Wednesday, February 4, 2015

A Quick Test - Social Security Disability Acronyms

A couple of years back, I wrote the most SSA-acronym-loaded question that I could think of.  While it technically makes sense, I think the real value is providing evidence that expert help is sometimes needed when navigating this landscape.

Here's the question:

"Did the Claimant’s AOD precede the DLI, and does their RFC allow them to engage in SGA or their PRW?"

For those who are wondering what they just read, here is some help with the translation.

Claimant – This is the person who is applying for Social Security benefits.  Children can be Claimants.

PRW – Past Relevant Work – This is work that the Claimant has done for long enough to “learn the job”.

AOD – Alleged Onset Date – This is the date when an ailment rendered an individual too sick to work or created marked and severe limitations.  Evidence is required to establish this date.

DLI – Date Last Insured – This is a date (that may be in the future) after which a person will no longer be able to claim disability benefits.

SGA – Substantial Gainful Activity – This is work that is performed by the Claimant which meets Social Security’s minimum standards for salary and hours worked.

RFC – Residual Functional Capacity – This is a Claimant’s remaining ability to tolerate work, given their conditions.  This may be characterized as “Sedentary / Light / Medium / Heavy / Very Heavy”

Here is a clip from one of my favorite movies, Good Morning Vietnam, (start at 45 seconds) that inspired me to ask the question above.

Worn-Out-Worker Rule – Another Path to Disability Benefits

There is a lesser-known Social Security Regulation that provides a clear path to disability approval for marginally educated individuals who have performed arduous unskilled labor for a period of 35 years or longer, and are no longer able to do so due to severe impairments.  The so-called “Worn-Out-Worker Rule” may be found at 20 C.F.R. §§ 404.1562 and 416.962.

When evaluating a case under the Worn-Out-Worker rule, one must be very careful to establish each of the criteria.

1) Marginal education – This level of education is generally no more than a 6th grade education, but when considering the impact of education, other factors may come into play including the nature of the person’s responsibilities and tasks on the job (see SSR 82-63).

2) 35 years or more of arduous unskilled labor – Arduous does not necessarily mean Heavy or Very Heavy exertional capacity work, but lower exertional capacity work may qualify if the nature of the work can be considered arduous (see SSR 82-63).  The work must be also consistently regarded as unskilled, though brief periods of semi-skilled or skilled work will not necessarily prevent a person from qualifying under this provision.

3) Not currently working

4) Unable to perform arduous unskilled labor due to severe impairments – Medical evidence establishes proof of severe impairment(s) that prevent a return to past relevant work.

This information does not create an attorney-client or physician-patient relationship or any kind, and is for informational purposes only. For advice regarding your specific circumstances, contact Disability Attorney Thomas O’Brien.

Tuesday, February 3, 2015

Disability Attorney Thomas O'Brien on Fox-5 News Atlanta


Disability Attorney Thomas O'Brien recently appeared in a story covered by the Fox-5 Atlanta I-team as they investigated delays in disability hearings in Georgia.  What they found might surprise you.




Read the article by clicking here.

See the story by clicking here.


"Hypothetical Individuals" and Vocational Testimony at ALJ Hearings

One of the most common concerns that Claimants have when approaching an Administrative Law Judge Hearing concerns the testimony of the Vocational Expert (VE).  This seems to be a point of concern from a Claimant’s perspective because “they are going to tell me I can work.”  This is not exactly true.

Generally, the job of the VE is to classify Past Relevant Work (PRW), assess the transferability of employee skills, and apply their skill and expertise when being called on to assess the employability of a hypothetical individual that the judge or the Claimant will present to them.  As such, assuming that their PRW and transferability testimony (where applicable) is reasonable, eliciting favorable testimony about a hypothetical from a VE should be the focus of the Claimant (or their counsel) during the hearing.  A hypothetical individual may or may not resemble a Claimant’s condition, and for this reason, it is imperative that the hypothetical individual be presented in a way that truly reflects the limitations experienced by the Claimant.

There is a lot of available information about the vocational portion of the hearing, and different practitioners approach VE testimony differently.  There is NOT a one-size-fits-all approach to securing reasonable and favorable testimony from the VE, but I will attempt to enumerate some helpful practices, and highlight some true-to-life approaches.

First off, every judge approaches the VE with their own style.  Some judges start with a very broad hypothetical and leave the refinements to Claimant or Counsel.  Sometimes they will start broad and work their way to a more refined hypothetical, and sometimes a judge will start with a very restrictive hypothetical that yields no work for the hypothetical individual.  Often, one can get some idea about the judge’s feeling about granting a case from the nature their hypotheticals presented to the VE

If a judge ONLY offers a hypothetical that is very restrictive and leads to a scenario where the hypothetical person could not return to PRW or perform any other work in the national economy, I generally recommend that Claimants leave the testimony alone.

