Are lawyers slowing down Social Security disability cases?
A commenter recently wrote:
BEWARE! Attorneys will stretch out the claim filing because the longer it takes, the more money they get.
As I wrote in Can You Pick Your Lawyer Out of a Line-Up, lawyers should work for their money. So, if you are not getting value from your representative, maybe you should change who you are working with. However, it is something of a myth that lawyers can speed up or slow down Social Security cases. Of course, a lot of this perpetrated by legal advertising. You have probably seen more than one ad touting “Faster Results!”
So, let’s look at this issue.
What are lawyers’ promises of ‘Faster Results’ really about?
In most medium-sized markets, there are often a dozen lawyers, big and small, competing for your business. In a large market, there could be scores of attorneys competing against each other. Nowadays, you can also add large national companies trying to scoop up as many cases as possible like a blue whale trawling for plankton. The competition isn’t for winning your case; it’s for getting hired! While the lawyer/company won’t get paid unless the case is won, they don’t even get a chance to win the case unless you pick them!
However, since Social Security determines the fees lawyers can charge, you don’t see competition on price. Instead, you get the promise of “Whiter Whites!” which in legal circles translates to “Faster Results!” or “99% Success Rate” or “150 Years Combined Experience.” I have written about the last two previously, so let’s consider the faster results pitch.
It is certainly a compelling offer. Who doesn’t want at least a chance of getting their case done faster? However, are you about to sign on with a better firm, or are you just getting flim-flammed?
If a representative promises faster results, the results are faster than what? Faster than the national average? That might only mean that they work in one of 25 states that is processes cases faster than the other 25 states. That may not be saying much.
If an representative claims “most of our cases are approved without a hearing!” To my jaded ears that sounds like they selectively pick cases which are likely to be approved anyway and brief them. Explaining why a case should be approved certainly helps the claimant and counts as work. However, sticking with easy cases is like never getting beyond tic-tak-toe, it doesn’t build legal muscles. Do you get a discount because your case is easy? Probably not.
If you still feel compelled to contact a law firm or non-lawyer representative company promising fast results, remember to ask these four questions:
Unfairly treated by Social Security Judge?
If you feel that you were treated unfairly by the Social Security judge, you can file an “Unfair Treatment Complaint” and ask that Social Security review what happened. Someone who was not involved in your case will review your complaint and take action, if appropriate. While there is no guarantee that Social Security will find that action is needed, you will be notified before Social Security closes the matter.
Keep in mind that filing an unfair treatment complaint does not appeal the judge’s decision. If you were denied and want to appeal the denial, you still need to complete an appeal. At the time of this writing, the form to …
2012 SSI benefit increases
Supplemental Security Income (SSI) benefits are going up in 2012. After three years of no cost of living (COLA) benefit increases, benefits are finally getting nudged upwards from a maximum of $674 per month for individuals (and $1011 per month for couples) to $698 for individuals and $1048 for couples.
photo credit: charlieambler
What medical records cost in your state
Here is a great site that lists all of the medical record charges by state. I have previously written about what it costs to get your records in Colorado. Colorado’s regulation is contained in 6 C.C.R. 1011-1, Chapter 2, Part 5.2.3.4
5.2.3.4 Unless otherwise prohibited by law, a representative of the patient, other than a “personal representative” as defined in the Federal Health Insurance Portability and Accountability Act (HIPAA) § 164.502(g), with the patient’s written authorization, shall pay for the reasonable cost of obtaining a copy of the patient’s record, which shall be $16.50 for the first ten or fewer pages, $.75 per page for pages 11-40, and $.50 per page for every additional …
What does a critical case review look like?
I have previously discussed expediting Social Security disability cases for Dire Need. I recently came across the worksheet that Social Security uses when evaluating these cases:
This includes consideration of the following issues:
Terminal illness.
Wounded warrior.
Compassionate allowance.
Dire need.
Suicidal/homicidal ideation cases.
Here is a link to the HALLEX for the form. Note: this a form Social Security uses internally. You do not need to use this to request consideration as a critical case. All you need to do is write a letter to the SSA office working on your case and state why the case should be expedited. Of course, the reason(s) should fall into one areas discussed above.
