Nation celebrated Veterans Day, honoring all those who served in the military. Social Security doesn’t just honor these dedicated men and women on one day of the year—we have made it our daily mission to help service members who have defended our country.

Through the Wounded Warrior program, Social Security expedites processing of disability applications of current military service members or veterans disabled while on active duty on or after October 1, 2001. Also, service members and veterans who have a Department of Veterans Affairs compensation rating of 100% Permanent and Total (P&T) may receive expedited processing of applications for Social Security disability benefits. Keep in mind this expedited process applies only to the application for benefits. To be eligible for benefits, you must meet Social Security’s strict definition of “disability,” which means:

Applicants must be unable to do substantial work because of medical condition(s); and
Applicant’s medical condition(s) must have lasted, or be expected to last, at least one year or to result in death.
Tell any veterans with disabilities you know that they can apply online at www.socialsecurity.gov/applyfordisability or by calling our toll-free number, 1-800-772-1213 (TTY 1-800-325-0778).

ou can find more information for veterans at www.socialsecurity.gov/people/veterans.

VA Expands Eligibility for VA Health Care Related to Military Sexual Trauma

VA Expands Eligibility for VA Health Care Related to Military Sexual Trauma
Expansion closes a gap in health care eligibility
Washington, DC – The Department of Veterans Affairs (VA), under authority from the Veterans Access, Choice, and Accountability Act of 2014 (“VACAA”),  today announced expanded eligibility for Veterans in need of mental health care due to sexual assault or sexual harassment that occurred during their military service. This trauma is commonly known as military sexual trauma (MST).
This expansion, which primarily pertains to Reservists and National Guard members participating in weekend drill, gives the authority to offer Veterans the appropriate care and services needed to treat conditions resulting from MST that occurred during a period of inactive duty training.  
“VA simply must be an organization that provides comprehensive care for all Veterans dealing with the effects of military sexual trauma,” said VA Secretary Robert A. McDonald.  “Our range of services for MST-related experiences are constantly being reexamined to best meet the needs of our Veterans.”
Secretary McDonald met last week with Ruth Moore, a Navy Veteran and MST survivor for whom the Ruth Moore Act of 2013 is named. Ms. Moore will be working with VA to ensure that survivors are treated fairly and compassionately, and that Veterans with MST can access fair compensation exams and access health care practitioners who are trained in understanding and working with MST issues.
VA works closely with trauma survivors to ensure a full continuum of health care services are provided to assist Veterans recovering from experiences of MST. Recognizing that MST survivors may have special needs and concerns, every VA health care facility has an MST Coordinator who serves as a contact person for MST-related issues. Every VA medical center and Community-based Vet Center offers MST-related outpatient counseling.
Currently, all VA health care for mental and physical health conditions related to MST is provided free of charge. Veterans do not need to have a service-connected disability or seeking disability compensation to be eligible for MST-related counseling and care. Veterans also do not need to have reported such incidents to the Department of Defense or possess documentation or records to support their assertion of having experienced such trauma. The determination of whether a Veteran’s condition is MST-related is strictly a clinical determination made by the responsible VA mental health provider. Finally, Veterans need not be enrolled in VA’s health care system to qualify for MST-related treatment, as it is independent of VA’s general treatment authority.
In addition to treatment programs, VA also provides training to staff on issues related to MST, including a mandatory training on MST for all mental health and primary care providers. VA also engages in a range of outreach activities to Veterans and conducts monitoring of MST-related screening and treatment, in order to ensure that adequate services are available.
Veterans can learn more about VA’s MST-related services online at www.mentalhealth.va.gov/msthome.asp and see video clips with the recovery stories of Veterans who have experienced MST at http://maketheconnection.net/conditions/military-sexual-trauma.