However, if the judge presents hypotheticals that allow for the performance of PRW or other work in the national economy, the approach should be to work to erode the vocational base using limitations found within the medical records and testimony.  Some judges do this for themselves by offering several hypotheticals, and it is here that Claimants will need to judge how hard to push cross-examination.  As a general rule, the goal is to minimize the number of jobs that each hypothetical individual can perform.
________________________________________________
The setup for vocational testimony will often look like this:

Judge: Madame VE, please assume a hypothetical individual that matches the Claimant’s
1) Age
2) Education
3) Past Relevant Work (ensure that this is classified correctly)
4) And that this hypothetical person is capable of work at the (Sedentary/Light/Medium/Heavy/Very Heavy) residual functional capacity (RFC)

Judge: In light of these assumptions, can the hypothetical person return to their Past Relevant Work?  Is there any other work in the National Economy that they could perform?

Judge: Now, further assume that the hypothetical individual is limited by the need to:
1) Sit/Stand at will for periods of not to exceed 30 minutes in one position (Back problems)
2) Perform simple repetitive work due to mental limitations (Anxiety problems)
3) Perform no work around hazards (Medication or Anxiety Problems)
4) Perform no work including ladders, ropes, or scaffolds (Balance or anxiety problems)
5) Have limited interaction with co-workers, supervisors, or the public (mental or communication problems)
6) Be off task for 10 minutes per hour due to medication/psychiatric-based symptoms (pain or pain medication, water pills, digestive issues) 
7) Avoid temperature extremes (often seen in heart issues)
8) Limit crouching, kneeling, crawling to _______ percent of the day (Back or joint problems)
9) Limit reaching, handling, fingering to _______ percent of the day (Arthritis issues)
10) Miss X days per month due to the need for regularly scheduled medical care (Medical or mental health care)

Judge: In light of these assumptions, can the hypothetical individual return to their Past Relevant Work?  Is there any other work in the National Economy that they could perform?
________________________________________________

As you can see, there are two sections to this hypothetical.  First, there are the initial four general assumptions: age, education, PRW, and exertional level.  Age and education are largely factual, whereas Past Relevant Work and exertional level may be more subjective.  A Claimant will want to ensure that their past work is fairly characterized since the nature of this work can hold a direct bearing on their disability determination.  Exertional level is crucial as well since it can direct a finding under the Vocational Grids.  For the purposes of VE hypotheticals, Claimants will nearly always wish to present hypotheticals at the Light or Sedentary exertional level.  For information about exertional levels, please see. CFR §404.1567 (http://www.ssa.gov/OP_Home/cfr20/404/404-1567.htm) 

The second section of the hypothetical creates more limitations that the VE must address when providing opinions about PRW or other employment.  For hearings with judges that provide only general hypotheticals that allow employment, it is very important that Claimants refine these hypotheticals with evidence-based limitations that further erode the vocational base.  When asking the VE to provide testimony based on the refined hypothetical, one should include the limitation, the “why” of the limitation, and potentially the exhibit that expresses this limitation.  Generally, as credible limitations are introduced, available job options become fewer and fewer (and that is good news for Claimants).  Ultimately, the goal should be to erode the occupational base as much as possible using plausible and documented limitations.

There are numerous ways to approach VE testimony in Disability Hearings, but the best advice that I can offer is to address their testimony using a factual, non-emotional approach.  The VEs can create very favorable and convincing testimony for Claimants when approached appropriately, and rarely will an emotional reaction to their testimony convince the judge that benefits should be awarded.

This information does not create an attorney-client or physician-patient relationship or any kind, and is for informational purposes only. For advice regarding your specific circumstances, contact Disability Attorney Thomas O’Brien.

Tax Information Now Available on "my Social Security" Website

Social Security has made advances over the past several years with regard to filling applications, retiring, and checking one's "green sheets".  The website through which one may access this information may be found here: http://www.ssa.gov/myaccount/

I have recently been informed that there are some new services available from the same website.  According to Social Security,

"We are excited to offer a new online service to people who receive Social Security benefits. If you need to replace your form SSA-1099 or SSA-1042S for tax purposes, you can now get a copy instantly by using your personalized my Social Security account. If you don’t have an account, you can create one online today."

Anything that gets my clients and readers connected with their information more quickly is a good thing.  To see their press and social media releases about this service, click below:


Monday, November 4, 2013

The Interplay of Social Security Disability and Workers’ Compensation, by: Matthew Queen, Esq.

If you are disabled from an on-the-job injury then you may have numerous benefits available in order to compensate for lost wages and to help finance medical expenses.  The first benefit is Workers’ Compensation (“WC”).  The second is Social Security Disability Insurance (“SSDI”).  Each of these has its unique considerations and you may qualify for or need both.  The interplay between these two benefits is complex and requires the skilled guidance of an attorney to navigate around several pitfalls, including offsetting benefits as well as Medicare Set Aside (“MSA”) accounts.

The purpose of this article is to outline considerations of which the claimant should be aware when considering combining SSDI to a WC claim.

Social Security Disability Insurance Offset


The State of Georgia prohibits claimants from receiving 100% of their SSDI benefits in addition to their WC.  Claimants’ WC benefits reduce their SSDI benefits by any amount in excess of the claimant’s best year’s earnings for the past 5 years.  Here is a sample calculation:

Suppose you make $50,000 as your highest year’s earnings.  Divided by 12, this amounts to $4,166.67 per month.  80% of your monthly income is $3,333.  Therefore, Social Security’s monthly limit is $3,333 per month. 

