New York Social Security Disability Lawyer Blog

Insler & Hermann, LLP, is delighted to congratulate Partner Gabe Hermann, Esq. and his wife Miriam on the birth of a baby girl. We wish the entire family well!

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

On May 8, 2010, I had the privilege of volunteering my time and expertise in Disability Law alongside several other local professionals at the National Multiple Sclerosis Society's Law Day in White Plains, New York. The other volunteers brought their respective expertise in areas such as matrimonial law, financial planning, job discrimination, and estate planning. The issues and questions presented to me throughout the course of the day ranged from the relatively straightforward to the legally complex. What became clear however, is that Social Security Disability plays a significant role in the lives of not only those seeking it, but also those currently receiving it. Thus, an award of disability benefits does not necessarily end the complications which may arise depending on the individual's particular circumstances.

The National Multiple Sclerosis Society and its volunteers provide invaluable services to individuals with MS and I feel privileged to have made my particular contribution. A special thanks to the staff for their continuing efforts to serve and assist individuals suffering from MS. I look forward to working with them again.

Brian Anson

Attorney Brian Anson will be one of the featured legal specialists at the National MS Society Legal Day on May 8, 2010 in White Plains, NY, sponsored by the MS Society's New York City-Southern New York Chapter. The Legal Day will provide a forum for attorneys and specialists to meet with individuals to consult on a variety of topics. Mr. Anson will be available to discuss Social Security Disability benefits. For more information or to schedule a consultation with Mr. Anson, please contact the MS Society by clicking here.

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

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

While I may be a new addition to the law firm of Insler & Hermann, I am no stranger to the practice area of Social Security Disability. In fact, I started my career in this practice area while working with Gabe Hermann in 1997. Like him, I have been representing disability claimants since then without interruption.

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

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

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.

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

From June 12th to June 14th I will be participating in the 20th annual Bresnan Bike Tour. It is a 200 mile charity ride from Patterson, New York to Bennington, Vermont supporting the Hudson Valley Special Olympics and the Westchester ARC, the oldest and largest agency in Westchester County serving children and adults who have developmental disabilities and their families. Each participant has to raise a minimum of $2000, and over $375,000 was raised last year. Bicycling is one of my passions and this tour will allow me to fulfill my goal of riding in a multi-day bike tour.

The current economic slump has been hard on all not-for-profit organizations, and yet I have been pleased and amazed at the willingness of my friends, neighbors, relatives, and business and professional colleagues whose generosity will enable me to surpass the $2000 goal very soon.  As the sponsorships come in, I can't help feeling that somehow those who are sponsoring me are doing so not only to support this wonderful cause, but in a way to reward me for the work Gabe and I do on behalf of our disabled clients.  While our disability law practice is definitely "for profit," I think that people recognize the care with which we help our clients to get through the challenging process of fighting for disability payments.

When I decided to focus on Social Security Disability and phase out of Workers' Compensation law in the mid 1990's one of the main reasons was the satisfaction I feel when we win a Social Security Disability claim for a client. The frustration of case backlogs and the economic and physical distress our clients feel puts a lot of stress on me and our entire office as we try to help everyone.

The pleasure and freedom I feel when I'm cycling makes it one of my main stress busters. And the fact that I am doing extra cycling this spring to be ready for the Tour has actually made me more productive at work because I'm more relaxed. So the Bresnan Bike Tour is a win for everyone involved, even our clients!

I'm excited and prepared for the Tour and I wish it wasn't still a month away. But at least that gives me plenty of time to stock up on Aleve!

Lew Insler

Within the past month, I made presentations about Social Security Disability both to the public and to a local Bar Association. Attendees at both lectures received the same printed materials and heard slightly different oral presentations, tailored for the audience.

For the lawyers, my lecture was focused on what they should look for if clients call with questions about Social Security Disability. At the seminar that was open to the public, where the attendees already knew that they needed Social Security benefits, my presentation was about what they should expect as they go through the process.

The questions I fielded during both presentations were typical. The surprise was in the types of questions I was asked when everything was done. The attendees at the public presentation came up to tell me their stories and get my opinions.

The lawyers were all focused on one thing: the note at the end of my bio that I had appeared as a contestant on Jeopardy! I spent at least ten minutes going through the Jeopardy! selection process and my experience on the show in far more detail than anything I had told them about Social Security Disability!

Hanging in our interview room at our main office is a photo that was taken when I was on the show. At least half the people we meet with ask about it--and that's exactly why it is there. My hope is that something as simple as a bit of personal information like that creates a connection with our clients that goes beyond the typical lawyer-client relationship.

The light bulb over my head just went on! It's time to put something new in our ads: "As Seen on Jeopardy!"

Lew Insler

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

Right now we are in the process of changing all our advertising. For the past few years we have used a few phrases that describe how we think we are different and better than other similar firms. Even though we thought enough of the phrases that we registered them as service marks, not one client ever told us that the phrases had a thing to do with why they chose us to represent them!

In discussing where our practice was heading Gabe and I realized that those service marks represent what our clients need, except that they don't know it! But clients choose lawyers based on what they want, not what they need; and our clients do know what they want. They want to win and get their benefits and they want to do it as quickly as possible.

At the same time we were coming to this realization I found some notes I made almost 12 years ago. At that time I was a partner in a different law firm and not very happy there. One Saturday I attended a seminar called "Before You Start That Business" because at the time I was looking for another avenue on which to focus some of my energy.

In those notes I found two things that relate to giving clients what they want. I had written that the answer to your questions is with your customers and that to find new clients you have to figure out what you do right for the ones you already have. In other words, what are we doing that our clients want us to do?

Well, we win 90% of our Social Security Disability claims, and one of the things that our clients frequently express satisfaction with is how Gabe and I and the staff in our office work to keep them aware of what is going on with their cases.

So, while up to this point we didn't market to our prospective clients that we win 90% of our cases and that we take a very hands on approach to our clients' cases, it turns out that all along we were doing what they wanted us to do. Now it's up to us to spread the word.

Lew Insler