Monday, November 4, 2013

The Interplay of Social Security Disability and Workers’ Compensation, by: Matthew Queen, Esq.

If you are disabled from an on-the-job injury then you may have numerous benefits available in order to compensate for lost wages and to help finance medical expenses.  The first benefit is Workers’ Compensation (“WC”).  The second is Social Security Disability Insurance (“SSDI”).  Each of these has its unique considerations and you may qualify for or need both.  The interplay between these two benefits is complex and requires the skilled guidance of an attorney to navigate around several pitfalls, including offsetting benefits as well as Medicare Set Aside (“MSA”) accounts.

The purpose of this article is to outline considerations of which the claimant should be aware when considering combining SSDI to a WC claim.

Social Security Disability Insurance Offset


The State of Georgia prohibits claimants from receiving 100% of their SSDI benefits in addition to their WC.  Claimants’ WC benefits reduce their SSDI benefits by any amount in excess of the claimant’s best year’s earnings for the past 5 years.  Here is a sample calculation:

Suppose you make $50,000 as your highest year’s earnings.  Divided by 12, this amounts to $4,166.67 per month.  80% of your monthly income is $3,333.  Therefore, Social Security’s monthly limit is $3,333 per month. 

Further assume that you receive $2,000 per month from SSDI and $1,500 per month in WC.  The total allowable income is $3,333 per month, but you are receiving $3,500 per month.  There is an excess of $167 per month.  This means that your SSDI monthly cash benefit will be reduced to $1,833 per month.  This reduction continues until the WC benefits are extinguished.

The best way to mitigate the SSDI offset is for the WC attorney to structure the WC settlement amount to be calculated for the life of the impairment.  This language requires the settlement to be calculated over the total life expectancy of the claimant.  This can reduce the monthly WC monthly benefit, extend the WC benefits, and retain SSDI more cash benefits.  

Medicare Set Aside


Medicare Set Aside (“MSA”) is money from a settlement put into an annuity for medical bills related to your injury.  The MSA applies in situations where Medicare would pay for injuries that could be covered by a private insurance policy.  In other words, the law seeks to prevent the privatization of profits and socialization of costs.  Medicare is the secondary payer in cases where there is another liable party, such as an employer or its Workers’ Compensation Insurance carrier.  42 USC § 1395y.  If the actual expenses exceed the set aside amount, then Medicare covers the difference. 

The MSA is only a concern in two situations.  First, if the claimant is Medicare eligible then an MSA must be created.  Medicare eligible patients are generally defined as those between ages 62.5 and 65, those receiving SSDI, those who have applied for SSDI, and those suffering from end state renal disease.  Second, if the case is settled for $250,000 or more and there is a reasonable expectation of Medicare expenses within 30 months of the settlement, then an MSA must be created.  (Note: the Centers for Medicare and Medicaid (“CMS”) do not review MSAs for $25,000 or less.)

The MSA funds are kept in an interest bearing account with distributions only made for medical expense.  The account administrator must keep accounting records for the CMS.  Once the funds are exhausted, a final accounting is performed before the claimant’s Medicare benefits are reinstated without any risk of termination.  The interest bearing account is either administered by the claimant or a third party administrator. 

Claimants should be aware that funds for an MSA will be taken out of the claimant’s settlement.  If a claimant is entitled to $100,000 for a settlement with a $50,000 MSA, then the claimant will only receive $50,000, minus attorney’s fees. 

For example, if there were no MSA, then the usual settlement amounts work out to 25% of the settlement to the attorney and the remainder to the client.  This works out to $25,000 for the lawyer and $75,000 for the client for a $100,000 settlement.  In the event of a $100,000 settlement with a $50,000 MSA, then the attorney’s fees are 25% of $50,000, which amounts to $12,500.  The remaining $37,500 goes to the claimant.

The effect of an MSA can result in enormous costs for both attorney and client.  As such, an understanding of the effects of Medicare eligibility is necessary in order to prevent the claimant from forfeiting more money from their case than is necessary.

The Least You Need to Know


The interplay between Social Security and Workers’ Compensation cases is complex.  Disability attorneys should be aware of the basics of how SSDI applications may affect Workers’ Compensation settlements.  Moreover, Workers’ Compensation attorneys should be aware of the offset provisions against SSDI.  Knowing the rules allows for prudent planning in order to maximize the available funds to go to the client.

