Wednesday, September 29, 2010
In Georgia, and in other states where SSI grants Claimants access to Medicaid, SSDI recipients who are otherwise earning too much to qualify for Medicaid may be able to get coverage if they have minor children living with them, or if they earn an amount over the limit that may be “spent down” by medical bills, which would push them under the limits. These are not the only ways that a non-SSI recipient may unlock benefits, but it is safe to state that each gateway to Medicaid is narrowly tailored and does not serve every element of the disabled and poor population, especially those that are close to the line. To further restrict access to Medicaid, SSDI payments are generally made in greater amounts than the earnings limits set by SSI. As such, Claimants that would otherwise qualify for SSI, and thus Medicaid, are thereby precluded from tapping into these benefits. PASS can benefit those that are poor, but on SSDI, by carving off a portion of their SSDI earnings to be set aside in a pot of funds to be used to assist the Claimant in pursuit of a work goal.
The benefits of PASS are multi-fold. For the hypothetical “almost poor enough” SSDI recipient that I discussed above, the benefits are clear. If their PASS were crafted correctly and approved, this person would receive a larger monthly allotment of money since they would qualify for SSI benefits, Medicaid benefits would begin immediately since they are now under the earnings limit, and they would begin contributing to a growing a pool of funds that may be used for a variety of purposes, including starting a business, getting training, buying equipment, and other activities appurtenant to getting back on one’s feet. This is a great scenario for the Claimant, and can truly make their lives better.
So what are the requirements of participating in the PASS program? The primary requirement is an approved PASS plan. A PASS plan may be submitted on the SSA-545 form, which may be found at here. A PASS plan is not something that may be simply thrown together. There must be an actual plan including goals and time frames specific to the Claimant that must be met in furtherance of the work goal. This plan must designate what amount money will be used to reach the goal and how that money will be used. Finally the plan must set clear lines on the steps to be taken to avoid co-mingling the PASS funds with the Claimant’s other money, the SSA must approve the plan and reserves the right to conduct future reviews to assess compliance and progress. For information about the PASS program, one can find the appropriate telephone number by visiting http://www.socialsecurity.gov/disabilityresearch/wi/passcadre.htm. Another helpful website with more written detail may be found at http://www.ssa.gov/pubs/11017.html.
To speak with an attorney about your Social Security claim, please contact Thomas O’Brien at Feiler & Associates.
Tuesday, September 28, 2010
Monday, September 27, 2010
Enter Charlie Crist, an independent (newly) candidate for one of Florida's Senate seats. Crist recently told the Huffington Post that he believes the solution for Social Security is to establish a meaningful path for those who are here illegally to achieve their citizenship and thus continue to contribute with the expectation that they may one day claim their share of the contributions.
While this may be "feel good" news to those fighting for immigration reform, this is not the silver bullet for Social Security. Adding one contributor and one taker to any equation does nothing more than to continue at current levels. Unless Social Security can use additional contributors to realize efficiencies of scale, there will be no improvement. It is this author's opinion that Social Security will realize more efficiencies through the implementation of technological improvements than it will from adding to both numerator and denominator of the Claimant calculation.
Immigration reform may come, but it is safe to say that it will arrive for the benefit for Social Security and those who Claim benefits from it.
For information about Social Security, contact Thomas O'Brien at Feiler & Associates.
The subcommittee will be meeting on 30-September at 10:00 am, to discuss the options for changing Social Security benefits, and the impact that changes would have on the recipients. There is very little subterfuge here, since they refer to the changes as a "loss of income", so it will be interesting to watch the changes bubble up in the months to come, and evaluate the sustainability of the program before and after the changes. Here's to creative solutions to real problems.
You can watch the hearing by going here.
