Is Social Security Doomed?

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
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

Is Social Security Doomed?

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

Is Social Security Doomed?

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.

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

Free Structures in Social Security Disability Cases

Is Being Represented by a National Social Security Disability Firm in Your Best Interest?

Recently, the firm representing itself as the nation’s most successful Social Security disability advocate firms filed for bankruptcy. Several legal scholars have questioned how this could have happened given the increase of Social Security disability applications and denials over the past three years. However, the firm’s bankruptcy filing may speak to a greater issue unfolding within large Social Security disability firms.

Among the national Social Security disability advocacy and law firms, volume means everything to their business.  More clients mean increased profit margins and longevity of the business. For a local New York Social Security disability law firm where the focus is on the clients and not on constantly increasing the caseload, these issues are not common. But there are things to be learned from those large firms’ shortcomings.

Importance of Staffing

In order to efficiently and effectively represent a large number of clients, large disability firms must employ enough personnel to handle all the clients being retained. Each employee must, by necessity, manage huge caseloads and, with frequent turnover and minimal training, these employees are simply not equipped to properly service their clients.  Caseworkers manage caseloads of 400 to 600 disability cases in a year which naturally diminishes the ability for each client’s needs to be met.  By the nature of the practice, the large disability firms end up treating their clients as just a number.

In addition to caseworkers, many of these firms employ non-attorneys representatives to appear at the Social Security Hearings. Those representatives, presumably with some training in disability proceedings, simply do not possess the experience and qualifications to provide a client with legal advice about the implications of issues within a client’s Social Security disability case.  Furthermore, these representatives cannot file or represent a client a Federal Court appeal and thus many clients with viable Federal Court appeals are simply dropped from representation.

Impacts on Clients

How do these practices impact the way a client is represented? With the number of cases that have to be retained to remain viable, the large national disability firms often do not have time to truly assess the real needs of each client that contacts their intake department. Cases are taken based on generalized standards and are rarely seen by an attorney, let alone reviewed prior to the point where a hearing is requested.  Sometimes, the first review of a file is done just weeks before the scheduled hearing date, resulting in challenges to develop the medical case, frequent requests for additional time post-hearing to submit critical evidence and frequent applications to withdraw a claim that would not have been taken if a competent attorney had screened the case at the onset.

Attorneys should review a disability case before being retained. This is the best strategy to effectively meet the needs of the client. When cases are reviewed late in the representation process, it is more difficult to collect all the necessary medical records to win at a disability hearing.  Deadlines, hearing notices, complex medical record, and important issues that impact the outcome of the case can easily be missed when untrained employees are herding a claim through the disability process.  More important, at the national firms, a client rarely has the opportunity to speak to his or her attorney prior to a hearing and thus cannot provide information that can be critical to the successful outcome of a claim.

Clients who want to be represented by experienced New York Social Security disability lawyers in their area who have appeared frequently before local Administrative Law Judges and thus are familiar with their individual practices and perspectives should contact us for a free case evaluation.  Call Hermann Law Group, PLLC, at 1-877-773-3030.

Our Disability Lawyer in New York Explains Delayed Social Security Benefits

A disability lawyer in New York understands that once you have been awarded Social Security benefits, you are likely anticipating when you will finally receive them, especially your backpay. However, in some cases, your benefits may be delayed. There are a few things that you can do to try to speed up the process.

Contact a Congressional Office

Representatives and senators often have a member of their staff devoted to the task of hearing complaints about Social Security. This strategy may help you receive your benefits more quickly.

Speak to a Supervisor

You or your disability lawyer in New York may ask to speak to a supervisor from your local Social Security office. This individual may be able to contact the payment center to help you receive your benefits faster.

Send a Fax

You or your disability lawyer in New York may choose to send a fax to the payment center. Send this letter via fax to one of the processing units. The appropriate module is based on your Social Security number. The Social Security Administration recommends sending a fax within 45 days from the date in which you received your favorable decision on your case if you have not yet received your Notice of Award. Continue to send a fax to the fax number addressed to the attention of the module manager if you have not received a response or your benefits. Include a copy of the original fax with this subsequent transmission. If you still do not have a response, send another fax to the Center for Program Support. Again, include all copies of the previous correspondence that you have sent.