Matthew Queen is an Associate Attorney with The Law Firm of Feiler & Associates. His practice focuses on representing disability claimants for both SSDI and SSI claims in front of the Social Security Administration. In addition, Matthew assists families to create sophisticated estate plans for people with a chronic condition or disability. Matthew is a veterans accredited attorney with the U.S. Department of Veterans Affairs and helps veterans to manage disability denials and to structure their assets so as to maximize available public benefits. Prior to joining the firm, Matthew was an associate with a Big 4 accounting firm in Los Angeles, California specializing in state and local corporate tax planning and compliance. Matthew received his Doctorate of Jurisprudence from the Georgia State College of law, graduating with Pro Bono Honors as well as his Masters of Taxation from the Georgia State Robinson College of Business. For undergraduate studies, Matthew attended the Georgia Institute of Technology and earned a Bachelor of Science in Management with a concentration in Finance, graduating With Honors.

Thursday, July 25, 2013

Welcome RASopathies Foundation Conference Attendees!

To everyone that I have had the opportunity to speak with at the RASopathies Foundation Conference, I want to say thank you.  Raising a child with Noonan Syndrome or with any special need can be challenging.  Living as an adult with challenges relating to Noonan Syndrome can be equally daunting.  It is my hope that some of the information from my presentation at the conference may benefit those who attended.  If you would like a copy of the exhibit, simply click on the link in the top right of this page to contact me.

The purpose of this website is to offer general help and advice to those folks who are navigating a Social Security Disability or SSI filing.  This process can be long and arduous, but the greatest chance to successfully navigate these waters is help by those who are diligent about collecting treatment records, and those who fight for benefits using the framework set forth by the Social Security Administration.  I hope you find some useful information herein, and am happy to be a resource to any of my readers.

-Thomas

Wednesday, October 24, 2012

The Importance of Cross-Examining the Vocational Expert about DOT Job Descriptions in a Social Security Hearing


For many Claimants, especially those less than age 50, one of the most unnerving portions of a Social Security Hearing is the testimony of the Vocational Expert (VE).  Generally speaking, the VE’s role in the hearing is to provide insight about the Claimant’s past relevant work as performed and as listed in the Dictionary of Occupational Titles (DOT), and also to provide information about the ability of hypothetical workers to engage in jobs, as well as how many of those jobs occur in the national or local economy.  The purpose of this note is to discuss the portion of VE testimony that focuses on the hypothetical Claimant.
As you may recall, the Vocational Expert is presented with a set of limitations to apply to a hypothetical individual with age, education, and work experience that may or may not mirror the condition of the Claimant.  These limitations are often presented in one or more hypothetical bundles by the Judge or the Claimant’s attorney.  Many Judges take this opportunity to test varying levels of medical limitations with regard to the Claimant’s ability to maintain employment.  They often accomplish this by presenting a hypothetical with a bare minimum of effects, and then a hypothetical with more severe effects.  The purpose of these multiple variants is to find the point at which the hypothetical person becomes too burdened to engage in Substantial Gainful Activity.  There are an awful lot of variables that may or may not be considered during this kind of testimony, and a well-prepared Claimant or their attorney can sometime capitalize on these variables to positive effect.
Hearing a stranger who is not a treating physician provide testimony about the hundreds and hundreds of jobs that a “hypothetical” Claimant can perform can be disturbing to a Claimant.  The word hypothetical is in quotes in the prior sentence because it is not a secret that the hypothetical individual is nothing but a straw-man representation of the Claimant in various forms.  The following section discusses an actual set of hypothetical parameters for a Claimant that I represented recently, who granted me permission to share this information.  The names are removed to protect the privacy of those involved, and the dialog is not exact, but these changes should negatively affect the message.
My Claimant experienced an amputation as a result of an industrial accident.  He experiences significant phantom limb pain, which is treated by narcotic pain medication, and also deals with other provable shoulder and back issues, for which we presented multiple medical records.  This portion of the hearing occurs immediately after verifying the VE’s credentials, and asking if Claimant had any objections to the information therein.

