New York Social Security Disability Lawyer Blog

Our firm's Social Security clients are served mostly by three hearing offices: White Plains (NY), Albany (NY), and Newark (NJ). According to the NOSSCR Social Security Forum, December 2009, the average processing time for the White Plains office is 430 days (63rd out of 143 nationwide), Albany is 466 days (88/143) and Newark is 488 days (100/143).

In the last year and a half all of these offices have added new judges. When that happened I was hopeful it would mean a shortened wait for hearings. Thus far that has not proven to be the case, except for limited examples. But what I find totally inexplicable is the shuffling of cases between the offices.

Many of our Albany cases have been transferred to Newark for hearing. Not only does that mean the claimants cannot get an in-person hearing (unless they wish to wait even longer), but they are being transferred to an office that has a longer processing time! WHY? Who does it help?

The Albany claimants are sent to a slower office; the Newark office now has even more files; and the Newark hearings for Albany claimants delay the local New Jersey claimants. We see the same thing happening in White Plains, where they are also handling hearings from Albany as well as other hearing offices.

The same number of judges are holding roughly the same number of hearings, the local claimants are obviously waiting longer than they would have were there no file transfers, and the cases transferred do not get the benefit of in-person hearings. Not only that, but when we called Newark recently to inquire about the status of a transferred case the person on the other end told us, "this is a transferred case. Those are delayed." WHY? Who does it help?

I will be sending a letter to the Regional Chief Judge regarding this. There may be some grand plan at work here, but as far as I can see, all it can do is cook the numbers. Even then, who does it help?

Whatever reason they can possibly give us, it does not help claimants waiting for hearings get them any sooner, which is the ostensible goal.

Lew Insler

In the past few days I read about two people who pled guilty to fraud charges for making false statements to the Social Security Administration.

The actions of both of the individuals charged with the frauds is despicable and deserving of punishment.

Unfortunately, all too often, I get calls from former clients and prospective clients who tell me about how they were contacted by investigators with the Social Security Administration's Office of Inspector General Office ("OIG"). More often than not, these people are innocent of any frauds, and are simply the victims of vengeful spouses (and former spouses) or acquaintances who mistakenly believe that a fraud is being perpetuated. The conventional wisdom is that a person being investigated by OIG is indeed guilty of some fraud and, as such, attorneys stay away from those cases. In fact, the reality is that in many cases, the investigators simply want to get to the bottom of the issue. I have had numerous cases like this, where the investigators confirmed the absence of fraud and my clients' benefits were continued.

At the same time, it does happen that otherwise good people have given in to the temptation of continuing to collect Disability benefits while working or otherwise no longer eligible. In my experience, the Social Security Administration rarely initiates fraud proceedings to punish the wrongdoer and, in fact, frequently handles the resultant 'overpayment' with surprising sensitivity for the disabled claimant and works with the wrongdoers to recover the money improperly received.

While it's a difficult situation to decide who should just pay back benefits versus who should pay back money and be punished, the two newsmakers below most certainly deserve to suffer punitive consequences for their actions.

Gabe Hermann

The links to the articles I read are below:

http://www.semissourian.com/story/1603473.html

http://www.jacksoncountychronicle.com/articles/2010/01/20/thisjustin/07ss.txt

While I may be a new addition to the law firm of Insler & Hermann, I am no stranger to the practice area of Social Security Disability. In fact, I started my career in this practice area while working with Gabe Hermann in 1997. Like him, I have been representing disability claimants since then without interruption.

I've been fortunate enough to remain in contact with Gabe ever since then, and have followed his career as he joined Lew Insler years ago. He has always been the consummate professional and a wealth of information. On a chance encounter last year, I was fortunate to appear for a hearing in the Bronx at the same time he was. This set into motion a series of events which led to a meeting with his business partner, Lew Insler. Lew struck me as someone passionate about the law and compassionate about his clients.

