Articles Posted in The Benefits of a Lawyer’s Involvement

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It is extremely common for individuals applying for Social Security disability benefits to be experiencing problems with chronic pain, as one might imagine.  There are a panoply of medical conditions that could the cause of such symptoms, whether it’s from a degenerative disk disease in one’s back or neck, or, for example, from diabetic neuropathy that might cause excruciating, burning nerve pain in one’s feet.

The problem arises, however, where an individual is continuing to experience chronic pain and there is no easy offender at which to point the finger.   Chronic pain can arise from any one of a number of reasons and pointing to a diagnosed medical condition as the culprit may not be so easy.   It is important to understand that the inability to point to a medical condition as causing the impairment may end up proving somewhat problematic with a potential Social Security disability claim.

The Social Security Administration is required to undertake a five (5) step sequential evaluation process, which process is set forth by the Social Security regulations.  Step 1 requires that an individual is not gainfully employed.  Step 2 requires that a disability claimant is suffering from what is deemed to be a severe medically determinable impairment: an impairment is deemed to be “non-severe” if it does not significantly impact one’s ability to undertake basic physical or mental ability to do basic work-related functions. Continue reading

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And so now you’ve been provided with your upcoming hearing date and time and you have no idea what to expect.  In part II, we’ll attempt to make you feel comfortable about the hearing process itself and what you should expect on the day of your hearing.

You can expect you’ll be provided advanced notice of your hearing before an administrative law judge (ALJ) at least 75 days in advance. Ordinarily, 3-4 days prior to the hearing you’ll receive a recorded message explaining that you should show up to the hearing an hour in advance.  It will be important to read carefully the notice of hearing you’ve been provided in the mail months in advance as it will contain important information such as where and when the hearing will be held, the items you should bring (such as a picture ID)  and what issues will be addressed at hearing.

Upon arrival at the hearing office, you can expect to be met by a security guard who will check you in and will scan you for weapons.  With this in mind, be sure not to bring with you anything that can be construed as a weapon: whether it be mace, a pocket knife or even needles you might require for your diabetes condition (leave this in your car, and should you need to test your sugars, plan on doing this outside of the hearing office location).

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You’ve filed your Request for Hearing and now you’re playing the waiting game, wondering what to expect next in your Social Security disability claim.   Whether you’re in Maine, Massachusetts or New Hampshire, the wait can be a long one.  In part 1 of this blog entry we’ll fill you in as to what you can expect.  In part 2, we’ll make sure you understand soup to nuts what to expect on the day of your hearing.

First and foremost, it’s important to understand that whether you request a hearing following an initial denial letter out of New Hampshire, or a reconsideration denial out of Maine or Massachusetts, the hearing itself will not take place soon.  The likely wait for a hearing is in the neighborhood of what can be anywhere from 8 to 12 months with the Massachusetts and New Hampshire hearing offices (although some hearings out of the Portland, Maine hearing office are still taking up to 14 months).    Soon after you file your request for hearing (within ordinarily 2-4 weeks of filing your request for hearing) , you will receive a letter from Office of Disability Adjudication and Review (ODAR) acknowledging the hearing office’s receipt of your file.

The initial letter from the hearing office will inform you that you will be notified as to the time and place of your hearing at least 75 days in advance of the hearing. Likewise, the letter will explain to you that in some circumstances your case can be heard more quickly and efficiently by way of  videoteleconference or what is termed a VTC hearing.   Should you agree to proceed by way of VTC, this  will mean that your case will not be heard in person before an Administrative Law Judge (ALJ).  Instead, you will appear in front of a judge by way of a video camera, much in the same way that those charged with a crime and held in jail, might make a preliminary appearance before a judge for purposes of bail.     While this process may be an expeditious one for the Social Security Administration’s  (SSA’s) purpose, as they can assign and schedule cases before judges that are in other parts of the country that might not be as busy and can hear the case more quickly, this process is quite impersonal as you can well imagine.  This is not to mention the fact that if your attorney is being asked to prepare before a judge with whom he has no familiarity, this may put your attorney and you at a disadvantage.   You will be provided with only twenty (20) days to Object to Proceeding by way of VTC and so you do not want to miss this deadline.  Our office always objects.  Continue reading

