I'm pleased to announce that Avvo, an online legal services website, has issued me its Clients' Choice Award for 2018 based on the number of 5-star client reviews I've received. It's such an honor to be able to represent my clients and make a difference in their lives. To be recognized for it by my clients, and to receive an "award" for this -- no matter how silly that may seem -- feels really nice.
Thank you to all of my clients who have continued to support me by leaving reviews of my work and referring friends and family to our office. We are pleased to continue to work with all of you and make a difference in the lives of those we serve.
Hey all! This is my first video blog post, so excuse the unflattering angle!
I wanted to do a post to discuss something that I've talked about recently in a post on our Facebook page -- the 5-month waiting period for SSDI benefits. The inspiration for this topic -- which I discuss a lot with my clients, but which I didn't consider doing a post about until recently -- was the story of this Iowa man which was recently in the news.
To recap the video, here are some fast facts about the 5-month waiting period:
If you follow us on Facebook, you may have noticed we've been posting several articles lately about the growing backlog of people waiting for hearings across the country. Unfortunately, the problem is widespread and not getting any better. Thankfully, several media outlets have picked up on the issue, and it's getting the attention it deserves. But the problem is still there, and is likely to get even worse in the face of a potential government shutdown. While many Social Security employees continue working during shutdowns, others don't, and the furlough of support staff and other employees can make wait times even longer.
The good news is that, if you live in the metro Detroit area, wait times -- while still long -- are shorter than others in the country. It's also good news that Michigan is one of only a few states that allow appeals directly to an Administrative Law Judge after the first denial. Other states require claimants to file a reconsideration first, which often results in another denial and can delay the claim several more months.
The following are the average wait times for hearing offices in the metro Detroit area and around Michigan as of December 2017 (according to Social Security's Public Data Files):
The following are some news articles we've posted recently about the backlog and its impact on real people as they wait for benefits while their health declines:
Did you receive a notice regarding the recent changes to rules beginning May 1, 2017? Curious about what these changes mean for you?
If you're an existing client, these changes will likely not affect you directly. The new rule states that claimants must send new evidence or let the Social Security Administration (SSA) know about new evidence at least 5 business days prior to a scheduled hearing. Further, if a subpoena of documents or witnesses is required, the subpoena request must be sent at least 10 business days before the scheduled hearing.
Our current office practice, even before the issuance of this new rule, was always to request records from medical providers at the time the hearing was scheduled, or shortly thereafter. This meant that most if not all evidence was sent to SSA at least 5 days prior to the scheduled hearing already, with a few exceptions:
Because of the new changes, we are continuing to figure out ways to deal with the above scenarios. For this reason, you will likely be receiving a call from someone on our staff prior before your hearing is scheduled, asking you if there are any medical tests procedures you need performed (such as an MRI) or specialists you need to see (such as a pain specialist) prior to your hearing. If you do need to see additional doctors or obtain new tests, we will encourage you to do so as soon as possible so that these records will be available prior to your hearing. Note that for many medical providers, records of tests or recent appointments are not available until a few weeks after the date a test was performed or an appointment took place.
If we are having trouble obtaining records from a specific doctor or medical provider, we may ask for your assistance in obtaining any such records, as we already do in instances where a doctor or medical provider is not complying with our requests. It is important for your case that you provide such assistance if you're able, by either calling your medical provider yourself or, in certain cases, going in to retrieve your records in person. Because the new rule makes it that much more important that we send all records in a timely manner, such assistance will be especially important in these types of cases.
Additionally, we continue to ask clients to update our office as soon as possible upon any changes in contact information so that we can reach you as necessary to obtain updates in your case. If we are unable to reach clients after repeated attempts, it will make it much more difficult for us to comply with the new rules, let alone obtain any updated evidence to support the case. In such instances where repeated contact attempts are unsuccessful, it may be necessary for us to withdraw our representation due to an inability to provide new evidence or adequately prepare for an upcoming hearing.