Since joining the firm last month, I quickly learned that Lew and Gabe carry this approach into how they practice law and represent their clients. Attention to detail and a personal attitude distinguish them from many other practitioners in this area of law, and I'm glad to bring the same qualities to their practice.

At a recent lunch, Lew addressed the staff on the positive feedback we continue to receive from our clients. "The reason for our success: each and every one of you really cares," he told us, expressing his gratitude to the entire staff, from the paralegals and secretaries to the bookkeeper. In the weeks since I've begun working here, I have seen this dedication firsthand, and it makes me proud to be a part of this firm.

I'm extremely excited to become an active part of the law firm of Insler & Hermann and encourage people to email me directly at bma@nymetrodisability.com with any questions or ideas for future blog topics. I look forward to hearing from you.

Brian Anson

By now you have probably heard about the tragic shooting in a Las Vegas courthouse on Monday. Police believe the gunman's motive was anger over the dismissal of his Social Security benefits claim.

The problem with any news article is that the further away you are from it the less truth it contains. Yet the kernel of truth in this case is that Social Security Disability and SSI clients have had the rug pulled out from under their lives. Many people are on the edge to begin with, and they take the delays in the system personally. Some people react violently. What "the system" must take from this act is that these delays rob people of their dignity, and that to end violence the claimants must get speedy justice.

We are currently representing a claimant whose case is also at Federal Court. The problem is that the Magistrate Judge to whom it is assigned has sat on it and done nothing for three years!! While our client is not about to resort to violence, there is little that can be done to force a Federal Court Judge, an Administrative Law Judge or the Appeals Council of the Social Security Administration to render a decision. While there are time limits on filing claims and appeals, there are no time limits on when decisions must be made.

I am scheduled to speak with our client and his family shortly to consider our course of action. We had previously discussed getting the press involved and this may be the perfect time to do so! Otherwise, our only legal alternative is to move for a writ of mandamus: asking the Court to order the Magistrate Judge to perform her duty and render a decision in this case. Maybe seeing what happened in Las Vegas will make he do something! It's not what I would have wanted as the wakeup call, but a wakeup call is definitely needed.

Lew Insler

I was recently approached by a prospective client who told me that when she appeared for a Social Security Disability hearing with her prior representative, from a firm of non-attorney representatives, it was clear that he knew nothing about her case and, worse, didn't seem to know how what to say or do at the hearing.

I always take these kinds of stories with a grain of salt, because I actually do believe that most Social Security Disability representatives do know what to do at a hearing. However, the fact that this representative didn't seem to have any familiarity with the case does concern me.

As an attorney, I have an ethical obligation to represent my clients vigorously and effectively at all stages of their Disability claims. At the risk of losing my license to practice law, I am required by New York State to take continuing legal education courses---which I do, attending Social Security Disability conferences once or twice a year. Among my obligations as an attorney I must also take courses in Legal Ethics, which I do both at these conferences and also through other bar organizations. Participating in these programs is crucial in order to ensure that I am attuned to changes in the law and procedures, and that I am up to speed on the latest techniques to be used at hearings.

I am pleased to report that recently the state of New Jersey also adopted new rules requiring continuing legal education for its attorneys and judges. While it won't change my own educational obligations (since I am licensed in New York as well as New Jersey, and already bound by their stricter requirements), it's good that all attorneys in the regions where I practice are obligated to maintain their education and to keep refreshed on the ethical rules before representing their clients. I just couldn't say whether the non-attorney representatives are playing by the same rules.

Gabe Hermann

Mr. Anson has been practicing Disability Law since 1997. He joins us in representing our clients in all aspects of their disability claims, from intake to appeals.

Mr. Anson is a graduate of Hofstra School of Law, and is admitted to practice in New York, Connecticut, and Federal Courts.

