New York Social Security Disability Lawyer Blog

A little while ago, I was reminded about an article that I read in the Wall Street Journal in November, 2009 about how a woman lost her Disability benefits when her Long Term Disability Insurance carrier accessed her Facebook postings. Based on photographs of her on a beach during a vacation and celebrating her birthday in a nightclub, the carrier had discontinued her disability benefits. (You can read more about this individual case here.)

News reports of this case cited the LTD insurance carrier, who claimed that while they use Facebook and other social media cites as "checks" of their claimants, they do not rely exclusively on them. Yeah, right!

Even before I read that article I recognized that the persona someone tries to convey in Facebook, MySpace, Twitter and even professional networking sites such as LinkedIn and Plaxo, are not necessarily reflective of what is really going on in that person's life.

Just today, while reviewing my notes on one of my clients, I remembered that when we first met she had indicated that she was very computer savvy and that she had accounts on a variety of social networking sites. Out of curiosity, I went to two of those sites and discovered that she had never changed her status on the professional site, which indicated that she was still working as a consultant---information that I know for a fact is no longer true. On the social networking site I saw photos of my client smiling and read public posts informing her online friends that she is doing "amazing," and "great," and publicly announcing her activities of the day and what's on her mind.

While I know for a fact from a lengthy discussion with my client's psychiatrist that my client is not doing amazingly well and that her online ramblings are actually reflective of her mental illness, I also know that if a Long Term Disability carrier's investigator or a Social Security claims analyst were to Google my client, they might draw the mistaken conclusion that my client is not disabled and should thus have her claim for Disability benefits denied.

While there is nothing that I can do to prevent my clients from using the popular social networking sites, since the popularity of these sites has grown I have encouraged every one of my clients that at the minimum they should check their privacy settings to make sure that the public does not have access to their private information. While this certainly will not prevent someone with malicious intent from accessing information reserved for online friends, it will certainly make it more difficult to access that information. With regards to the professional networking sites, all I can recommend is that people find a way to suspend their account or provide only the bare minimum information. I understand that today's computer savvy professionals, be they lawyers, health professionals, businesspeople, teachers, social workers or construction workers, all want to maintain online professional networks of colleagues and friends. However, I am deeply concerned that the appearance of being actively involved in a work-like environment can be misconstrued and result in the denial or suspension of disability benefits.

I know that I am very careful with what information I allow my kids to let loose in the cloud of the internet. At this point, I encourage my clients to think the same way about their own information. The key is maintaining close control of private information. When you are either trying to get Disability benefits or are in pay status, there is always someone looking over your shoulder at the pictures you post and the things that you do. All I can say is don't make it easy for them.

Gabe Hermann

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

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

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

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

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

A bit of good news was announced today by the Social Security Administration: The Federal Register reports that the Attorney Advisor program has been extended to August 10, 2011.

This program, which applies to Social Security Disability claims, authorizes attorney advisors to conduct certain pre-hearing procedures and to issue fully favorable decisions after a Disability claim is appealed to the Office of Hearings and Appeals. The program had initially been slated to expire on August 10, 2009, so this two year extension is clearly an acknowledgement of the success of the program. The Federal Register acknowledges that "[t]he attorney advisor program is an important part of our ongoing efforts to decide cases efficiently, issue decisions timely, and reduce the number of claims pending at the hearing level."

As a Disability attorney I view this news extremely positively. What it means is that if a case is strong enough to win without a hearing, there are additional people, besides the VERY busy Administrative Law Judges, whom I can approach to discuss the merits of a Disability claim.

Ultimately, what the extension of this program means is that some claimants will get favorable resolution of their claims without waiting the full 12-24 months that is typically expected to have a hearing.

Gabe Hermann

I had the pleasure of giving a Seminar on Social Security Disability Rights a couple of weeks ago.

In response to a question about who is present at a hearing, I mentioned the possibility that in addition to the Administrative Law Judge, the claimant and myself, it is possible that a medical expert and/or a vocational expert would be present. I explained that the role of the Vocational Expert is to identify jobs that exist in the national economy that a hypothetical person with the claimant's limitations might be able to perform. Then I told the story of a recent hearing that I had, where the Vocational Expert identified the job of a Pneumatic Tube Operator! This job, which is basically that of a mail sorter, existed in large numbers 40 or 50 years ago. However, today the vocation of Pneumatic Tube Operator has been superseded by mail sorters, intra-office delivery people, intra-office computer messaging, and email. While I have seen pneumatic tubes in drive-through banks and pharmacies and at the Home Depot, people tend to use these systems while performing their 'real' jobs, whether as bank tellers, pharmacists or cashiers. This brings me to my point.

