Social Security Disability Update

There is a new rule on Fibromyalgia. SSR 12-2p pertains to evaluating the disease. The policy on this is to make sure there is solid medical evidence of fibromyalgia. Merely having a diagnosis of fibromyalgia is not enough. They will review the physicians notes to see if they document the condition over time. The point is that when seeking disability that there be decent medical evidence of the condition including strength and functional abilities. Read what it says so that the treating physician can be alerted when providing a report. Getting your ducks lined up is important in obtaining disability benefits. Often relying on a diagnosis alone is dangerous. You may know your situation but the details are important in any case. Many times I have seen doctors say you have problems but that is only part of the story. The big part is how it affects you and has it been established in the records. Moreover as part of this update it is important to know that they are tightening up on issuing favorable decisions. One attorney posted on his blog about this with links to other commentators. With approval rates down you can expect that attorneys will be careful on taking a case. In turn a claimant should check with other attorneys if your first choice declines to take your case. Many times I was surprised that an attorney had declined a case which I thought with good effort was winnable. It is all a matter of experience and personal style with an attorney so if you truly believe you are not employable keep trying to obtain an attorney to work with and follow his suggestions. You can help with your own case not so much by knowing the law as by following through on your attorneys suggestions. He will want to line up your claim and any way you can help will improve your chances. For example in many cases I have used questionnaires for a doctor to fill out. They help document your condition and your functional abilities. The claimant being a patient of the doctor may be asked to bring this to his doctor and ask for his help. If your doctor is really supportive then he will do it at low or no charge. You help your own case by following along with the plan of your attorney. At present if disability approvals are going down that is all the more reason to follow your attorney's plan.

Social Security seeks to review the disability process

Over at the Wall Street Journal they are reporting that the Social Security Administration is obtaining an "independent" review of the disability hearing process. The article appears to emphasize that too many judges are approving cases at the hearing stage. It asserts that some judges approve 99% of claimants that have sought a hearing after a denial. Of course it also notes some judges approve very little like the judge who approves just 13% of the claims at the hearing stage. They indicate funds will run out by 2017 at the current rate but this statistic is open to dispute. Depending on your political persuasion Social Security is in such bad shape that we should phase it out or it is fine and with tweaks can last indefintely. I am closer to the latter then the former but that is a long story. I do know that judges have their own stats on granting/denying benefits. But concentrating on judges who grant benefits is not the right approach. Being concerned about too many favorable decisions but not those judges who deny excessively is too one sided. I am all for saving money but not at the expense of the truly disabled which I consider ghoulish. There should be some accountability for all judges. The article also points out that the federal courts seem to be overturning denials 51% of the time as if the federal judge is off base. My experience is just the reverse. Most federal judges who overturn a decision are quite right. Even the government attorneys often stipulate the SS judge made a mistake. SS judges do make mistakes and at times the denial of benefits seems off base. Implying the federal judge is interpreting the rules improperly is absurd. Most decisions are far better reasoned then the decision denying benefits. However to be fair many of these overturned decisions are just being sent back to the original SS judge for more workup on a remand. My experience with claimants is that the vast majority are truly disabled and unemployable so we should be focusing on speeding up the process (for time to a hearing click here)and quit trying to label Social Security as the problem. Instead we should be fixing it for all future generations.

Recent Social Security Rule Hinders Claimants

Just recently effective the Social Security Administration issued SSR 11-1p which affects those appealing a denial after a hearing. The appeal process is an ongoing process and after a hearing you can seek an Appeals Council review and thereafter also can proceed into the federal courts. So you wait for a hearing and if, for some reason, you are denied benefits after a hearing you can pursue further appeals. This takes time but I have seen appeals take several years but finally be successful. But to any claimant this new policy is bad news. For some time if you lost at the hearing and appealed further you often would be told to file another application for benefits with a date after the hearing decision. Then you would have two proceedings going primarily to preserve your right to several months of benefits. The theory is that if you just waited on the appeal and it took 6 months or longer then when you get around to trying all over again you lost those months of waiting. Now the agency has decided not to allow that new application or so it seems on first impression. Imagine having cancer but losing at the hearing on some basis. Then you take a turn for the worst but are told by this policy that any new application has to wait on your appeal or give up your appeal to file a new application. I understand the need not to complicate matters but this policy may result in denials of due process. At least those representing claimants are quite disturbed by it. Here is one view on this and here is another and still another. I would say that this is an area that requires proceeding very carefully. This ruling is new and untested and may well be attacked by those who believe you have a right to file a new application but for now I am just letting you know about it. Time will tell how this is best handled.

