SOCIAL SECURITY: THE REAL FRAUD

All the media are doing stories about Social Security, how it's going broke, it's fraud ridden, it's the "new welfare," and unemployed people are using it as a last recourse.  B-A-L-O-N-E-Y.  The media reporting on Social Security is the real fraud.  

If 60 Minutes had done 30 Minutes worth of research, their story on Social Security disability would have been far different.

Consider:

• It isn't broke.  SSDI can pay full benefits until 2036, and 76% of benefits until 2080, without any tax increase or any congressional action.
• Alcoholism and Drug Addiction were excluded by Congress in 1996 and do not qualify for SSDI or SSI benefits (Public Laq 104-121).
• Social Security was established as a self-financing program paid for by FICA taxes (now 12.4%) deducted from each worker's pay and matched by the employers.
• If Congress had not "borrowed" from the Social Security Trust Fund, there would now be $2.6 Trillion in the fund, and no crisis. (That's Trillion with a T, folks).
•  The "insolvency crisis" now is caused by the fact that Congress stole (I'm sorry, "borrowed") the $2.6 trillion from the Social Security trust fund and now has to find a way to put it back.  (Hand in the cookie jar)!
• The disability trust fund has become "insolvent" before.  It was fixed almost a dozen times in the past by a rather minor reapportionment of incoming taxes between the disability trust fund and the retirement trust fund. 
• The US Government does NOT (NOT) pay attorneys' fees when they represent Social Security claimants.  The fees are paid for by the claimants.  If Social Security deducts the fee from the claimant's money and sends it to the attorney as a "direct payment of fees," SSA charges the attorney a service fee of 6.3 percent; thus, the government earns income from this practice.  It costs the government nothing, nada, zero, not one red cent!
• Doctors cannot approve anyone for disability benefits.  
• Finally, no matter how bad the economy gets, people cannot get SSDI simply because they can't find jobs.  As a disability representative who has appeared in hundreds of disability hearings, I say that Social Security has not yet awarded one single dollar in SSDI benefits because the claimant couldn't find work.  You gotta be disabled and you gotta have hard, objective medical evidence to prove it.  Even then, there is a 75 percent chance you will be denied at the initial application level and about a 58 percent chance you will be denied again at the appeal level.

We once depended on the media to keep the politicians from lying to us.  Who can protect us from the media?

FILING FOR DISABIILTY? WHAT TO EXPECT

My firm represents claimants who file for Social Security disability benefits in Huntsville, Athens, Decatur, Cullman -- all over North Alabama.  I want to give you a brief outline of what to expect when you file a Social Security disability claim in Alabama.

Filing.  There are several ways you can file a Social Security Disability Insurance (SSDI) claim.  Online, by phone, or at the local Social Security office.  Beware that offices have cut their operating hours.  They are now open M,T, Th. and F from 9 AM to 3 PM, and on Wednesdays from 9 AM to noon.  If you don't want to handle the claim yourself, you can also get an attorney or representative, such as myself, to file the claim for you and deal with the government for you.  There is no fee for this service unless you become eligible for back pay and collect back pay.

Beginning Process.  The local Social Security office will gather your forms and information, even if you file on the internet.  After a few weeks, they will forward your application to a state agency called the Disability Determination Service (DDS) in Birmingham. 

DDS Process.   DDS is a state agency under contract to Social Security.  DDS will obtain your medical records and review your medical condition, past work, education, training and skills.  They will make the initial decision on whether you meet Social Security's definition of disabled.  The local SSA office will then send you a letter telling you the decision. Usually, about 4 months have passed since you filed your application.  In Alabama, just over 70 percent of decisions are denials at this stage.  If you get a denial letter, remember the affair is not over.  You have 60 days to file an appeal and potentially still win your claim.

Appeal.  Most successful SSDI claims must go to appeal.  You must file a separate document for an appeal.  I believe it is especially important at this stage to hire professional help from someone who knows Social Security law, rules of evidence, and proceedings.  In the absence of unusual circumstances, it takes about 12 months to get a hearing scheduled.  Then, you and your representative will appear before a judge who has the power to make a new decision on your case.  The following factors will be considered carefully during the appeal hearing (which lasts about 1 hour):

• How do your medical condition(s) limit your ability to perform work activities?
• What was the nature and classification of your past relevant work?
• Your age and education play an important part in this decision.
• Whether you are limited to unskilled work is a vital consideration.
• Can you still perform any of your past relevant work?
• Is there any other work in the local, regional or national economy that you can perform?
• Do you meet one of the Social Security Listings?  (An automatic approval)
• Do one of the Medical-Vocational Guidelines direct a finding of disabled?