Judge:   Madam VE, I would like you to assume the following about a hypothetical Claimant
1.  A younger individual, with limited education
2.  Capable of light work, occasionally lifting 20lbs, and frequently lifting 10lbs.
3.  Capable of standing for 6 hours of a workday, and sitting for 6 hours of a workday.
4.  No activities capable with right arm, which was dominant, left arm capable of frequent overheard reaching, and vibration should be avoided.
5.  No pushing, pulling, reaching, handling, fingering, or feeling.
6.  Never use ladders, ropes, or scaffolds.
7.  Occasionally able to use ramps and stairs, and balance.
8.  Frequently able to stoop, kneel, and crouch.
9.  Never able to crawl.
Given these restrictions, is there any work that this hypothetical Claimant can do?

VE:         Yes there are jobs that this hypothetical person can do.  They are:
1.  Chaperone - DOT Code 359.667-010, Exertional level = light, SVP of 2, 700 jobs locally, 71,000 in the national economy.
2.  Usher - DOT Code 344.677-014, Exertional level = light, SVP of 2, 3.300 jobs locally, 107,000 in the national economy.
3.  Research Subject - DOT Code 359.677-030, Exertional level = light, SVP of 1, 700 jobs locally, 71,000 in the national economy.

Judge:   Thank you Madam VE, Counsel do you have any questions?

               The question posed by the judge is emotionally challenging, yet important, and the answer should be a resounding “YES”.  The Claimant just heard about the thousands of jobs available to him, and now he has an opportunity ask questions about how this testimony was reached.  More importantly, does the Judge believe that a Claimant has thousands of jobs from which to choose given the testimony of the VE?  Possibly, but with a few well targeted questions, the impressive number of jobs may be winnowed down significantly.   
Please note, there are several items that should be questioned about the testimony above.  This article is going to focus on the actual job listings in the DOT, but one should also question the source of the job numbers, the date they are pulled, and how jobs 1 and 3 seem to have the same number of occurrences.  With regard to the job counts, the answer is that the counts are often driven by census codes, which do not often neatly crosswalk over to DOT codes and are usually aged.  Also, it should be noted that the DOT is an aging text, and often out of step with the job market of today.  There are several ways that this can be used to a Claimant’s benefit, but this article focuses strictly on job descriptions.
               With regard to the actual jobs cited by the VE, I highly recommend having access to a Dictionary of Occupational Titles when at a Social Security hearing.  Many details may be found in this text that can help erode the actual number of jobs under a certain title that may be performed.  Here are the DOT descriptions for the jobs that were cited.

1.       Chaperone – Accompanies minors on trips to educational institutions, public functions, or recreational activities such as dances, concerts, or sports events, to provide adult supervision in absence of parents. Follows parents' instructions regarding minors' activities and imposes limitations and restrictions to ensure their safety, well-being, and conformance to specified behavior standards. May plan free-time activities. May arrange for transportation, tickets, and meals.

2.      Usher - Assists patrons at entertainment events to find seats, search for lost articles, and locate facilities, such as restrooms and telephones. Distributes programs to patrons. Assists other workers to change advertising display

3.      Research Subject - Submits to scientifically conducted research relating to such fields as medicine, psychology, or consumer-product testing: Participates in activities such as performing physical tasks, taking psychological tests, or using experimental products, following instructions of researcher. Replies verbally or records responses to questionnaire to provide researcher with data for evaluation.