Tuesday, September 21, 2010
In a previous article, I drafted a very brief primer on what a Claimant should expect on the day of his Social Security Disability Hearing. One aspect of many hearings that I did not develop to a great degree was the interaction with the Vocational Expert (VE). The purpose of this article is not only to explain the presence of the VE, but also perhaps to provide some direction to Claimants who will be encountering a VE at hearing. As a practitioner, it is important for me to note that this is a very sophisticated area of the Social Security Hearing process, and this note should not be viewed as a definitive explanation. It is a superficial overview with some background about what happens at hearing, and some general wisdom about how to interact with the ALJ and VE in ways that are appropriate and helpful. Simply put, this is written with a mentality of “something is better than nothing”, as opposed to being an exhaustive treatise on the subject of vocational testimony.
First off, the VE should not be viewed as an enemy. They may not be providing testimony that will be helpful to a Claimant’s case, but they are not automatically there to “put you back to work”. In fact, by asking well-targeted questions of the VE, a Claimant can improve his chances at success. The purpose of the VE at hearings is to assist the Administrative Law Judge (ALJ) in determining whether or not there are a “significant number” of jobs that a Claimant can perform, given that Claimant’s Age, Education, Previous Work Experience, and Residual Functional Capacity. They also opine on whether the Claimant cannot return to his past relevant work as he performed it, or return to the job as it is regularly performed. VEs may be called to discuss transferability of skills from past relevant work to future work as well.
The ALJ most often will open discussion with the VE once the Claimant has been questioned and given an opportunity to testify. Often the discussion that occurs first will be the ALJ questioning the VE about traits of the Claimant’s past relevant work, both from a perspective of how the work is generally performed, and how the work was performed as the Claimant described.
The framework used when providing testimony about jobs is The Dictionary of Occupational Titles (DOT), Fourth Edition, last revised in 1991. An online version of this text may be found at http://www.oalj.dol.gov/libdot.htm. It would be this attorney’s recommendation that a Claimant facing hearing view his case file and see if any of the Vocational Reports that were submitted prior to hearing include assessments of his past relevant work. If so, it would be advisable to find this job title and have the scores and descriptions readily available. A job title in this text includes the name of the job and it’s assigned ID, a description of the duties that they worker would be expected to perform, and then a series of values that look like this: GOE: 02.04.01 STRENGTH: L GED: R4 M4 L3 SVP: 5 DLU: 77. Explanations of each of these may be found at the website above, but pay particular note to SVP or Specific Vocational Preparation, which classifies the level of skill it takes to perform a job, as well as the training needed to work independently.
The VE will provide information about the Claimant’s past relevant work as the job is generally performed (straight from the DOT as applicable), and then will modify the DOT specific definition based on testimony given by the Claimant that might cause the ratings to change. Additional information is usually sought regarding what specific abilities and demands are made by a particular job, including demands like kneeling, stooping, fingering, lifting, walking scaffolds, being hot, cold, etc. By asking these questions, the ALJ is creating a baseline from which to analyze the Claimant’s ability to further work. It is important that once the Claimant has the ability to ask question of the VE that, unless the information is already volunteered, that the VE be expected to produce the descriptor values (SVP etc.) as shown above. This forces accountability on the part of the VE, and also can be used to verify the level of experience of the VE at making such determinations. For cases where the VE modifies the ratings of a job from what are shown in the DOT, a number of questions are appropriate. Some questions to ask might include (but certainly should not be limited to):
1. What changes exist between your description and the DOT definition?
2. What evidence led you to change the ratings?
3. What experience do you have that provides this knowledge?
4. When did this experience take place? For how long?
It is important here to note that taking an argumentative tone with the VE will not likely be helpful to ones case. These questions are relevant, but should never be asked from a position of arrogance or with an eye toward creating a Perry Mason “Aha!” moment. Please know that most evidence can be reasonable viewed in lights both favorable and unfavorable to the Claimant, and a sympathetic VE is a powerful ally in the hearing room.
The next set of questions between the ALJ and VE typically center on a hypothetical claimant with various health restrictions. Judges will often pose 2-3 hypothetical cases to VEs, which often range from a Claimant who is barely affected to a Claimant who is profoundly affected with health issues. The hypothetical cases will bear features of the Claimant’s illness including symptoms, physician imposed restrictions, diminished physical and mental capacity, and will even consider breaks that are required.
