I've always wondered how cars from different manufacturers can look so similar in the same model year. By the same token, how is it that Long Term Disability (LTD) has crossed the radar of two of the most respected organs of the national press just at the same time?

Why the articles are coming out now is clear: unemployed workers are looking for anything that will generate income, and individuals with disabilities are often more likely to be let go. We began to see this in our own practice in 2008. Although we represent the whole spectrum of the economy, from doctors to factory workers, when the economy began its downturn we noticed an obvious increase in the number of professionals seeking representation for both Social Security Disability and LTD claims.

In the past six months we have been getting referrals from a whole new source, as financial planners are starting to refer their clients to us. As their carefully constructed plans are incapable of execution once their client's income stream is cut off or constricted, they too have come to realize that some of their clients may be eligible for benefits.

We find these referrals to be among our favorites, as the financial planners take the same comprehensive view of their clients' finances that we take of their entitlement to benefits.

The Smart Money article points out that some insurance carriers hire their own "disability advocates" to help disabled workers file claims with Social Security. Although the mainstream press only hints at the potential conflict there, we have had many clients who realized it intuitively and came to us as soon as their insurance carrier tried to "assign" them an advocate.

The articles point out that fighting for both LTD and Social Security is a confusing and lengthy process. Anything a claimant can do to clarify his or her rights and shorten the time he or she has to wait for benefits is going to be a huge benefit. Getting a competent, concerned representative is the best way to start.

Lew Insler

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

All too often, potential clients will give me reasons for their inability to work which do not address these medical requirements and, if not for the guidance of an experienced Social Security practitioner, could very well doom a claim. One common example is, "no one will hire me with my medical condition." Another is, "I can't travel to and from work." While these two explanations may be factually accurate, they do not specify a medical reason for not being able to work. Not only do these fail to specifically answer the question being asked by the Social Security Administration, but they can actually irreparably damage your claim.

The Social Security Administration must determine if a claimant has a medical condition (or conditions) that prevent him or her from being able to work on a full-time basis for a period of at least twelve (12) months. To put it simply, they do not care if no one will hire you, or whether you can travel to and from a place of employment. They assume for purposes of their analysis that the hypothetical job is available to you and that the commute is not an issue. Once there, can you do the job? If you cannot for medical reasons, then benefits are potentially payable.

The potential harm done by answering the question by failing to state a medical reason is that it can imply your ability to work when you cannot. Therefore, it is imperative that a brief medical explanation be offered in support of a claim for disability benefits.

Brian Anson

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

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'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

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 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.

Thank you to all those who attended.

Gabe Hermann

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

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

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

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

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