Legal Assistance from a Disability Lawyer in New York

If you would like more information on how to speed up your benefits, contact a disability lawyer in New York from Hermann Law Group, PLLC by calling (914) 286-3030.

Social Security Budget Cuts Hurt Disability Claims Applicants

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

Why Can’t the Social Security Office and County Department of Social Services Communicate Better?

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

Social Security Administration to Offer Webinar: Tips for People Who Receive Social Security

SSA is now offering webinars on different topics through its website, www.socialsecurity.gov.
Sign up for the webinar “Tips for People Who Receive Social Security,” to be given on Tuesday, September 21, 2010, at 2:00 p.m. ET.

The description is as follows:
There are many Social Security services available online. You can replace a Medicare card, request a proof of income letter, change your address or phone number, start or change direct deposit, get or change a password or receive updates by email. We give you some tips on how to make the most of using those services.

Sign up for the webinar by visiting Social Security’s home page, www.socialsecurity.gov. Scroll down to the bottom of the center column to “Watch Our Webinars.” Double click on “Learn More.” You will be directed to a description and link to RSVP for the webinar.

Gabe Hermann

The New Social Security Electronic Filing System Makes Accessing Information So Much Easier

I just finished getting set up with the Social Security Electronic Filing system. Hopefully, within 24 hours, I will be able to access the claims files for every one of our clients who has a case pending at the hearing level. This is a sea change from the old process where we were forced to wait for a staffer to burn us a CD of the file. Another benefit to this system is that we can see whether submissions made to the hearing office have been logged and processed for ALJ review.

Gabe Hermann

Social Security Administration Hopes to Improve its List of Occupational Titles for Use in Disability Claims

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

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

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

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

Gabe Hermann

Social Security Continues to Lead the Federal Government in Providing Internet and Technology Assisted Services

In an article from May 4th on nextgov.com covering technology and the business of government, it was reported that the Social Security Administration is deploying pilot projects to handle the tremendous increase in claims that the Agency has received in the last few years.

As a regular user of the online claims processes, I can see the vast improvements that have been made to the Agency’s internet services in the last few years. While the online applications process used to be disjointed and closely aligned to the paper applications, the online application has evolved into a relatively streamlined process that certainly helps prevent the Field Offices from getting totally inundated by the paperwork that was associated with the old, paper-dependent claims process.

Here’s a personal example of how the Administration has been streamlining some of their processes:
Just yesterday I reviewed a letter from a Field Office asking that one of my clients come in for a final evaluation of SSI eligibility. The hearing on the issue of disability was less than 10 days ago, and because the process of writing, signing and mailing the decision takes time, we continue to wait for the written decision by the Judge. Yet because it just takes the push of a button, the field office is already setting up a time to meet him to expedite payment of his benefits!

Even as I can laud how the Agency is working hard to streamline the process, I am still less than pleased with the progress made with Video Hearings. While I have done my share of those hearings, I still cannot understand why I get better video resolution and sound using a free online application to see and speak to my friends and relatives abroad than my clients can experience after waiting 12-24 months to be heard by an Administrative Law Judge. The Agency must improve its video conferencing technology before I am totally comfortable with my clients having their hearings that way.

Gabe Hermann

Social Security Disability Claimants Benefit from their Attorneys’ Continuing Legal Education Requirements

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

Processing Social Security Disability Claims Too Fast: a Mixed Blessing

I went to a meeting of the New York Social Security Bar Association last night. Besides catching up with my professional colleagues about new judges and changes at the various local hearing offices, I also learned some interesting news. Apparently, while there are still significant backlogs in processing Social Security Disability claims at the initial level, hearings are now being heard in the Brooklyn and New York City Hearing Offices so quickly that some claimants have not even been disabled for a full 12 months before their hearings.

Ironically, such rapid processing of claims is a mixed blessing. On the one hand, it’s terrific that those two hearing offices are processing the claims as fast as they are; on the other hand, it is a problem for someone who has not yet been out of work due to his or her disability for a full 12 months and therefore has not yet satisfied the durational requirement to be eligible for Social Security Disability.