It is with these hypothetical cases that a motivated Claimant can provide strong evidence in support of their case. When the judge asks the VE about the various scenarios, it is important to write down all of the restrictions separately, so that one can refer back to “Scenario 1, 2 or 3” as the case may require. Usually one or two of the scenarios will establish that the hypothetical Claimant would not be capable of work. Those sample cases do not require as much scrutiny.
The hypothetical cases that require the most attention are those hypothetical scenarios that have the sufferer of the described symptoms and limitations returning to work. To create a scenario where the last hypothetical Claimant could not return to work in any job should then be the goal. As such, the questions that should be asked should play with this hypothetical scenario, rather than the Claimant’s own case. Here are some examples of questions, both good and bad.
LESS HELPFUL QUESTIONS –
1. If I am on painkillers how can I get to work?
2. If I have anxiety attacks whenever I encounter someone, how would I be able to work?
3. I can’t sit for more the 10 minutes without a break? Do you think that the factory would let me move?
4. I have to go to the Doctor at least two times a month, often unscheduled, what employer would deal with that?
HELPFUL QUESTIONS –
1. If you add the effects of narcotic painkillers, which include sleepiness and dizziness to Scenario 1, would the hypothetical Claimant be able to return to his past relevant work or would there be other work that he could do?
2. If the hypothetical Claimant in scenario 1 was on the heart medicine Lasix, which causes the need for bathroom breaks once per hour, would he be able to return to his past relevant work or would there be other work that he could do?
3. You stated earlier that the hypothetical Claimant in Scenario 1 would be able to alternate sitting and standing. Would this alternating be at the discretion of the hypothetical Claimant? Would the Claimant’s need to make this determination affect his ability to work?
4. Would a hypothetical employee who is reasonably expected to require 2-3 days off from work per month for physician appointments be able to maintain employment?
As one can see from the sample questions, there is no “master set” of questions that will automatically unlock favorable testimony from the VE. The best advice that a Claimant should follow is to be readily able to quickly identify features of their illness and symptoms of their medicine that might impact their ability to work or maintain employment. They should further be able to craft constructive questions around these features that will draw hypothetical scenarios which feature a Claimant that is unable to work. Issues such as absences, incontinence, short attention span, effects from prescriptions all will bear on employability, and it is the job of the Claimant to bring these to light.
It is important for readers of this note to know that this subject is significantly more sophisticated than the highlights struck herein. Erosion of the occupational base, skill transferability, and residual functional capacity’s effect on the ability to work are but a few of the additional issues that may impact a Claimant’s case when dealing with the testimony of the VE. This note is a superficial view and was not designed to be an exhaustive exploration of these issues, but rather a small note on how to properly interact with the VE and ALJ regarding extremely important elements of a case.
For more information about this article, or to discuss your case with an attorney, contact Thomas O’Brien at Feiler & Associates.
Monday, September 20, 2010
Whether or not a special one-time sum will be paid will certainly be the subject of debate if no COLA is to be paid.
Tuesday, September 14, 2010
Falling in line with Democrat positions, it appears that over half of individuals polled DO NOT support replacing Medicare with a voucher system that would allow seniors to purchase private coverage.
The impact of these issues on the election may be palpable, but both majority positions above seem reasonable, however on the subject of privatizing Social Security, it would seem that such a move would be a concession to Wall Street, whose abusive investment behavior nearly led this country to financial ruin. Adequate protections would have to be put into place in order to garner the support of gun-shy voters who are not likely to trust Wall Street again.
On the Medicare issue, is this really a surprise? Aside from arguably not paying hospitals enough, Medicare works reasonably well. Why would an individual trade a functioning program for a plan with a private carrier where benefits would be different, network strength would become an issue, and appealing claims would become more complex?
It will be interesting to see where priorities lie come November.
See this article for all of the details, and please contact Thomas O'Brien at Feiler & Associates for assistance with disability claims.