There are 2 professionals in the typical hearing that will have great input into the decision about whether or not you are disabled.  One is the administrative law judge, who has a law degree and several years of experience as a judge.  The other is a "vocational expert," usually a vocational rehabilitation counselor, who will provide testimony about jobs you may still be able to perform in the national, regional or local economy.  The vocational expert will usually have a masters or doctoral degree and years of experience as a vocational rehabilitation counselor.

PART TWO:

As those things are quickly unfolding around you, can you imagine sitting there quite alone and wondering what these 2 professional people are going to do with your case?  Well, you should not be alone.  There needs to be a third professional person in that court.  That third person should be your your legal representative.  That representative should be there to look out for your interests.  (S)he should be there to ask the tough questions of the vocational expert.  

For example, here are just a few of the questions I would ask on behalf of my client at such a hearing, as the need arose:

• Did the previous job qualify as past relevant work?  (There are qualifications that must be met; just because someone worked does not mean it was 'past relevant work').
•  Was past relevant work, as actually performed, really skilled (or semi-skilled) work?
• If the claimant can only perform unskilled, sedentary work, doesn't that limit the ability to work?
• What exactly are the requirements for sedentary level work?
• Does the inability to sit for ___ minutes prevent sedentary level work?
• Does not Medical-Vocational Rule ______ direct a finding of disabled here?
• If my client must be absent more than 3 days per month due to medical reasons, what impact will that have on the occupational base for the job(s) proposed by the vocational expert?

There are dozens of other questions that a trained representative may need to ask during a hearing.  The claimant cannot be expected to know all of this information, for that is not his job. 80 percent of claimants who go into a Social Security hearing are represented.  It is my feeling that the other 20 percent should be. 

Finally, let me say that I or one of our trained professionals at the Forsythe Firm are always available to answer your questions about Social Security disability (SSDI) or SSI claims.  If you are not represented by another attorney or advocate, we will be happy to talk to you at no cost or obligation.  (If you are already represented, please speak to your own counsel about your claim).

DENIED TWICE? WHAT'S NEXT?

Once denied by Social Security, the person seeking disability benefits appeals and requests a hearing before an administrative law judge.  If the ALJ also denies the benefits, the claimant asks for a review by the Appeals Council.

The Appeals Council is a group of judges headquartered in Falls Church, VA, with offices also in Baltimore and Washington, DC.  The average waiting time for the Council's decision is about 14 months.

Here are the 3 possible actions that the Appeals Council may take:

Refusal to Reconsider - 75 percent.  The Council refuses to reconsider your case, effectively denying your appeal.  (The case may now be taken to US District Court for further appeal).

Remand - 22 percent.  The Council sends your case back for further action by the administrative law judge - usually another hearing.

Direct Award - 3 percent.  In a very small percent of cases, the Council reverses the administrative law judge's denial and makes a direct award of benefits to the claimant.  This is, obviously, the most favorable decision the Council can make.

Unfortunately, most people give up on their case long before it reaches the Appeal Council stage.  Therefore, many individuals who should receive Social Security disability benefits do not.  Keep in mind that favorable action by the Appeals Council (remand or direct award) potentially awards your benefits back to the date you first became disabled.  Therefore, a large payment of back pay may be due.

APPEALS COUNCIL WILL CONSIDER NEW EVIDENCE IN SSDI CASE

If a claimant gets an unfavorable decision with the administrative law judge (hearing level), he or she may appeal the case to the Appeals Council.  The Appeals Council will only consider "new evidence" if it meets the following criteria:

1. The evidence was not part of the claims evidence at the date of the hearing.
2. It is relevant, i.e., directly related to issues adjudicated by the ALJ.
3. The evidence relates to the period on or before the date of the ALJ decision.

