New York Social Security Disability Lawyer Blog

Insler & Hermann, LLP, is delighted to congratulate Partner Gabe Hermann, Esq. and his wife Miriam on the birth of a baby girl. We wish the entire family well!

First impressions mean a lot, especially when we as Disability attorneys are trying to determine the strength of a case the first time we meet a potential client. Many claimants come in with a family member or close friend who has taken on the role of caregiver to one degree or another. A recent incident involving my wife has given me more appreciation for those other people who come in and sit with the claimant, often answering many of my questions.

My wife is a strong bicyclist, but she fell about two weeks ago when she hit a stretch of bad road. She suffered a mild concussion, stitches in her face, and bruising and road rash over her whole left side. She had to take a week off from work and I had to take her to the doctors plus take on the shopping and meal preparation (I wouldn't call it "cooking").

This week she's back to work but still not driving, so I take her to the train station and pick her up. She shouldn't have any permanent problems, but I have gained a definite appreciation for the important role that caregivers play. Without ever planning to be in that role, and for no reward, they are forced to make changes in their routines and priorities to take care of a person who can no longer do things that were always second nature.

My wife, who works in the health care field, said to me that she has gained some appreciation of what it means to be "disabled." And I will definitely have a different first impression whenever the person I am interviewing needs to be accompanied by someone just to get to my office.

Lew Insler

Beginning on March 1, 2011, Social Security checks will no longer be mailed out to new recipients of disability benefits.

The Treasury Department recently announced that all United States Government benefits payments will be made electronically to beneficiaries via direct deposit or onto a special debit card. Social Security Disability and Supplemental Security Income claims allowed on or after March 1, 2011 will be affected. Those whose claims were allowed before that date will have until March 1, 2013 to make the conversion if they are receiving their checks in the mail.

For those who do not have a bank account into which the benefits can be deposited, the Treasury Department has a Direct Express debit card to which payments will be made. That same card also accepts payments of Veterans benefits, Unemployment benefits, and Railroad Retirement benefits.

The move to paperless transactions is hoped to improve government efficiency and reduce costs normally associated with manually sending those checks in the mail. An estimated $48 million is expected to be saved annually on postage alone, and it will reduce or eliminate the problems associated with lost checks and fraud.

Brian Anson

A disturbing trend has emerged at local Social Security offices that is hurting everyone applying for Social Security Disability and SSI benefits. Many local offices have little more than half the staff they used to, as budget cuts over the past decade have made it impossible to replace the many experienced and knowledgeable employees that have either retired or moved on in their careers.

The result is that even with electronic filing, cases are often not being sent to the State Agency in a timely manner to start the medical evaluation that is the heart of the process. Although at our own firm we file our initial applications electronically, there are still actions that the local staffers must take to process the claim. More and more, those are not being done or are greatly delayed, despite their routine nature.

Additionally, we are finding that due to inexperience and limited training, the SSA staffers often fail to complete the routine clerical process, leading to difficulties for the claimants at the end, after their claims have been approved and they are expecting payment.

Like any other process, doing it right at the beginning is much quicker and simpler than having to correct mistakes as a case goes on. The more time our staff spends trying to correct mistakes made by the Social Security Administration, the less time we have to actually help claimant's win cases.

It is the same on the other end of the phone calls we have to make: if the SSA personnel were acting quickly and efficiently, they would be able to help more people. We employ a number of former long-time SSA employees and I value their opinions and observations greatly in this area. They tell me the problems are due to the Social Security Administration's lack of manpower and the employees' lack of training and experience.

It is not Social Security's fault that their budget requests were cut year after year after year. But the result is an agency that, at the local level, is simply incapable of doing what once was routine when it comes to handling Disability and SSI claims.

Lew Insler

Last month, I wrote with excitement about how I was finally going to view my clients' claims files on a special Social Security representatives' website, using highly secure passwords and access codes provided by the Agency. Well, after using the resource for nearly a month, I can say that I am pleased with the efforts that they put both into securing my client's information from inappropriate eyes and providing me access to the information.

I won't say that the process is without hitches; cases that are coded to my partner or to my associate are not accessible using my access codes, for example. However, for the cases that I can pull up, there is tremendous value.