This morning I received an email from the National Organization of Social Security Representatives (NOSSCR) reporting that the Social Security Administration was investigating options moving away from the Department of Labor's "Dictionary of Occupational Titles" (where Pneumatic Tube Operator was an active job title). The problem is that the O*NET, which is the replacement product that the Department of Labor uses for their own purposes, works for them but does not meet Social Security's needs.

To that end, SSA has promulgated "Plans and Methods for Developing a Content Model," to work through the problems they see in describing jobs, and to figure out just what the physical and cognitive expectations of various jobs are and how best to present that information, so that fact finders at Social Security have all the information they need to fairly and efficiently assess claims for Disability.

Members of NOSSCR have been asked to offer input and discuss how problems presented by the aging " Dictionary of Occupational Titles" (such as listing obsolete jobs) should be addressed. I look forward to offering my thoughts as this process progresses, and I hope that the final product adopted by the Social Security Administration will be more in line with the realities of the modern job market.

Gabe Hermann

Recently it's been brought to my attention that the Westchester Department of Social Services has contracted with an organization based in Idaho to handle Social Security Disability claims for some of their local clients.

While it is certainly wonderful that members of New York's most underserved population have access to assistance in obtaining their Disability benefits, it is disturbing to me that the DSS feels the need to contract that service out of New York State.  What I find appalling, however, is that the DSS actually encourages--dare I say--pressures their clients to utilize this service even if those clients have already retained my services.  One of my own clients came to me this week, confused and upset that he was being told by DSS to discontinue his relationship with me.

As an attorney who has been representing Disabled individuals in the Social Security process for over a decade, I know better than most how important it is that a claimant be represented throughout the Disability process, and I am thrilled that people are being encouraged to obtain representation and assistance with their claims.  At the same time, it is frustrating to me that my clients are being pressured to reconsider their choice of representative, and being encouraged to develop what would essentially be a phone relationship with an organization based 2600 miles away, creating a situation where they will never have the opportunity to meet their attorney or any of the staff handling the case.

Gabe Hermann

Having just returned from the National Organization of Social Security Claimants' Representatives (NOSSCR) conference in Washington D.C. last week, I have some good news and some bad news to share.

The good news is that the Social Security Administration is aggressively working on making my work representing disabled claimants in their Social Security Disability claims a little more productive, and thus potentially allowing me to help my clients get their Disability benefits faster.  The Federal Government is working hard to reduce delays and backlogs in the processing of Social Security Disability claims by improving technology and by executing  plans to hire hundreds of Administrative Law Judges and thousands of employees to work in the Social Security Administration's District Offices and at State Offices of Disability Determination (the State Agencies).

The bad news is that even as the Federal Government is making progress in reducing delays and backlogs, state governors continue to proceed with their plans to furlough State Agency employees, despite the fact that Commissioner of Social Security Michael J. Astrue has repeatedly made it clear that rather than fire or furlough State Agency employees, he wants to hire more. 

At the Conference, Commissioner Astrue specifically identified New York State, reporting a planned 8% cut in the staff of the New York State Department of Disability Determinations even as Social Security is prepared to increase that staff by 15%!  As I've noted in prior posts, furloughing those workers at the Department of Disability Determination has no positive impact on the New York State budget and, instead, only causes lengthier delays in processing the claims of our most vulnerable disabled citizens.

Returning to the good news: thanks to the efforts of the Social Security Administration on a federal level, the improvements in technology should have an obvious positive outcome.  It is expected that by the end of 2009, both  attorneys and claimants' representatives will be able to access our clients' Disability files directly online without waiting for Social Security employees to create a CD of the contents of the Administrative file.  This will enable representatives like me to provide more medical records to the fact finders sooner than otherwise, because I'll have the opportunity to review the claims file and avoid providing duplicate evidence.  Also, the sooner I have the opportunity to review the Disability claims file, the more likely I am to be able to flag it for specialized review. 

If only the State Governors would stop furloughing State Agency employees, I believe we would see a real difference in how much more quickly Social Security Disability claims could be processed.