Gabe Hermann

Social Security Administration Extends Program to Reduce Hearings and Decide Cases Efficiently

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

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

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

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

Gabe Hermann

Social Security Disability Fraud in the News

In the past few days I read about two people who pled guilty to fraud charges for making false statements to the Social Security Administration.

The actions of both of the individuals charged with the frauds is despicable and deserving of punishment.
Unfortunately, all too often, I get calls from former clients and prospective clients who tell me about how they were contacted by investigators with the Social Security Administration’s Office of Inspector General Office (“OIG”). More often than not, these people are innocent of any frauds, and are simply the victims of vengeful spouses (and former spouses) or acquaintances who mistakenly believe that a fraud is being perpetuated. The conventional wisdom is that a person being investigated by OIG is indeed guilty of some fraud and, as such, attorneys stay away from those cases. In fact, the reality is that in many cases, the investigators simply want to get to the bottom of the issue. I have had numerous cases like this, where the investigators confirmed the absence of fraud and my clients’ benefits were continued.

At the same time, it does happen that otherwise good people have given in to the temptation of continuing to collect Disability benefits while working or otherwise no longer eligible. In my experience, the Social Security Administration rarely initiates fraud proceedings to punish the wrongdoer and, in fact, frequently handles the resultant ‘overpayment’ with surprising sensitivity for the disabled claimant and works with the wrongdoers to recover the money improperly received.

While it’s a difficult situation to decide who should just pay back benefits versus who should pay back money and be punished, the two newsmakers below most certainly deserve to suffer punitive consequences for their actions.

Gabe Hermann
The links to the articles I read are below:
http://www.semissourian.com/story/1603473.html
http://www.jacksoncountychronicle.com/articles/2010/01/20/thisjustin/07ss.txt

Social Security Disability Benefits—Part 3 of 3: Continuing Disability Reviews

Entitlement to Social Security benefits may come to an end for a number of reasons. I previously discussed medical improvement prior to the resolution of a claim, which can potentially entitle one to a closed period of disability. In the last blog, the focus was on a return to work after benefits have been granted, resulting in a cessation of benefits due to work activity. Benefits may also come to an end after the Social Security Administration conducts its own independent review.

A person receiving Social Security Disability or Supplemental Security Income benefits can expect to be reviewed every four or five years. This is the Administration’s way of finding out if a payee is still “disabled,” and hence, still eligible for benefits. They will start by sending a written notification announcing their intent to conduct a Continuing Disability Review (“CDR”). Just as medical evidence is required to establish initial eligibility, it is also necessary to prove ongoing entitlement.

If you need your benefits to continue, it is imperative that you remain under treatment by a medical doctor while you are on disability. Far too often, I’ve spoken to clients who tell me that they’ve stopped seeing their doctor because that doctor advised them that “there was nothing more he/she could do for me.” While this may in fact be true, it will under no circumstances satisfy the Social Security Administration when they ask for proof that a beneficiary remains disabled. The Administration may require you to see one or more of their medical consultants while they review your continued eligibility. Should that doctor’s opinion be unfavorable (as is often the case), the only way to combat it is by having a supportive opinion from your own doctor. Should the Social Security Administration have an unopposed medical opinion, it is highly likely that your benefits will cease.

The Continuing Disability Review process is determined in large part by medical support, but procedural matters can require the assistance of qualified legal representation. However, the most important thing a recipient of Social Security Disability or Supplemental Security Income benefits can do for himself is to continue seeing a medical doctor.

While medical improvement is ultimately the best a disabled person can hope for, there are certainly no guarantees that medical treatment will help. However, often thanks to talented medical professionals, treatment is successful and a disabled individual is able to return to work. This can happen at various times, be it while a Social Security application is pending, or after benefits have been granted.

Brian Anson

Social Security Disability Negatively Affected by State Furloughs

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

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

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

As Commissioner Astrue puts it, “it’s clearly a triumph of spin over compassion.”

Gabe Hermann

Social Security Disability Benefits—Part 2 of 3: Returning to Work But Keeping Your Benefits

In my last blog entry, I discussed how a claimant’s return to work while his or her Social Security Disability application is pending will not necessarily preclude an award of benefits. This may happen when medical improvement occurs, allowing the applicant to successfully re-enter the workplace. What happens if that medical improvement doesn’t occur until after the claimant is already receiving Social Security benefits?