Now, rather than waiting for a hearing office to respond to my telephone or fax request for a CD of the Administration's file, I can just log on and review what they have. I can cross check the claims file with what we have to make sure I don't supply duplicate records. Sometimes I can even identify how the case was analyzed and bring that to the attention of an attorney adjudicator at the hearing office, with a request that they review it and consider approving the claim without a hearing. These are all good things.

I have also learned that we are still very much reliant on the hearing office staff in making sure that what we submit is properly entered into the claims files. On the other hand, I have received positive feedback from some of the staff at the hearing offices who no longer have to respond to my request for a CD by stopping what they're doing and burning a disc for me.
Overall, I give the process a high "B" and look forward to monitoring the ongoing evolution of the hearing office claims process in response to feedback from myself and other attorneys and representatives.

Gabe Hermann

On May 8, 2010, I had the privilege of volunteering my time and expertise in Disability Law alongside several other local professionals at the National Multiple Sclerosis Society's Law Day in White Plains, New York. The other volunteers brought their respective expertise in areas such as matrimonial law, financial planning, job discrimination, and estate planning. The issues and questions presented to me throughout the course of the day ranged from the relatively straightforward to the legally complex. What became clear however, is that Social Security Disability plays a significant role in the lives of not only those seeking it, but also those currently receiving it. Thus, an award of disability benefits does not necessarily end the complications which may arise depending on the individual's particular circumstances.

The National Multiple Sclerosis Society and its volunteers provide invaluable services to individuals with MS and I feel privileged to have made my particular contribution. A special thanks to the staff for their continuing efforts to serve and assist individuals suffering from MS. I look forward to working with them again.

Brian Anson

I just came back from the semi-annual meeting of NOSSCR, our national organization for Social Security Disability attorneys. These conferences are valuable not only because we are able to renew acquaintances and contacts, but because it provides an opportunity for us to discuss with other Social Security Disability lawyers from all over the country the problems we and our clients face. In addition, there are always some practical pointers we bring home and use as we represent our disabled clients and answer their questions.

Since our current recession began two years ago a question we get from almost every client is "I am receiving Unemployment; can I still get Social Security Disability?"
The question was raised a number of times at different sessions during the week and I am happy to report that the short answer is "yes".

In 2006, the Chief Administrative Law Judge issued a memo to all the ALJ's reminding them that "the receipt of unemployment insurance benefits does not preclude the receipt of Social Security Disability benefits. [It] is only one of many factors that must be considered."

In addition, some deep thinking lawyers at the conference pointed out that the Regulations state that a person over 50 whose past work was physically demanding is disabled if he or she is now limited to sedentary work. Thus, even if such a person receives Social Security Disability, he or she could be "ready willing and able" to do sedentary work and thus qualify for unemployment compensation (UI) as well!

The same is true for part time work; being "ready willing and able to work," but only less than full time, appears to allow for the receipt of both types of benefits.

Before this meeting, my standard answer had been that since you have to be "ready willing and able" to work to receive unemployment compensation and that is inconsistent with the finding that we are asking Social Security to make regarding disability, you could not receive both at the same time. Yet as a practical matter the Agency and especially the Judges understand the need to get some income, so this has never been a significant problem for my clients. I have not seen any judges find a claimant not disabled until his UI is exhausted, or even deny a claim due to receipt of UI.

But until this meeting I also cautioned claimants that once their Social Security Disability is approved they should advise Unemployment and stop accepting those benefits.

Now I am far more confident that simply receiving UI is not a factor that would disqualify someone from applying for or receiving SSD at this time. Going further, I may even start advising certain clients that they can continue to receive UI after the SSD claim is approved! But being a lawyer, I will point out that this is not black and white and that the view of either side could change over time.

Lew Insler

I just finished getting set up with the Social Security Electronic Filing system. Hopefully, within 24 hours, I will be able to access the claims files for every one of our clients who has a case pending at the hearing level. This is a sea change from the old process where we were forced to wait for a staffer to burn us a CD of the file. Another benefit to this system is that we can see whether submissions made to the hearing office have been logged and processed for ALJ review.

Gabe Hermann

In an article from May 4th on nextgov.com covering technology and the business of government, it was reported that the Social Security Administration is deploying pilot projects to handle the tremendous increase in claims that the Agency has received in the last few years.

As a regular user of the online claims processes, I can see the vast improvements that have been made to the Agency's internet services in the last few years. While the online applications process used to be disjointed and closely aligned to the paper applications, the online application has evolved into a relatively streamlined process that certainly helps prevent the Field Offices from getting totally inundated by the paperwork that was associated with the old, paper-dependent claims process.

