Indiana Social Security Disability Attorney Blog

Beginning in late 2011, the Social Security Administration adopted a policy to keep the identity of the Administrative Law Judges assigned to Social Security Disability cases at ODAR a secret until the hearing. The motivation for this rule was an effort on SSA’s part to avoid a claimant declining a National Hearing Center video hearing in order to get a different ALJ. Most attorneys who represent claimants know the ALJs, their preferences and what to expect at the hearings. In order to meet the particular expectations of the judge, to screen for conflicts, to avoid delay, to comply with regulations that require pre-hearing communication directly with the judge, and to know more about what to expect in the hearing, it is necessary to learn the identity of the ALJ.

Many representatives believed that they were entitled, by law, to learn the identity of the ALJ in advance of the hearing. To that end, representatives nationwide began filing requests for the name of the ALJ through the Freedom of Information Act (FOIA). Initially, SSA rejected the requests made under the FOIA for disclosure of the identity of the ALJ claiming that because the request: "related solely to the internal personnel rules and practices of an agency," the information sought was deemed the internal personnel assignment of an agency employee to a particular case. Therefore, the Agency reasoned, the claimant was not entitled to this information.

SSA's denial for the request under the FOIA prompted litigation. One of the lead cases was Hoagland v. Social Security Administration, C12-05750 (W.D. Wash. 2012). In that case, Dallas Hoagland filed a complaint under the Freedom of Information Act to discover the name of the Administrative Law Judge assigned to his case. SSA settled the case by naming the judge and paying attorney fees to Mr. Hoagland's attorney for bringing the action in the first place. Shortly after that case, SSA began to disclose the names of the ALJs assigned to cases to those claimants who requested that information under the FOIA by using the SSA web site.

In addition to FOIA requests, claimants and their attorneys began to voice their concerns to the U. S. Congress.

On April 1 SSA announced that it will begin to provide the names of the Administrative Law Judges assigned to cases beginning April 20. In addition, beginning April 20 SSA will add the ALJ's name to the Appointed Representative Services (ARS) internet application.

The secret ALJ policy has now been rescinded by SSA.

The Social Security Administration recently issued its Summary of Performance & Financial Information Fiscal Year 2012. In that Summary, SSA wrote that its #1 Strategic Goal was to "Deliver Quality Disability Decisions and Services". In order to reach that goal, SSA identified 3 strategic objectives: 1.) minimize the average wait time from hearing request to decision; 2.) eliminate the oldest remained pending hearing requests; 3.) minimize the average processing time for initial disability claims; and 4.) achieve a target percentage of the quick disability cases. While these 4 goals are important, the one goal which impacts the disabled the most is the wait time for hearings and final decisions.

Quicker Hearings.
By far, the biggest surprise for the disabled is to learn that the wait for a hearing decision can be close to or over 1 year from the date a request for a hearing (instead of the date on which the initial application was filed) was filed. In 2012, the average wait time from asking for a hearing to actually having a decision was 362 days or just 3 days short of 1 year.

To better understand this number, a perspective of years past is helpful. In 2008, the time to get a decision was 509 days. In 2009, the time was reduced to 472 days. In 2010, the time was reduced further to 390 days. In 2011, the time to get a disability hearing decision was reduced further to 345 days. The target goal in 2012 was to reduce to the time in which to obtain a decision after a hearing at the ODAR to 321 days. This goal was not met. Instead the number of days for receipt of a hearing decision was increased from 345 to 362.

The Social Security Administration has offered several reasons for the increase. One reason the Agency suggested is due "significant increases" in hearing requests over the past 2 years. A second reason was attributed to the inability of SSA to hire 74 more ALJs has had been scheduled. A third reason was a lack of budget resources which limited opening new offices for ALJ at eight new locations. (Those 8 news offices were to have been in Alabama, California, Indiana, Michigan, Minnesota, Montana, New York and Texas.)

The average processing time, for the period between September 29, 2012 and February 22, 2013, for the Indianapolis ODAR was 347 days or 2 days longer than the national average in 2011. This means that the Indianapolis ODAR ranks 63 out of 165 ODAR hearing offices for the February 2013 period. At the end of this period, the Indianapolis ODAR had 7,222 cases pending.

