New York Social Security Disability Lawyer Blog

Here at Insler & Hermann, we have found that winning a Social Security Disability claim is the result of dozens, if not hundreds, of separate action steps taken by our dedicated attorneys and staff. No one particular step is any more important than another, and there is usually no single thing that can be singled out as the reason a case is won. It's the combination of everything we do that leads to favorable decisions.

Our work is not over when a favorable decision comes in, however. In fact, it is at that point that we do for our clients what I consider to be the single most important thing: review their award certificate, the document that explains their retroactive and ongoing payments and the attorney's fee. Mistakes in that document are common, and a claimant who has never seen one before doesn't know what to look for.

In our office, we take this review very seriously, and our entire staff is vigilant to catch mistakes made by the Social Security Administration. Recently Stephanie Burkland, our longest serving paralegal and a former Social Security employee, took that to heart and wound up causing Social Security to change what they do on a regional, if not a national basis!

If a claimant's disability is found to have ended due to improvement in his or her medical condition, either based on the hearing decision or after the person has been approved and is receiving benefits, he or she is entitled to an additional two months of benefits after the month in which the improvement occurred.

Recently, in a short period of time we heard from three different clients who were in that situation. When the notices about the suspension of benefits came to our office, Stephanie found the same mistake in all three of our clients' award certificates. In each case they had been paid through the month before the SSA determined they were able to go back to work, but no payment had been made for the extra three months!!

Using her contacts at Social Security, Stephanie alerted the management of the Payment Center that is responsible for most of our clients as to these mistakes, and called their attention to what appeared to be a systemic flaw in the way that benefits were being awarded. They were very appreciative and after checking into the problem, they let Stephanie know that they had instituted changes to make sure that all benefit analysts, many of whom are new to the job, knew of the provision ensuring that the additional three months would be paid in all closed period cases!!

Kudos to Stephanie for helping not only our clients but countless others to receive all the benefits to which they are entitled! As our Insler & Hermann Mission Statement says: we pursue claims vigorously, maximizing benefits to which our clients are entitled!

Lewis B. Insler, Esq.

A new government report released yesterday estimates that the Social Security Disability trust fund will exhaust its reserves in just four years, two years earlier than previously projected. Obviously, this is a disaster for the millions of disabled Americans who apply for disability benefits each year.

I have been saying for years that there are three options to deal with this: raise taxes, raise the entitlement age (for retirement), and means testing. The corollary to means testing for Social Security Disability is to raise the age brackets in the Grids, the Vocational-Educational guidelines under which many cases are decided. That is, what used to lead to a finding of disabled say at age 50 or above would now not be disabling until 54 or 55.

In 2011, the payroll tax was lowered in order to spur economic growth. Unfortunately, cutting the payroll tax, while palatable to working Americans, is clearly part of why the date for "exhausting" the trust funds keeps getting closer. It really is time for the government to face up to this and I believe that they are going to do a little bit of all three potential fixes, though the one that "works" best is not only reinstating but further raising the payroll tax, because it guarantees more money is paid into the system. The age and means testing save money but the amount that is actually saved is never certain.

Although today's news today is grim, I see this as nothing new. The time for change was about ten years ago but perhaps this current scare will finally force some long overdue action on the part of the politicians.

Lew Insler, Esq.

The Social Security Administration recently announced that they will no longer inform disability claimants which judge they will be assigned to for a hearing. I believe that this policy, instituted in response to "judge shopping" by some of the large national disability advocates, will have negative ramifications for disability claimants.

You can read more about this important new ruling by Social Security and my thoughts on how it will affect disability claimants in the article I wrote by clicking here.

Lew Insler

In the most recent newsletter, Lew Insler discusses the negative ramifications of a recent Social Security ruling. To visit our newsletter online, click here.

September 11, 2011: I had a hard time watching the reading of the names of the dead this morning. Whatever you might think about how our country has responded to the events ten years ago, our thoughts are with the innocent people who died due to the cowardly acts of terrorism perpetrated on September 11, 2001 and the brave people who died trying to help save them. I am planning to visit the site later this month to pay my respects in person when I will be serving as an arbitrator in the Wall Street area.