Friday, September 10, 2010
One item of interest though... Representatives cannot simply click and download entire files in the .PDF format, they must be selected for download, and then later (in my case about 20 minutes) be "picked up" by clicking on a link that SSA emails. This works fine, but is not instant gratification that one would hope for.
All in all, this is a promising continuance of Social Security's efforts to make the application process accessible, convenient, and beneficial for Claimants.
For more information about Social Security, contact Thomas at Feiler & Associates.
Thursday, September 9, 2010
There was a representative in the vestibule, who directed me to the second floor, and ensured that I had brought my invitation. There are three items that were non-negotiable. One needs a government ID, an invite, and a cell phone that receives texts. The cell phone issue is interesting because, though lawyers may apply to have picture cell phones in Federal Buildings, others are often barred. This rule seems to be enforced with different levels of adherence, but fo non-attorney representatives, I am sure there are accommodations.
Upon arrival to the second floor, a group of folks at a desk welcomed me, and requested to see my invitation. Upon review, they pulled some information from a stack of pre-printed envelopes that I would later find contained a user ID and Rep ID that had been assigned to me. From this desk, I was directed to a workstation with a young lady who verified my identity from my drivers license. She further compared this information with their system information, and then subsequently left to confirm something else via telephone. Once it was established that I was who I said I was, I was escorted to yet another room where I sat down with an instructor.
It was here that I was guided to the official website, and led through the registration process. While not terribly complex, it definitely bore the hallmarks of government documentation with regard to the level of security and acknowledgment of security procedures. The process also involved supplying a cell phone number which sent a series of two text messages. There were registration numbers in these messages that were further used to verify my identity and unlock my access. Once this was completed and all numbers were entered and unlocked, I was directed toward the "help" portion of the website and given a sheet of instructions with a phone number that I was to use should the online documentation not be sufficient.
Once this was complete, I was again instructed to the folks at the front desk who originally gave me my ID numbers, and they took back a sheet that was created during my registration process. From there, I was free to go, and was instructed that full files would be available through my ID within 24 hours from the registration event.
Every interaction with the SSA employees today was genial, and helpful. Furthermore, every interaction was one-on-one, despite the fact that they seemed to be running about 10-15 representatives through the process concurrently. There was very little waiting at or between stations, and everyone working there generally seemed to be enthused about the future. Ultimately, like many aspects of having the internet in our lives, I would expect this service to make the lives of Claimants easier as well as the lives of their representatives. What I hope does not happen is that an organization which is already accused of being faceless and monolithic becomes further distant from its stakeholders. If the customer service that I experienced today is any indicator, SSA really seems to be trying to implement this the right way.
Stay tuned for my experiences with the unlocked system, and for information about Social Security Disability contact Thomas O'Brien at Feiler & Associates.
Wednesday, September 8, 2010
The invitation is not clear whether or not tomorrow will result in immediate access upon registration, but rest assured that I will be sharing updates with the readers of this blog at the situation evolves.
For more information, contact Thomas O'Brien at Feiler & Associates.
Thursday, September 2, 2010
Georgia opted not to have state involvement in administering this program, but there are still funds available for people in Georgia, and the Federal Government (via HHS) will distribute them. The purpose of high risk pools is to provide affordable health benefits coverage for those individuals rendered otherwise uninsurable by pre-existing conditions. $5 Billion has been allocated by the Federal Government for this endeavor, $117 million of which is earmarked for Georgia. The non-partisan Congressional Business Office has given guidance that these funds will probably not completely bridge the gap to 2014 when the Health Reform Laws are implemented, but for those who need coverage ASAP, and have a Medicare "light at the end of the tunnel" waiting for them, this is a worthy option to consider.
All that is required is that an individual:
- Be a citizen or national of the United States or lawfully present in the United States;
- Not have been covered under creditable coverage (as defined in Section 2701(c)(1) of the Public Health Service Act) for the previous 6 months before applying for coverage; and
- Have a pre-existing condition, as determined in a manner consistent with guidance issued by the Secretary.
For information about disability and health benefits law, contact Thomas O'Brien.