The fastest processing time for cases at ODAR during the February 2013 period was the Shreveport ODAR which was 236 days. The slowest ODAR during the same period was the St. Louis ORDAR which took 499 to complete its cases.

Less than a month ago, the Commissioner of Social Security announced the addition of 35 Compassionate Allowances conditions. I discussed the concept of the Commissioner's Compassionate Allowances in my blog post on February 25, 2009 "Social Security Compassionate Allowances Means Quick Determinations in Some Cases". At that time, there were 50 conditions on the list. Now, with the addition of the newest 35, the Compassionate Allowances list has grown to 200. A person with one of the 200 conditions may be fast tracked so that their cases can be decided in dayy.

These new conditions include: Adult Non-Hodgkin Lymphoma; Adult Onset Huntington Disease; Allan-Herndon-Dudley Syndrome; Alveolar Soft Part Sarcoma; Aplastic Anemia; Beta Thalassemia Major; Bilateral Optic Atrophy- Infantile;
Caudal Regression Syndrome – Types III and IV; Child T-Cell Lymphoblastic Lymphoma;
Congenital Lymphedema; DeSanctis Cacchione Syndrome; Dravet Syndrome; Endometrial Stromal Sarcoma; Erdheim Chester Disease; Fatal Familial Insomnia;
Fryns Syndrome; Fulminant Giant Cell Myocrditis; Hepatopulmonary Syndrome;
Hepatorenal Syndrome; Jervell and Lange-Nielsen Syndrome; Leiomyosarcoma; Malignant Gastrointestinal Stromal Tumor; Malignant Germ Cell Tumor; MECP 2 Duplication Syndrome; Menkes Disease - Classic or Infantile Onset Form; NFU-1; Mitochondrial Disease; Non-Ketotic Hyperglycinemia; Peritoneal Mucinous Carcinomatosis; Phelan- McDermid Syndrome; Retinopathy of Prematurity - Stage V;
Roberts Syndrome; Severe Combined Immunodeficiency - Childhood; Sinonasal Cancer
Transplant Coronary Artery Vasculopathy;Usher Syndrome - Type I.

There are 165 hearing offices in the United States called ODAR [Office of Disability Adjudication and Review] hearing offices. The ODAR hearing offices are "were disability claimants appear before an independent judge (called an "Administrative Law Judge") to appeal a denial by the Social Security Administration of an application for disability benefits. Over the past several years, the wait to get a hearing and a decision from the ODAR has been close to two years. When the Social Security Administration has measured the speed at which the various ODARs have resolved their cases, the Indiana ODARs have come in at or close to the bottom of all the ODARs in the nation.

The wait has been the subject of public outcry and and Congressional Hearings. As a consequence, the Social Security Administration has implemented several measures to shorten the time at the ODAR. Those improvement measures seems to be working. The latest Social Security Administration review of ODARs nationwide, shows that the Indianapolis ODAR is now 61st in the nation [tied with Detroit] with a 336 day processing time, Ft. Wayne ODAR is 77th with a 349 day processing time, Evansville ODAR is 120th with a 384 day processing time and Valparaiso ODAR is 125th with a 391 day processing time.

The quickest ODAR is Shreveport with a 234 day processing time. The slowest ODAR office is St. Louis with a 485 day processing time.

As 2013 makes its entrance a number of federal legislative changes affecting disability recipients will take effect. Included among those changes are the thresholds for what is considered "substantial gainful activity", the maximum amount allowed for a worker retiring at full retirement age, the SSI federal payment standard and the estimated average monthly Social Security Benefits payable in January 2013.

Thresholds for "substantial gainful activity": As might be recalled, "substantial gainful activity" is "work activity that is both substantial and gainful". 20 C.F.R. 404.1572. In 2012, disability claimants working and grossing more than $1,010 a month (if non-blind) or $1,690 a month (if blind) were considered to engaged in substantial gainful activity. Those amounts have increased slightly for 2013. In 2013, disability claimants earning more than $1,040 a month (if non-blind) or $1,740 a month (if blind) are considered to be engaged in substantial gainful activity.