Social Security Disability Close to Insolvent?

The AP news is reporting that Social Security disability is getting close to insolvent. The news article points out that with the aging of boomers and the economy more people are applying for disability benefits. So right when we are all concerned about debt and revenues we have another sign of the times. Despite the fact that for years the entire Social Security system was dipped into by the federal government instead of set aside we have another potential problem. I am not sure how many may think that those getting SSDI and SSI are not entitled but the vast majority of those drawing benefits have run a gauntlet to obtain benefits which are a fraction of what you can earn in the world of employment. I remember one time realizing how tough it must be for one client who was earning over $60000 a year to seek annual benefits that were perhaps 20% of what he had earned. Yet he had to go to a hearing (the wait took over a year) to prove he no longer was employable. When you are not working and in poor health the process can seem agonizingly slow. Sure some of those receiving benefits may not deserve them but almost all do deserve them and the program has worked for many years. There is a need for increased revenues into the system yet politics is getting in the way. I can say that some feel lifting the cap or lid for contributing into the system would make it solvent but that may not be passed. Currently all wage earners pay into it up to $106800. If you make more you do not pay more. So the athletes, the corporate executives and others making really good pay have a benefit none of the rest of us have. They do not pay a dime over $106800.
UPDATE AND A NEW VIEW ON THIS: Over at another website they are reporting that this story about insolvency is not totally accurate. The article points out SSD programs and the fund are not close to insolvent but that it is more of an accounting situation. In the past the disability fund and the retirement fund have separate accounts but have transferred funds between them from time to time. A simple accounting transfer and both are solvent until at least the year 2035. This should remind us to be careful about assuming all the stories swirling about Social Security are accurate. One source for further details to strengthen Social Security is here.

Medicare Quickly Covers End Stage Renal Disease

There need be no prolonged wait to obtain medicare if you have ESRD (end stage renal disease). Often those who obtain Social Security disability have to wait for medicare but in this situation no matter who you are or even if you have not obtained any disability benefits you can quickly get medicare coverage. This article which appears in this link addresses this matter along with other points. Sadly obtaining disability can be a prolonged process but it is good to know that in this area you can quickly get on medicare regardless of your age or circumstance. I still believe that leaving medical care in the hands of private insurance is not the best approach for those with serious injury or illness. We can believe in free enterprise but also realize that society has to step in when it affects all of us. We see this with fire protection and police and the military and education. Also we should see that in the human area of healthcare. Its high cost and immense impact on all of us should be a social or societal concern. In any event medicare can step in for you if you have ESRD without much waiting around.

State Social Security Polls

The uproar over possible cuts in Social Security and Medicare continues. At this polling website they show us the Colorado polls and they assert we should strengthen Social Security not cut it. However the so called voucher system touted by some politicians appears to push more of a burden on seniors to fund their medical care at the very time their income is reduced. No doubt there is much to criticize with any government program but turning matters over to private insurance is like turning over all our finances to the bankers. While free enterprise is great it can also lead to abuses based on financial power. "He who has the gold makes the rules" can be very harmful to a society. As a society we need certain basic matters covered and others regulated. It is a price you pay for being in the society and yet also it is a value to all of us to have some benefits. Moreover, historically we have tried as a society to protect the old, the young and the disabled and hopefully that will continue. Clearly most Americans feel the same. It will be interesting to follow this debate as it strikes me as an effort to begin eliminating programs that only need tweaking while not really addressing jobs and the budget. By the way watch out for those who are using the word "reform" to discuss Social Security/Medicare. Most of us in Colorado went through the "reform" of workers compensation. It was a euphemism for cuts in benefits to the harm of claimants.

Medicare Rights Group Against GOP Changes

There seems to be a constant assault on Social Security and Medicare/Medicaid coming from I would call the far right of the political spectrum. The fact that Social Security has not been the real problem with the federal deficits and actually was borrowed against to fund government spending does not matter now. While there is no question that structural changes to make it more solvent may be soon needed the current effort seems nothing short of inhumane in its consequences if enacted. While that will not happen I find it amazing after all these years to see some questioning the usefulness of such benefits. The inability of some to accept the notion that we just need to cover the old, the disabled and the young astounds me but I guess they do not generate much income so we should minimize them is their attitude. Anyway this medicare rights group notes their disagreement with the GOP effort of one representative to pare down benefits. Also the Alliance for Retired Americans is voicing its concerns. Lastly at another site for the "middle class" they are also critical of this proposed legislation.

