In the most recent newsletter, Lew Insler discusses the negative ramifications of a recent Social Security ruling. To visit our newsletter online, click here.
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The Outcome of Your Social Security Disability Claim Often Depends on the Personality of the ALJ Who Decides Your Case
On April 13, I blogged about the recent lawsuit brought against several Queens ALJs, which claims that these judges show a pattern of bias against the disability claimants whose cases they decide. Last night I was discussing this lawsuit with Lew Insler, one of the partners at my firm, and we compared notes on our experiences before different judges throughout New York, New Jersey, and Connecticut.
Nothwithstanding my strong assertions regarding those Queens judges, I think it is important to point out that they represent the exception as opposed to the rule. In fact, I have found that the vast majority of ALJs are fair, just, and understanding individuals.
Disability claimants no doubt benefit by being represented by an attorney who is familiar with the unique personality of the ALJ before whom they may appear. For example, certain ALJs prefer specific types of evidence to assist them in making decisions, and an experienced attorney who has appeared before that judge would be aware of such requirements. Unrepresented claimants are at a disadvantage when they aren't familiar with the ALJ's approach to hearings and how he or she tends to interpret different types of evidence.
This merely goes to emphasize how important it is that your attorney knows not only the law but the ALJ who will be applying it to your particular case. While the vast majority of ALJs fairly apply the law, sometimes knowledge of these subtleties can make the difference between a favorable and unfavorable outcome.
Brian Anson, Esq.
At a Brooklyn Social Security Disability hearing a few days ago, I represented a young woman who had a number of medical conditions which prevented her from working - most notably, an inner ear condition which made it impossible for her to ride in elevators due to the rapid changes in pressure. Unfortunately, her hearing was scheduled for an office located on the 18th floor of the Brooklyn Hearing Office. Proper documentation was presented to the Administrative Law Judge to confirm her inability to take the elevator to her scheduled hearing. However, I asked her to nevertheless be present at the building, but to remain on the first floor as evidence to the ALJ that our client was most certainly interested in pursuing her claim - even if it meant taking her testimony telephonically. As a result of the evidence I submitted on her behalf, and statements to the ALJ, I was successfully able to obtain a fully favorable decision for her without the need for her testimony.
Needless to say, she was extremely thankful that (1) I was successful, and (2) that she would not have to subject herself to a great deal of discomfort at the prospect of taking the elevator to the 18th floor. It's these seemingly small things which mean a lot to our clients that makes me proud of what I do.
Brian Anson, Esq.
Having made court appearances in all of the New York metropolitan Social Security hearing offices, it was with particular interest that I read a story in this morning's New York Times about disability denials by judges in Queens, New York ("Suit Alleges Bias in Disability Denials by Queens Judges" by Sam Dolnick). According to the story, that particular hearing office has the nation's 10th highest rejection rate this year to date, and had the third highest denial rate from 2005 to 2008. A class action lawsuit has now been filed alleging bias by the Administrative Law Judges (ALJs).
Of course, this is no secret to local practitioners who will do all they can to avoid having their cases heard at the hearing office in Jamaica (and previously, Fresh Meadows). I can speak from personal experience as to some of the allegations made in this morning's article. In my 15 years of practice I've personally made well over a hundred appearances before the cited ALJs. As the New York Times states, often claimants and attorneys are indeed exposed to "combative hearings and a tone that one court called 'brusque, intemperate and unhelpful.'" Disability lawyer Troy G. Rosasco---a respected colleague who we at Insler & Hermann work with on a regular basis---was quoted by the Times as calling the Queens hearing office, "the Social Security system's Superfund site." The five cited judges have denied 63% of the claims they hear as compared to the national average of 36%.
Also quoted in the article was D. Randall Frye, President of the Association of Administrative Law Judges, who characterized the allegations of bias as "sour grapes." Speaking from personal experience, I can vouch for not only the high percentage of denials by these ALJs, but also an increased skepticism toward individuals who were not born in the United States or are otherwise unable to communicate in English. This is often reflected in decisions which challenge these claimants' credibility by stating that one cannot survive in this country without a basic knowledge of the English language. I'm sure those claimants would join local disability advocates in calling Mr. Frye's "sour grapes" characterization as more than disingenuous.
Brian M. Anson, Esq.