Agency Resumes Mailing Social Security Statements

Carolyn W. Colvin, Acting Commissioner of Social Security, today announced the agency will resume the periodic mailing of Social Security Statements—once every five years for most workers-- while encouraging everyone to create a secure my Social Security account to immediately access their Statement online, anytime. The Statement is a valuable financial planning tool providing workers age 18 and older with important individualized information regarding their earnings, tax contributions, and estimates for future retirement, disability, and survivors benefits.

“We have listened to our customers, advocates, and Congress; and renewing the mailing of the Statement reinforces our commitment to provide the public with an easy, efficient way to obtain an estimate of their future Social Security benefits,” Acting Commissioner Colvin said. “I encourage everyone to create their own secure my Social Security account to obtain immediate access to their Statement online, anytime.”

Beginning this month, workers attaining ages 25, 30, 35, 40, 45, 50, 55, and 60 who are not receiving Social Security benefits and who are not registered for a my Social Security account will receive the Statement in the mail about 3 months before their birthday.  After age 60, people will receive a Statement every year.  The agency expects to send nearly 48 million Statements each year.

The Social Security Statement helps people plan for their financial future.  In addition to providing future benefit estimates, the Statement highlights a person’s complete earnings history, allowing workers to verify the accuracy of their earnings. This is important because an individual’s future benefit amount is determined by the amount of their earnings over their lifetime.  To date, more than 14 million people have established a personalized my Social Security account at www.socialsecurity.gov/myaccount.

With a my Social Security account, people may access the Statement from the comfort of their home, office or library whenever they choose. Individuals who currently receive benefits should sign up for a my Social Security account to manage their benefit payments and, when the need arises, get an instant benefit verification letter, change their address and phone number, and start or change direct deposit of their benefit payment.

Acting Commissioner Colvin reinforced that “whether conducting business with Social Security via the Internet, mail, telephone or face-to-face, we will continue to provide convenient, cost-effective, secure and quality customer service to meet the needs of the public we serve.”

Social Security Board of Trustees: No Change in Projected Year of Trust Fund Reserve Depletion

The Social Security Board of Trustees today released its annual report on the long-term financial status of the Social Security Trust Funds. The combined asset reserves of the Old-Age and Survivors Insurance, and Disability Insurance (OASDI) Trust Funds are projected to become depleted in 2033, unchanged from last year, with 77 percent of benefits still payable at that time. The DI Trust Fund will become depleted in 2016, also unchanged from last year's estimate, with 81 percent of benefits still payable.

In the 2014 Annual Report to Congress, the Trustees announced:

The combined trust fund reserves are still growing and will continue to do so through 2019. Beginning with 2020, the cost of the program is projected to exceed income.
The projected point at which the combined trust fund reserves will become depleted, if Congress does not act before then, comes in 2033 – the same as projected last year. At that time, there will be sufficient income coming in to pay 77 percent of scheduled benefits.
The projected actuarial deficit over the 75-year long-range period is 2.88 percent of taxable payroll -- 0.16 percentage point larger than in last year's report.
"The projected depletion dates of the Social Security Trust Funds have not changed, and three-fourths of benefits would still be payable after depletion.  But the fact remains that Congress can ensure the long-term solvency of this vital program by taking action," said Carolyn W. Colvin, Acting Commissioner of Social Security.  "The Disability Insurance Trust Fund's projected depletion year remains 2016, and legislative action is needed as soon as possible to address this financial imbalance."

Other highlights of the Trustees Report include:

Income including interest to the combined OASDI Trust Funds amounted to $855 billion in 2013. ($726 billion in net contributions, $21 billion from taxation of benefits, $103 billion in interest, and $5 billion in reimbursements from the General Fund of the Treasury—almost exclusively resulting from the 2012 payroll tax legislation)
Total expenditures from the combined OASDI Trust Funds amounted to $823 billion in 2013.
Non-interest income fell below program costs in 2010 for the first time since 1983. Program costs are projected to exceed non-interest income throughout the remainder of the 75-year period.
The asset reserves of the combined OASDI Trust Funds increased by $32 billion in 2013 to a total of $2.76 trillion.
During 2013, an estimated 163 million people had earnings covered by Social Security and paid payroll taxes.
Social Security paid benefits of $812 billion in calendar year 2013. There were about 58 million beneficiaries at the end of the calendar year.
The cost of $6.2 billion to administer the program in 2013 was a very low 0.7 percent of total expenditures.
The combined Trust Fund asset reserves earned interest at an effective annual rate of 3.8 percent in 2013.
The Board of Trustees is comprised of six members. Four serve by virtue of their positions with the federal government: Jacob J. Lew, Secretary of the Treasury and Managing Trustee; Carolyn W. Colvin, Acting Commissioner of Social Security; Sylvia M. Burwell, Secretary of Health and Human Services; and Thomas E. Perez, Secretary of Labor. The two public trustees are Charles P. Blahous III and Robert D. Reischauer.

The 2014 Trustees Report will be posted at www.socialsecurity.gov/OACT/TR/2014/ on Monday.

VA Proposes Removal of Employees Who Manipulated Data

July 29, 2014 – The Department of Veterans Affairs (VA) today proposed a series of disciplinary actions against six employees at Department facilities in Cheyenne, Wyo., and Fort Collins, Colo.  These actions are a part of VA’s effort to rebuild the trust of America’s Veterans.
“Employees who have been found to have manipulated data, withheld accurate information from their supervisors, and affected the timeliness of care Veterans receive do not reflect VA’s values, and their actions will not be tolerated,” said Acting Secretary Sloan D. Gibson. “VA must earn back the trust of Veterans.  Part of earning back that trust is holding people accountable when there is documented evidence of willful misconduct and management negligence.  We depend on the dedicated service of VA employees and leaders who live by our core values.  Those who have not delivered results honestly have and will be held accountable.”
Based on a review by the Inspector General and other Department investigations, VA today proposed disciplinary actions against six employees at the Cheyenne VA Medical Center and Fort Collins Community-Based Outpatient Clinic.
As a result of these findings, VA proposed disciplinary actions against the Director of the Rocky Mountain Network (VISN 19), and the Director and Chief of Staff of the Cheyenne VA Medical Center.
Certain supervisors in these facilities were found to have personally manipulated data, instructed their subordinates to manipulate data, and withheld accurate information from their superiors.  VA today proposed two of the supervisors be removed from Federal service.
Additional proposed penalties for other supervisors include two proposed suspensions, a demotion, and admonishments.