Social Security Compassionate Allowances

Those seeking Social Security Disability often have to go through a long and tedious process. You file, get evaluated which takes weeks if not months and very often are then denied. In Colorado you can then appeal and seek a hearing. However any hearing date is delayed for many months. I have been figuring on it taking a year or longer for the hearing and decision. Even when you win the matter must be processed for you to begin receiving benefits. If I had to estimate the time from beginning to end I would have to say the process will take over 1 1/2 years. Typically from the time you start to the receiving of benefits is long but I say that if you can no longer work get the ball rolling on this. Doing nothing is foolish as there may be things you or your attorney can do to get ready. But there are exceptions to all this. Sometimes people are granted benefits right off the bat. Most of us are not that lucky. Despite any delay if you obtain benefits you may get them backdated to a point 6 months from when your total disability actually started. That is the rule for everyone and the date of disability or onset is not always easy to figure out. Often the judge will do so in his decision. Anyway the point of this blog posting is to make you aware that the agency does have a fast track in certain cases. It is called Compassionate Allowances. For example if the person has early onset Alzheimer's disease they can be fast tracked. In other words certain serious problems can be expedited so benefits flow faster. There are at present some 88 diseases and conditions but this list can get expanded from time to time.

The latest data on Social Security appeals and judges

If you are wondering how long it may take to obtain a hearing once you appeal the answer depends on where you live. It is reported that in Colorado Springs the delay to a hearing or disposition is 431 days. While they have been trying for years to speed up the process over a year remains a long time to wait. An attorney may use that time to obtain more reports or assessments but the wait is still too long for many people. In Puerto Rico the wait is shorter. In one office (Mayaguez, PR) the wait is 177 days. Then again in Lansing Michigan you can take 566 days to a disposition. Yet have the claim in Livonia Michigan and the wait is 257 days. Seems not that complicated to smooth all this out but apparently it has been tough to achieve. Waiting too long is much tougher on the disabled so wish they'd get it right. I realize it can be a matter of staffing and numbers but when video hearings are now permitted I fail to see why such a huge variance is tolerated. Last you can look up the latest figures for any judge at the website that compiles this data. You can look up what each judge in Colorado Springs is doing with the cases he or she is handling. What I saw in the latest stats is that 4 out of the 5 judges are somewhat more favorable to claimants and one is statistically denying more claims then issuing favorable or partially favorable decisions. We all know that statistics can be misleading and the types of cases a judge may be involved in can make a difference. The problem is when we discuss the odds we have to say its 50 50 but for some judges your odds are over 60% of obtaining an award. No question the older you are and the more restricted you are the better your chances but each case requires a very individualized approach.

Everyone Seems to Benefit Except SS Recipients

The tax cut extension certainly seems to be benefiting all Americans except those just drawing Social Security benefits. Those earning over $250,000 continue to receive a tax break estimated at a cost of $75 billion. But also the Social Security tax is reduced for one year from payroll deductions and this appears to cost about $120 billion. See this article at CNN Money. My concern is if that payroll deduction is made permanent it sets up Social Security to take the fall for being too costly so benefits need be cut. You take away the SS payroll collections and then blame it on Social Security itself! Additionally despite this enormous giveaway they then quietly killed any chance to help out those on Social Security with a one time $250 check to make up for two years of no cost of living increase. Cost for that? $14 billion. Reason given? It is too costly. Makes you wonder about our priorities.

Federal Subcommittee Examines State Workers Comp Systems

On November 17th a congressional subcommittee looked into and expressed concern about state workers compensation systems. There was testimony taken and written statements provided which reflect what I see as legitimate concerns about many state systems. The link I have provided here takes you to the webpage and from there you can listen to and read much of what was provided. One concern was over the American Medical Association 6th edition for rating permanent impairment. Colorado still uses an older version. The 6th edition deviates from past editions in a significant way including what appears to be a lack of evidence based protocols. In any event more worrisome is the view that over the last 20 years benefits have been reduced and this may have increased other disability claims such as SSDI and SSI claims. What was historically intended to help injured workers in an efficient manner has, over time, become inadequate and not equitable. In Colorado you only have to look at the definition of permanent total disability to see how legislation has intentionally sought to cut benefits. At Colorado Revised Statutes 8-40-201(16.5) total disability is defined as being unable to earn any wages in any employment. Does this mean if you can only work a few hours for minimum wage you are not totally disabled? Insurers do so argue that very point and Colorado is tough compared even to Social Security disability. Harsh results? Often but insurers merely use existing Colorado law to keep benefits low. Other areas of controversy are pre-existing conditions or for that matter insurers questioning if work activities are responsible at all. In Colorado nearly 25% of workers comp claims are contested and never admitted without a hearing. Those interested can read the last published figures for the year 2005.