Finally, one problem we have run into every so often is a client forgetting to inform us of some form of treatment or medical provider. It might be an emergency visit that happened several months ago, or a specialist the client saw for a one-time visit, or physical therapy which was attended for a few sessions and then discontinued. We understand that for many disabled individuals, it's difficult to keep track of the many hospital visits you've had or doctors you may have seen. However, these new rules, along with other somewhat recent SSA rules requiring that we inform SSA of all evidence relating to your case, make it increasingly important that you do your best to keep track of all medical treatment leading up to your hearing. For this reason, we suggest that if you do see a new doctor, go the emergency room, or are hospitalized at any time leading up to the scheduling of your hearing, you inform us of these things at the time they occur. In the alternative, we suggest perhaps keeping a folder or journal to keep track of all visits so that when we do contact you to update your file, this information is readily available to you.
Other than in the above circumstances, our office will continue to do our best to obtain and submit all necessary medical documentation well in advance of your hearing. We will continue to draft and submit briefs outlining our legal analysis and arguments for the case. In this sense, the rule changes little about our current practices. Nevertheless, in cases where one of the above circumstances arises, we ask for assistance and cooperation in helping us make sure all of the best evidence and information is available to us to submit to SSA prior to your hearing.
Of course, if you have any questions about the new rules, you may always contact our office for additional information.
Since we're a firm that handles both Veterans Benefits and Social Security, we often see an overlap between the VA process and the process at the Social Security Administration (SSA). There is a misconception, however, that just because you have been improved for Social Security, you will automatically be approved for TDIU (Total Disability based on Unemployability) by the Veterans Administration. Although approval for both types of claims is predicated on an inability to engage in substantial work, the rules for receiving veterans benefits (specifically, service-connected compensation) differ somewhat from the rules for obtaining Social Security.
In my experience and opinion, an award of TDIU by the veterans administration will probably (but not necessarily) help with an award of Social Security down the road more so than the other way around. This is because SSA does not care how or when you became disabled (in most cases -- unless you're dealing with an insured status issue, which could be discussed in another post altogether) but rather cares whether or not you are currently disabled and unable to engage in substantial work as a result. If so, you are disabled under their rules. In making this determination, SSA must consider the opinions of other government agencies, including any opinions from the VA. The catch is that SSA does not have to adopt the opinion of the other government agency (including the VA) but still must consider it. As a result, I find that many SSA judges are willing to award benefits to a veteran who has been found to be totally unemployable by the VA, even if they are not bound by the VA's determination. That is not always the case, of course. I have seen cases where a veteran has been determined unemployable by the VA and still denied by Social Security. But since SSA must look at these other government agency determinations, a TDIU finding by the VA can often be very helpful for an SSA claim.
Make no mistake, a determination of disability by the Social Security Administration can be equally helpful in a VA case under the right circumstances. However, as opposed to SSA, a claim for service-connection with the VA does require consideration of when your disability occurred -- or at least, if it was at least 50% likely to have occurred in service. Without evidence that your condition was service-connected, it does not really matter whether SSA has found you to be disabled. Take, for example, a veteran who served 20 years ago and is now seeking social security for a skiing accident which occurred last year and resulted in a head injury. Obviously, this condition is not service connected. Therefore, any determination made by SSA, including a favorable finding, would not necessarily result in a finding of service-connected disability by the VA.
With that said, do not discount your VA claim simply because your condition occurred after leaving service. As long as you can provide support for the theory that your condition was at least as likely to be the result of something that occurred in service, you may have a claim. It is best to speak to a qualified attorney or representative to analyze your case and whether or not you may have a claim for service-connected disability or Social Security.
So, I realize we haven't updated the blog here in quite some time and I'm trying to get back to posting regularly. This post is for clients, former clients, and prospective clients -- I want to give everyone some updates on what's going on at the firm and in Social Security lately.
First, SSA has issued some new rules regarding evidence that must be submitted to SSA. Basically, we now must submit ALL evidence that we receive that might be related to a claim, whether the evidence is good or bad for our client. We must also inform SSA of all medical treatment or anything that might related to the case. This probably does not change much for many of our clients. However, be advised that if your doctor is not supportive of your disability and provides us with a statement or opinion suggesting that you are not disabled, this must be submitted to SSA, despite the fact that it is not helpful for your claim. With this in mind, we are advising our clients (as we always have) to speak with and be open with their doctors early on about applying for disability benefits, so that you can get an understanding from them about whether they intend to be supportive of your claim. Additionally, some doctors and offices have policies of not providing medical opinions for Social Security purposes, and this is something that is helpful to know early in the process, so that we can make the best determination about other options for obtaining opinion evidence elsewhere, if needed.
