What the Heck is Taking So Long??

calendarWe get this question all the time from clients wanting to know why they haven’t heard anything in months about their Social Security Disability claim.

The answer? Backlog. Not in our office, but in hearing offices across the country that are inundated with claimants appealing denials and requesting hearings.

The SSA web site, ssa.gov, publishes a report, updated monthly, on the length of time it takes Offices of Disability Adjudication and Review (ODARs) to schedule a hearing from the time they receive the request. As of October 2015, the shortest wait time was reported by Fort Smith, Ark., (7.5 months). The longest: Columbia, S.C., at 21 months. Local wait times in months (as of October 2015) are as follows: Chicago, 15.5; Grand Rapids, 13; Oak Brook, 16; Orland Park, 14; and Valparaiso, 16.

Add to this the fact that in most states (including Indiana and Illinois), claimants are denied twice before requesting a hearing, and that means many claimants wait two years from the date of their disability application until the time of their hearing.

The wait is frustrating, especially when people are facing serious health and financial issues. Two years is a long time to go without income. Many people, incorrectly, assume that their attorney or rep isn’t doing what’s necessary to move their case along (especially when they find out someone else was awarded benefits at an earlier stage) but most of the time, that simply isn’t the problem.

Once a Request for Hearing is filed, there usually isn’t anything to do but wait. In rare cases, clients may qualify for “dire need,” based on their financial circumstances. The criteria for this, however, is very strict  and even when a claimant fits this category, it usually speeds the process up by only a few months. Sometimes a claimant’s medical issues are deemed severe enough by Social Security that they push up the timeline for a hearing or approve benefits without waiting for a hearing. Again, these criteria are very specific and most claimants don’t meet them.

Rest assured that we are well aware of these avenues and explore them whenever we are confident they may apply to our clients. Most claimants, though, can expect to wait well more than a year for a hearing date. Some people see applying for disability as a quick solution to their financial woes but in fact, it’s best not to count on that help short-term.

While clients wait for a hearing, many ask why we haven’t requested their medical records from their doctors. It’s simply not in their best interests to do that too early, unless we suspect a client qualifies for one of the above categories. Most physicians charge us for supplying medical records, and that is a cost we must pass on to clients. If we request documentation too early in the process, we’ll have to request updated records when it gets closer to the hearing, because we need the most recent information when making our case before an Administrative Law Judge. Records from two years ago won’t prove the client is disabled now.

While we know this isn’t welcome news, we feel it’s best for people to know what they’re facing. Our clients can count on us for honest evaluations of their claims and straightforward answers. If that’s what you’re looking for, give us a call!

 

 

An Appeal by Any Other Name — is NOT a New Application!

Close up of social security applicationWhen you’re trying to get disability benefits from Social Security, there’s a lot of terms and jargon that can be very confusing. But tops on the list of things that confound clients is the difference between the terms “re-apply” and “appeal.”

If your application for benefits is denied and you start over from scratch by filing a whole new application, you are re-applying. If you ask the Social Security Administration to reconsider the decision they made, that’s an appeal. Sound simple? It can be, provided you use the right language, submit the correct forms and meet the right deadlines. Just became a little more difficult, didn’t it?

There can be several appeals of the same claim (and all appeals have a 60-day deadline). Often when we ask clients if they’ve applied before, they say, “Oh yes, this is the third time,” when they actually mean it’s their second appeal. Understanding key differences between applications and appeals has a huge impact on how your claim proceeds.

When an initial application for benefits is denied, the claimant (that’s YOU) has 60 days to request a “reconsideration,” which is the name for the first appeal. If you wait longer than that, you must provide a valid reason why you missed the deadline. If Social Security has your correct address on file, then simply saying you didn’t receive your denial letter won’t be considered a good excuse. Examples of circumstances that may warrant accepting a late appeal include a hospitalization or incorrect address. If SSA accepts your reason, that’s called “good cause.” But remember that SSA has the final say on what they consider good cause. It’s the same if your reconsideration is denied, and if you want to appeal that by requesting a hearing.

On advantage to hiring a disability attorney before you’re denied is that SSA is supposed to send your rep copies of all correspondence that SSA sends to you. This means that the attorney should have your back and contact you about filing your appeal in a timely fashion, so there is far less chance of you missing this important deadline.

If you miss the deadline and good cause is not accepted, you must file a new application. You also can choose to do this even if you are within the 60 days. But that could mean you lose out on some benefits or not qualify for benefits at all. Whatever you decide, keep in mind that the required forms are different for an initial application and an appeal, so make sure you are using the right ones.