Veterans Benefits Administration Processes One Millionth Claim in FY 2014

July 14, 2014
Agency Expects to Process 1.3 Million by Year’s End
 The Department of Veterans Affairs (VA) today announced that the Veterans Benefits Administration (VBA) has completed its one millionth disability claim in fiscal year 2014, and is on track to complete more than 1.3 million claims this year – ensuring that nearly 200,000 more Veterans will receive decisions on their disability claims than fiscal year 2013.  Since 2011, VBA has been implementing the largest transformation in its history, fundamentally redesigning and streamlining the way it provides benefits and services to Veterans, their families and survivors.
“VBA has made significant progress toward eliminating the backlog, but there is more work to be done to reach our goal of processing all disability claims within 125 days at a 98-percent accuracy level in 2015.” said Allison Hickey, Under Secretary for Benefits. “VBA’s employees, half of whom are Veterans themselves, believe that Veterans should not have to wait for the benefits they have earned and deserve.  While we work to drive down the backlog of disability claims, we must also improve productivity on other categories of non-rating work.”
In the past four fiscal years, VA surpassed one million completed claims by the end of each year.  Passing the one-million mark this year in early July represents major progress in providing more Veterans and their family members with timely, accurate decisions.  VBA has reduced the claims backlog by more than 55 percent from its peak of 611,000 in March 2013 – and Veterans with pending claims have been waiting, on average, 128 fewer days for a decision on their claim.  At the same time, the accuracy of rating decisions continues to improve. VA’s national “claim-level” accuracy rate is currently 91 percent – an eight-percentage-point improvement since 2011.
These rating decisions often determine eligibility for other VA benefits and services, including non-rating claims, which are tracked and managed in other categories on the Monday Morning Workload Report.  These categories also have increased as more rating claims are completed, but VBA has not lost focus on non-rating work.  VBA has taken the following actions to automate and improve the timeliness and accuracy of non-rating claim decisions:
Online Dependency Claims – VBA developed a new Rules-Based Processing System (RBPS) to automate dependency claims.  Since inception, self-service features in RBPS have enabled over 75,000 Veterans to add or change the status of their dependents online.  Over 50 percent of the dependency claims filed through RBPS are now automatically processed and paid in 1-2 days.
Dependency Claims Contract – VA recently awarded a contract for assistance in entering data from paper-based dependency claims into VA’s electronic rules-based processing system.  The contractor is entering the information from the paper-based dependency claims just as a claimant would enter information if filing the claim online.  The contract calls for 40,000 dependency claims to be processed per month when operating at full capacity.  The contractor is currently ramping up to that capacity.
Up-front Income Verification for Pension – A new data-sharing initiative with the Social Security Administration and the Internal Revenue Service enables VBA to verify the income of pension applicants before awarding benefits and eliminates the annual income reporting requirement for pension beneficiaries.
Burial Claims – VBA published a new regulation, effective July 7, 2014, that allows automatic payment of the one-time burial allowance to a Veteran’s spouse without requiring the surviving spouse to apply for the benefit.  Under this new regulation, as many as 62,000 surviving spouses will now receive timely burial benefits each year.
Drill Pay Adjustments – Veterans cannot legally receive VA benefits and drill pay concurrently.  VBA is working to streamline and automate the drill pay offset process through an upfront agreement from National Guard and Reserve members.
National Call Center Initiative – Effective July 14, employees at the St. Louis and Phoenix National Call Centers are now also processing dependency claims.  The initiative begins on July 14 at the St. Louis and Phoenix Regional Offices and will be expanded to all of our Call Centers shortly thereafter.
Hiring Temporary Employees – VBA is in the process of hiring 200 temporary employees, who will be provided specialized training in processing the less complex non-rating claims and work actions.  
VBA posts data on the disability claims backlog, the non-rating workload, and other publicly available data on our performance on a weekly, monthly, and annual basis through our reports web site: www.vba.va.gov/reports.

June 10, 2014

VA Meets With Healthcare Industry to Discuss Best Scheduling Practices
Kaiser, Gartner, Mayo Clinic to Share Insights on Access Innovation, Modernization

WASHINGTON – Acting Secretary of Veterans Affairs Sloan Gibson today announced that the Department of Veterans Affairs (VA) will meet with private healthcare industry leaders to discuss best practices and policies for scheduling patients.

“Our top priority is to get our Veterans off wait lists and into clinics,” said Acting Secretary Gibson.  “We need to continue to examine the best practices of healthcare systems across the country to find immediate solutions for timely delivery of quality healthcare.  VA must be at the forefront of access and innovation.  Our Veterans deserve nothing less.”

Today, VA officials will meet on state-of-the-art health care access with industry leaders including Kaiser Permanente, Gartner and Mayo Clinic.  Discussions will focus on improving Veteran access to quality health care and innovating measurement approaches to gauge short- and long-term access to care.  Topics will also include recommended strategies and tools to help managers and providers best serve Veterans and provide a consistent patient experience.

The above is a press release from the Veterans Administration.  As anyone who has been through the VA disability process knows often VA disability cases are delayed due to waiting on VA examinations.  Hopefully, with improvement in scheduling in the VA health system there will also be some improvement in VA disability wait times.