When questioning the VE, there are two distinct classes of questions that can be posed.  One class of question can relate to the exact hypothetical as presented by the Judge.  The second class of question can be presenting one’s own scenario, or tweaking the Judge-presented scenario and asking questions.  Both may represent potent assistance to a Claimant, and it should be noted that there are certain times when it is best not to ask questions at all (generally where there is no testimony that has negative implications for your case).  It is also important to note that the VE should not be looked at as an adversary in these cases.  While it is true that their evidence may be harmful to your Claimant’s case, I have seen never seen a VE that “has it out” for Claimants.  In fact, in my experience, if presented with an appropriately targeted and persuasive question, the VEs testimony may strengthen a Claimant’s case considerably.
Here are some questions that, in my opinion, question the nature of the jobs proposed, and challenge the ability of my Client to perform them as they would be in the national economy.  Each practitioner is going to see this portion of the hearing differently, so this is not a “bright line” rule about how to examine VE testimony, but rather some direction that may help the reader make use of a source of potentially helpful testimony.  I recommend that when asking the VE questions, one should remain respectful and polite because an angry expert provides large hurdles to overcome.
You will see that the “Chaperone” must accompany minors on trips, and to dances, concerts, and sporting events.  When comparing this with the Judge’s hypothetical impairments listed above, there seems to be somewhat of a conflict.  Most concerts and sporting events take place in theaters and arenas.  Nearly every one of these locations features ramps or stairs, as does the bus used to transport folks to those locales.  The job of Chaperone does not neatly fit into the Judge’s limitations that the Claimant can “occasionally…use ramps and stairs”.  So the VE should be questioned about whether the jobs cited were full time positions, and whether or not in their vocation experience, chaperones encountered ramps and stairs when escorting student within arenas and theaters.  An honest VE will acknowledge the inherent conflict in this scenario.
With regard to the second position, the “Usher” must help folks find seats, distribute programs, and change the advertising display.  The issues discussed above regarding ramps and stairs still stand for this position, which occurs in places of public entertainment, with some notable additions.  An usher is required to hand out programs, and change marketing signs.  The VE should be questioned regarding a one-armed client’s ability to hand out programs and wrangle letters on a sign in the hopes of eroding the vocational base.  Additionally, with regard to changing letters on signs, it is reasonable to expect that ladders might be involved in this undertaking, which the Judge clearly prohibited in item 6 of his hypothetical.  These items erode the vocational base as well
Finally, the person performing the job ”Research Subject” must perform tasks, fill out responses, or use experimental products.  The VE should be questioned about the purpose of employing research subjects, and then asking, in my client’s case, if the physical restrictions noted by the Judge, including in my client’s case an amputated dominant hand, would interfere with the ability to perform tasks as generally required by those folks employing the research subjects.  Additionally, any job that would require “filling out responses” would be required to use a writing instrument to fill out a document.  Certainly a question about the loss of a dominant hand would be proper in ascertaining whether or not the vocational base was eroded.  Additionally, in the case of a Claimant who takes daily prescription drugs, it would be worthwhile to add this fact to the hypothetical and ask if this fact would affect the number of job available under this DOT title.
In closing, I want to note that there are multiple angles one can take when examining the testimony of the VE.  Sometimes it is appropriate to leave well enough alone, and sometimes heavy scrutiny is warranted.  In cases where it would seem that the Judge might be persuaded that the Claimant is capable of work that exists in significant numbers in the national economy, I would recommend scrutinizing every element provided by the VE and looking for holes.  Just because they are trained experts does not mean that they are perfect and rely on perfect data.  If this were the case, Social Security would not be pursuing other avenues of Vocational Information to utilize in the Social Security process.

For more information about this article, or to discuss your case with an attorney, contact Thomas O’Brien at Feiler & Associates.

Monday, December 12, 2011

Free or Reduced-Cost Medical Care Resources for Georgia and Elsewhere

In my disability law practice, the issue that most frequently presents itself regarding proving a disability is the ability to quantify the affects or severity of a condition through medical evidence. Not coincidentally, the best way to receive care for a disabling condition is also the best way to create a convincing body of evidence for use in proving a disability. Regular care from a physician, or qualified treatment source not only gives the disabled their best shot at managing or curing their conditions, but also will provide a solid and convincing record when the need to prove severity arises. Unfortunately, this is often easier said than done because medical care costs money, and of course money is required to secure medical care.

The purpose of this entry is to share several resources that individuals may use to find free or low cost medical resources in their geographic area. To the best of my knowledge, I do not have relationships with any of these physicians on this list, and make no specific endorsements of any of the caregivers, but with a few phone calls, it is my hope that individuals who need care are able to receive it from the organizations listed here. Because of the nature of free clinics, it will likely be necessary to provide evidence of financial need to their offices, and it may take several phone calls to find a clinic that not only can provide care for specific conditions, but has the capacity to see a patient in a timely manner. With that in mind, Social Security Claimants should not wait until receiving a hearing date to start seeking care. Treatment is a process, not an end goal, and should be sought during every state of the disability seeking process, rather than as a means to a favorable decision.