An experienced disability attorney and staff can guide you through this process. If we can be of help, just let us know!

 

 

 

“Do I HAVE to Go To a Hearing?”

istock_2361825XSmallThis is one of the most common questions clients ask. And many times, the answer is yes. A majority of applicants are denied Social Security Disability on their first try. Some are approved after their first appeal (known as the reconsideration stage). But a far greater number are awarded benefits after they appeal a second time, which is the same as requesting a hearing in front of an administrative law judge.

Of course, all clients hope they will be approved before that. Even after we request a hearing, many ask if they must attend or if their attorney can go in their place. The idea of a hearing calls up images of intimidating courtooms  and being badgered by a judge, like on courtroom reality TV shows. But the actual setting is much less scary than that.

Hearing rooms are generally smaller than a traditional courtroom, and there are no boxes for witnesses or a jury. The ALJ sits at the front and a hearing monitor also is present. The claimant and their attorney (or whoever represents them, if anyone) sits at a table facing the ALJ. If the hearing office has arranged for a medical or vocational expert to provide information, those individuals also will be present. It’s their job to  explain the claimant’s health conditions and what jobs the person may or may not be able to perform. In some cases, the attorney might have requested that a friend or family member also be allowed to speak at the hearing.

In our area, hearings take place in Valparaiso and the Miller section of Gary for Indiana residents and in Orland Park, Chicago, Oak Brook and Evanston for Illinois residents. The location is usually based on a claimant’s address. Our Munster law office also is equipped to have video hearings in the conference room in our Annex Building. This can be convenient for clients who live in the area and who would find it difficult to travel to one of the hearing offices.

But wait — a VIDEO hearing? Wouldn’t it be better for the ALJ to see me in person to get a better idea of how bad my conditions are?

Good question! Actually, in most cases, a video teleconference (VTC) works just fine and doesn’t decrease  your chances of getting benefits. Many hearings that take place in the hearing offices are VTCs. This means you and the attorney are in the hearing room but that the ALJ appears on a video screen (and usually any experts that were called in, although sometimes the experts give their testimony via phone). You, the ALJ and your attorney all can see and hear each other just as if you were all in the same room.

This means the ALJ can be anywhere in the country. We have participated in hearings with ALJs in Arizona, Michigan and Baltimore, to name just a few. Because all claimant records are stored electronically, all ALJs have access to the facts of your case. According to Social Security, VTCs help keep the scheduling backlog from getting even longer and reduces the cost to the government.

During a hearing, the ALJ will ask questions of the claimant and the experts. The attorney will be allowed to ask questions and rebut statements as well. All you, as the claimant, needs to do is answer the questions to the best of your ability.  By the time we go to a hearing with a client, our office has already done all the research necessary to back up your claim.

So don’t let the thought of a hearing scare you away from trying to obtain benefits. Remember, if you’re our client, you won’t be in this alone!

Plain Speaking

Close up of social security applicationDo government employees seem to speak a foreign language when you try to get information? You may be interested to know that The Center for Plain Language recently awarded the Social Security Administration top marks on how clearly it communicates with the public. That being said, we know a lot of terms used by the SSA can be confusing for many, who often are learning about their benefits for the first time. We’d like to make it a little easier, so here are a list of some commonly used terms and what they mean:

  • Disability. This refers to either the mental or physical impairment a person has or to a type of benefit. It often serves as shorthand to mean the benefits a person has earned through Social Security taxes paid on income they’ve earned (as opposed to SSI, in the next item). Social Security uses very specific criteria when determining if someone is disabled. Even if your doctor says you can’t work. you may not be considered disabled according to SSA guidelines.
  • Supplemental Security Income. This also is a type of disability benefit, but it isn’t earned through taxes on income and is only available to those whose assets fall below a certain level. SSI awards are lower than those earned through work history and don’t go back as far as “regular” disability benefits. The same medical criteria are used for SSI purposes.
  • Date Last Insured. The date a person’s eligibility for regular disability benefits ended. That date is based upon how long ago a person last worked. If a person’s impairment is not found to have started before this date, they are not eligible for regular disability benefits.
  • Appeal. A person has 60 days from the time a decision is made on their claim to appeal that decision. This involves submitting forms and medical information showing benefits should not have been denied.
  • Re-apply. People often confuse appealing with re-applying. Appealing means to ask that a denial on a current claim be reversed. Re-apply means to begin an entirely new application/claim.
  • Representative. This can be anyone you designate to serve as your “helper” on your claim or appeal. Representatives do not have to be attorneys and in fact, many are not. Those using the title “advocate” are likely not attorneys.
  • Credits. Credits are based on the amount of your earnings. In 2015, you receive 1 credit for each $1,220 of earnings, up to 4 credits per year. Starting at age 31, you must have 20 credits in the 10 years before you became disabled to quality for regular disability benefits. Those becoming unable to work at a younger age need fewer credits.
  • Substantial work. SSA usually considers work substantial if gross earnings average more than $1090 per month, after deducting allowable amounts. You may be working less or at a less physically demanding job, but it may still be considered for SSA purposes. If SSA finds that a person can perform substantial work, they are not considered disabled under SSA guidelines.

