Presentation Transcript

1. FORUM BRASIL – ESTADOS UNIDOS DIREITO PROVIDENCIARIOUSA Social Security Disability Claims from the Perspective of Counsel Who Represents Claimants Presented by Michael D. Steinhardt Managing Attorney www.steinhardtlawfirm.com December 3, 2013
2. How Does a Social Security Practitioner Create and Sustain a Practice? A small percentage of attorneys practice social security disability lawKnowledge is acquired through practice in a law firmVery few law schools teach social security disability law Referrals from speeches and seminars Referrals from clients Referrals from other attorneys Television advertising Internet advertising
3. Although Social Security Disability is known as an entitlement program in the United States, an individual does not have an absolute right to these benefits
4. Therefore an individual cannot use the receipt of Social Security Disability Benefits as a financial planning tool
5. The Social Security Disability Law is found in 42 USC § 401 et.seq. (Title II), 42 U.S.C. § 1381 et.seq. (Title XVI) The Social Security Administration Enacts regulations found in 20 C.F.R. § 404 (Title II); 20 CFR § 4016 (Title XVI) The code and regulations are further explained in the agency’s rulings (SSR) and Acquiescence Rulings (AR), Procedural Operating Manual System (POMS) and HALLEX (Hearings And Appeals Litigation and Law)
6. Social Security Appeals Process
7. To adjudicate a Social Security Disability claim, there is a processing system, in which administrative remedies must be exhausted before going to the next step in the appeals File a claim which leads to an initial denial (district office) Reconsideration (Disability Determination Service) Administrative Law Judge Hearing (ODAR – Office of Disability Adjudication and Review) Appeals Council United States District Court United States Circuit Court United States Supreme Court
8. Claims can be filed online on the Social Security websitewww.ssa.gov
9. Representation by counsel can begin by filing the initial forms for the claimant or at the appeals levels
10. Disability Decision and Sequential Evaluation Process
11. There is a 5 Step Sequential Process in Determining Whether Disability Exists Is the applicant working? Is the condition severe? (I.E. Does it limit ability to do some basic work activity – physical, mental or both?) Does the applicant meet or equal a listed impairment? Is the applicant able to return to past relevant work? (work performed in the past 15 years) Can the applicant perform any other work in the national economy, considering his/her age, education and past work?
12. yes Gainfully employed no no Has a Severe Impairment yes no Impairment will Last 12 months or Result in death yes Meets listing of Impairments yes no yes Able to perform Previous work no yes Able to perform Other work no DisabledAccording To medical listing Not Disabled Disabled according To vocational factors
13. Fiscal Year 2011 Workload Data: Disability Appeals* Initial Level 1/ 3,295,806 Appeals to Reconsideration Receipts: 853,142 Decisions: 819,710 Appeals to Administrative Law Judge Hearing Receipts: 859,514 Decisions: 662,765 Appeals to Appeals Council 2/ Receipts: 173,332 Decisions: 103,681 Appeals to Federal Court 2/ Receipts: 14,236 Decisions: 13,271
14. *Includes Title II, Title XVI, and concurrent initial disability determinations and appeals decisions issued FY 2011, regardless of the year in which the initial claim was filed, and regardless of whether the claimant ever received benefits (in a small number of cases with a favorable disability decision, benefits are subsequently denied because the claimant does not meet other eligibility requirements.) Does not include claims where we made an eligibility determination without a determination of disability. If we made a determination or appeal decision on Title II and Title XVI claims for the same person, the results are treated as one concurrent decision. 1/About 23% of initial level denials are issued in States that use the Disability Prototype process, which eliminates the reconsideration step of the appeals process. The first level for these cases is a hearing before an Administrative Law Judge. 2/Federal Court data includes appeals of Continuing Disability Reviews Prepared by: SSA, ODPMI (Office of Disability Program Management Information) Date Prepared: December 20, 2011, Office of Budget Receipt Additions January 10, 2012 Data Sources: Initial and Reconsideration Data: SSA State Agency Operations Report Administrative Law Judge and Appeals Council data: SSA Office of Disability Ajudication and Review (ODAR) Federal Court data: SSA Office of General Counsel
15. Differences Between SSI and SSD Disability standard is the same for both programs, but SSI- formerly known as welfare SSD- Federal Disability Insurance Policy- must pay into system to qualify
16. SSD Coverage Disabled Worker Disabled Adult Child Disabled Widow or Surviving Divorced Spouse Blindness
17. Who is Eligible for SSD? Worker- based on earnings Disabled Widow or Widower- minimum age is 50 Disabled Adult Child- filing on parent’s record; over age 18, but disabled before 22
18. Social Security Disability Source of payment- social security trust fund Amount of payment- based on worker’s earnings record Payment to children- yes, under 18 or under 19 if still in school Payment to spouse- Yes, if child in spouse’s care, under 16 or disabled
19. Social Security Disability Earnings requirement- Fully insured Age 31 or older- 20 credits in 40 credit period (5 out of last 10 years) Age 24-30 – credits for half the time from 21- onset of disability Under age 24- 6 credits in three year period pre-onset
20. Social Security Disability Attorney fees – 25% of past due benefits withheld for direct payment, presently capped at $6,000.00OrCounsel can submit a fee petition requesting a higher fee based on hourly work Medical coverage – Medicare begins 24 months after eligibility for payments begin
21. Example For Receipt of Medicare Coverage Found to be disabled as of 1/1/2012 Eligible 5 months later for monthly benefits Monthly payments begin 06/01/2012 Medicare coverage begins 24 months later Medicare coverage begins on 06/01/2014
22. SSI Categories of Recipients Disabled individuals who do not have enough credits Disabled children If eligible, you will receive cash benefits and Medicaid
23. SSI Source of payment- general revenue Amount of payment- federal amount set by Congress Payment to children of disabled individual- No Payment to spouse- No
24. SSI Earnings requirement- None. Asset limitation- $2,000 individual $3,000 couple Waiting period- paid from date of application- technically no waiting period Retroactivity- No retroactivity
25. What Counts as Income Wages from your job – including your spouse Value of food or shelter that someone gives you or money they give you to help pay for it Annuities, pensions, 401k, WCC, Unemployment Support and Alimony Payments
26. Not Counted as Income Medical care and services Social services Income tax refunds
27. Resources Not Counted in Asset Limits Primary Residence One vehicle Life insurance with face value of less than $1,500, and burial plots
28. Resources Counted Cash Checking and Savings account Christmas Club Accounts Stocks Any payments from SSI or SSD for the past months, for 9 months after you get them. After that time, it will be counted