I would also like to note that for the portion of my readers who are medical providers, I will be happy to include your practice on this free or reduced cost list if you are interested. Simply contact me through my website. Additionally, for those providers who are kind enough to treat the disabled for low or no cost, I would be happy to provide specific advice regarding your ability to receive retroactive payments through Medicaid for patients with whom you have a treating relationship. Due to the length of time involved with securing disability benefits for patients, these retroactive payments may cover a year or more of visits and treatment.

Without further ado, here are some websites where a prospective patient may locate medical providers in their area who provide free or reduced cost care. Good luck, and good health to you.

U.S. Department of Health and Human Services Health Resource and Service Administration – This is a website that covers the entire country, not just Georgia, and by entering an address or zip code, a prospective patient may get contact information for providers in their area.

FreeMedicalSearch.org – Another website that extends beyond Georgia, with search functionality.


Free Medical Clinics – This is the Georgia page of another list of national resources. This list is laid out city-by-city for refined searching.

Georgia Free Clinic Network – An excellent page that provides search functionality for free or reduced cost care clinics in the State of Georgia.


Atlanta Free or Low Cost Clinics – A smaller list of Atlanta, Georgia free or reduced care clinics.

Cobb County Free or Low Cost Clinics – A smaller list of Cobb County, Georgia free or reduced care clinics.

Fayette CARE Clinic – From their website, “Our Mission is to promote health and well being for Fayette County’s uninsured and working poor through compassionate medical and dental care, education, prevention, and referral, providing a gateway to other community services.”

This information does not create an attorney-client or physician-patient relationship or any kind, and is for informational purposes only. For advice regarding your specific circumstances, contact Disability Attorney Thomas O’Brien.

Wednesday, August 10, 2011

A New Addition: Information for Veterans

A large number of my readership and clients are Disabled Veterans who are becoming informed about the differences between Social Security Disability and Veterans Service-Connected Disability. I have started another blog especially for the Veteran population at http://veteranaid.blogspot.com, where I will begin to offer information about this related and very complex process. One major difference between VA Service Connected Disability and Social Security Disability is that unlike Social Security Disability which is an "all-or-none" undertaking, there are varying degrees of Veterans Disability. These levels are expressed by diagnoses as percentages, which are then combined to create a composite disability rating that is then used to determine compensation.

A common concern that I hear from my clients is about the math that is employed when creating a composite disability percentage rating. The reason for much of this confusion centers on disability percentages not being added together, but rather applied sequentially to the residual capacity that the Veteran retains. The law that governs the calculations of these numbers may be found in the Code of Federal Regulations at 38 CFR 4.25.

I have also created a tool that may of of use when calculating or simulating various disability percentages. Click the blue link to use my online Disability and Bilateral Percentage Calculators. This tool is still in development, and is not a substitute for legal advice, so I would appreciate any feedback or compatibility issues you may have.

This blog, and the information herein is for informational purposes only, and should not be relied upon as legal advice. For more information about your particular situation, please contact Disability Attorney Thomas C. O’Brien.

Monday, November 29, 2010

The Unsuccessful Work Attempt – Information for Claimants

Social Security Rulings should not only be quoted and utilized by representatives when navigating disability cases, they should be employed by Claimants who choose to self represent. Though one can debate the advisability of self-representation, it is clear that if one is to succeed in procuring disability benefits, then one must speak the language. Including citations and explanations of Social Security Rulings (SSRs) can help Claimant’s navigate challenging aspects of their cases, and hold Social Security accountable when analyzing the Claimant’s particular circumstances. This piece below is the first in a series of discussions discussing Social Security Rulings. Today’s discussion centers upon SSR 05-02, which applies to both Titles 2 and 16, and explains the Unsuccessful Work Attempt (UWA).

The very first step in the sequential evaluation of a Social Security case is to determine whether or not the Claimant is performing “Substantial Gainful Activity (SGA)”. In 2010 and now 2011, a non-blind Claimant must earn below $1000 in order for their work to be considered less than SGA (this is desirable in disability cases). As they develop, however, in part due to the lengthy adjudication process, many disability cases are punctuated by work attempts. Such work attempts might affect the ability of the Claimant to be considered disabled during this time period, and might even cause a Claimant to adjust his or her Alleged Onset Date (AOD) to a time after the work attempt. This can be dangerous, especially if a Title 2 Claimant is near the end of their insured status.