Impact on Disability Claims if the Retirement Age is Raised

The Government Accounting Office has released a report on what I see as the impact on Social Security Disability if Retirement is raised. Let us say you can retire early at age 62 and reach full retirement age at 67. To save money some are proposing to raise the retirement age to retire early and for full retirement. One justification is people are living longer and can work longer. Another justification is an effort to reduce benefits perhaps even looking at dumping it at some point. Blaming Social Security is probably a mistake. It has stabilized or helped stabilize the elderly lifestyle and with medicare made sure they were medically insured. It needs improvement but from my own personal experience it helps the old and disabled to allow at least a modest but decent life. But what if they do tamper with it? This report raises the likelihood of increased disability claims. Perhaps it is wise to study all the ramifications of altering Social Security and not look for simplistic answers that some politicians promote. One man's agenda may be another man's loss. Do unto others may be the rule to abide by here.

Violent Threats to Social Security Judges

It is being reported at The Huffington Post that the Association of Administrative Law Judges issued a release to the Associated Press that judges handling Social Security disability cases are facing an increasing number of violent threats from claimants angry over denials or delays. Historically in Colorado Springs it has been taking a year or so to obtain a hearing for most cases. Efforts are always being made to speed up the process but it is a national problem and in some places delays exceed a year. Video hearings are one way that judges can be utilized where they are most needed but the shear volume of cases is a factor. Also I have noticed that cases may have voluminous medical records or paperwork so even with modern technology it requires time to review. I would personally like to see vocational rehabilitation used to help those who really may have a disability but perhaps can work have a chance at staying productive. It could also help the judge should such rehab fail because it reveals the truth. Instead vocational experts are often called to the hearing to express opinions based on certain assumptions which may or may not reflect the truth. In any event angry people are a sign of the times but blaming judges and violence is not the answer.

Some Question Proposed Social Security Mental Disability Rules

Over at this website for the disabled they are saying the proposed Social Security rules regarding mental disability have a big problem. While some parts of the proposed rules are good there seems to be an effort to make automatic qualification based on meeting a mental listing tougher then the current mental listings. A Social Security listing is a means of obtaining a favorable decision based on specific factors that when they apply to a person result in automatic qualification for benefits. There are current physical and mental listings and this latest effort may mean certain standards or tests are created that are difficult to figure out. If so less will qualify under the listings. This action alert at the website calls for an effort to stop such a bad approach.

Should you work while seeking Social Security Disability?

At this posting by another blogger there is a discussion on working while you pursue Social Security disability. Those who do work must realize that their work efforts can mean a Judge at the appeal/hearing stage will deny the claim figuring you can work enough not to be disabled. So trying to just earn some money can be dangerous to your claim although it may also show you are doing the best you can and still cannot earn a substantial amount. Be aware that any claim in this area really is asserting you are entitled to total disability benefits so any work is carefully reviewed. In any event the topic is discussed in the link.

Social Security 75 Years Old: President's Address

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Social Security Disability Filing Online

The traditional way to ask questions and also apply for Social Security disability benefits is to go down to a local SSA office. Any such filing is a bit time consuming as information needs to be supplied and the forms are somewhat complicated. Another option is to file the application online starting here. Be aware that it still takes a lot of your time and can be confusing. It also appears that one form has to be mailed in or dropped off at the agency office. I had one client file online but it was reported that it was not as easy as it might seem. My view is that you do so in person if you can. If not call them up or try the online approach. Any application takes time to process and that includes gathering up some if not all of your medical records. If you are denied be aware that such denials are common and you have the right to appeal provided you promptly act. By all means consult with an attorney especially if you've been denied as there can be many reasons for the denial that justify an appeal.

