presented by michael d. steinhardt managing attorney december 3, 2013
TRANSCRIPT
FORUM BRASIL – ESTADOS UNIDOS DIREITO PROVIDENCIARIO
USA Social Security Disability Claims from the Perspective of Counsel Who Represents Claimants
Presented by Michael D. SteinhardtManaging Attorney
www.steinhardtlawfirm.comDecember 3, 2013
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
How Does a Social Security Practitioner Create and Sustain a
Practice?
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
Therefore an individual cannot use the receipt of Social Security Disability
Benefits as a financial planning tool
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)
Social Security Appeals Process
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
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
Representation by counsel can begin by
filing the initial forms for the claimant or at the
appeals levels
Disability Decision and Sequential Evaluation
Process
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?
There is a 5 Step Sequential Process in Determining Whether
Disability Exists
Gainfully employed
Has a Severe Impairment
Impairment will Last 12 months or
Result in death
Meets listing of Impairments
Able to performPrevious work
Able to performOther work
Not DisabledDisabled according
To vocational factorsDisabled AccordingTo medical listing
no
yes
yes
no
no
no
yes
no
yes
yes
yes
no
Allow 34%
Deny 66%
Allow 12%
Deny 88%
Allow 58%
Dismiss 13%
Deny 29%
Allow 2%
Dismiss 3%
Remand 21%
Deny 74%
Allow 3%
Dismiss 9%
Remand 46%
Deny 42%
Initial Level 1/3,295,806
Appeals to ReconsiderationReceipts: 853,142Decisions: 819,710
Appeals to Administrative Law Judge HearingReceipts: 859,514Decisions: 662,765
Appeals to Appeals Council 2/Receipts: 173,332Decisions: 103,681
Appeals to Federal Court 2/Receipts: 14,236Decisions: 13,271
Fiscal Year 2011 Workload Data:Disability Appeals*
*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:
1) Initial and Reconsideration Data: SSA State Agency Operations Report2) Administrative Law Judge and Appeals Council data: SSA Office of Disability
Ajudication and Review (ODAR)3) Federal Court data: SSA Office of General Counsel
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
Differences Between SSI and SSD
Disabled Worker Disabled Adult Child Disabled Widow or Surviving Divorced Spouse Blindness
SSD Coverage
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
Who is Eligible for SSD?
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
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
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
Social Security Disability
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
Example For Receipt of Medicare Coverage
Categories of Recipients
Disabled individuals who do not have enough credits
Disabled children If eligible, you will receive cash benefits and
Medicaid
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
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
SSI
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
What Counts as Income
Medical care and services Social services Income tax refunds
Not Counted as Income
Primary Residence One vehicle Life insurance with face value of less than
$1,500, and burial plots
Resources Not Counted in Asset Limits
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
Resources Counted
The ALJ Hearing and What the
Administrative Law Judge will
Expect
The major function of the attorney is to make
sure ALL of the evidence is presented to the Administrative
Law Judge
There is no attorney representing the SSA Only Claimant is represented by counsel
Adversarial Hearing
Attorney Represented Services (ARS) Encrypted CDs
How to View the File
Meet with the claimant to review for the
hearing
Get an assessment from the treating physician
In assessing functional limitations, make sure the claimant is specific and quantifies the limitations
Functional Limitations
PRIOR to the hearing, review with your claimant and ask all of the questions that can be expected to come up at the hearing
Review With 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
Educate the Claimant
Develop a theory of the 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
Three Ways to Win a Case
Assessments Objective Tests Operative Reports Psychological
Testing GAF scores Consultative report
from SS doctors
Effective Exhibits
Be able to cite specific evidence in the record by exhibit number and page number
Know Your File
Pre-hearing briefs
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?
Direct Examination of Claimant
REMEMBER: the vocational experts are dealing with the hypothetical individuals NOT your specific Claimant
Make sure you state the functional limitations and fully quantify them
Direct Examining Vocational Experts
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
Some Other Things to Consider
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.
Cross Examining Medical Experts
APPEALS
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.
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)
