New York Social Security Disability Lawyer Blog

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

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

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

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

Lew Insler

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

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

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

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

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

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

Lew Insler

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

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

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

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

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

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

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

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

Lew Insler

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

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

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

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

Lew Insler

The mainstream press has suddenly taken an interest in Long Term Disability Insurance. The February 2010 issue of Smart Money Magazine (published by The Wall St. Journal) contains an article entitled "Too Sick to Work? They Disagree." The same week this article hit the stands, The New York Times weighed in with "The Odds of a Disability are Themselves Odd."

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

Our firm's Social Security clients are served mostly by three hearing offices: White Plains (NY), Albany (NY), and Newark (NJ). According to the NOSSCR Social Security Forum, December 2009, the average processing time for the White Plains office is 430 days (63rd out of 143 nationwide), Albany is 466 days (88/143) and Newark is 488 days (100/143).

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

By now you have probably heard about the tragic shooting in a Las Vegas courthouse on Monday. Police believe the gunman's motive was anger over the dismissal of his Social Security benefits claim.

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

Many of our clients have Workers' Compensation cases going on at the same time we are representing them in their Social Security Disability or Long Term Disability claims. Having handled the Workers' Comp claims myself for over 20 years before turning exclusively to the other areas gives me a leg up on maximizing client benefits and explaining the interplay between the two.

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

I just reviewed the case of a claimant (we'll call her P) who first got hurt in 1998. P worked until the end of 2001 and claims that she became disabled in February 2002. The problem is, P never filed for disability benefits until August 2008! She came to us in March 2009, after her claim was denied and she filed for a hearing.

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

The Social Security Administration is scheduling video hearings more and more frequently. We, and many of the Judges with whom we have discussed this, do not really like them. We advise almost all of our clients to decline the video hearing and request an in-person hearing---something to which every claimant has an absolute right under the current Regulations.

Why are we against them? You can judge a lot more about someone in person than you can on a two-dimensional TV screen, no matter how big it is. Think about how different it is watching a ball game at home versus being at the stadium. At the game you can watch the players on the sidelines, not just see the play on the field.

The same is true for a Social Security Disability hearing. In some cases there is a real "feel" about a disabled person that can never be transmitted through a camera. This is especially true in cases where the claimant has psychological impairments.

The slight delay in the system also makes it harder for either side to follow the discussion. Also, the less than state of the art system limits what the Judge can observe about a claimant. This can extend to "off the record" observations such as a claimant's difficulty getting into the hearing room or out of the seat after his or her hearing concludes.

Finally, there is one subtle but very important aspect that hurts claimants who opt for a video hearing. I believe it is easier for a Judge to decline a case for someone he or she has never really "met." When I prepare clients for their hearing I always tell them that this is the only time in a Social Security claim they will come face to face with the decision maker. I believe that if the initial decisions included some in-person connection with the claims analysts, far more cases would be allowed. Putting the Hearings Judge on the other side of a camera puts him one step closer to that anonymous claims analyst.

Video hearings may help the agency handle more cases, but the cost is borne by those who can least afford it: the claimants.

Lew Insler

PART 3

Planning ahead for your retirement is complicated and difficult. To make matters worse, when you try to figure out what you will need to retire, all the financial planners and websites and calculating tools assume that Social Security will be there. I think you have to assume that unless you are within a few years of retiring, the Social Security amounts you are quoted are not what you will get. We have to assume that we will need to self-fund more of our own retirement and depend less on Social Security than we have been led to believe.

If you are close to retiring, that may mean taking the reduced amount at something before full Retirement Age (now 66), to make sure you get that amount before it is somehow "adjusted." Without considering this issue, the question of when to start taking RIB (Retirement Insurance Benefits) has been looked at time and time again. For an excellent evaluation of when to start taking your RIB take a look at the following article, found on our website and originally printed in "Balance", a publication of TIAA-CREF, the pension giant:
http://www.nymetrodisability.com/new-york-social-security-disability/pdfs/tiaa-cref_summer04.pdf.

I tell people who are not disabled that if they do become disabled DIB (Disability Insurance Benefits, or Social Security Disability) probably won't be enough to live off, so they should consider taking out a Long Term Disability policy now. The same thing is true for RIB. Social Security was never designed to be your only retirement income. For far too many people it is, but if you read this while you still have time, do everything you can to maximize your other retirement options. In my opinion you're going to need them!

Lew Insler

PART 2

When I started representing disabled people over 25 years ago many people didn't even know there was such a thing as Social Security Disability. In those days, when people asked me why I was in this field part of my elevator speech was that, "I am helping people get their Social Security now since it won't be around when they retire." I am still convinced that those nice numbers you see when you get your Benefit Estimate every year in the mail are going to have to be reduced, indexed to income, or somehow modified in order to save the system.

Don't worry about the system going under completely. First of all it means too much to too many people. And those dates when it is estimated to be in the red or run completely out of money don't mean much either, since they are dependent on variables that no one can control---like the number of jobs created, the unemployment rate and inflation. But there are some things that are real, and should scare you.

The most important thing to know is that there is no way that the system can continue as it has without some major changes. As we Baby Boomers retire, there will be fewer people paying into the system and more drawing from it. And those who draw from it will live longer than when the system was created.