Hopefully, this list will help with some of your conversations regarding Social Security disability. Still confused? Maybe we can help. Give us a call if you’d like to sit down face-to-face with someone to translate the jargon.

Black Hawks, brain injuries and disability

stress photoChicago and Northwest Indiana were awash in a sea of red and black recently, with the Black Hawks bringing home their third Stanley Cup in six years. With all eyes having been focused on hockey, this seems a good time to visit a serious subject linked to the sport in recent years — the risk of brain injury. To be fair, hockey isn’t the only sport under fire for TBI — traumatic brain injury. Football, boxing and other sports have taken their share of “hits.” And athletics certainly aren’t the only way to suffer such a disabling condition. Motor vehicle accidents, falls and violent crimes are major causes of damage to the brain. Veterans might have suffered TBIs due to bombing. TBIs affect about 1.5 million people per year. Some suffer only mild, temporary effects, while some injuries result in coma. Many people are familiar with the milder form of a TBI, a concussion. More severe brain injuries  result in prolonged unconsciousness, speech problems, diminished thinking capacity and loss of motor function. Effects can linger for years and include trouble sleeping, headaches, mood disorders, memory loss and problems concentrating or focusing. TBIs are diagnosed with MRIs and CT scans, as well as neuropsychological tests. Social Security has specific criteria for determining if a person is disabled under their rules due to TBI. These “listings” classify TBI under the categories of epilepsy, stroke or organic mental disorders, depending on the individual’s symptoms.  SSA takes into consideration the frequency and type of seizures, language and mobility issues, cognitive dysfunction and personality changes. While it’s often difficult to be approved for disability due to a mild TBI, some claimants are approved based on the requirements of their job and how much their condition limits their ability to work. Veterans suffering TBI may be eligible to receive VA disability, in addition to Social Security benefits. Past criticism of VA guidelines on TBI has caused the agency to propose new rules for evaluating the condition. If the change is approved, five diseases would be considered service-connected to TBI: Parkinson’s, seizures, certain dementias, depression and hormone deficiencies (there are stipulations as to when the diseases were diagnosed in relation to the TBI, however). When the VA presumes a service connection, that means the veteran does not need to prove the illness occurred during service. We can help navigate the maze of Social Security and VA regulations concerning TBI. If you or someone you know has suffered brain trauma and would like to know if disability is an option, or if you have applied for Social Security or veterans benefits based on TBI and been denied, and would like to know why and whether you should appeal, please contact us. We’ll be glad to help you figure it out!

Think You Can’t Afford an Attorney? Think Again!

Some people seeking help with disability claims are hesitant to contact an attorney because they think they can’t afford one. If that’s holding you back, relax! Unlike other areas of law where attorneys charge $200 per hour, those handling Social Security Disability cases don’t charge AT ALL until a client is awarded benefits.

It may seem too good to be true that you can talk to an attorney for free, but that’s the rules. Lawyers dealing in Social Security matters are hired on a contingency basis. It doesn’t matter if you are applying for SSDI benefits (which are based on your work history) or SSI (based on financial resources). No fee unless you win your claim — no matter how long it takes. Attorney fees come out of any back benefits that you are awarded.wallet

If you hire us to represent you, one of the documents you sign is a Retainer Agreement. The amount we are able to charge is set by law. Currently, fees are limited to 25 percent of back pay or $6,000, whichever is less. This agreement also applies to anyone else awarded benefits under the claim, such as minor children (who are awarded benefits if a parent is found disabled).

However, medical record fees are not included in that amount. This means we do pass on the charges imposed by doctors and their offices for providing us with medical documentation necessary to win your case. Obviously, we can’t absorb all the costs associated with obtaining medical records for all our clients. Those fees must be paid by clients whether the claim is approved or denied. And we send you notification of these as we request records along the way, so you aren’t surprised by the charges all at once when you claim is settled.

Once benefits are awarded and the Social Security Administration has approved the attorney fees, they generally withhold that money out of theback benefits and pay it directly to the attorney. Once in awhile, mistakes happen, and the fee is not withheld. In that case, clients are responsible for paying the fee out of benefits they received.

