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.

Lack of Medical Evaluators Delays Social Security Claims Processing

Guest blog by Rodger D. Moore
of the Nebraska Bar


Recently, the Waal Street Journal reported that the Social Security Administration (SSA), frustrated by the backlog of applications for disability benefits, started pressuring the 140 doctors the agency uses to help evaluate some of the claims.  In an effort to encourage the quick processing of claims doctors were paid a flat rate of $80/case in stead of the previous $90/hour to review the cases.  Many times these cases have hundreds of pages of records to be reviewed and can turn on a few sentences.  


Also, doctors were assigned to evaluate conditions that were not in their areas of expertise.  One of the more interesting quotes came from Neil Novin, former chief of surgery at Baltimore's Harbor Hospital, who worked for Social Security part time for about 10 years. He said "People who shouldn't be getting [disability] are getting it, and people who should be getting it aren't getting it".   


In my experience this has always been the case, but now, with agency doctors being pressured to evaluate these cases quicker, we’ll likely see less competent and thorough evaluations.  This in turn will lead to longer delays, more cases waiting for a hearing and more money spent to evaluate more cases by administrative personnel within the SSA.  


Although I’ve never thought the agency doctors do a good job evaluating these cases, the situation will get worse now that 1/3 of the 140 doctors have either quit or been fired over this shift in philosophy.  In this setting it’s every more important to seek the help of a treating physician in offering a supportive report.  


See the complete article:  

Doctor Revolt Shakes Disability Program  (wsj.com)

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Social Security 2012: The Good News and The Bad News

The good news is the announcement by Social Security that the rate of payment will increase 3.6% The bad news that Part B Medicare premiums will offset the payment.

Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012.

The 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011.

The Social Security Administration also noted that for some beneficiaries, the increase in Social Security benefits next year “may be partially or completely offset by increases in Medicare premiums.”

For an in depth analysis read the NY Times article.

Click here for PBS News Hour coverage.

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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.

Workers Compensation Taxable Rules US Tax Court

Image via WikipediaThe US Tax Court has ruled that workers' compensation payments are not excluded from US income tax under Section 104(a)(1) if they are paid as a Social Security Setoff Section 86(d)(3).

The majority of the states permit Social Security to take the setoff. A minority of states allow a reverse setoff where the insurance carrier takes the setoff, and the workers' compensation benefits are reduced.

“Nevertheless, … we are duty-bound to apply the law as written by Congress to the facts as they occurred and not as they might have occurred. Because [the taxpayer's] Social Security benefits were reduced by the amount of workers’ compensation benefits received, that offset amount is treated as a Social Security benefit and is, therefore, taxable,” the court said.

Source: Dolan Media Newswires

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accidents and injuries.

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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.

Court Rules Social Security Offset Not Barred by Time

A NJ Court of Appeals has ruled that the reverse-offset permitted under Federal law was allowed to be asserted by an insurance carrier years after an original workers' compensation judgment was entered. Even though the employee pleaded that the insurance company had sat on its rights for years, and done nothing to assert the offset, the Court maintained that the insurance company was entitled to reclaim the benefits it had overpaid.

Since the information provided by parties to define the numerical offset was lacking, and the decision below lacked "specific reasons and analysis," the matter was remanded for further proceedings.

NJ is one of the states that elected to have the insurance company / employer take the offset under the options available in 1980. Most states allow Social Security to take the offset.

Gonzalez v Bristol-Meyers Squibb, 2011WL611722, Docket No. A-2187-09T3 (NJ App Div 2011)

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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.

Court Grants Motion to Reconsider Statute of Limitations in CMS Case

In order to avoid any "maifest injustice," the Court that had previously dismissed the Government's case against insurance companies and lawyers for failure to reimburse the Centers for Medicare and Medicaid Services (CMS), has granted a motion to reconsider under the plaintiff's accrual theory.