SB 10-187 Impacts Claims on or after July 1, 2010

In Senate Bill 10-187 Colorado is making some significant changes in workers compensation claims. For a complete reading just look at the bill but here are the highlights as I see them (effective only for injuries on or after July 1, 2010):

1. If the claimant has to seek a hearing to continue to obtain maintenance medical care then should the other side give in within 20 days from the hearing the claimant can seek his costs to support his effort to continue maintenance care. I see this as trying to stop the other side from objecting to care and forcing the claimant at some expense to try prove his ongoing entitlement but then backing off.
2. Two matters pertain to calculating average weekly wage. One, stops the effort to not count the claimants cost of converting from employer health coverage when he gets medicaid or indigent medical care. A recent case said do not add or adjust for a claimants cost of health insurance when he gets indigent care for free. My view is that the employer health benefit was worth something and should be a wage benefit that is counted in calculating your wage. Second, any wage calculation is to be based on your accident date or based on a judge using his discretion to figure what is appropriate. To me this just codifies what is the law today anyway.
3. Permanent partial disability benefits are no longer to be reduced if you receive Social Security benefits or an employer financed pension/disability plan. I recall one case where the fellow had a reduction of his benefits to zero because of the statutory offset which is corrected by this bill. However these offsets do apply to other benefits such as permanent total disability.
4. A modified job offer may be refused under some circumstances and not result in job termination and asserting the claimant by refusing was responsible for his own termination so his temporary benefits should stop. Personally I wish they had simply repealed the existing law on this which triggers much litigation. In the old days if you were fired when disabled you were often not cut off your temporary benefits as you were still disabled and other work was not that simple to obtain.
5. The caps or limits of top dollar compensation are to be adjusted each year for any claim for injury on or after Jan. 1. 2012.
6. Lastly it is said that there is no waiver of your right to pursue permanent total disability by seeking a lump sum of all the admitted permanent benefits.
Every point raised in the new law was important to correct problems or other interpretations of the law. I'd encourage all to look at the bill as this just represents my simplified take on it.

New Proposed Bill SB 10-187 Has Many Changes

A very new proposed bill, Senate Bill 10-187, has many changes of significance for Colorado. Here are some of the important proposed changes:

1. It wants to provide the claimant with the costs (not attorney fees) of obtaining medical maintenance benefits recommended by the authorized physician if they are unpaid and contested but the claimant gets them ordered or Respondents agree to pay within 20 days of the hearing. I assume this is to try to reimburse the claimant if he or she must go to a hearing and expert testimony costs are necessary.
2. It clarifies what is to be the average weekly wage calculation problem raised by a recent case (Avalanche). It proposes to use the date of injury or whatever the judge in his discretion deems fair (not to use two dates such as date of injury and date of disablement as appears in the Avalanche court case).
3. There is to be no Social Security offset on permanent partial benefits. Such an offset would often be so onerous that partial benefits might go to zero so this prevents that should it become law. For those not aware the law reduces your workers comp benefits by one half of your Social Security benefits to prevent what some say would be double benefits. It is the law and this proposal tries to eliminate the problem of the SS offset applying to partial disability cases.
4. Another proposal is that should an employee reject a modified job offer that it not be considered his responsibility (such that temporary benefits may end) if it is a reasonable decision or if the job offer is over 50 miles away. Employers at times have tried to stop temporary benefits by unreasonable job offers that are not very nice or accomodating. In other words this proposal lets the claimant explain to a judge why he cannot take the job and perhaps avoid stopping his temporary benefits.
5. Annually requires an adjustment in the caps (currently top dollar for all but permanent total benefits are $75000/$150000 combining temporary and permanent partial benefits).
6. Proposes that a claimant can get a lump sum of permanent partial benefits but not be required to waive a claim for permanent total benefits.
I think you can see that this proposed bill has many provisions so we'll see if it becomes law. By and large it is reasonable in its approach at least from the claimant's point of view. It is not possible to review this in more detail in this blog post but those interested may read it and follow it as it moves through the legislative process.

Fed Chairman talks about Social Security benefits

I find it amazing that Fed Chairman Bernanke has the temerity to suggest cuts in Social Security benefits. It appears that bankers and financiers have a higher priority in the Bernanke view then SS beneficiaries. Of course that is what I believe is being discussed at this site so click here. Please recall that Social Security is an insurance benefit whether it be retirement or disability. Beneficiaries by working have paid for the coverage just as you and I pay for life insurance. This as opposed to those fragile banks and financial companies that received bailouts simply because it was important to the economy that they not fail even if they made bad investments. What it reveals, in my opinion, is the economic view that the old and the disabled are no longer productive so they should only get what benefits are provided to them. It disregards the fact Social Security is insurance not a giveaway. It seems cold blooded to pick on those truly fragile who have already contributed to their coverage.