I also wanted to give some updates as to what's going on here at the firm. We have had a busy year so far, and I can't believe it's already June! We continue to appeal cases to Federal Court, especially since the Appeals Council remand rate has seemed especially "stingy" in the last year. We are happy to say that we are still experiencing more successful Federal Court remands than at the Appeals Council. Our firm is also continuing to take new cases. While we stopped taking new applications for a bit, we have decided to begin accepting new applications again. So no matter where you are in the process, please feel free to contact our office for a consultation. We are happy to meet with you to discuss your options!
Finally, if you're a current client, please continue to keep us informed of your medical treatment, address changes, or anything else that might be relevant to your case. You can call our main number, email us, fax us, or use the contact form on this site. Even if we are simply waiting for a hearing in your case, it is always helpful if we receive updates over time, rather than having clients try to remember everything when we call them for their pre-hearing update. Questions or concerns? Always feel free to let us know about those as well. Thanks!
It's been awhile since I've last posted here. But there has been so much in the press recently attacking the SSI and SSDI programs, that I felt compelled to write a follow-up post to my previous "Social Security in the Press" post. To say that these pieces had me outraged is an understatement. Ask my husband: as we watched the 60 minutes piece together and he could barely hear the interview because I was yelling so loud over it. It had me angry, that's for sure. I won't link to the actual reports here, as I don't want to give them any more attention than they have been getting! But a quick Google search will likely yield links to both the 60 Minutes segment and the NPR piece that came before it.
Why was I angry? Well, like the NPR piece, the 60 minutes segment was riddled with inaccuracies about our nation's Social Security program. Worse, these inaccuracies seemed to stem from an anecdotal look into an isolated incident which took place in West Virginia involving allegations of collusion between an attorney and one particular judge. I repeat: this incident was isolated. Yet, 60 Minutes seemed to be leading viewers to believe that the program was inherently flawed by pointing the finger at this one attorney -- an attorney who, I can assure you, does not represent the norm.
Earlier this year, I sent a response to the editors and producers of the NPR piece with my thoughts on the inaccuracies and problems with their story, authored by Chana Joffe-Walt. I would like to share that response here. In my response, I chose to highlight those parts of the story I found especially egregious, though my response certainly did not cover all of the problems I had with this piece. In the wake of the 60 Minutes story, I felt that publishing this for all to read would help some understand what the disability program looks like from the perspective of someone who actually works with the disabled every day and has seen first hand how these important government benefits have literally saved lives.
Dear Editors and Producers:
I am writing regarding the recent episode of This American Life entitled Trends With Benefits. As a practicing Social Security Disability attorney, I was disappointed with what I found to be a somewhat skewed and certainly misinformed piece on the federal disability programs.
For example, the author, Chana Joffe-Walt’s fails to mention that while education and job availability -- not just disabling conditions -- were a factor in many of the disability stories she followed, these are factors that Social Security Regulations mandate that judges consider in most cases when making a disability determination. The reasoning behind this is that people over the age of 50 who once worked physically-demanding jobs are less likely to be hired at a sedentary position the closer they get to retirement age. If a judge or disability examiner finds that that such a person has retained a capacity for only sedentary-type jobs (or other less-demanding positions) due to their disability, they are disabled according to Social Security rules. While the author alluded to the theories behind such a rule (in what seemed to be an attempt to point out these types of claims as “loopholes” in the system), she failed to actually recognize that this reasoning was put in place by the Social Security Administration in the first place, for the purpose of protecting those types of workers that Ms. Joffe-Walt talks about in her story. If the author had wanted to argue whether or not these government-implemented regulations should still be in effect, that’s one thing. But to suggest that people are not deserving of benefits because their age, education or past work experience played a role in their decision to apply for benefits is misleading, considering these are the exact criteria Social Security must consider (in addition to disabling conditions) when making a determination in cases where the applicant is over 50. In light of this information, I think author should revisit the idea of baby boomers playing a role int he rise of disability claims, as it would certainly make sense that the more baby boomers who reach the age of 50, the more would qualify for disability under the current rules.