As previously noted, an award of Social Security benefits is by no means a declaration of permanency. In fact, the Social Security Administration offers incentives for attempting to return to work without fear of losing your monthly benefits. Any recipient of Social Security benefits will tell you that the monthly benefit amounts, while helpful, do little more than cover basic costs of living expenses.

There can be any number of reasons a disabled individual may want to attempt to work, but often it has a lot to do with finances. However, it is understandable that one may worry about losing the security of a monthly disability benefit by trying to work. Fortunately, the Administration’s rules allow for a recipient to engage in a “trial work period” during which he or she may work and receive benefits. Nine trial work months are allocated to those receiving disability benefits, and they may be used consecutively or non-consecutively. While disability beneficiaries are obligated to notify the Social Security Administration of any work activity, it is especially important to do so after nine months, or risk owing the Administration money.

It bears noting that there are circumstances under which one may receive disability benefits without exhausting any trial work months, if earnings are minimal or special accommodations are made related to the work activity. An attorney who specializes in Social Security Disability and Supplemental Security Income is always one of the best people to consult if you have questions about work activity while receiving disability benefits.

For more information on returning to work, check out the article by Lew Insler and Gabe Hermann, entitled “7 Things You Need to Know Before You Return to Work.”

Brian Anson

Social Security’s Ticket to Work Program Can Jeopardize Disability Benefits

The New York Times published an article last week on programs that the Social Security Administration has in place to help people receiving Social Security Disability return to work.
While the Ticket to Work program has been in place for many years, I remain hesitant advising my clients to participate in the program unless they are confident that they can work and are willing to risk their Disability benefits.
As the Times article reports, employees of the Social Security Administration are ignorant about the program and how it might impact on a beneficiary’s monthly benefits. I would hate for a client to misunderstand the notice and return to work, only to trigger a review of his or her claim due to that work activity. While I know that the Ticket to Work program is specifically designed to avoid triggering a Continuing Disability Review based on work activity, I also know that all it takes is one erroneous computer entry related to that work to initiate that review, thus jeopardizing much needed Disability benefits.
Although a benefits recipient may continue to get SSD benefits while earning about $1000 per month working, it’s much more complicated than that. I would advise any Disability Benefits recipient who receives a Ticket to Work to think hard about taking SSA up on their “offer” and to seek guidance from a qualified advisor, whether a work counselor or an attorney.
Gabriel J. Hermann, Esq.

The Social Security Administration’s Attorney Representatives’ Website is Up and Running Pretty Well

Last month, I wrote with excitement about how I was finally going to view my clients’ claims files on a special Social Security representatives’ website, using highly secure passwords and access codes provided by the Agency. Well, after using the resource for nearly a month, I can say that I am pleased with the efforts that they put both into securing my client’s information from inappropriate eyes and providing me access to the information.

I won’t say that the process is without hitches; cases that are coded to my partner or to my associate are not accessible using my access codes, for example. However, for the cases that I can pull up, there is tremendous value.

Now, rather than waiting for a hearing office to respond to my telephone or fax request for a CD of the Administration’s file, I can just log on and review what they have. I can cross check the claims file with what we have to make sure I don’t supply duplicate records. Sometimes I can even identify how the case was analyzed and bring that to the attention of an attorney adjudicator at the hearing office, with a request that they review it and consider approving the claim without a hearing. These are all good things.

I have also learned that we are still very much reliant on the hearing office staff in making sure that what we submit is properly entered into the claims files. On the other hand, I have received positive feedback from some of the staff at the hearing offices who no longer have to respond to my request for a CD by stopping what they’re doing and burning a disc for me.

Overall, I give the process a high “B” and look forward to monitoring the ongoing evolution of the hearing office claims process in response to feedback from myself and other attorneys and representatives.