It's Not Just How Long You Can Sit or Stand: Oversimplifying Medical-Vocational Requirements in Social Security Disability Claims Fails to Give the Whole Story
Often, victory in a Social Security Disability case comes down to how much longer than two hours a claimant can stand in an eight-hour day. In certain cases involving claimants over the age of 50, we as practitioners take advantage of the Medical-Vocational Guidelines to show that while an older individual may be physically capable of engaging in alternate work activity, his or her age, education, and past work experience make it impossible or unrealistic for that individual to adjust to that kind of work.
In my experience, Administrative Law Judges (ALJs) frequently take advantage of the huge exertional differences between "sedentary" and "light" work - namely, the standing requirements - to deny claims under the Medical-Vocational Guidelines.
The Social Security Regulations classify how strenuous a job is and categorize it as anywhere from sedentary (i.e. a desk job with little or no lifting) to heavy (i.e. labor-heavy jobs requiring heavy lifting and little to no sitting). For the most part, the jobs at the heavier end of the spectrum differ only in terms of how much lifting is required. For example, the difference between a "medium" job and a "heavy" job is merely a 25-pound lifting requirement, as both require a six-hour daily standing and walking requirement.
Unfortunately, a disabled individual's abilities are frequently more varied than job classifications consider. An ALJ's decision to grant disability payments can often come down to whether he or she feels a claimant can sit for two or six hours in a workday. I've seen far too much abuse in this respect. For example, if a disabled individual can sit for only four hours in an eight hour day, it is more likely that the claimant will be found disabled under the Medical Vocational Guidelines. However, ALJs often view claimants' ability to stand for more than two hours as indicative of an ability to stand for six hours - a tremendous leap.
It is important for practitioners to be aware that evidence showing a claimant's ability to stand or walk for more than two hours if he or she is over 50 will not necessarily prevent a finding of disability. What is essential is stressing the definition of the exertional demands of certain levels of work. Likewise, potential claimants over the age of 50 should be aware that they may still be entitled to disability benefits depending on their past work, even if they feel that they could do some lighter duty job.
Brian M. Anson, Esq.
Once again, I am proud to be volunteering my time and expertise on disability law to the National Multiple Sclerosis Society when they hold their upcoming Legal Day on Saturday, December 4, 2010. I first participated in their regular event on May 8, 2010 alongside other professionals possessing different areas of expertise of particular interest to those suffering from multiple sclerosis.
At the last Legal Day, the issues presented to me covered a wide range of scenarios. Some were relatively straightforward, whereas others proved to be quite complex (though I personally enjoyed the challenge). Of course, the real reward is in helping those who come to the National Multiple Sclerosis Society for assistance. I've been assured that every appointment slot has been reserved by someone seeking Social Security assistance this Saturday. I am looking forward to offering my help to these individuals whose lives have been affected by MS as well as reuniting with the other professionals who also kindly volunteer their time and knowledge to such a worthy organization.
On this Veterans' Day, we all honor those who have bravely served in the armed forces in both their accomplishments and their sacrifices. Unfortunately, sometimes those sacrifices include debilitating medical conditions for which the veteran may be entitled to VA Disability Compensation. This is a benefit paid to a veteran based upon injuries or diseases incurred while on active duty and includes exacerbations of pre-existing conditions while on active duty. So long as the veteran has been discharged under non-dishonorable conditions, he or she may apply for these benefits.
The amount paid is based upon the degree of disability represented by a percentage of service-connected disability. Additional amounts can be paid for especially severe disabilities such as the loss of a limb, and may even be paid to family members. The application process may be commenced by filing a VA Form 21-526 and by presenting discharge papers, dependency records, and medical evidence.
As with Social Security Disability benefits and Long Term Disability benefits, medical documentation is especially important to establishing the degree of disability as well as the degree to which an exacerbation of a pre-existing condition may be service-connected. As such, good medical documentation is one of the most important evidence that can be presented to maximize the veteran's potential benefits amount.
Over the weekend, I had the privilege of addressing approximately 30 members of key staff and parents of members of the POINT (Pursuing Our INdependence Together) program in White Plains. The parents in the group have disability-entitled children who live independently with some support from WJCS (Westchester Jewish Community Services) and JCCA (Jewish Child Care Association). The groups are non-sectarian despite the names of the organizations.
As many of the program participants receive SSI or Social Security Disability, many of the parents have expressed concern over how their pending retirement could potentially affect their child's continued eligibility for both SSI and SSD benefits. In addition, these parents were curious as to how familial financial support might affect the children's continued receipt of SSI benefits which limit certain financial contributions from third parties.