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One of the most typical misunderstood requirements for purposes of establishing a Social Security Disability claim is the duration requirement.  The Social Security Act and its corresponding regulations require that one prove they are suffering from a severe medical impairment that has lasted or or expected to last 12 months or longer, or result in death.   This provision has been interpreted quite strictly, and for anybody who is considering an application for Social Security disability benefits, it’s important to pay heed to this rule or a denial is very likely to follow.

The Social Security Act defines a “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”   42 U.S.C. §(d)(1)(A).    It is important to recognize that the language of the statute is meant to exclude from entitlement conditions those conditions which are of shorter term duration, and which will allow one to return to work within a matter of months.  For example, while having back surgery (even a multilevel fusion) may constitute a severe impairment which will cause one to be out of work for a stretch of time, most such surgeries would not anticipate a recovery time of a year or longer.

The more difficult type of situation comes about with conditions that may have periods of remission (with, for example, periods of exacerbation) which require you to remain out of work for stretches of time but might allow for returns to work for stretches of time.   In such a circumstance, one may still be able to reach the duration requirement of a year or longer by establishing that the attempts to return to work are what are deemed to be unsuccessful work attempts: this is something an experienced Social Security disability lawyer will be able to evaluate for you. Continue reading

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And so for years you’ve been struggling with a bad back or with stiff hands that have more and more difficult to function at work.  You’ve gotten to the point where your employer is  no longer able to accommodate your missed days missed from work, or the slow down in your production.   You may be one of those individuals that just hates going to the doctor.

Or, you may be one those individuals that’s been going to the neighborhood chiropractor for years: he treats you week after week, telling you that you have what he believes to be severe arthritis of your back or a case of degenerative disk disease and lumbar radiculopathy.  He or she suggests that  you  to go ahead and apply for Social Security disability benefits (and that they’ll be supportive of your claim).

Unfortunately, the denial comes back from the Social Security Administration (SSA) in short order and it is now time to call the lawyer to see what can be done.   This is all too familiar a scenario in our office.  Whether it’s because health insurance has been an issue, or simply because someone doesn’t believe in doctors and they can tough it out (or, perhaps, because it’s difficult to find a doctor to treat your condition in your area): too many times we’re hearing from claimants who are wondering why their severe symptoms are simply not being listened to by SSA. Continue reading

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As we were discussing in part I, there are a multitude of considerations individuals need to take into account following the receipt of a favorable decision.  One of the more important considerations is how one will be able to remain in treatment and what health insurance will be covering your treatment as you move forward.

Medicare insurance entitlement (just like a senior citizen who has reached  retirement age) is available once one has been collecting Social Security Disability Insurance (SSDI) for a period of 24 months (in their 25th month of eligibility to a check).   Accepting Medicare is not required (even though one may see the premium automatically taken out: this can be cancelled with a simple phone call).   However, foregoing Medicare during this enrollment period can result in an increased cost should one choose to enroll at a later date.  If one is already receiving state Medicaid (referred to as Mainecare in Maine, MassHealth in Massachusetts and simply Medicaid in New Hampshire), one may be entitled to apply with their local Department of Human Services office or, in Massachusetts, the Department of Transitional Assistance, so as to request that the State pay the Medicare premium.  In this way, one can have both Medicare and Medicaid health insurance, with the state picking up the tab for both: in this way, Medicare pays first and Medicaid becomes secondary insurance.