Lew Insler

One of the hardest things for anyone to do is to really see things from someone else's perspective. As a lawyer I can tell you that sometimes things seem so obvious to us that we can't imagine why our client or potential client, or even our adversary, doesn't see it or didn't do it.

In preparing to meet with a financial planner recently my wife and I had to complete a worksheet so that he could understand our issues and concerns. One of the things it asked for was to list our Long Term Disability policies. Although I have been practicing disability law for over 30 years and can't imagine how many times I've told people (not clients---by then it's too late) to get disability insurance and to make sure they increase it as their salary increases, when I got to that part of the form I must admit I was at a loss.

I thought I had a Long Term Disability policy for myself for one amount and two for my wife. Coincidentally, I had just received a solicitation from the insurance company asking me to increase the coverage and it stated I had a far different amount of coverage in force than I thought. I sheepishly told the planner that even though this is my field, I really was unclear about my own coverage.

It turns out when I went through the policies a few days later that in fact I had two policies, and they actually totaled more than I thought! As for my wife, her two policies were there, but I really couldn't tell the amount of coverage without making some additional phone calls.

So the moral of this story is that once again, like the "caregiver" entry from last year and maybe one or two others I've posted here, I once again have a better insight when I meet with people who don't know if they have insurance, or what the coverage amounts are.

And for all of you, go check now. And make sure your coverage has kept up with your salary!

Lewis B. Insler, Esq.

Many people receive both Social Security Disability and Workers' Compensation benefits. Although we see it far less often than we used to, there are still people who believe they can't receive both, and delay applying for SSD until they settle their Workers' Comp claim. I interviewed a new client recently who told me that his Personal Injury lawyer told him to delay applying!! (I think he was probably worried about a lien on the Personal Injury case, another widely held piece of misinformation.)

When you receive benefits from both sources there is a limit on the total benefit amount, however. The total of your Workers' Compensation and SSD benefits can't go over 80% of your best calendar year's earnings, if that was within the last five years of work. (If your best earnings were before five years from the onset of disability, the 80% amount is calculated differently.)

If the total is greater than this 80% figure, Social Security will first reduce auxiliary benefits (for minor children), if any, and then the primary benefit amount in most states. In some states, called reverse offset states, Workers' Comp benefits are reduced while full Social Security is paid. Whenever there is an offset, any COLA (Cost of Living Adjustment) will still be paid, however.

There are two other scenarios that occur frequently with Workers' Comp offsets. If a Workers' Comp case is settled with a lump sum paid out, Social Security will allocate the settlement over the weekly amount that is indicated or was being paid previously, and thus any offset will continue for the number of weeks the settlement represents. After that time there will no longer be an offset.

The other common scenario is that Workers' Comp stops when a personal injury case is settled. In many cases the Workers' Comp carrier is paid back from the settlement. To the extent that the lien is repaid, Social Security considers that amount of Workers' Comp as if it were never paid to begin with and any offset that might have been taken will be sent as a lump sum to the claimant.

The important points to remember from this are:

For more information on receiving other benefits at the same time as Social Security disability, visit the FAQ page of our website.

Lewis B. Insler, Esq.

The Social Security Administration has indicated that if there is a government "shutdown" there are certain critical functions that they will continue to perform. The most important ones relating to the disability process are that they will continue to accept and evaluate new applications and will continue to hear cases already scheduled and decide cases that already have had hearings.

However, no new hearings will be scheduled and decisions will not be written (although the claim will be decided), even if the hearing was held before or during the shut-down.

Regular payments will continue to those already receiving benefits, and the state agencies will continue to process initial claims and reconsiderations.

The entire contingency plan can be found here.

Lew Insler, Esq.

Within the disability spectrum, our clients who suffer from Multiple Sclerosis tug at my heartstrings just a little bit more than most. Perhaps because they are invariably vibrant, successful people who are totally blindsided by the disease, they are very sympathetic clients and we usually expect their claims to be decided favorably.