Everyone gets back far more than they contribute if they reach their life expectancies, and certainly if they receive DIB (Disability Insurance Benefits, or Social Security Disability). Thus the system will clearly be in the red at some point before the middle of this century. Not that it won't have money; it will just be paying out more than it takes in, and thus the Trust Funds will start shrinking. Eventually, if nothing is done, they will disappear. But as I said, that isn't going to happen.

What I think will happen will be a combination of things: indexing to income so that people with other income will have their benefits reduced; raising the age at which benefits are payable (again) since most of us are living longer than when the system was created; and increasing the payroll tax as well as the amount of income subject to taxation to fund Social Security. That has already happened to fund Medicare.

In my next post, I'll tell you what I think we all need to do to protect ourselves.

Lew Insler

PART 1

Most of our clients come to us to help them get Social Security Disability (also known as DIB: Disability Insurance Benefits). But some of them are already 62 or turn 62 as their DIB claims are pending, which makes them eligible for RIB (Retirement Insurance Benefits, or "regular" Social Security) while they wait to see if the DIB is approved.

Just about every time Gabe or I give a lecture there is someone in attendance who is already receiving RIB, is too old to qualify for DIB, and just wants to know "what's going to happen to Social Security?" Typically we deflect the question by saying we are there to discuss the law, not politics, especially since the point of the lectures is to help people get benefits now. But it really is an important question and I'm going to deal with it a little over my next few posts.

I recently read an excellent article in Forbes magazine about what some academic economists feel has to be done to "save" Social Security. You can find the entire article at
target= "_blank" >http://www.forbes.com/forbes/2009/0713/opinions-retirement-pension-healthcare-ideas-opinions.html. Since the article is only two pages long, I really encourage you to read it.

I'll share my opinions on what lies ahead and what we should do to protect ourselves over the next few posts.

Lew Insler

There are occasions in everyone's life where everything is so positive you don't want the moment to end. Your team wins the championship, graduation, a great concert or unforgettable party. As a Yankee fan I've had my share. As a Bruce Springsteen fanatic, every show is like that. As a triathlete, little compares with the feeling of accomplishment at the end of a race. Hopefully you have had plenty of your own. Two weekends ago I had that feeling in a whole new context.

The Bresnan Bike Tour is a three day, 200 mile charity bicycle ride from Putnam County, New York to Bennington, Vermont. We left Friday morning and rode in the rain for about 12 miles. Going through Northwest Connecticut it cleared and we had great weather going into the Berkshires and up into Vermont. In addition to the beautiful riding and great scenery, I got to know many of the 65 other riders as we rode and ate together. Surprisingly, not everyone was a dedicated cyclist. More surprisingly, although 12 others were, like me, on the ride for the first time, most people had done this many times. Multiple awards were given at Friday's dinner for 5, 10 and 15 years' participation, and one guy received a 20 year award---meaning he has been on every ride! Participants came from as far away as Utah and even the UK.

The money we raise in order to ride goes directly to Special Olympics New York, and to the Westchester ARC, benefitting the developmentally disabled. The veteran riders had strong feelings for the cause and the Tour. Their enthusiasm and dedication was palpable and infectious and immediately felt by the "newbies." It made the long climbs and one intolerable stretch of road under construction bearable if not pleasant.
Our little stories and inside jokes don't mean much to anyone else. But it was truly an unforgettable weekend and it definitely won't be my last Bresnan. Although I ride my bike as much as I can and I help the disabled every day in my practice, this is different. It's not about clients and it's not about miles. Put the two together and you get something entirely different: a cause! If you want to find out more about the Bresnan Bike Tour, or even contribute, go to www.Bresnanbiketour.com.

Lew Insler

It has always bothered me that the appeal of a denial of Long Term Disability (LTD) benefits under a group plan is made to the same insurance company who not only has just denied the claim, but also who makes the payments. Despite this inherent conflict of interest, the ERISA statute and its effectuating Regulations compel this "appeal" step before the case can be brought into the judicial system and given an independent, unbiased review in Federal Court.

Because of the complexity and expense of Federal Court, the practical effect this has is that the insurance company makes the final decision in far too many Long Term Disability claims. For various reasons---often, involving financial practicalities----in our practice we have had to tell too many disabled clients that theirs is not a case to be taken to Federal Court.  I'm sure the same is true for every other LTD practitioner out there.

There are many ways this process could be made fairer. I'll mention two here even though I doubt any of them will ever be enacted, due to the imbalance of power between the insurance industry versus individual disabled claimants.

A simple step would be to enact Regulations that force the insurance companies to give deference to a finding of disability made by the Social Security Administration when determining if a Long Term Disability claimant can perform his or her occupation. For reasons too complicated to discuss in this limited space, insurance carriers currently find many ways to say that such a finding does not equate with the analysis they have to make.

Another solution would be to take the appeal process out of the hands of the insurance carriers and create an "ERISA Board," similar to the Social Security Hearing office (ODAR). A claimant would get an opportunity to have a quasi-judicial authority decide the appeal if the insurance carrier initially denied a claim or suspended benefits.

Either option creates a more level playing field that removes the inherent conflict of interest that currently exists, and that effectively terminates many claims before they are ever independently reviewed.

Lew Insler