Last Thursday, November 19th, I held a Seminar in Northern New Jersey, entitled "Social Security Disability: How to Fight for your Rights and Win." The program was open to the public and it was very gratifying to see that despite incredibly bad weather, people from around the county came out to hear me speak about Social Security Disability benefits. Despite all the articles in the news lately about Social Security delays and about the significant upswing in the number of claims being filed in recent months, people are obviously so eager for clear information about the Social Security Disability process that they are willing to attend these kinds of presentations regardless of the distances necessary to travel.

Thank you to all those who attended.

Gabe Hermann

Due to popular demand, this Thursday, November 19, I will be holding another seminar on Social Security Disability, entitled, "Social Security Disability: How to Fight for your Rights and WIN!" The seminar will be held at the Bogota Recreation Center in Bogota, NJ, at 6:30pm.

The seminar is free and open to the public. For more information please call my office at (201) 862-9700, or click here.

I hope to see you there!

Gabe Hermann

I went to a meeting of the New York Social Security Bar Association last night. Besides catching up with my professional colleagues about new judges and changes at the various local hearing offices, I also learned some interesting news. Apparently, while there are still significant backlogs in processing Social Security Disability claims at the initial level, hearings are now being heard in the Brooklyn and New York City Hearing Offices so quickly that some claimants have not even been disabled for a full 12 months before their hearings.

Ironically, such rapid processing of claims is a mixed blessing. On the one hand, it's terrific that those two hearing offices are processing the claims as fast as they are; on the other hand, it is a problem for someone who has not yet been out of work due to his or her disability for a full 12 months and therefore has not yet satisfied the durational requirement to be eligible for Social Security Disability.

Gabe Hermann

Many of our clients have Workers' Compensation cases going on at the same time we are representing them in their Social Security Disability or Long Term Disability claims. Having handled the Workers' Comp claims myself for over 20 years before turning exclusively to the other areas gives me a leg up on maximizing client benefits and explaining the interplay between the two.

Last week I had a unique opportunity to pass some of this knowledge along to the Commissioners of the New York State Workers' Compensation Board when I made a presentation to them at their monthly meeting in Albany. A link to the presentation as a webinar can be found at the Workers' Compensation Board webcasting archives (to access the presentation, click on "Guest Speaker---Lewis B. Insler, Insler & Hermann, LLP" and then click on either Dial Up or Broadband to watch).

I tried to explain Social Security using analogies from Workers' Compensation Law that they would understand. Although I was mostly policy neutral, I did try to make the point that a finding of disability by Social Security, regardless of the medical conditions under which it was found, should negate the contention that a claimant has "voluntarily retired" from the labor market. The insurance carriers make that argument in more and more cases and it is simply illogical if Social Security Disability has been approved.

The Commissioners had very few questions, as they had other business to move on to when I finished, but I was asked about fees and, interestingly, about fraud. (Later in the week the Nassau County District Attorney announced they had arrested seven people in a Workers' Compensation fraud investigation.) I told them that while some claimant fraud undoubtedly exists, Social Security does little proactively to combat it due to budget constraints.

My more important point to them was that fraud exists not only on the claimant's side, but that several IME's (Independent Medical Examiners) have been removed or are being sued for fraudulent exams or reports made on the behalf of the Social Security Administration.

In the past decade or so the pendulum in New York Workers' Compensation has swung away from the claimants. I like to think my presentation may have given it a little momentum back in their favor.

Lew Insler

About a year ago the New York Times published a report about abuses within the Long Island Railroad Disability retirement program. The gist of the report was that nearly 90% of retirees from the LIRR were supplementing their Retirement benefits with additional payments governed by the Federal Railroad Retirement Board.

Follow up reports by the Times articles authors noted that recommendations have been made to overhaul the Railroad Retirement Board's Disability evaluation processes and, although there has not been much reported about this issue for the past year, I am sure that some internal investigations have commenced.

What bothers me about the article about abuses and the subsequent follow up is how it hurts the truly needy workers. I can personally attest to the fact that since the Times article was published in September 2008, the Railroad Retirement Board has changed its practices. That is not to say that they used to approve every one of my clients' Railroad Retirement benefits applications. On the contrary, if the medical and vocational evidence didn't support a claim, it was correctly denied.