Should, however, one lose their Medicaid upon receipt of a favorable decision (which happens if one’s monthly entitlement to SSDI is too high), another health insurance option available is through the Affordable Care Act (ACA),  otherwise known as Obamacare.   The discontinuance of Medicaid as a result of one’s SSDI income would be considered a qualifying event, allowing for enrollment at that time for ACA insurance.

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Now that you’ve made it through the process of applying for Social Security disability benefits, it’s important to understand the steps that will take place following the receipt of a favorable decision.   Understanding the procedures which follow can help ensure there are no unexpected surprises down the road and that you are aware of all of the benefits, as well as options, available to you.

If your favorable decision is on your initial application or on reconsideration (in Maine and Massachusetts only, as New Hampshire does not have a reconsideration process and an appeal proceeds directly to hearing),  especially if the claim involves Social Security disability insurance (SSDI) alone with no corresponding Supplemental Security Income (SSI) claim,  it is very common to see that the funds will arrive first by way of direct deposit to your bank account even prior to the receipt of a written decision in your case.   In such a circumstance, the initial or reconsideration decision may be in the form a notice of award  (with no separate notice explaining that there has been a favorable decision) that will come within a week of the funds.

Assuming there are concurrent claims for both Social Security disability insurance and Supplemental Security Income, one will see that their local Social Security office will need to process the SSI claim first (given it’s a welfare claim and, thus, given priority) and may need to set up what is referred to as a pre-effectuation review conference (called a PERC by the local offices) to go over your income and assets during the time period at issue for your SSI claim so as to determine entitlement.  In such a circumstance, it can take a number of months for both the SSI and SSDI amounts to be properly determined given a multi-step process that takes place: 1) the SSI claim is processed first (blind to the amount of SSDI entitlement one may ultimately be determined to be entitled to receive) with an initial payment going out to the claimant, 2) the SSDI is determined but withheld until such time as a redetermination of the SSI entitlement can take place and 3) any overpayment is then deducted from the withheld retroactive SSDI benefits before issuance of a final payment can be made.

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As you can well imagine, having handled 1000’s of Social Security disability claims for 27 years out of Maine, Massachusetts and New Hampshire, it has not been unusual for our office to face the very difficult prospect that a client passes away before we’ve been able to prevail to hearing in their case and recover the past due benefits to which they are entitled.  In many circumstances this doesn’t have to meant the end to their case:  in many such cases, we have been able to pursue the claim to a successful conclusion.   There are vast differences between how matters work for purposes of the Title II or Social Security Disability Insurance program (which is based on an individual’s earnings record) and Title XVI or the Supplemental Security Income (which is a welfare, needs based program), which we’ll set out below.

First and foremost, should one pass away while pursuing a Social Security disability claim, the first matter that will need to take place is what’s called a Substitution of Parties, which allows for what is deemed by the Social Security Administration (SSA) to be the next of kin for purposes of who may proceed with the case (and with reference to who may be entitled to receive the past due benefits that are payable up to the date of the claimant’s death).  The SSA requires that an SSA HA-539 Substitution of Parties form be filled out and that a death certificate accompany the form.

With respect to the substitution of parties, the regulations spell out the following order of eligibility: 1) to the spouse (if living in the household at the time of death or if entitled to a monthly benefit under the deceased’s earning’s record) at the time of death, 2) to any children entitled to receipt of  a monthly benefit at the time of the claimant’s death, 3) to the parent/parents entitled to receipt of a monthly benefit on the earnings record at the time of the claimant’s death, 4) to a spouse who does not meet the requirements listed option one, 5) to any children who do not meet the requirements of option 2 and 6) to any parent who does not meet the requirements of section three and 7) to the representative of the claimant’s estate.   The SSI substitution of parties rule is much stricter, given the nature of the benefit (being a welfare check, and with no dependent/family entitlement available under this program): the claim may only be pursued by the claimant’s spouse (assuming they were living in the same household as the claimant as of the date of death or during the preceding 6 months claim).  Assuming the claimant is a disabled child for purposes of an SSI claim, a substitution of party in the form of a parent who was living in the same household as the child at the time of death or during the 6 months preceding death would be the only appropriate option.  Assuming there exists an interim assistance agreement requiring repayment out of the recovery of SSI benefits, a case pending at the hearing level before an Administrative Law Judge (ALJ) may still proceed.  Likewise, while a spouse or the governmental entity holding an interim reimbursement lien interest may be the only ones entitled to recover financially in an SSI claim, it may be beneficial for the spouse to pursue the SSI claim for purposes of a favorable decision so as to allow for automatic entitlement to Medicaid  (Mainecare in Maine, Medicaid in NH and Mass Health in Massachusetts).