Best Practices for Social Security Disability Representatives
Social Security has a great overview site for new Social Security disability representatives (both lawyers and non-lawyers) going over best practices before the Social Security Administration.
Here are some good tips:
Timely submit the form ssa-1696 and fee agreement.
Timely alert the hearing office of any change of address or phone number for either yourself or the claimant.
Do not submit duplicative evidence.
Submit evidence as far in advance of the hearing as possible, using electronic records express.
Before faxing evidence, check to ensure the evidence you are submitting matches the claimant.
Make sure the barcode is the first item faxed in order to ensure proper identification of all …
Can sit down jobs be LIGHT work?
Social Security separates jobs into groups based on physical requirements: sedentary, light, medium, and heavy. For many individuals, the outcome of a case depends on the number of sedentary jobs available.
This is often an issue in back injury cases where Light work is eliminated, but sedentary jobs are still a possibility. If there are enough of them. If a job can be put in the Light category, it may be eliminated based on physical limitations.
So, here is the question: can a sit down job requiring no more than lifting 10 pounds (typically suggesting Sedentary work) ever be a Light job? Yes, it can!
Many practitioners may be surprised by this. We have been taught (and we hear over and over) that sedentary work means: lifting no more than 10 pounds occasionally (up to 1/3 of an 8 hour day) or less than 10 pounds frequently (up to 2/3 of an 8 hour day) AND standing or walking no more than 2 hours out of 8.
So how can a job with almost no walking and lifting less than 10 pounds be light?
Social Security consultative examiner speaks out
Ever wonder what Social Security consultative examiners – the doctors who meet with disability applications to decide if they are disabled – think of the Social Security disability process?
Writing in Guernica, Dr. Heather Kovich discusses her experiences as a (former) Social Security disability examiner:
There is also a stereotype of the doctors who do this work: lazy and disinterested. I found the job fascinating. The more I learned about the disability system, the more I pondered its complexities: it provides a safety net but keeps people mired in poverty. Helpful services, including job retraining, are available, but aren’t advertised. And the system rests on a deeply flawed premise—that there is a way to objectively determine who is able to work and who is not.
…
This was my job, “independent medical examiner.” On the basis of a forty-minute interview and examination, I was supposed to determine how disabled an applicant or “claimant” was.
…
I did hundreds of disability exams over the next year, and while I did meet two people who were obviously faking, for the most part the stories I heard were heartbreaking: car accidents, massive strokes, lost jobs, dead spouses. Many people who apply for disability have lived through a tragedy. But the stories also told of the inefficiencies of the disability system. That first day in Spokane I met a man who had worked in manual labor his whole life, but for years had been getting crushing chest pain after walking a few blocks. His blood pressure was dangerously high. His condition was obviously treatable, but he did not have insurance so he had not been to a doctor in years. He knew that if he qualified for permanent disability he would eventually get Medicare or Medicaid and get proper treatment. He had no idea he could go to a community health center, a federally financed clinic where he could pay on a sliding-scale basis. With the right treatment and a less strenuous job, he would probably have not needed disability. Emphasis added.
This is the catch 22 of the Social Security system: with the health insurance Social Security provides, you might not be disabled. However, without Social Security disability, you can’t get the medical care you need.
This isn’t strictly a Social Security problem, it is US health system problem.
Compassionate Allowance Update
Here is a list of the 100 conditions (as of 10/13/11) which Social Security now considers eligible for the Compassionate Allowance program which can result in a very fast approval. Recently added conditions are in bold. An up to date list is available here.
Acute Leukemia
Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
Alexander Disease (ALX) – Neonatal and Infantile
Alstrom Syndrome
Amegakaryocytic Thrombocytopenia
Amyotrophic Lateral Sclerosis (ALS)
Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
Aortic Atresia
Astrocytoma – Grade III and IV
Ataxia Telangiectasia
Nurse and therapist records in Social Security cases
Social Security has regulations on which medical providers can provide evidence and opinions about an individual’s diagnosis and limitations. For a long time, evidence from nurses, chiropractors, therapists, and psychologists was not considered by Social Security because these professionals were not considered “acceptable medical sources.”
The term “medical sources” refers to both “acceptable medical sources” and other health care providers who are not “acceptable medical sources.” See 20 CFR 404.1502 and 416.902.