However, whereas the Social Security Administration's claims examiners seem to be stuck in a culture where they have to deny 60+% of all initial applications for disability, I never got that impression in dealing with the claims examiners from the Railroad Retirement Board. The Board's claims examiners approved the claims where appropriate and denied the claims they couldn't justify approving - but without the creative analysis used by SSA's examiners. Since last year's article, however, I have noticed more denials where the claims examiners are taking a page right out of the SSA playbook and denying many more Railroad claims.

I certainly understand why they are doing it; it's just a shame that a Federal agency which actually seemed to be focused on helping their disabled workers is now forcing them to jump through the same hoops that Social Security claimants have been forced to jump through for years.

Gabe Hermann

I just reviewed the case of a claimant (we'll call her P) who first got hurt in 1998. P worked until the end of 2001 and claims that she became disabled in February 2002. The problem is, P never filed for disability benefits until August 2008! She came to us in March 2009, after her claim was denied and she filed for a hearing.

Almost half of all the cases we win are won on the initial application. We actually win over half of the initial applications we file ourselves---but, but of course many of our clients, like P, don't come to us until after they have filed the initial application on their own. On its face there's nothing wrong with that.

The real issue is when the claim is filed. Even if a claimant is getting other benefits, or "planning" to return to work, I still don't understand why some people wait years before even filing their claims. Not only do claimants lose out on years of potential benefits, but the longer a person waits to apply, the harder it may be to obtain the medical records necessary to show disability while they are still covered for benefits.

Getting back to P: now it's our job to show that her disability began before the end of 2006, when her coverage ended for Social Security Disability. Some of the records we need are no longer available, because medical records only have to be retained for seven years. More recently, there is also a gap in the medical evidence, due to P's lack of insurance and her frustration over lack of recovery. The result is that her claim is going to be a lot harder to prove than it would have been had she applied within a year or two of stopping work, while still seeing her doctors regularly.

Even if we are successful at P's hearing, her retroactive benefits can only go back a year from when she applied. P has lost six years of benefits! It's a scenario we see over and over again. Statistics show that having an attorney improves your chances of success. Our statistics show that we at Insler & Hermann can help you win sooner than the averages. But no one can win if they don't apply! I'd rather tell a prospective client he or she is calling me too soon than have them call too late for me to help at all!

You can always go back to work, even with a claim pending, but you can't backdate when your claim is filed. Waiting to apply not only costs time; it can also cost you money.

Lew Insler

The Social Security Administration is scheduling video hearings more and more frequently. We, and many of the Judges with whom we have discussed this, do not really like them. We advise almost all of our clients to decline the video hearing and request an in-person hearing---something to which every claimant has an absolute right under the current Regulations.

Why are we against them? You can judge a lot more about someone in person than you can on a two-dimensional TV screen, no matter how big it is. Think about how different it is watching a ball game at home versus being at the stadium. At the game you can watch the players on the sidelines, not just see the play on the field.

The same is true for a Social Security Disability hearing. In some cases there is a real "feel" about a disabled person that can never be transmitted through a camera. This is especially true in cases where the claimant has psychological impairments.

The slight delay in the system also makes it harder for either side to follow the discussion. Also, the less than state of the art system limits what the Judge can observe about a claimant. This can extend to "off the record" observations such as a claimant's difficulty getting into the hearing room or out of the seat after his or her hearing concludes.

Finally, there is one subtle but very important aspect that hurts claimants who opt for a video hearing. I believe it is easier for a Judge to decline a case for someone he or she has never really "met." When I prepare clients for their hearing I always tell them that this is the only time in a Social Security claim they will come face to face with the decision maker. I believe that if the initial decisions included some in-person connection with the claims analysts, far more cases would be allowed. Putting the Hearings Judge on the other side of a camera puts him one step closer to that anonymous claims analyst.

Video hearings may help the agency handle more cases, but the cost is borne by those who can least afford it: the claimants.