Gabe Hermann

Accessing Your Social Security Benefits Statement Online

After a one year cost savings experiment during which the Social Security Administration did not send out Statements of Estimated Benefits to all wage-earners, the Administration has rolled out a terrific new on-line tool that can be used to access your benefits statement. Just go to SSA.gov and, along the left side of the website, you will see a link to “Get your Social Security Statement online“. After providing necessary personal information, you will be asked several challenge questions that only you should know. You will then be invited to set up a user name, password and recovery questions. After that point, you will be able to access your earnings record and social security benefits estimate.
Please note that while anyone can set up an account, not everyone will be able to access the familiar earnings statement form, which is only available to people who have not initiated claims for benefits from the Social Security Administration (including Disability and Retirement claims).
It is my understanding that SSA has also started sending benefits estimates to wage-earners by mail (though that usually comes a few months before every birthday, so it’s great to have the online option available for most of the year).

Disability applicants can benefit from the expert guidance of an experienced Social Security disability attorney. Hermann Law Group will carefully analyze your case and subsequently provide straightforward and compassionate advice on social security benefits. Call us today for a free consultation and case evaluation.

Gabriel Hermann, Esq.

Social Security as a Retirement Planning Tool

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

Social Security Disability Funds to Run Out in Four Years

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.

Social Security Disability and Workers’ Compensation

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:

• Don’t wait to file your Social Security claim when you are receiving Workers’ Comp
• When you do file, remember to check out your benefit estimate and earnings record together with your Workers’ Comp benefits to see if an offset will apply.

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.

Social Security Ruling Will Hurt Disability Claimants

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

The Bureaucracy of the Social Security Administration

As one of the largest government agencies in the nation, the Social Security Administration employs more than 57,000 workers. More than 23,000 additional workers hold down jobs at affiliate agencies, including the SSA Office of Disability Adjudication and Review and state agencies. Some of these workers decide on disability cases before the case is transferred to an administrative law judge (ALJ). The sheer size of the SSA makes it challenging even for New York Social Security disability attorneys to locate the right department and person. Without the help of a competent legal representative, the task is next to impossible. 

Securing your Social Security Number

The following is by Peter King and was published in the November 25, 2006 edition of Long Island Newsday. Remember that Social Security knows who you are ( I don’t mean that to be ominous) and will never ask for your Social Security number!

“The government last month said the 49 million people receiving Social Security will get a 3.3 percent cost-of-living increase. beginning next year. It didn’t take long for crooks to try to get their cut.

The Social Security Administration has issued a warning: beware of e-mails that look as if they come from the agency and have the subject line “Cost-of-Living for 2007 update.” The body of the e-mail says, “NOTE: We now need you to update your personal information.” The e-mail says Social Security “will be forced to suspend your account indefinitely” if you don’t comply. If you click on the link in the e-mail, you will be taken to a Web site designed to look like the SSA’s home page. You will be asked to provide your Social Security number as well as bank account numbers and credit card account information.

This is “phishing,” an Internet scam in which con artists try to steal your identity, then your money. If you get this e-mail, report it to Social Security at 800-269-0271. To be safe, don’t even open it. Don’t open any e-mail purporting to be from Social Security. SSA corresponds with recipients only by regular mail and never sends out unsolicited e-mails.”

Social Security Disability Claims Contracted out of State by Westchester Department of Social Services

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

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

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

Gabe Hermann

Possible Theft of Social Security Numbers Causes Distress

Today, about a dozen of my clients faxed me a copy of a notice from the Social Security Administration reporting that an employee of the New York Office of Disability and Temporary Assistance (the state agency that contracts with the Social Security Administration to make initial disability determinations) had access to and might have stolen names, Social Security numbers and dates of birth. This is a huge deal considering the priority that SSA places on claimants’ confidentiality.

While I think it’s unfortunate that this has happened, particularly to my clients who have enough to worry about without now needing to monitor their credit reports for identity theft, the reality is that this is happening more and more. I hope that SSA doesn’t feel that offering 1 free year of credit monitoring is the only fix necessary and that the decision makers put a lot of thought into how best to protect the citizenry’s personal information.
For more information on the story, click here.

Gabe Hermann

The Outcome of Your Social Security Disability Claim Often Depends on the Personality of the ALJ Who Decides Your Case

On April 13, I blogged about the recent lawsuit brought against several Queens ALJs, which claims that these judges show a pattern of bias against the disability claimants whose cases they decide. Last night I was discussing this lawsuit with Lew Insler, one of the partners at my firm, and we compared notes on our experiences before different judges throughout New York, New Jersey, and Connecticut.