Further assume that you receive $2,000 per month from SSDI and $1,500 per month in WC.  The total allowable income is $3,333 per month, but you are receiving $3,500 per month.  There is an excess of $167 per month.  This means that your SSDI monthly cash benefit will be reduced to $1,833 per month.  This reduction continues until the WC benefits are extinguished.

The best way to mitigate the SSDI offset is for the WC attorney to structure the WC settlement amount to be calculated for the life of the impairment.  This language requires the settlement to be calculated over the total life expectancy of the claimant.  This can reduce the monthly WC monthly benefit, extend the WC benefits, and retain SSDI more cash benefits.  

Medicare Set Aside


Medicare Set Aside (“MSA”) is money from a settlement put into an annuity for medical bills related to your injury.  The MSA applies in situations where Medicare would pay for injuries that could be covered by a private insurance policy.  In other words, the law seeks to prevent the privatization of profits and socialization of costs.  Medicare is the secondary payer in cases where there is another liable party, such as an employer or its Workers’ Compensation Insurance carrier.  42 USC § 1395y.  If the actual expenses exceed the set aside amount, then Medicare covers the difference. 

The MSA is only a concern in two situations.  First, if the claimant is Medicare eligible then an MSA must be created.  Medicare eligible patients are generally defined as those between ages 62.5 and 65, those receiving SSDI, those who have applied for SSDI, and those suffering from end state renal disease.  Second, if the case is settled for $250,000 or more and there is a reasonable expectation of Medicare expenses within 30 months of the settlement, then an MSA must be created.  (Note: the Centers for Medicare and Medicaid (“CMS”) do not review MSAs for $25,000 or less.)

The MSA funds are kept in an interest bearing account with distributions only made for medical expense.  The account administrator must keep accounting records for the CMS.  Once the funds are exhausted, a final accounting is performed before the claimant’s Medicare benefits are reinstated without any risk of termination.  The interest bearing account is either administered by the claimant or a third party administrator. 

Claimants should be aware that funds for an MSA will be taken out of the claimant’s settlement.  If a claimant is entitled to $100,000 for a settlement with a $50,000 MSA, then the claimant will only receive $50,000, minus attorney’s fees. 

For example, if there were no MSA, then the usual settlement amounts work out to 25% of the settlement to the attorney and the remainder to the client.  This works out to $25,000 for the lawyer and $75,000 for the client for a $100,000 settlement.  In the event of a $100,000 settlement with a $50,000 MSA, then the attorney’s fees are 25% of $50,000, which amounts to $12,500.  The remaining $37,500 goes to the claimant.

The effect of an MSA can result in enormous costs for both attorney and client.  As such, an understanding of the effects of Medicare eligibility is necessary in order to prevent the claimant from forfeiting more money from their case than is necessary.

The Least You Need to Know


The interplay between Social Security and Workers’ Compensation cases is complex.  Disability attorneys should be aware of the basics of how SSDI applications may affect Workers’ Compensation settlements.  Moreover, Workers’ Compensation attorneys should be aware of the offset provisions against SSDI.  Knowing the rules allows for prudent planning in order to maximize the available funds to go to the client.

Matthew Queen is an Associate Attorney with The Law Firm of Feiler & Associates. His practice focuses on representing disability claimants for both SSDI and SSI claims in front of the Social Security Administration. In addition, Matthew assists families to create sophisticated estate plans for people with a chronic condition or disability. Matthew is a veterans accredited attorney with the U.S. Department of Veterans Affairs and helps veterans to manage disability denials and to structure their assets so as to maximize available public benefits. Prior to joining the firm, Matthew was an associate with a Big 4 accounting firm in Los Angeles, California specializing in state and local corporate tax planning and compliance. Matthew received his Doctorate of Jurisprudence from the Georgia State College of law, graduating with Pro Bono Honors as well as his Masters of Taxation from the Georgia State Robinson College of Business. For undergraduate studies, Matthew attended the Georgia Institute of Technology and earned a Bachelor of Science in Management with a concentration in Finance, graduating With Honors.

Thursday, July 25, 2013

Welcome RASopathies Foundation Conference Attendees!

To everyone that I have had the opportunity to speak with at the RASopathies Foundation Conference, I want to say thank you.  Raising a child with Noonan Syndrome or with any special need can be challenging.  Living as an adult with challenges relating to Noonan Syndrome can be equally daunting.  It is my hope that some of the information from my presentation at the conference may benefit those who attended.  If you would like a copy of the exhibit, simply click on the link in the top right of this page to contact me.

The purpose of this website is to offer general help and advice to those folks who are navigating a Social Security Disability or SSI filing.  This process can be long and arduous, but the greatest chance to successfully navigate these waters is help by those who are diligent about collecting treatment records, and those who fight for benefits using the framework set forth by the Social Security Administration.  I hope you find some useful information herein, and am happy to be a resource to any of my readers.

-Thomas