Gabe Hermann

In a disturbing new trend, governors throughout the country have been initiating furlough programs forcing state employees to take days off from their jobs, in an effort to reduce costs by cutting back on spending at the state level.  These furloughs directly affect Social Security Disability claims adjudicators and processors, thereby directly impacting the speed with which disability claims are processed. 

Although people who work for state Disability Determination Services are employed by that individual state and not by the Federal government, the Federal Government reimburses the states those workers' full salaries and the cost of benefits provided to them.  Incredibly, Commissioner of Social Security Michael Astrue noted in an interview with The Federal Times published on April 8, 2009 ("State Furloughs Displace SSA Employees, Slow Claims Processing," by Rebecca Neal) that while representatives from the states acknowledge that the DDS workers aren't costing the states anything, and clearly recognize the ramifications that furloughing this group of state workers has on the disability claims backlog and thus on the welfare of their citizens, they have nevertheless decided not to exempt DDS workers from the furlough "out of a sense of fairness to other state employees." 

It's incredibly counter intuitive.  In an effort to cut costs, state governments are furloughing employees paid for by the Federal Government.  The result is that the backlog in Disability cases increases, the furloughed employees don't get paid and thus can't contribute to the state economy, and the states lose the money that they would otherwise receive to pay the DDS workers, thereby also losing the ability to tax those workers' salaries!

As Commissioner Astrue puts it, "it's clearly a triumph of spin over compassion."

Gabe Hermann

I mentioned in a previous post that the Social Security Administration had announced it was going to issue checks to all adults who were presently receiving Disability payments. Among the provisions of the American Recovery and Reinvestment Act of 2009--commonly referred to as the Stimulus Bill--is a one-time $250 stimulus payment to be made to qualifying Social Security beneficiaries.

In a press release issued on March 26, 2009, the Commissioner of Social Security and Vice President Biden announced that those checks--to Social Security Disability and Supplemental Security Income beneficiaries who were eligible for Disability benefits in November and December 2008 and January 2009--would be sent out by the Social Security Administration beginning in early May.

The announcement that the money will start going to people presently in 'pay status' with Social Security is terrific news. However, I, together with my colleagues and the members of Congress, continue to be frustrated by the Social Security Administration's backlog of cases.

The U.S. Government has now allocated over $100 million into the Social Security system in order to reduce backlogs in the disability claims process. Yet despite this enormous infusion of cash, the Social Security Administration has not decreased its overall backlog of cases. In fact, while the backlog has decreased in some areas, it has increased in others. This means that for the most part, the people who are waiting for decisions from Social Security continue to wait longer and longer to get decisions at every step in the Administrative process.

The sentiment in Washington, with which I wholeheartedly agree, is this: with an annual budget of $11 Billion and a work force of 63,000 people in 1,300 field offices nationwide, you would think that the Social Security Administration would be able to fix its backlog problem.

Gabriel Hermann

Good news from the Stimulus Package for people who elected to continue COBRA coverage after losing their jobs! Among the benefits offered under the American Recovery and Reinvestment Act of 2009--also known as the Stimulus Package--are new changes to the COBRA benefits.

Individuals who were involuntarily terminated on or after September 1, 2008 and before January 1, 2010, who elected to continue health care coverage under COBRA, are provided a subsidy equal to 65% of the premium for COBRA payments for a period of coverage for up to 9 months.

Even those who are eligible for the subsidy who did not elect COBRA as of the date of enactment of the law may elect COBRA from February 17, 2009 until 60 days after receiving notice of this special election period. The provision also permits group health plans to provide a special enrollment right to eligible individuals, allowing them to change coverage options under the plan in conjunction with electing COBRA continuation coverage.

Please note, though, that if the premium subsidy is provided with respect to any COBRA continuation coverage which covers you, your spouse, or any of your dependents during a taxable year in which your modified adjusted gross income exceeds $145,000 ($290,000 for joint filers) then the amount of the premium subsidy for all months during the taxable year must be recaptured. The subsidy is repaid proportionately for individuals with adjusted gross income between $125,000 and $145,000 ($250,000 and $290,000 for joint filers).

What does all this mean for you? In plain terms, if you were terminated from your job for any reason, it won't be as difficult to continue to pay for medical care necessary to treat a disabling condition. While this provision of the Stimulus Package does not specifically focus on individuals who have filed for Social Security Disability benefits, it is nevertheless great news for the millions of people who have been relying on a spouse's or parent's health insurance coverage to obtain medical care to treat disabling physical and mental conditions.

Gabe Hermann