In the event a disability case requires more than one hearing, or hearings at a higher level such as the Appeals Council or in federal court, an attorney is permitted to request payment in excess of the $6,000 limit. In those instances, the attorney files something called a Fee Petition with SSA, which decides whether to approve the higher charge.

Occasionally, people who have hired attorneys or disability firms to represent them no longer want their services and want to switch. This happens for various reasons. But some are afraid to make the change because they were told by the previous rep that it will cost them double and they will need to pay both. This is absolutely false! If the previous attorney or rep won’t waive their fee for the case, it is up to SSA to decide how the fees are allotted between the two. The maximum, total amount remains the lesser of 25 percent or $6,000.

Don’t let a tight budget keep you from contacting us. Call or e-mail us and set up an appointment. You’ve got nothing to lose — and possibly much to gain.

 

 

 

 

Can We Talk? You Bet We Can

handshakeOn many disability law firms’ web sites, you click on a chat box and carry on a virtual conversation with a faceless representative at that firm. But keep this in mind:

  • Is that person a lawyer? Probably not (especially if the word “advocate” is in the company title).
  • Will I get to see a lawyer? Sure you will — a few minutes before the hearing.
  • Can I at least talk to a lawyer? Probably not. These firms have more important things to do than talk with a client — or at least think they do.
  • How do I hire these firms? Through the mail, most likely. You sign the contract and send it back. No handshake, no eye contact.

At our law firm, you see an attorney at your first visit. This may be considered “hand holding” by firms who rely almost entirely on the Web for their clientele. And that’s just fine with us. We are here — to hold your hand if necessary. That is part of our job. In fact, you will probably see an attorney multiple times with our firm.

We are a local business. You can come right into our office. Many national Internet companies farm cases out to local attorneys shortly before the hearing. That means you won’t meet the person representing you until the day of the hearing. And remember, these companies’ “representatives” are not necessarily attorneys.

Many of these firms lead you on, then drop you before the hearing, leaving you to fend for yourself. Plenty of our clients came to us because they ended up in that very situation. We very seldom withdraw on cases before the hearing unless the client has failed to cooperate or their chances are VERY weak.

We aren’t in the numbers game — getting as many clients calling as possible, then taking only the very strongest cases. This is known as “cherry picking.” We are NOT cherry pickers. We interview you and tell you at the outset whether or not you have a winnable case, rather than having someone with no disability background give you the brushoff on the phone.

Disability is serious business. It may take a long time to obtain results. Do you really want to take your chances with an unknown individual who may be many miles away? Many firms boast in their ads that they are national outfits. We boast that we are a local outfit. It may sound convenient to never have to go into an office when filing your disability appeal, but we hear many people who lost their cases complain that they never got a chance to speak with their representative or spoke to them right before the hearing. We try to prepare our clients well before their hearings. It takes more time, doesn’t get us any more money, but we think it’s worth it — for our clients and their cases.

Still considering hiring a national firm? Think about it. Then let’s talk.

 

 

 

 

Kidney Disease and Disability

Close up of social security applicationChronic kidney disease may be more common than you think. According to the National Kidney Foundation, 1 in 3 Americans run the risk of enduring kidney problems for a variety of reasons: diabetes, hypertension or family history among them. More than 26 million people already suffer from it, but many of us don’t realize it because symptoms often don’t manifest themselves until the disease has progressed to a certain point.

Grounds for disability?

For Social Security Disability purposes, kidney problems are considered part of the genitourinary class of impairments. While having kidney disease doesn’t always guarantee you will be considered disabled, you may be awarded benefits if you can show that the limitations it causes keeps you from working. Kidney disease often causes bone pain or neuropathy, resulting in discomfort too great for someone to hold a job; fatigue; swelling; or shortness of breath. SSA Disability also may be granted if your failing kidneys have caused congestive heart failure or stroke. And like any disability claim, non-medical factors such as your age, skill and education will be taken into account.

What about dialysis?

If you receive dialysis treatment at least three times a week (and have been undergoing dialysis for 12 months or anticipate continuing it for 12 months), you automatically qualify as disabled under Social Security regulations. Ditto if you’ve had a kidney transplant. A transplant recipient will be awarded 12 months of disability, but benefits will be reviewed after one year, looking at things like kidney rejection, infections, side effects of medication and the condition of other vital organs. So even if you are awarded benefits, it’s important to keep a history of your post-transplant treatment. Also, depending on the medical evidence, SSA may decide you were considered disabled due to kidney disease even before the dialysis or transplant occurred, resulting in a larger sum of back benefits.