Here's a personal example of how the Administration has been streamlining some of their processes:

Just yesterday I reviewed a letter from a Field Office asking that one of my clients come in for a final evaluation of SSI eligibility. The hearing on the issue of disability was less than 10 days ago, and because the process of writing, signing and mailing the decision takes time, we continue to wait for the written decision by the Judge. Yet because it just takes the push of a button, the field office is already setting up a time to meet him to expedite payment of his benefits!

Even as I can laud how the Agency is working hard to streamline the process, I am still less than pleased with the progress made with Video Hearings. While I have done my share of those hearings, I still cannot understand why I get better video resolution and sound using a free online application to see and speak to my friends and relatives abroad than my clients can experience after waiting 12-24 months to be heard by an Administrative Law Judge. The Agency must improve its video conferencing technology before I am totally comfortable with my clients having their hearings that way.

Gabe Hermann

If you have done any sort of financial planning, on your own or with an advisor, Social Security sort of gets thrown in and is then forgotten, a constant rather than a variable. However there are a variety of things that can be done using your entitlement to Social Security Retirement benefits (RIB) to maximize or enhance your retirement planning.

Even though Social Security Disability is my area of practice, I will confess that some of these tools were new to me and I have saved the article I am referencing for my own use, as well as for advising clients. It originally appeared in print in Smart Money magazine and can be found online here.

Beyond pointing you to resources to analyze the well known question of when to take your benefits, and the recently publicized technique of taking early benefits and repaying them in order to then get the highest possible rate at a later age, the article talks about some other benefits that work best when one spouse receives benefits and the other takes his/her benefits on the spouse's account while continuing to work. At a later date the working spouse can switch to taking benefits on their own account without being penalized for the additional work.

Read the article and use its links to understand and implement the strategies. My point here is that your RIB can be used creatively in an overall financial plan to maximize income and benefits.

Lew Insler

Attorney Brian Anson will be one of the featured legal specialists at the National MS Society Legal Day on May 8, 2010 in White Plains, NY, sponsored by the MS Society's New York City-Southern New York Chapter. The Legal Day will provide a forum for attorneys and specialists to meet with individuals to consult on a variety of topics. Mr. Anson will be available to discuss Social Security Disability benefits. For more information or to schedule a consultation with Mr. Anson, please contact the MS Society by clicking here.

Last month, New York State's Office of Parks, Recreation and Historic Preservation proposed eliminating or limiting two categories of qualified persons under its Access Pass program, which gives reduced or free admission to parks, campsites, golf course and other state-operated recreational facilities. One category is the "semi-ambulatory." The other is people receiving any of several federal disability benefits: Social Security Disability, Supplemental Security Income and Railroad Retirement Board Disability. (For more information, see "No More Free Golf for the Not-Quite Disabled.")

While the impetus for this action was the abuses of the Disability system by former Long Island Railroad Employees, widely reported in the New York Times in 2008, the execution of the plan is faulty.

The proposed change states that while certain categories of people will still be automatically entitled to Access Passes (including the blind, the deaf, the nonambulatory, amputees, disabled veterans and the mentally disabled), people receiving Federal disability benefits, including the railroad benefit, would no longer automatically be qualified to receive the Access Passes.

It seems to me that whatever money might be saved by cutting off peoples' free access to walking and hiking trails, pools, boating--- and, yes, golf courses and snowmobile trails---will be substantially offset by the legal fees that will occur when the state has to defend a decision not to grant an Access Pass to a person determined to be "Disabled" by a federal agency such as Social Security or the Railroad Retirement Board who must now again prove 'disability' to a park ranger or some other employee of the state's Office of Parks, Recreation and Historic Preservation.

Gabe Hermann

Entitlement to Social Security benefits may come to an end for a number of reasons. I previously discussed medical improvement prior to the resolution of a claim, which can potentially entitle one to a closed period of disability. In the last blog, the focus was on a return to work after benefits have been granted, resulting in a cessation of benefits due to work activity. Benefits may also come to an end after the Social Security Administration conducts its own independent review.

A person receiving Social Security Disability or Supplemental Security Income benefits can expect to be reviewed every four or five years. This is the Administration's way of finding out if a payee is still "disabled," and hence, still eligible for benefits. They will start by sending a written notification announcing their intent to conduct a Continuing Disability Review ("CDR"). Just as medical evidence is required to establish initial eligibility, it is also necessary to prove ongoing entitlement.