There are instances where evidence dated after the ALJ decision is pertinent to the period prior to the date of the hearing decision.
If you are trying to untangle the knots of a Social Security disability case, you may want to consider professional help.  Our firm will look at your case for free.  No charge will be made for our services unless we agree to represent you AND you win your case and collect past due benefits.  You pay no fees upfront and never a fee unless you win.  We handle cases in Alabama and Tennessee only.  Here are our contact numbers:
ALABAMA                                                              TENNESSEE
(256) 799-0297                                                        (615) 732-7159

CONTINUING ELIGIBILITY REVIEWS FOR SSDI

The content of this post is provided for general information.  Note that my firm does not offer representation for continuing eligibility reviews (CER).  We offer representation in Title 2 disability, and in some cases, Title XVI - SSI cases.

I often receive calls from a Social Security or SSI beneficiary who is undergoing a continuing disability review (CDR).  More often I get calls from an individual who has had a CDR and been notified that his/her benefit is being stopped.  

If you are told by Social Security that your disability or SSI benefit is being stopped because  the result of CDR was unfavorable, here is what you need to do immediately (and you only have 10 days).

Write a letter to your local Social Security office.  You need to state 2 things in the letter:  (1)  I disagree with your decision to stop my benefits and wish to appeal that decision.  (2) I want to continue receiving benefits pending the outcome of the appeal.

Sign and date the letter.  Write your Social Security number on the letter.  If possible, hand deliver the letter to the Social Security office and have them give you a stamped and dated receipt.  Keep a copy of the letter.  If you cannot deliver the letter to Social Security, mail it to them by certified mail and get a return receipt from the post office to prove the letter was delivered.

You have 60 days to appeal a decision based on a continuing disability review (CDR).  But, you only have 10 days to request that your benefit check continues to be paid during the appeal.  Social Security should receive that request (as explained above) within 10 days of the notice stating that your benefits will be terminated.  Phone calls do not protect your rights under the law and they are difficult to prove.  Deliver your request for appeal in writing.  Note that if you lose the appeal, the benefits paid during the appeal will probably be considered overpayment and you may have to repay that money.  So file the appeal if you believe you have a good case.

Finally, it is difficult to find an attorney or advocate to represent you with a CDR case.  You may need to look online at www.nadr.org to see if a member of NADR is interested in taking the case.  They have a referral program that can direct you to a member in your area.

Question:  I called Social Security on the phone and the person I spoke with said the phone call was good enough and there was no need to send a written appeal notice.  Is the phone call enough?

Answer:  No.  No.  No.  While the person you spoke with has good intentions, the phone call will not protect your rights under the law.  Your appeal should be in writing, as described above.  There is a form you should complete at the Social Security Office (in addition to your letter).  But telephone calls do not provide protection for your rights.  Put it in writing.

GARBAGE IN - GARBAGE OUT

Social Security disability policy is  being driven  by media exploitation.  The media are guilty of misinformation, biased reporting and poor journalism.  This is nowhere seen plainer than in the series of National Public Radio pieces of Social Security disability.  The misinformation was so blatant that the former commissioners of Social Security issued an open letter to clarify.  Since, NPR has responded, acknowledging that their journalism had its problems.

Yet, the poor media performance is still driving unwise changes in Social Security disability policy.  Even as NPR was back peddling on their story, the president of the Association of Administrative Law Judges promised a "change in the way disability hearings are conducted."

I am afraid that we don't understand how Social Security disability hearings are now handled.  The truth is, it is more difficult now than ever to win a disability hearing.  Far from being grantors of government handouts, administrative law judges are skeptical, careful and excessively protective of benefits.  The award rates continue to fall.  In short, only the most qualified applicants are getting awards and these decisions must be supported by impeachable medical evidence.

In rushing to make change, I fear that we will further impede the ability of desperate, needy and eligible claimants to access basic medical care and benefits to which they are entitled under the Social Security Act.  Attending a disability hearing is intimidating and fearsome for most applicants.  The process is becoming more "adversarial" all the time.  I feel this is being driven by bad press.  The guardians of Social Security, the Acting Commissioner and the Congress, should be careful about taking any action that puts the disabled claimant in an adversarial role vs. the power of the US Government.  That would  be adverse to everything the Social Security Act envisioned for our country.

As the media continues to feed "garbage in," we must be prudent as policy makers that the result is not "garbage out."

SSDI AWARD RATES FALL IN 2012

Disability award rates went tumbling down again in 2012, according to numbers just published by the National Organization of Social Security Claimants Representatives (NOSSCR).  Nationally, only 52 percent of decisions at the hearing level produced awards.  In 2010 the national average was 62 percent.