However, there are two reasons why winning an MS disability case is not always as easy as it might appear at first glance.

The first is that in many cases, people suffering from MS are not actually diagnosed or treated until many years after their symptoms arise. They might see many doctors before they are correctly diagnosed, or they might not see a doctor at all. Just this week I reviewed a set of records where the claimant was diagnosed with MS and spent the next year treating for Lyme Disease before accepting that MS was the cause of his problems and starting to take Copaxone.

The result of a delayed diagnosis in some cases is a loss of retroactive benefits. In the worst case scenario, a correct diagnosis is not reached until after the claimant's disability coverage has expired, and no claim at all can be brought. Other than asking a doctor for a retrospective opinion, which the judges often do not credit, we can't do much about this problem.

The other reason that MS claims can be tricky to win is that very often the medical records don't contain all of the claimant's relevant medical complaints or they state that the claimant is "doing well." There are two reasons that happens, and both can be dealt with by an experienced attorney.

Often, patients don't tell their doctors the full extent of their problems, and sometimes the doctors either are not paying attention or do not see the need to record the patient's medical complaints in detail. Both of these situations can be remedied by having the client make a special appointment with their physician to go over their complaints, and to make sure that their chart is accurate and that the doctor notes the length of time the complaints have been present.

When the records say "doing well," it usually means "no change," or is in relation to a baseline that relates to the patient's medical condition, not that he or she has no problems or limitations. When we see a notation like that in the records, we have the doctors complete a Functional Capacity Assessment in which they have to note the patient's specific limitations and the findings that support them. Most neurologists who deal frequently with MS patients are quite willing to complete these forms for us.

My best advice to anyone with MS fighting a disability claim is to seek treatment immediately, and make sure to tell your doctor about all of your medical complaints. And that goes back to what I always tell ALL of my clients when they ask me "what do I have to do?" I tell them: "your job is to try to get better, and we'll take care of your claim."

Lew Insler, Esq.

One of the things I do often, but especially as the year ends, is check the numbers surrounding our Social Security Disability cases. As I do that this year there are two numbers that come together in a way that I think shows a lot about who we are and what we do.

We always ask all of our clients how they were referred to us. I am happy to report that the percentage referred by previous clients keeps going up. That shows that we are not only doing our job, but doing it well. As in any business, satisfied customers are your best source of goodwill and free advertising.

The other number is the percentage of cases we win at the Initial Application (IA) level. We win just over 50% of our claims at IA when we get to file the claim. The nationwide average is only 36%, and even though the states in which we practice have the highest percentage of IA wins, I think our number is still impressive, since we do not get that many "presumptive disability" or "compassionate allowance" cases.

We are winning cases at Initial Application and getting money into our clients hands many months sooner than if they had filed on their own and had to wait for a hearing, or if they had gone to another firm that told them, as many do, to file the Initial Application themselves and come back when they were denied.

The result is obvious: we have more and more satisfied clients who mention us favorably. I would certainly like to thank them; but I think the thanks also has to go our staff of excellent paralegals, who file the claims and make sure the records get to Social Security so that our deserving clients win sooner rather than later and become spokespersons for the job we do!

Lew Insler

On November 14th Andrew Biggs wrote an op-ed piece in the NY Times pointing out that Disability is the fastest growing piece of the Social Security pie and implying both explicitly and implicitly that many recipients are unworthy. Mr. Biggs suggests that allocating more money to the CDR's (Continuing Disability Reviews) would be wise and would save money by assuring that only the disabled remain on the rolls.

His assertions contain two major fallacies. First, as one who has practiced Disability Law since the 1980's I can assure you that Congress did NOT pass "looser eligibility standards in the 1980's." What actually happened then was that the governors of all 50 states (the states being contracted by Social Security to do the initial determinations and CDR's) were so appalled by the Reagan Administration's attempt to limit the number of new beneficiaries and squeeze those already receiving benefits that they refused to execute the policies set forth by that Administration. In response, Congress passed laws that clarified the current methods and how they were to be applied.