What should have been prepared and submitted prior to the date of hearing?
It is vital that all medical evidence that is available have been submitted prior to the date of hearing. Additionally, if the Claimant’s physician supplied opinion about the Claimant’s residual functional capacity (RFC), or supplied any letters sharing their opinion that their patient is disabled these should be submitted well in advance of the hearing if possible. It is always possible to submit any additional evidence on the day of the hearing, but it is advisable to get this in as early as possible as the judge forms their preliminary opinions of the case. An additional item that may be submitted is a pre-hearing brief which explains the Claimant’s theory of the case in legal terms for the judge. Generally, these are regarded as helpful if they are objective and distill the issues clearly into discernable components.
Does a hearing happen in court?
Not in the traditional sense. Hearings are held at hearing offices, and by video conference. They do not take place in traditional courtrooms and they are private affairs, meaning that there will be no gallery of observers awaiting their time with the judge while watching your case. Most hearing rooms are fairly small conference rooms that are designed to contain 4-5 comfortably at a given time. There is usually a central table upon which rests several microphones, which will be used to record the hearing. At one end of the table (and often stationed above the other room occupants) sits the judge (or the video screen), and at the other end sits the Claimant. To the Claimants side will sit his or her attorney. Most hearings last between 30 minutes and one hour, but a variety of factors may influence this.
Who is present?
There are most commonly four primary players, which may be supplemented as a case demands. Those players are the judge, the claimant, the court reporter, and a vocational expert (VE). Additional individuals that may be added include the claimant’s attorney, a medical expert (ME), and any witnesses that the claimant may wish to call. As one might imagine, the judge is in charge of the room. He or she will begin the case by stating that the case is going “on the record”, and making introductions. It is important to note that the Rules of Civil Procedure are often observed, but not expressly required by law. It is always proper to refer to a judge as, “Your Honor” or the slightly less formal “Sir / Ma’am”.
What happens once the hearing starts?
After going on the record, the judge will then swear in any individuals who will testify in the case. Those sworn are typically the Claimant, the VE, the ME, and any witnesses that the Claimant will call. At some point, he will ask if the record is complete as it currently exists. For this reason, it is advisable to view the case disc (or file) immediately before a case so that additional evidence that may not have made the record may be submitted.
Next, the judge may also ask the Claimant to stipulate to the credentials and experience of the VE or ME. Stipulating means that one acknowledges their credentials of the experts asked to testify, and agrees that their experience gives them the ability to provide information about the Vocational and Medical issues present in the case. At this point, the judge may allow a Claimant to make an opening statement or simply may dive into the question and answer process. It is important to answer questions not only clearly and with a yes or no, but also to expound on the answers. It is never appropriate to embellish the truth, but certainly presenting the truth in a light favorable to the Claimant’s case is the desired end. The case is being transcribed, so clear and audible answers are vital.
An opening statement is a great place to set the table for the issues being addressed in one’s case, but it should be objective and targeted at the true issues at hand, not simply a statement of opinion. Once a statement is made, the judge may begin asking questions of the Claimant, or may allow Claimant’s counsel to question the Claimant. The subjects most frequently asked relate not only to the medical condition, but to residential conditions, state of self-care, physician relationships, income, activities of daily care and living, support received from others in the form of money and physical assistance, and details about past jobs held. If the judge misses asking a question about what the Claimant believes is a crucial component of one of these subjects, it is important that they note this, and testify it into the record later.
If the judge asks questions first, they will then usually allow the Claimant to present their own testimony later. If the Claimant presents their case first, the opposite happens and the judge will ask questions. Once this is complete, the judge will typically call the Vocational Expert to testify. Vocational testimony is frequently an un-nerving process to Claimants, but it is important to note that this is a hypothetical endeavor. The judge usually will present a few scenarios to the VE regarding a worker of a certain age, education, and experience that exhibits certain traits or limitations. Once this presentation is made, the judge will ask if such a worker can perform the Claimant’s past relevant work or if there is work that the hypothetical worker can perform. If so, how many of those jobs exist in the national and local economy. Once the VE has opined on these hypothetical claimants, the Claimant will have an opportunity to cross-examine the VE on those particular scenarios, or develop a scenario of their own. There is a great deal of strategy that may be adopted here, and it is will be the subject of another article in the future, but it should go without saying that the Claimant wants to ensure that the hypothetical claimant accurately portrays the symptoms and challenges of the real Claimant, and cannot return to his old past relevant work or perform any other job in the economy.