Lew Insler

A couple of months ago I wrote about how many states have made the questionable decision to furlough Office of Disability Determinations workers (see my blog entry of May 18, 2009). In a letter to Governor Schwarzenegger of California, Senator Diane Feinstein called on the governor to cancel furloughs for employees paid with federal funds so payments to thousands of disabled Californians aren't delayed.

Last Friday, in what might be a consequence of that foolish decision by Governors throughout the country, a legislative panel of the Arkansas Legislature authorized Arthur Boutiette, the Director of the Arkansas Office of Disability Determination for Social Security, to accept $9 Million of Federal funds to process other states' disability claims. The money will pay for 150 new claims analysts to evaluate disability claims.

According to Mr. Boutiette, the Social Security Administration asked Arkansas for help because they have been "number one in the country the last four years in a row in quality. [Arkansas ODD has] one of the cheapest costs per case."

When asked whether Disability claims will be processed any faster, Mr. Boutiette stated that the 66 day average in Arkansas is faster than just about any other state. He also noted that it would take about a year to train the new claims workers and that he wants his "seasoned people" to handle Arkansas cases.

This is certainly good news for Arkansas. 150 permanent jobs is nothing to sneer at. I am, however, troubled with the feeling that the Arkansas ODD is focused on the speed of decisions. Nothing in this report tells me about the accuracy of the decisions made by the 'seasoned people' at the Arkansas ODD. Fast and cheap doesn't equate with accurate decisions, and it seems to me that when these new hires start to build their own caseloads in 12 months, they are also going to sacrifice the accuracy of decisions for quantity and efficiency, affecting not only the citizens of Arkansas but possibly also my own disabled clients in the New York metropolitan area.

In Fiscal year 2008 Arkansas DSS allowed 36.1% of all claims at the Initial Application and 11.1% of the denials where a Request for Reconsideration was filed. By contrast, New York DSS allowed 44.3% of Initial claims and 51.2% of Reconsiderations. New Jersey's allowance rate of 45% at the Initial level and 20.8% at Reconsideration is also significantly higher than that of Arkansas. As my partner Lew Insler said months ago, the New York and New Jersey DSS offices are starting to get it right when analyzing claims, but I fear that with the creation of this "Mega Disability Agency," there will be an increased number of denials for claimants in New York and New Jersey, who will be forced to wait even longer for a hearing as more cases are appealed.

From the Arkansas Democrat Gazette - August 22, 2009

Allowance data from SAOR (State Agency Operations Report) prepared on 12/12/2008; courtesy of NOSSCR Social Security Forum Vol 31, No. 2 (February 2009)

Gabe Hermann

PART 3

Planning ahead for your retirement is complicated and difficult. To make matters worse, when you try to figure out what you will need to retire, all the financial planners and websites and calculating tools assume that Social Security will be there. I think you have to assume that unless you are within a few years of retiring, the Social Security amounts you are quoted are not what you will get. We have to assume that we will need to self-fund more of our own retirement and depend less on Social Security than we have been led to believe.

If you are close to retiring, that may mean taking the reduced amount at something before full Retirement Age (now 66), to make sure you get that amount before it is somehow "adjusted." Without considering this issue, the question of when to start taking RIB (Retirement Insurance Benefits) has been looked at time and time again. For an excellent evaluation of when to start taking your RIB take a look at the following article, found on our website and originally printed in "Balance", a publication of TIAA-CREF, the pension giant:
http://www.nymetrodisability.com/new-york-social-security-disability/pdfs/tiaa-cref_summer04.pdf.

I tell people who are not disabled that if they do become disabled DIB (Disability Insurance Benefits, or Social Security Disability) probably won't be enough to live off, so they should consider taking out a Long Term Disability policy now. The same thing is true for RIB. Social Security was never designed to be your only retirement income. For far too many people it is, but if you read this while you still have time, do everything you can to maximize your other retirement options. In my opinion you're going to need them!

Lew Insler