Noth with standing my strong assertions regarding those Queens judges, I think it is important to point out that they represent the exception as opposed to the rule. In fact, I have found that the vast majority of ALJs are fair, just, and understanding individuals.

Disability claimants no doubt benefit by being represented by an attorney who is familiar with the unique personality of the ALJ before whom they may appear. For example, certain ALJs prefer specific types of evidence to assist them in making decisions, and an experienced attorney who has appeared before that judge would be aware of such requirements. Unrepresented claimants are at a disadvantage when they aren’t familiar with the ALJ’s approach to hearings and how he or she tends to interpret different types of evidence.

This merely goes to emphasize how important it is that your attorney knows not only the law but the ALJ who will be applying it to your particular case. While the vast majority of ALJs fairly apply the law, sometimes knowledge of these subtleties can make the difference between a favorable and unfavorable outcome.
Brian Anson, Esq.

Budget Cuts Slash Social Security Office Hours

Starting August 15, 2011 all local Social Security field offices throughout the country are on tap to reduce the time they are open to the public by 30 minutes.

“While agency employees will continue to work their regular hours, this shorter public window will allow us to complete face-to-face service with the visiting public without incurring the cost of overtime for our employees,” said Michael J. Astrue, Commissioner of Social Security. “Congress provided our agency with nearly $1 billion less than the President requested for our budget this fiscal year, which makes it impossible for us to provide the amount of overtime needed to handle service to the public as we have in the past.”

While the essence of these budget debates are much more complex than simple overtime hours, the real issues facing the disabled/retired community are how will these cuts affect service and, for that matter, will it move the needle enough to reduce costs to protect benefits?

Because some tasks can be done online (but not SSI applications) this may not be as bad as it seems. But—and it’s a big but—in these uncertain times, can you afford to not do your research before you file your initial claim?
A call to Hermann Law Group, PLLC can save you time and effort. Get the facts; call for a free screening to see if you could benefit from an in-person consultation with an attorney. (Offices in Westchester and Dutchess counties in New York, Bergen County NJ and Fairfield County, CT.)

Gabriel J. Hermann, Esq.
Social Security, Budget Debate, budget cuts, disability, Social Security disability, SSI, SSD

Waiting to Apply for Social Security Disability Can Cost you Money

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 Hermann Law Group 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

Who is Helped When Social Security Disability Files Are Transferred?

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

Lawsuit Claims Bias by Social Security Judges in Queens: I Wholeheartedly Agree!

Having made court appearances in all of the New York metropolitan Social Security hearing offices, it was with particular interest that I read a story in this morning’s New York Times about disability denials by judges in Queens, New York (“Suit Alleges Bias in Disability Denials by Queens Judges” by Sam Dolnick). According to the story, that particular hearing office has the nation’s 10th highest rejection rate this year to date, and had the third highest denial rate from 2005 to 2008. A class action lawsuit has now been filed alleging bias by the Administrative Law Judges (ALJs).

Of course, this is no secret to local practitioners who will do all they can to avoid having their cases heard at the hearing office in Jamaica (and previously, Fresh Meadows). I can speak from personal experience as to some of the allegations made in this morning’s article. In my 15 years of practice I’ve personally made well over a hundred appearances before the cited ALJs. As the New York Times states, often claimants and attorneys are indeed exposed to “combative hearings and a tone that one court called ‘brusque, intemperate and unhelpful.'” Disability lawyer Troy G. Rosasco—a respected colleague who we at Hermann Law Group work with on a regular basis—was quoted by the Times as calling the Queens hearing office, “the Social Security system’s Superfund site.” The five cited judges have denied 63% of the claims they hear as compared to the national average of 36%.

Also quoted in the article was D. Randall Frye, President of the Association of Administrative Law Judges, who characterized the allegations of bias as “sour grapes.” Speaking from personal experience, I can vouch for not only the high percentage of denials by these ALJs, but also an increased skepticism toward individuals who were not born in the United States or are otherwise unable to communicate in English. This is often reflected in decisions which challenge these claimants’ credibility by stating that one cannot survive in this country without a basic knowledge of the English language. I’m sure those claimants would join local disability advocates in calling Mr. Frye’s “sour grapes” characterization as more than disingenuous.
Brian M. Anson, Esq.