Once testimony of these parties concludes, the case will most often take one of a couple of turns. In certain cases the Judge will make a favorable decision on the record. This is often good news, but can also come with some procedural pitfalls such as an adjusted onset date, that require some analysis before accepting. If the judge does not provide a decision, this is not a bad thing, the judge simply may wish to analyze the case in light of the testimony provided. The judge will close the record and dismiss all parties. At this time, the Claimant may exit the hearing area to return home. Usually in a few weeks a written decision will be submitted by the judge and be sent to the Claimant.
What information should a Claimant have available?
When in the hearing room, Claimants should always be prepared to speak in specifics about their case, condition, means of support, physician treatment, previous work, and everything related to their sickness. These are the obvious components of a case, but in addition to telling the story of a case, there are a number of procedural elements that are helpful to have available quickly. I have listed them, with brief explanations below:
- 1) Type of Benefits Sought – Knowing whether one is applying for SSI (Title XVI), SSDI (Title II) or both is extremely important, as their varying requirements alter what must be proved at hearing.
- 2) Date Last Insured – Working at a job that pays into Social Security provides a Claimant with “insurance” after laboring for a specific amount of time (often 5 out of the past 10 years). This date is significant because if a Claimant’s Onset Date occurs before this date, they are insured, if not, SSDI benefits are not available.
- 3) Prior Period of Disability – If the Claimant received disability previously, it is important to be able to produce dates, the reasons for the disability, and the benefit type received. A prior period can often strengthen a current case.
- 4) Alleged Onset Date – This is the date that the Claimant got so sick that they became disabled. This should be provable to a reasonable certainty via medical records.
- 5) Revised Onset Date – This is a revision to the date from which the Claimant claims disability, and there are a variety of reasons that this may change ranging from the judge offering benefits from a different date, to their being a lack of medical evidence supporting the original date.
- 6) Date Last Worked
- 7) Date Case Filed
- 8) Impairment Listings – If a Claimant wishes to declare that they met a listing, knowing which listing(s) they met is helpful. This is often supplied in a pre-hearing brief.
- 9) Grid Listings – If a Claimant claims that they are able to “grid out” under the Vocational Grids, then knowing and supplying which grid rule supports their claim is important.
- 10) Past Relevant Work + DOT Information – Knowing the DOT ratings of the past relevant work, and the work as performed by the Claimant is helpful when performing a grid analysis, and when evaluating vocational testimony.
To ask specific questions about your disability case, contact Thomas O’Brien at Feiler & Associates.
Michael J. Astrue, Commissioner of Social Security, today announced that about 737,000 beneficiaries in South Carolina, North Carolina, Virginia, Maryland, Delaware, Pennsylvania, New Jersey, New York, Rhode Island, Massachusetts, and Washington, D.C. are affected by this early check delivery.
To those affected, good luck, good health, and stay dry.
Wednesday, September 1, 2010
He states that privatization, as defined in his article would be a reasonable answer to this conundrum. Not only could the investment vehicle be U.S. backed securities, which eliminates the argument previously made regarding investments being subject to the whim of the market, but Social Security funds in private accounts would also be immune to confiscation and adjustment by the U.S. Government, since the alteration of these funds and/or terms would offend the Due Process clause of the U.S. Constitution.
With these features in mind, it is hard to imagine how anyone could be opposed to such a move, except those that rely on borrowing these funds for other purposes, or who intend to profit from the continued control thereof. This might be a return to the true and noble purpose that Social Security serves, and might serve to cement this program for the benefit of future generations.