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The intricacies of the Social Security disability are extensive and endless.  Without the benefit of good legal advice, you can end up losing thousands of dollars even at the end of your Social Security disability case.   This is another example of why going it alone can cause one to have regrets later on.

Whether you live in Maine, Massachusetts or New Hampshire, Social Security disability claimants are many times faced with the need to apply for welfare assistance in order to make ends meet.  Whether it’s transitional assistance through the state,  such as Emergency Aid to the Elderly, Disability and Children (EAEDC) in MA, or the need to apply for general assistance through the City of Portland, Maine one will be required to sign what is called an interim reimbursement lien agreement and apply for Supplemental Security Income (SSI) in order to qualify for this interim cash assistance.   What is expected by the state or local entity is that at the end of your Social Security disability case, if there is recovery of SSI, then the first check for retroactive benefits will be going back to the state or town/city to repay them for the assistance they have paid out.

Interestingly, such reimbursement is only payable out of SSI benefits and not out of Social Security disability insurance benefits (SSDI). It is important to understand that when a claimant receives a favorable decision and has both SSI and SSDI claims pending, the SSI claim is always processed first.  Because of this, the processing of the benefits does not take into account and remains blind to whether the claimant will be entitled to retroactive SSDI benefits that may in fact preclude entitlement to any SSI benefits at all.

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With the coming of 2017, and what we hope will be a Happy New Year to all, come changes to both those who are receiving Social Security disability (SSDI) and/or Supplemental Security Income (SSI) benefits and those who plan on applying for such benefits this year.  Whether you reside in Maine, Massachusetts or New Hampshire, as this is a federal program, the changes I am outlining below will apply to each of you.

First and foremost is a change to one’s benefit rate given the increase in the Consumer Price Index (CPI-W) from the third quarter of 2014 through the third quarter of 2016.  Based on these figures, an Cost of Living Adjustment (COLA) in the amount of .3 will be applied to your benefit check in 2017.   Thus, if you were receiving $1000.00 per month previously in SSDI benefits, you should see an increase in your monthly check to $1003.00.  Likewise, the Federal standard payment for SSI recipients has been increased from $733.00 per month for individuals to $735.00.   A corresponding increase has been made for the SSI limit for couples (to $1103.00).    The resource limitations for 2017 for SSI entitlement has remained the same for 2017: the resource (asset) limitation has remained the same for 2017 as it was in 2016: $2000.00 for individuals and $3000.00 for couples.

For those who are attempting to determine whether you remain disabled from performing gainful wages, it is important to note that the standard for substantial gainful activity (SGA) has been raised from $1130.00 per month to $1170.00 per month (while the standard for those who are applying based on blindness, the monthly amount has been increased from $1820.00 per month to $1950.00 per month).  Thus, if applying for Social Security disability or SSI benefits, the Social Security Administration (SSA) will be looking to see if you remain capable of earning simply $1170.00 per month on a regular and continuing basis.    It is important to remember, as we’ve discussed previously, SSA will not be looking to see necessarily whether you are actually undertaking SGA level earnings, but whether you remain capable of performing such work on a regular and continuing basis.  Assuming one is making SGA level earnings at the time of their application, however, this would be a basis for a denial of one’s claim at step 1 of the sequential evaluation process.

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