I also found it troubling that the author suggested that there is some inherent flaw in the system if people who are initially denied benefits appeal these denials. Ms. Joffe-Walt blamed this “phenomenon” on an increase in Social Security attorneys pushing people to appeal. In actuality, court precedent from many, many years ago found that people have the absolute right to have their cases heard by an Administrative Law Judge, but only after an initial determination is made. The piece, unfortunately, does not mention that initial disability determinations are not made by judges, but rather by examiners – sometimes not even medical examiners – who never even see the applicant face-to-face. If the claim is then denied, the applicant then has the right to appeal and only then are they able to appear in front of a judge. This is a right I think most readers/listeners would find reasonable. To not mention that initial determinations aren't made by judges or even by face-to-face evaluators certainly skews the facts in favor of the author's overall point that too many people who are denied initially go on to appeal. If you were an applicant, wouldn't you want the chance to have your case be heard by a judge? While I understand that the overall goal of the piece was to cover the rise in claims, and thus, appeals, I do think it unfair to blame attorneys for this rise. I often have clients who are denied multiple times initially before seeing me, not fully understanding that they have the option to appeal their claim and actually appear in front of a judge. I certainly hope the intent of the author was not to criticize attorneys for helping people unfamiliar with an often confusing system better understand their rights. While there may be attorneys out there with financial agendas, of course, that doesn't take away from the fact that in encouraging people to appeal, attorneys are simply encouraging people to pursue their rightful next step in the administrative process. In doing so, applicants have the opportunity to "plead" their case in front of an actual judge, rather than through some remote case evaluator whom they never actually meet.
My main problem with this piece, overall, is that the author used primarily anecdotal evidence from a small segment of the population to paint a picture that somehow undeserving claims have become the rule rather than the exception. The author -- who, in my opinion, evidenced a clear agenda -- masquerades as someone who was simply “curious” about the federal disability program. If that really is the case, I encourage her to continue to explore this curiosity (perhaps outside the confines of Hale County) by speaking with any of the many people who are still unfairly denied benefits and struggle as their disability worsens, while they have no income or health insurance to pay for the rising costs of their care. I encourage her to follow their struggles as they exhaust all savings, often develop severe anxiety and depression (if that's not one of their many health issues already), and at times become suicidal because they are so hopeless. After two years of practicing disability law, these are stories I encounter often. Maybe these will be the stories Ms. Joffe-Walt explores next.
Of course, this is only my interpretation of the piece. Perhaps Ms. Joffe-Walt did not intend to portray Social Security so simply -- as a system that has become overwrought by claimants taking advantage of loopholes and appeal rights. But it certainly sounded that way to this listener. Perhaps my experience with some of the sadder cases I've referenced in this letter has caused me to over-react on this issue, but I do feel strongly that "Trends With Benefits" told only part of the story.
Bethany G. Versical
Michigan Social Security Attorney
This is a topic that is covered in our Frequently Asked Questions section, but it is something that I am asked so often that I thought I would address it in a lengthier blog post. It is also one of the more difficult questions to answer, as this is a very nuanced area of Social Security law that can vary from case to case.
The frustrating answer I must often give clients is, "it depends." I know, I know. We tend to say that a lot, but it's true -- and really the closest thing we can give to a definitive answer much of the time. This is because the potential impact on your case can depend on a number of factors, including the type of work you're doing, how much you're making, whether you're working full-time or part-time, and whether you're working in an "accommodated" position.
By definition, the maximum amount a person can earn in the year 2012 and still "technically" qualify for disability benefits is $1010 a month. This is what is called "substantial gainful activity", or SGA. Any earnings over this amount are usually considered to be too much, and in such a case, a person will often be found "not disabled" on the basis of their earnings, alone. However, to make things trickier, other factors such as monthly medication expenses and subsidies given by an employer can help a claimant who is making over the SGA amount to "rebut" the presumption that they are not disabled.
But what if you're making under SGA? Are you in the clear? Well, not necessarily. While you will not technically be considered "not disabled" on the basis of work earnings, alone, work under the SGA amount can still be considered by the Social Security Administration when assessing your case. Again, the question goes back to a lot of different factors, such as the type of work that is being performed, whether there are accommodations for your disabilities given by the employer, whether you have control over your work hours, etc. While I have had many clients who were awarded benefits while still working part-time, the above factors tend to be thoroughly considered by a judge before awarding benefits in most cases. These are questions that the claimant should therefore consider when thinking about returning to work, as well.
As one can see, there is a reason I tell people that there is not always a clear answer to whether work activity will affect their case. It may. It may not. But work activity can be a consideration of the judge, even if the work is under the SGA limit.