If you want to look at the 2012 award rates at all levels, including the federal courts, simply click on the link below to see the "waterfall chart."

Waterfall Chart: Social Security approval rates in 2012.


Award rates vary state-to-state, office-by-office and judge-to-judge.  The national average on the waterfall chart, however, mirror Alabama's numbers very closely.  Keep in mind that Alabama doesn't have a "Reconsideration" stage, so those numbers don't apply.

In light of tumbling award rates, what advice do we have for legitimately disabled claimants?  Only two:

1. Appeal any unfavorable decision.  Kick your case up to the next level and keep trying.  Persistence wins cases.
2. Use any and all help you can get, including professional advocates or attorneys who know how to deal with the Government and Social Security system.

 Remember that the law is set up to favor the claimant in the matter of representative's fees.  A representative can only charge you a fee if you win AND collect back pay.  It's a no risk proposition for the claimant.

DISABILITY AWARD RATES FELL IN 2012

Disability award rates went tumbling down again in 2012, according to numbers just published by the National Organization of Social Security Claimants Representatives (NOSSCR).  Nationally, only 52 percent of decisions at the hearing level produced awards.  In 2010 the national average was 62 percent.

If you want to look at the 2012 award rates at all levels, including the federal courts, simply click on the link below to see the "waterfall chart."

Waterfall Chart: Social Security approval rates in 2012.


Award rates vary state-to-state, office-by-office and judge-to-judge.  The national average on the waterfall chart, however, mirror Alabama's numbers very closely.  Keep in mind that Alabama doesn't have a "Reconsideration" stage, so those numbers don't apply.

In light of tumbling award rates, what advice do we have for legitimately disabled claimants?  Only two:

1. Appeal any unfavorable decision.  Kick your case up to the next level and keep trying.  Persistence wins cases.
2. Use any and all help you can get, including professional advocates or attorneys who know how to deal with the Government and Social Security system.

 Remember that the law is set up to favor the claimant in the matter of representative's fees.  A representative can only charge you a fee if you win AND collect back pay.  It's a no risk proposition for the claimant.

DISABILITY: WORTHWHILE TO APPEAL?

The numbers are staggering.  There will be around 50,000 new disability claims filed in Alabama this year.  And 70 percent of them will be denied by an agency that is swamped and over worked.  Up to 60 percent of the denied claims should have been winners.

This makes the necessity of an appeal evident.  If your claim was denied, appeal immediately.  The law gives you 60 days to appeal without losing any rights under your original claim (or any money).  After 60 days and the deal is off.  What can a disability specialist or advocate do for you during the appeal process?  Quite a bit.

Focus on the reason you were denied.  The denial letter, while mostly a form letter, may give hints as to why you were denied.  Reasons usually lie in the very strict definition used for "disability," or the claim may simply have been mishandled.

Determine if the impairment meets a Listing.  Certain listings automatically qualify for disability awards, once you prove you meet or equal the listing.  This can make an appeal easier.

Develop a legal theory of the claim.  Here is what I mean.  Take the Social Security laws, apply them to the claimant's situation and find how the law helps win the case.

Evaluate the medical and vocational evidence.  If there isn't enough clear medical evidence of a severe impairment, nobody can win your case.  If the evidence isn't there, develop a strategy to get more evidence.

Write a compelling brief.  A brief (sometimes called a "memorandum") is a 5 or 6 page summary of the claimant's impairments, functional limitations, occupational history and education.  It also explains why the claimant cannot work - and which areas of Social Security law direct a finding of disability.

Prepare to argue the case.  I believe that hearings are often won or lost before they start.  Good administrative law judges study the case that has been prepared in advance of the hearing. A good disability advocate is like a good football coach.  He understands the game, knows the challenges ahead, is aware of what his team must do to win, and plans accordingly.  

See what our firm can do for your disability case here. 

Established in 1979, the National Organization of Social Security Claimant's Representatives (NOSSCR) is a professional association of over 4,000 attorneys and other advocates who help individuals with disabilities obtain Social Security and Supplemental Security Income benefits.   To be eligible for disability benefits, individuals must be unable to engage in "substantial gainful activity" because of a medically determinable physical or mental impairment which can be expected to result in death or has lasted for at least 12 months. NOSSCR members represent these individuals with disabilities in legal proceedings before the Social Security Administration and in federal court.