Disability Claims Backlog Reduced by 44 Percent

WASHINGTON – One year after the backlog of pending disability compensation claims peaked at over 611,000 in March 2013, the Department of Veterans Affairs (VA) has reduced that number by approximately 44 percent to 344,000 claims – a reduction of more than 267,000 – while at the same time improving the accuracy of the decisions being made on Veterans’ disability claims.  Additionally, on average, Veterans are waiting 119 days less for a decision than they were at this time last year.

“No Veteran should have to wait to receive earned benefits.  Through a combination of transformation initiatives and the hard work of our employees, we are making significant progress toward our goal of eliminating the claims backlog in 2015,” said Secretary of Veterans Affairs Eric Shinseki. “We still have more work to do, and no one is more committed than our Veterans Benefits Administration employees, over half of whom are Veterans themselves.”

The current backlog, defined as claims pending more than 125 days, is at its lowest point since March 2011, when the backlog spiked in part because of the need to readjudicate 150,000 previously decided cases involving exposure to the Vietnam-era defoliant, Agent Orange.  The readjudication of these claims was mandated under the Nehmer court decision and followed the Secretary’s decision to add ischemic heart disease, certain leukemias, and Parkinson's disease to the list of conditions presumed to be related to exposure to Agent Orange. During this same time period, VA also received and processed over 100,000 new claims for these three conditions from Vietnam Veterans and survivors newly eligible for VA benefits as a result of this decision.

“We knew taking care of this ‘unfinished business’ for Veterans of previous wars would initially drive up the number of claims in our system.  But it was the right thing to do,” said Secretary Shinseki.

Since establishing the goal in 2010 of processing all disability claims within 125 days at a 98-percent accuracy level, VA developed and is implementing a plan that transforms the decades-old, manual paper claim approach into a state-of-the-art electronic process that leverages digital data transfer and automated calculators to reduce processing time and input errors.

VA has also increased the productivity of its claims processing workforce through enhanced training, streamlined business processes and other initiatives such as mandating overtime and prioritizing the oldest claims, allowing VA’s 56 regional benefits offices to exceed monthly production records four times in fiscal year 2013.

At the same time, the accuracy of rating decisions continues to improve. VA’s national “claim-level” accuracy rate, determined by dividing the total number of cases that are error-free by the total number of cases reviewed, is currently 91 percent – an eight-percentage-point improvement since 2011.  When measuring the accuracy of rating individual medical conditions inside each claim, the three-month accuracy level is 96.5 percent.  VA’s accuracy measures are statistically valid and the process has been independently verified by the Institute for Defense Analyses.

VA Removes Annual Income Reporting Requirement

March 24, 2014 – The Department of Veterans Affairs (VA) is eliminating the annual requirement for most Veterans enrolled in VA’s health care system to report income information beginning in March 2014. Instead, VA will automatically match income information obtained from the Internal Revenue Service and Social Security Administration.
“Eliminating the requirement for annual income reporting makes our health care benefits easier for Veterans to obtain,” said Secretary of Veterans Affairs Eric K. Shinseki. “This change will reduce the burden on Veterans, improve customer service and make it much easier for Veterans to keep their health care eligibility up-to-date.”
Some Veterans applying for enrollment for the first time are still required to submit income information. There is no change in VA’s long-standing policy to provide no-cost care to indigent Veterans, Veterans with catastrophic medical conditions, Veterans with a disability rating of 50 percent or higher, or for conditions that are officially rated as “service-connected.”
VA encourages Veterans to continue to use the health benefits renewal form to report changes in their personal information, such as address, phone numbers, dependents, next of kin, income and health insurance.

New Compassionate Allowances Conditions

The Social Security Administration just released the following press release about the compassionate allowance program.  This program allows those with very serious medical conditions to get their benefits faster.

This month, Carolyn W. Colvin, Acting Commissioner of Social Security, announced 25 new Compassionate Allowances conditions, including a dozen cancers. This brings the total number of conditions to 225.