What commenced was a lively discussion of Disabled Adult Child benefits, special needs trusts, trial work, and SSD eligibility for children who formerly were eligible only for SSI benefits. The participants were clearly educated in some aspects of the law and it was my pleasure to engage in this level of discussion with parents who clearly are looking to better the lives of their children within the confines of the rules and regulations of the Social Security Administration.
Marion Morgenthal, Founding Chair of the POINT program, wrote me a kind note the following day:
Thanks so much for coming and spending time with our families this morning. As was obvious from the spirited discussion, and the large number of questions, this is a topic that resonates with our folks, and about which there is much confusion. The information you shared was tremendously helpful, and the feedback I got from the attendees after the meeting was unfailingly positive.
So, thanks again for sharing part of your Sunday and much of your expertise with us!
My special thanks to Ms. Morgenthal for giving me this opportunity to share ideas with her program.
This Sunday, October 24, attorney Brian Anson will be the featured speaker at a meeting of POINT (Pursuing Our INdependence Together), a program run by the WJCS (Westchester Jewish Community Services). POINT is a non-sectarian program designed to provide assistance so that developmentally disabled and learning disabled individuals can live independently.
Mr. Anson will be discussing the impact of parent retirement on disabled offspring Social Security Disability and SSI benefits, and how any financial parental support of the disabled individual might affect SSI and food stamps, both eligibility and the amount of benefit received.
For more information, please contact our office or visit WJCS online at http://www.wjcs.com/index.php?src=gendocs&ref=POINTProgram&category=Special%20Needs.
Last month, Social Security Disability claimants' advocates from around the country gathered for their fall conference hosted by the National Organization of Social Security Claimants Representatives (NOSSCR) in Chicago, Illinois. Insler & Hermann was represented by senior partner Lew Insler and myself. Approximately 1200 members attended the three-day conference to learn the latest developments in the practice area and to exchange information. In attendance were not only claimants' representatives, but federal judges, vocational experts, physicians, and employees of the Social Security Administration.
Workshops covered a wide variety of topics, including the Social Security Administration's increasing use of the internet for transactions and file review. With the recent passage of healthcare reform, there will be new issues to be considered by practitioners when filing disability claims. Ethical considerations are emphasized as they should be. Some workshops were focused more on specific medical conditions such as multiple sclerosis, cancer, visual disabilities, and even spinal disorders, where attendees got a first-hand look at the anatomy of the spine. These conferences allow advocates to learn from our peers and better serve our clients.
Just a reminder, our office is now on twitter, and I'd encourage you to follow us @InslerHermann where we'll be posting recent legal developments, firm announcements, and news about our involvement in the community.
A hearing before an Administrative Law Judge is perhaps the most crucial stage in your claim for disability benefits. It is the only time you will go face to face with the individual who is going to determine your eligibility for benefits. Just as important as what is said at the hearing is what is not said. Here, you have the opportunity to present your "story" to a captive audience.
By way of background, the hearing itself is somewhat informal, though basic rules of evidence do apply. It can last anywhere from twenty minutes to an hour on average, depending on who else may be present at the hearing. In addition to the Administrative Law Judge (ALJ) and the claimant, the Judge has a hearing assistant handling essential clerical duties as well as recording the proceeding for record-keeping. Other possible parties present include medical experts and vocational experts upon whom the ALJ may rely for clarification of the record. They are not necessarily present at every hearing, but their role is simply to offer testimony on matters beyond the ALJ's expertise.
One party that not present is an attorney representing the Social Security Administration. This is a significant difference from what most might expect from a courtroom experience. There is no advocate from Social Security who is there to "cross examine" you or otherwise challenge allegations made by you. Of course, the ALJ may ask you to explain inconsistencies during the testimony phase of the hearing.
During that phase, you will be asked questions under oath by the ALJ about three primary topics: (1) background information such as age, education, and work experience; (2) your medical condition and reasons for claimed disability; and (3) how daily activities have been affected by your medical condition. Of course, if you are represented by counsel, the attorney also has the right to develop the record by asking questions as well as making arguments in support of the claim.
Unlike the vast majority of the application process, which is primarily performed by exchanging paperwork, the hearing is the one instance where both the claimant (you) and the Social Security Administration are literally placed in the same room face to face. As such, what occurs during that hearing perhaps has a greater impact on the outcome of a claim than any other stage of the process.
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.
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.
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.