Under our current regulations, “acceptable medical sources” are:
Licensed physicians (medical or osteopathic doctors);
Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing mental retardation, learning disabilities, and borderline intellectual functioning only;
Licensed optometrists, for the measurement of visual acuity and visual fields (for claims under title II, we may need a report from a physician to determine other aspects of eye disease);
Licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; and
Qualified speech-language pathologists, for purposes of establishing speech or language impairments only.
See 20 CFR 404.1513(a) and 416.913(a).
Basically, a medical provider had to have MD (or DO, or PhD) after their name to qualify as a medical source. This left nurses, therapists, chiropractors, teachers, counselors, among other providers out in the cold as far as having their evidence conisidered by Social Security.
Social Security Ruling (SSR) 06-03p changed that by creating a new class: “other sources.”
I have … can I win my Social Security disability case?
Thank you to everyone who writes in or comments on posts. You are reason I created this blog. You are the reason for all of this!
The one question I get asked most is:
Can I win a disability case? What do you think of my chances?
Sometime this comes with a short description of the disabilities, sometimes a long one.
I really wish I could answer this. There are ethical and liability issues limiting what I can say. There is a bigger issue though: a case is not one thing. It is *all* the evidence that Social Security considers.
Social Security increase coming in 2012!
Good news. Individuals on Social Security will be getting a cost of living increase in 2012. And it won’t be a meager .7 % as initially thought:
Social Security recipients will get a raise in January — their first increase in benefits since 2009.
…
Based on consumer prices in July and August, the COLA for 2012 would be about 3.5 percent. Vlasenko estimates the COLA will be from 3.5 percent to 3.7 percent.
Via Washington Post.
UPDATE: The number is out, and it’s 3.6%.
UPDATE: SSI benefits are going up in 2012 from a maximum of $674 per month for individuals (and $1011 per …
Winning Social Security disability benefits after age 50
If you are 50 years old or older, Social Security makes it easier to prove your disability case. Individuals between 18 and 49 meet a tougher standard discussed in this article.
Starting at age 50, and then again at age 55 and 60, Social Security lowers the requirements for proving disability. The rationale is that the older you are, the harder it is to work in a job that you have never done before.
After age 50, Social Security can approve you for disability benefits even though you are able to do some type of work.
The older you are, the more physically demanding the work can be and still allow you qualify for disability benefits.
However, this is not a free pass and do not leave this article before you read the “gotchas” at the bottom.
Social Security told to slow down decisions?
Do you think Social Security is working too fast processing Social Security disability claims. Someone apparently thinks so. Writing in the Wall Street Journal, Damian Paletta reports:
Social Security judges and employees in Florida, Alabama, Colorado, Georgia, Tennessee, Ohio and Arizona were among those instructed to set aside disability cases this week, with the slowdown allowing managers to boost their performance numbers for the coming fiscal year, which starts Monday.
Top officials, in a bid to meet goals to win promotions or thousands of dollars in bonuses, directed many employees to refrain from issuing decisions on cases until next week, according to judges and union officials.
How did Social Security judges respond?
Are earnings in WTU considered SGA for Social Security disability benefits?
The touchstone in disability cases is the ability to work. More specifically, the test is whether an individual can perform a Substantial Gainful Activity (SGA). One of the first tests of whether work is SGA is earnings.
In 2012, earnings of $1,010 per month (before taxes) suggests the work is SGA. However there are exceptions to this. One of these is for sheltered work as defined in 20 CRF404.1574(a)(3).
If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid. The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or governmental aid does not establish that you are not earning all you are being paid. Since persons in military service being treated for severe impairments usually continue to receive full pay, we evaluate work activity in a therapy program or while on limited duty by comparing it with similar work in the civilian work force or on the basis of reasonable worth of the work, rather than on the actual amount of the earnings.
The idea behind sheltered work is that an individual may not be earning all of what they are being paid. The value of the individual’s work may be half (or a different percentage) of the amount actually paid. The amount paid over the value of the work is a subsidy. Social Security only counts the value of the work and not the subsidy in determining if the work is SGA.
For may injured soldiers, before discharge from their branch of service, they may be placed into a Warrior Transition Unit (WTU) or similar program. While the soldier’s salary stays the same, the duties are greatly reduced.