The Compassionate Allowances program expedites disability decisions for Americans with the most serious disabilities to ensure that they receive their benefit decisions within days instead of months or years. To date, almost 200,000 people with severe disabilities have been approved through this fast-track disability process.

“We are dedicated to providing vulnerable Americans with faster access to disability benefits through our Compassionate Allowances program,” said Acting Commissioner Colvin. “Social Security disability benefits are a vital lifeline for individuals who are facing severe diseases and we must ensure that they receive the benefits they rightly deserve.” 

Learn more by reading the press release, where you’ll find a list of the new Compassionate Allowances conditions.  www.socialsecurity.gov/pressoffice/pr/compassionate-allowances-0114-pr.html

For more information on the Compassionate Allowances program, including a full list of conditions, please visit www.socialsecurity.gov/compassionateallowances.

New Compassionate Allowances Conditions

Angiosarcoma

Atypical Teratoid/Rhabdoid Tumor

Chronic Idiopathic Intestinal Pseudo Obstruction

Coffin- Lowry Syndrome

Esthesioneuroblastoma

Giant Axonal Neuropathy

Hoyeaal-Hreidarsson Syndrome

Intracranial Hemangiopericytoma

Joubert Syndrome

Leptomeningeal Carcinomatosis

Liposarcoma- metastatic or recurrent

Malignant Ectomesenchymoma

Malignant Renal Rhabdoid Tumor

Marshall-Smith Syndrome

Oligodendroglioma Brain Tumor- Grade III

Pallister-Killian Syndrome

Progressive Bulbar Palsy

Prostate Cancer - Hormone Refractory Disease - or with visceral metastases

Revesz Syndrome

Seckel Syndrome

Sjogren-Larsson Syndrome

Small Cell Cancer of the Thymus

Soft Tissue Sarcoma- with distant metastases or recurrent

X-Linked Lymphoproliferative Disease

X-Linked Myotubular Myopathy

To see the rest of the compassionate allowance medical conditions you can visit the SSA website or my page on Social Security compassionate allowance.

Change to Hematological Listings (proposed)

The Social Security Administration is proposing changes to the Hematological Listings which have not been updated since 1985.  The proposed changes include:  Expansion and reordering of introductory text, section 7.00.  Using broad categories of hematological disorders.  Four Categories will be included. Listing 7.05:  Hemolytic anemias; Listing 7.08:  Disorders of hemostasis; Listing 7.10:  Disorders of bone marrow failure; and Listing 7.17 Hematologicl disorders treated by bone marrow or stem cell transplantation.  Also a new functional-based listing, 7.18 would be added.
The new proposed functional listing 7.18 requires a marked level of functional limitations in one of the following areas.  Limitations of activities of daily living, or limitations in maintaining social functioning, or limitations in completing tasks in timely manner due to deficiencies in concentration, persistence, or pace.
It should be interesting to see how the final listing comes out after SSA receives comments from the medical and legal community.  The proposed listing change will not impact any present Social Security Disability cases until a final version is released.  To see the present medical listing of impairments you can visit the SSA website listing page.  You should also visit my web page on the medical listing of impairments.

SSA Goes Back to Releasing Name of ALJ for Hearing

The Social Security Administration has changed its policy back to putting the Administrative Law Judges name on the SSDI hearing notice.  This is a welcome policy change for representatives and claimants at the hearing stage.  It is particularly important to SSDI lawyers who have become knowledgeable of what certain ALJs find important.  As we all know no two people are the same and the same goes for Judges.  Therefore, knowing what a certain ALJ finds to be important to a case can help a lawyer gather the right evidence and present that evidence in a way that is more helpful to the ALJ.  I believe the decision to go back to including the name of the ALJ on the notice of hearing for Social Security Disability cases was the right thing to do.  I think most people who are waiting for an SSDI hearing would like to know the name of the ALJ that will hear their case.

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.

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.

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. 

Example: 
• 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.

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.

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.