SSR 05-02 attempts to build some clarity around what length of work should be considered SGA. Their policy statement is as follows: “For SGA determination purposes, your substantial work may, under certain conditions, be disregarded if it is discontinued or reduced to the non-SGA level after a short time because of your impairment, or the removal of special conditions related to your impairment that were essential to your further performance of the work. The UWA criteria differ depending on whether your work effort was for “3 months or less” or for “between 3 and 6 months.” If your work attempt was “unsuccessful,” Social Security will not be precluded from finding a Claimant to be disabled during the time that they performed that work.

There are a specific set of conditions that must apply when arguing in favor of a UWA. Before the UWA begins, there must have been a “significant” break in the continuity of the Claimant’s work. A Claimant’s work is “discontinued” if (1) there is a 30 day continuous gap in employment, or (2) the Claimant was forced to another type of work or employer. To anyone who has become ill while on the job, this may sound familiar. It is interesting to note that after such a break, future work attempts may also be considered UWAs if they are preceded by the same breaks in continuity.

At this step in the analysis, it must be determined into which category the Claimant’s work falls. I drew up the following chart for easy reference.



One item that bears extra explanation is an exploration of what constitutes a Special Condition which could be considered essential to work performance.

Social Security explains them as being one of the following:

*May have required and received special assistance from other employees in performing the job; or
*Were allowed to work irregular hours or take frequent rest periods; or
*Were provided special equipment or were assigned work especially suited to your impairment; or
*Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
*Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
*Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

With this in mind, when navigating the issue of how to classify a Claimant’s work when making Application for Social Security Disability or SSI, or analyzing work that was done while under disability, it is important to address this issue using the framework set forth in this ruling. Judges will analyze a case as such, and if the Claimant or their representative can produce such an analysis, they can work to not only explain the attempt to work, but they can even strengthen their arguments.

The full text of SSR 05-02 can be found here.

For information about your Georgia Disability Case, contact Thomas O’Brien.

Monday, November 15, 2010

Threats to Soc Sec Judges on the Rise...

(...but threats are rising more slowly than percentage increases in applicants.)

In an article released yesterday by Sam Hananel, it is reported that there has been an 18% increase in threats to harm or kill Administrative Law Judges (ALJs) or their staff over the past year. This is a disturbing trend, but not altogether surprising since many individuals view these benefits are their last and final hope of securing monthly help and health benefits. For those Claimants, this is the fight of their lives that sometimes results in a denial of benefits to which they may feel entitled.

Violence is never a solution and is despicable in any form. For those folks feeling that a hearing denial represents the door being slammed shut forever, it is important to recognize that these ALJ decisions are not the end of the line for a Claimant seeking benefits. There are additional steps beyond the hearing, whose purpose is to review decisions that have been issued.

The Appeals Council is the next level of review following the hearing, and it allows for an independent review of a judge's decision. The process occurs at an arms length, so writing an effective Appeals Council Brief is crucial to success at this level, and will be the topic of a future note at this blog. After the Appeals Council, Federal Court is the next step, and so begins the more traditional form of judiciary progress. Though each sequential step of the benefits seeking process represents new and probably unfamiliar territory for Claimants, it is important to note that there are advocates available who specialize in this type of work.

One final note regarding the increased number of threats to ALJs. Between 2008 and 2009, the number of Social Security Disability applicants rose by 21%. I do not yet know what the increase has been YTD 2010 when compared with 2009, but I have to imagine that the increase in applicants continues. Also, due to the length of time it takes to get a case to hearing, I imagine that the cases being heard are largely cases begun in 2009 during the 21% increase. One case of violence threatened or actually perpetrated is too much, but I think that it is important to note that incidents of violence have actually risen at a LOWER rate than applications themselves. As such, violence is increasing more slowly than growth, which is a better message than the article originally indicates, though certainly is no consolation to Judges, their staffs, and their families.

For question about your Georgia Social Security Disability case, contact Thomas O'Brien at Feiler & Associates.