If you need your benefits to continue, it is imperative that you remain under treatment by a medical doctor while you are on disability. Far too often, I've spoken to clients who tell me that they've stopped seeing their doctor because that doctor advised them that "there was nothing more he/she could do for me." While this may in fact be true, it will under no circumstances satisfy the Social Security Administration when they ask for proof that a beneficiary remains disabled. The Administration may require you to see one or more of their medical consultants while they review your continued eligibility. Should that doctor's opinion be unfavorable (as is often the case), the only way to combat it is by having a supportive opinion from your own doctor. Should the Social Security Administration have an unopposed medical opinion, it is highly likely that your benefits will cease.

The Continuing Disability Review process is determined in large part by medical support, but procedural matters can require the assistance of qualified legal representation. However, the most important thing a recipient of Social Security Disability or Supplemental Security Income benefits can do for himself is to continue seeing a medical doctor.

While medical improvement is ultimately the best a disabled person can hope for, there are certainly no guarantees that medical treatment will help. However, often thanks to talented medical professionals, treatment is successful and a disabled individual is able to return to work. This can happen at various times, be it while a Social Security application is pending, or after benefits have been granted.

Brian Anson

In my last blog entry, I discussed how a claimant's return to work while his or her Social Security Disability application is pending will not necessarily preclude an award of benefits. This may happen when medical improvement occurs, allowing the applicant to successfully re-enter the workplace. What happens if that medical improvement doesn't occur until after the claimant is already receiving Social Security benefits?

As previously noted, an award of Social Security benefits is by no means a declaration of permanency. In fact, the Social Security Administration offers incentives for attempting to return to work without fear of losing your monthly benefits. Any recipient of Social Security benefits will tell you that the monthly benefit amounts, while helpful, do little more than cover basic costs of living expenses.

There can be any number of reasons a disabled individual may want to attempt to work, but often it has a lot to do with finances. However, it is understandable that one may worry about losing the security of a monthly disability benefit by trying to work. Fortunately, the Administration's rules allow for a recipient to engage in a "trial work period" during which he or she may work and receive benefits. Nine trial work months are allocated to those receiving disability benefits, and they may be used consecutively or non-consecutively. While disability beneficiaries are obligated to notify the Social Security Administration of any work activity, it is especially important to do so after nine months, or risk owing the Administration money.

It bears noting that there are circumstances under which one may receive disability benefits without exhausting any trial work months, if earnings are minimal or special accommodations are made related to the work activity. An attorney who specializes in Social Security Disability and Supplemental Security Income is always one of the best people to consult if you have questions about work activity while receiving disability benefits.

For more information on returning to work, check out the article by Lew Insler and Gabe Hermann, entitled "7 Things You Need to Know Before You Return to Work."

Brian Anson

A common misconception among some Social Security claimants is that in order to receive benefits one must be "permanently disabled." Conversely, some recipients believe that once they are deemed "disabled" by the Social Security Administration, they are considered "permanently disabled." While many medical conditions may very well be permanent, a determination by the Administration does not guarantee lifetime eligibility. The ramifications of this fact are significant. In this, the first part in a series, I will discuss "temporary" disability and the availability of benefits for those who are out of work due to a medical condition but have every intention of returning to work at some point in the future.

Frequently, people become unable to work because of an injury, be it work-related or not. Often, the road to recovery involves surgical intervention. Depending on the nature and severity of the injury, it is perfectly reasonable that an individual will be unable to work until sometime after surgery and post-operative treatment is completed.

Social Security's regulations say that a claimant for benefits may be eligible if his or her medical condition will prevent him or her from working for a period of at least twelve months. Eligibility can also be found if that medical condition can be expected to prevent one from working for at least twelve months. A treating physician is generally the best person to determine the duration, or anticipation duration, of a disabling medical condition.

Those individuals who may anticipate a return to work following the onset of a disability should absolutely consult with a Social Security Disability attorney. That attorney will be in the best position to advise you as to your options. "Closed periods" of disability may very well be awarded to cover a claimant for only the actual time lost, assuming it is at least twelve months. As such, an anticipated return to the workforce should not act as a bar to an inquiry into eligibility for Social Security Disability benefits.

Brian Anson