29. The ALJ Hearing and What the Administrative Law Judge will Expect

30. The major function of the attorney is to make sure ALL of the evidence is presented to the Administrative Law Judge
31. Adversarial Hearing There is no attorney representing the SSA Only Claimant is represented by counsel
32. How to View the File Attorney Represented Services (ARS) Encrypted CDs
33. Meet with the claimant to review for the hearing
34. Functional Limitations Get an assessment from the treating physician In assessing functional limitations, make sure the claimant is specific and quantifies the limitations
35. Review With the Claimant PRIOR to the hearing, review with your claimant and ask all of the questions that can be expected to come up at the hearing
36. Educate the Claimant Make sure the claimant understands the burden of establishing disability i.e. Not only can you not do your past work, but you cannot do ANY work

37. Develop a theory of the case

38. Three Ways to Win a Case Claimant meets/equals a Listing of Impairments Claimant is unable to perform an unskilled or sedentary occupation Claimant is disabled in accordance with the “Grid Rules” (20CFR Sec. 404 Subpart P, Appendix 2) “Grid Rules” only apply to claimants over 50
39. Effective Exhibits Assessments Objective Tests Operative Reports Psychological Testing GAF scores Consultative report from SS doctors
40. Know Your File Be able to cite specific evidence in the record by exhibit number and page number

41. Pre-hearing briefs

42. Direct Examination of Claimant Past relevant work and education? Why can’t you work? What limitations do you have? Is there psychiatric impairment? What are your functional limitations? Daily activities?
43. Direct Examining Vocational Experts REMEMBER: the vocational experts are dealing with the hypothetical individualsNOT your specific Claimant Make sure you state the functional limitations and fully quantify them
44. Some Other Things to Consider Always ask the VE for Dictionary of Occupational Titles (DOT) numbers Some ALJs allow you to use GAF scores to cross-examine VEs, and some won’t You don’t always have to get the VE to say there is no SGA available if you have a client over 50 If the claimant has past relevant work that is skilled and they have skills that would transfer, the best way to get a claimant to “grid out” is to get them limited to unskilled work
45. Cross Examining Medical Experts TIP: Do a Google search for the doctor. You never know what you may find. Quit while you are ahead. If the ME says that your client meets or equals a listing, you don’t need to ask anything else.

46. APPEALS

47. STANDARD OF REVIEW AFTER THE INTITAL DENIAL , THE STANDARD OF REVIEW IS DE NOVO FOR THE RECONSIDERATION LEVELS AND ALJ HEARINGS. FOR APPEALS TO THE UNITED STATES DISTRICT COURT AND ABOVE 42 U.S.C.§405(g) PROVIDES FOR A REVIEW OF THE RECORD OF THE PROCEEDINGS TO DETERMINE WHETHER THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE COMMISSIONER’S FINDINGS.
48. SUBSTANTIAL EVIDENCE SUBSTANTIAL EVIDENCE IS “SUCH RELEVANT EVIDENCE AS A REASONABLE MIND MIGHT ACCEPT AS ADEQUATE TO SUPPORT A CONCLUSION.” – US SUPREME COURT IN RICHARDSONV. PERALES (1971)

49. Presented by Michael D. Steinhardt, Attorneymds@steinhardtlawfirm.com