Finally, there is another particular instance where work that is clearly over the SGA amount will not be preclusive to an award of benefits, and that is when there is an "unsuccessful work attempt". This occurs when a person tries to return to full-time work, but has to stop or reduce their work hours to under the SGA amount due to their condition. The full-time work in this case must not last more than 6 months, and a person must have stopped working because their condition prevented them from doing so. SGA work that lasts longer than 6 months cannot be considered an unsuccessful work attempt. In these situations, the Administration can look into whether this work qualifies as an "unsuccessful work attempt" -- if it does, this work itself will not preclude an award of benefits.
When Diane and I are preparing a case for a hearing, a big part of our work involves preparing a pre-hearing brief, which outlines the medical information in the file, background information, and arguments for why we feel that our client should be found disabled.
While briefs are not required in many hearing offices, I personally feel that they greatly help in the preparation of a case. Not only do I feel that I am helping the judge to understand my arguments in a particular case prior to a hearing, but I am also pointing out to the judge portions of the medical evidence that are important, which may go overlooked in the midst of hundreds of pages of medical evidence that the judge is expected to review prior to a hearing. Therefore, in some ways, I view the brief as sort of a "Spark Notes" of medical evidence -- a way for the judge to get the "gist" of what's going on in a case before sifting through the lengthy documentation. In many cases, I am also addressing potentially unfavorable aspects to a claim, as I believe it is also important to be open to the judge and to be prepared with counter-arguments to potentially unfavorable evidence as well.
Many judges appreciate a pre-hearing brief (and mention so at the hearing). However, others may only glance at them or not read them at all. So, why write a brief in every single case, if some judges do not necessarily care one way or the other? Well, for one thing, the ODAR "secret judge" policy to not disclose the name of the judge until the day of the hearing makes it difficult to adjust pre-hearing preparation depending on one judge's particular preferences. But even before this policy was in place, I wrote briefs in all my cases mainly because it helped me as I prepared for the hearing. By outlining the important medical information in my brief, I am giving myself a "refresher" on the main medical aspects of the claim. I have also given myself a chance to address any questions I might have for my client before the hearing.
Finally, it is important to remember that brief-writing is not just a means of reviewing a case or presenting an argument to the judge, but can also be a way to preserve arguments on appeal. Some Social Security rules state that if arguments are not brought up at the hearing level (i.e. arguments about the requirements of a person's past relevant work, or specific vocational arguments), these arguments are waived upon appeal. Hearings can be long and may delve into a wide variety of topics. The pre-hearing brief ensures that if a particular argument isn't brought up at the hearing, then the judge has at least been made aware of our position, and I have not waived this viewpoint on appeal. The same can be said of post-hearing briefs, which I may also write from time-to-time, if necessary.
It's election season, and that means lots of talk about the future of Social Security. While most of the discussion centers around Social Security retirements benefits and Medicare, what about disability benefits?
In my view, the recent attacks on Social Security disability benefits have been more subtle but still very prevalent and scary. I have seen many articles in the national news which have addressed disability benefits and the alleged "growing" number of cases being paid. Make no mistake about it, many of these articles are employing "scare tactics," causing individuals who are not knowledgeable about this area to think that Judges are awarding benefits with ease and that the system is being abused by individuals making frivolous claims. This is simply not the case.
While it's true that there are overall more claims being filed, this is in large part attributable to the growing number of baby boomers reaching close to retirement age. Unfortunately for Claimants, however, data has shown that fewer and fewer judges are actually issuing favorable decisions, and that the Appeals Council is remanding fewer cases than it did in the past.
As Claimant's advocates, it is not just our job to represent our clients before these judges, but to speak out when a program that has been so beneficial to many is under political attack.
As long as I've been doing my job, I have never had a client come to me who I thought was "faking it" or trying to abuse the system. Sure, I may advise some clients or potential clients that, after careful review, they likely do not have a winnable claim, but even these clients have genuine disabilities that affect their ability to work - they just may not meet the strict disability requirements that Social Security has. Moreover, many of my clients do not want to be applying for disability benefits. It is something they decide to do usually after much anguish and careful thought.
Social Security is a great program that is designed to protect those who are unable to work. Many have paid money into the system to insure this safety net for them and their families. It's too important of a system to allow baseless attacks to be made in the media and political arena.