Where’s the proof?

As with all disability cases, the proof is in the medical records. It’s important that all treatment be considered: hospital stays, doctor visits, lab work, biopsies. Providing a clear, consistent, reliable history of physician visits is crucial to winning a claim for disability for a kidney disorder.

Help is here when, and if, you need it

If you have CKD and have been denied Social Security Disability benefits, we can evaluate your claim and see what, if anything, went wrong and if there are grounds for appeal. If you have not yet applied, we can also tell you whether you can make a good case for benefits. Again, if you meet the criteria for automatic disability, you may not need our help — but we’re here if you do.

 

When Mental Health Keeps you from Working

stress photoAwareness of mental illness has come a long way, but it can still be tough to prove it’s a disabling condition, at least according to Social Security criteria.

In our practice, we often hear statements like, “My neighbor’s son got disability just because he said he was depressed (or is bipolar, or has anxiety).” While Social Security does award benefits to individuals based on mental impairment, the truth is that such cases often face more of an uphill battle than do claims based on physical limitations.

Part of the reason for this is obvious: one can see when a person has trouble walking, lifting or breathing, but it’s not always apparent when someone suffers from mental issues. However, just because the case is hard to win doesn’t mean it can’t be done.

Social Security lists a number of mental impairments that warrant disability coverage, provided they are severe enough. These include: schizophrenia, autism, anxiety, intellectual disability, depression and bipolar and substance abuse disorders. However, not only does there need to be a diagnosis of such impairment, there has to be proof that it affects the person to the point that it severely impacts their ability to hold a job.

Claims for mental disability are strengthened when the person has complementing physical problems, such as suffering depression because they are in so much pain or due to the limitations and isolation caused by other illnesses. The person seeking disability also should be treated by a medical professional specializing in mental health; simply getting a prescription for an anti-depressant from their family doctor won’t carry much weight. Because the symptoms of some mental illnesses, such as bipolar disorder, can fluctuate, there also have to be treatment records covering a fairly extensive time span, indicating consistent treatment and/or how the symptoms may fade, only to reappear.

Good documentation is key. In addition to getting records from your doctor, we have questionnaires that make it easier for him or her to focus on the information Social Security needs to completely and fairly evaluate your mental health claim.  Don’t be afraid to tell your physician about your symptoms — some people still fear there is a stigma associated with mental or emotional disorders and hesitate to speak up.  We can’t prove what we can’t document!

Be sure to take medications as ordered by your doctor; non-compliance will only hurt your case. Information from former co-workers or family members who saw how your conditions impacted your behavior play a part as well.

These are all pieces of the Social Security Disability puzzle for mental health. Let us show you how they fit together!

 

Saving Social Security

iStock_000005780610XSmallAnother year, another political argument about Social Security.

The demise of Social Security has been talked about for years, with actuaries from the agency now projecting that the disability insurance portion of the trust fund (vs. the part allocated for retirements) will run out of money in 2016 unless steps are taken to prevent it. Now a tug-of-war has begun over how to keep the disability program funded.

In the past, sitting presidents have moved money from the retirement pot to the disability one without a fuss. Such shifts have been made 11 times since 1968, including four times by Ronald Reagan (Democratic presidents have done it, too). The last time a reallocation was needed was in 1994. Making such a move would keep both the old-age and disability programs funded through at least 2033.

This year, however, is different.  On its first day in business, the U.S. House of Representatives approved a rule change that hinders the ability to transfer money earmarked for retirement to that budgeted for disability. As it stands now, without an infusion of funds into the disability trust, those benefits to recipients would be cut by 20 percent. Those voting to prevent the transfer say the retirement fund also needs protection against going belly-up and that waste in the disability program needs to be stopped. However, they ARE willing to support shoring up disability if benefits are cut or if tax hikes are approved.

Both the retirement and disability trusts have been strained by an increase in the older population — people are living longer today than ever before. More women are eligible for benefits, since they started entering the workforce in increasing numbers years ago. The full retirement age has been pushed up, but that also means a few extra years for workers to fall ill and become unable to hold a job.

Disability defenders say that program also has helped out the retirement trust, having sent disability monies to fatten up the retirement fund in 1983 (the “repayment” back to disability in 1994 was for a lesser amount). Not many people want to see the Social Security program eliminated, although some think it would yield a better investment if privatized.

Whatever legislators decide to do, just about every American will be affected in some way: through the taxes they pay, through the benefits they receive now or through the benefits they may (or may not) receive some day. Listen to and learn about the issues affecting the Social Security program and, most importantly, let your elected officials in Congress know what you think and why the program matters to you!