The second fallacy in Mr. Biggs' argument is that costs have risen because increasing numbers of claimants hire attorneys, causing the SSA to lose two-thirds of claimants' appeals against denied benefits. The reason that the SSA loses two-thirds of the appeals of initial claims is because the State Agencies still routinely deny valid claims. Mr. Biggs suggests giving more weight to the agency's expert witnesses; these so-called experts, who are paid by the SSA, routinely give cursory or worse examinations.

According to Mr. Biggs' own figures, disability payments make up only 18% of the total Social Security expenditures. By Social Security's own numbers, only 5% of the people whose claims are reviewed lose their benefits. That means that 95% of the people who are receiving benefits deserve them. It is astounding for Mr. Biggs to suggest that tightening up regulations would get rid of unworthy beneficiaries, thereby significantly reducing expenditures.

Finally, it should not go unsaid that two-thirds of the people who are denied by Social Security never even bother to appeal. The real tragedy is the number of people who are disabled and deserving of benefits, but who are too discouraged to fight for them.

Lew Insler

Congratulations to Lew Insler, whose latest article, "Disability Alphabet Soup: Sorting Through the Maze of Legal Abbreviations" was just published by DisabilityWorld.com. It reviews a long list of legal abbreviations, mostly disability claim related, and explains how each one may relate to your case. Written in a light and humorous style, the article is written for anyone who is confused by all the legal mumbo-jumbo surrounding his or her disability claim.

About a year ago, the Poughkeepsie Social Security Office and the Hearing Offices moved to a new shared space. Now there is a common waiting area, and while we wait for our clients' hearings we see and hear everyone who is waiting to speak with Social Security for every other reason.

Frequently you can hear both sides of the conversation, and while the Social Security employees are unfailingly courteous, at times their answers are not as complete as the inquiry demands.

But the one thing that jumps out at me is how often people are shuttled back and forth between Social Security and the County Department of Social Services before an issue is resolved. The reasons this happens are many, but the occurrence is so frequent that it seems like there needs to be a "hot line" between the two agencies.

Here is my suggestion: either have each office designate a specific person to handle the interface, or have both offices be ready, willing and able to do a conference call whenever the need arises. If they created such a system, the time savings would be instant and significant. When a problem can be solved with one visit and one call, instead of multiple visits to each location, each agency is freed to handle other work more expeditiously.

Obviously one agency is Federal, while the other is County, and that may cause this to be harder than it seems. But the need is so obvious that I am going to ask a friend who runs a local Social Security office what she thinks about it.

Lew Insler

I am excited to announce that I will be making a joint presentation with Dr. Rochelle Mozlin, an optometrist, at the annual conference of the College of Optometrists in Vision Development (COVD) on Wednesday, October 13.

Dr. Mozlin and I are presenting a joint poster entitled "Social Security Disability: Understanding and Navigating this Medical-Legal Quagmire." The poster outlines the medical requirements for a legal finding of disability for claimants with visual impairments, and advises optometrists as to what information should be in reports and evaluations in order to best support their patient's claim and enable the adjudicators to make a favorable determination of disability.

COVD is a non-profit, international membership association of eye care professionals that provides board certification for eye doctors and vision therapists who are prepared to offer state-of-the-art services in Behavioral and developmental vision care, Vision therapy and Visual rehabilitation. These specialized vision care services develop and enhance visual abilities and correct many vision problems in infants, children, and adults. A poster session is typical at academic conferences, and will contain the research and efforts of dozens of presenters. Dr. Mozlin and I will be available to answer questions regarding the poster and the entire topic as the doctors pass through the room in which all the posters are displayed and their presenters await.

The lawyers at Insler & Hermann frequently make presentations to lay and professional groups, but we have never had the opportunity before to explain to such a large group of medical providers what should or should not be in their reports to best help their disabled patients. We have found that most medical professionals DO care about their patients' disability claims, but are often unaware of what would be the best way to assist them. Simply stating "my patient is disabled and cannot work" is not going to help a determination of legal disability. The field of vision loss is especially complicated, and the poster we are presenting will point out the best practices proving disability based on visual impairments.

Lew Insler