"As its fourth ground for reconsideration, Plaintiff argues that the court erred in concluding that the Government inadequately raised a theory of continuing accrual against all defendants concerning the annual $2.5 million payments from 2004 through 2014 contemplated in the Abernathy Settlement Agreement. Admittedly, Plaintiff did not address this theory in its responsive briefing to the Defendants’ motions to dismiss. At the September 13, 2010 hearing, the court granted verbal leave for Plaintiff to submit a motion to amend its complaint to more clearly articulate a claim on this issue. For whatever reason, Plaintiff has failed to do so, but argues in its motion to reconsider that it properly pled a theory of continuing accrual in its First Amended Complaint and raised it at the hearing. Though this theory should have been raised and argued in Plaintiff’s brief in response to the multiple motions to dismiss filed by Defendants, the court will allow Defendants an opportunity to respond in full to this issue to avoid any possible clear error. Therefore, the court GRANTS Plaintiff’s motion to reconsider as to the issue raised in part D regarding a continuing accrual theory and ORDERS that Defendants have until Tuesday, November 16, 2010 to respond as to whether the allegations pled in Plaintiff’s First Amended Complaint are sufficient to state a claim for a theory of continuing accrual; and if so, whether the court committed clear error in dismissing Count VI of Plaintiff’s First Amended Complaint.

"Finally, the court RESERVES RULING as to the tolling issue raised in part E of Plaintiff’s motion to reconsider. To avoid any possible clear error and/or manifest injustice, the court will allow Defendants until Tuesday, November 16, 2010 to respond as to: 1) whether the court should reconsider the issue of tolling; and 2) if the court does, whether it committed clear error in application of the appropriate burden of raising or pleading tolling in this context and in granting the motion to dismiss before discovery had yet occurred.

USA v James J. Strickler, et al CV 09=BE-2423-E

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

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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.

NJ Rejects Broad Medicare Release Language in Judgments

The NJ Division of Workers Compensation has indicated that broad release "language should not be included as part of a settlement order, attached to a settlement order or placed or part of the settlement record."

Specifically the following sample language was rejected, The claimant, , agrees to indemnify defendant, hold harmless the respondent from any action by Medicare seeking payment of past, current or future medical expenses for the claimant. Claimant shall further hold the respondent harmless from any and all adverse consequences in the event the settlement results in the loss of right to Social Security and/ Medicare benefits to the extent claimant would have been entitled to those benefits in the absence of the settlement agreement."

A memo was issued on October 28, 2010, by the Director and Chief Judge, The Honorable Peter J. Calderone.
...
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

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No Social Security COLA for 2011

Like so many state workers' compensation programs, Social Security and Supplemental Security Income (SSI) benefits for more than 58 million Americans will not automatically increase in 2011, the Social Security Administration announced.


The Social Security Act provides for an automatic increase in Social Security and SSI benefits if there is an increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of the last year a cost-of-living adjustment (COLA) was determined to the third quarter of the current year.  As determined by the Bureau of Labor Statistics, there is no increase in the CPI-W from the third quarter of 2008, the last year a COLA was determined, to the third quarter of 2010, therefore, under existing law, there can be no COLA in 2011.

Other changes that would normally take effect based on changes in the national average wage index also will not take effect in January 2011.  Since there is no COLA, the statute also prohibits a change in the maximum amount of earnings subject to the Social Security tax as well as the retirement earnings test exempt amounts.  These amounts will remain unchanged in 2011.  The released agency fact sheet provides more information on 2011 Social Security and SSI changes.

Information about Medicare changes for 2011, when available, will be found at www.Medicare.gov.  The Department of Health and Human Services has not yet announced if there will be any Medicare premium changes for 2011.  Should there be an increase in the Medicare Part B premium, the law contains a “hold harmless” provision that protects more than 70 percent of Social Security beneficiaries from paying a higher Part B premium, in order to avoid reducing their net Social Security benefit.  Those not protected include higher income beneficiaries subject to an income-adjusted Part B premium and beneficiaries newly entitled to Part B in 2011.  In addition, almost 20 percent of beneficiaries have their Medicare Part B premiums paid by state medical assistance programs and thus will see no change in their Social Security benefit.  The state will be required to pay any Medicare Part B premium increase.

For additional information about the 2011 COLA, go to www.socialsecurity.gov/cola.

For additional information about changes in the national average wage index, go to www.socialsecurity.gov/OACT/COLA/AWI.html.
.....For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers who have sought Social Security Disability Insurance (SSDI) Benefits.

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