Maximum amount allowed for a worker retiring at full retirement age: in 2012, this maximum amount was $2,513. For 2013, this amount was increased slightly by $20 to $2,533.

The SSI federal payment standard: The standard SSI payment for 2012 was $698 a month for an individual and $1,048 for a couple. For 2013, the individual payment is $710 a month and for a couple $1,066 a month.

Estimated average monthly Disability Social Security Benefits: In 2012, the estimated average monthly Social Security Benefits was $1,113 for a disabled worker and $1,887 for a disabled worker, spouse and one or more children. In 2013, the Benefit will be $1,132 for individual disabled workers a month and $1,919 a month for a disabled worker, spouse and one or more children.

Recently, the Social Security Administration announced in the Federal Register [http://tinyurl.com/bs4rqtw] that there will be a 1.7% increase in Social Security payments effective December 2012. The reason for the increase is due to an increase in the cost-of-living (COLA). Because of this increase, benefits for Social Security disability recipients will increase for 2013. The maximum benefit amount for monthly benefits in 2013 under the SSI program will be $710 for an eligible individual and $1,066 for an eligible individual with an eligible spouse. The maximum benefit amount for monthly benefits in 2013 under the Title II, SSDI program with be $1,132 for a disabled worker and $1,919 for a disabled worker, spouse, and one or more children (with the maximum monthly benefit topping out at $2,533 a month).

As a result of the COLA, the substantial gainful activity earning threshold has increased from $1,010 to $1,040 a month for non-blind workers. Fro blind workers the substantial gainful activity threshold has increased from $1,690 to $1,740.

Up until 1975, by enactment, determined what increases should be applied to Social Security Disability benefits. Beginning in 1975, Congress determined that Social Security Disability benefits should be adjusted by the COLA. Between 1975 and 2012, Social Security Disability benefits have been increased every year with the exception of 2009 and 2010. In those years, there was no increase.

Effective November 19, 2012 the local Social Security District offices will all close at 3 pm until future notice. These new hours have been made to allow the claims representatives to finish there daily cases without the need to stay after hours.

Starting January 2, 2013, the local offices will close at noon on Wednesdays. So, as of that date, the hours will be 9-3 on Monday, Tuesday, Thursday and Friday and 9-noon on Wednesday.

The hours for the national toll free number for the Social Security Administration (800-772-1213) remains the same, 7 am to 7 pm Monday thru Friday.

Daylight Savings Time (DST) officially ends Sunday, November 4 at 2:00 am. This means that clocks in most states in the continental United States must "fall back" by one hour. The state which does not observe is Arizona. Outside of the continental U. S., Hawaii, does not observe DST.

The concept of DST is really a ritual of setting clocks forward one hour in the spring so that during the warmer months there is less daylight in the morning and more daylight in the evening. This act is known as "springing forward". In the fall, the reverse occurs; that is, clocks "fall back" by one hour.

DST actually is a federal law. The Energy Policy Act of 2005 was the last legislative act to become law. This Act was just one of many federal legislative efforts to deal with the concept of national time. During World War I, the U. S. Congress passed the Standard Time Act of 1918. Interestingly, when War World I ended, the Act was abolished. During World War II, President Roosevelt created "war time" which ended in 1945 at the close of the war. Following the close of the war, there was a lack of any federal time regulation for about 20 years. Then in 1966, the Uniform Time Act was passed by the U. S. Congress at the urging of the transportation industry. In 1986, another act, called the Uniform Time Act was passed after input from the National Bureau of Standards which studied the effect of a year long law (in 1974-1975) which mandated national observance of DST.

The Energy Policy Act of 2005 listed the exact date and hour for the start and end of DST though the year 2025.

There are health implications to changing time. When people "fall back" or "spring forward", a health issue that can occur, according to a study conducted by the the National Institutes of Health, is insomnia. [http://tinyurl.com/aofj5kg] This is involved in a shift in circadian rhythms. Although not well understood, such a shift may also be implemented with an increase in heart attacks when springing forward and a decrease in heart attacks when falling back.

An injury to an arm or hand seem commonplace. Hunting accidents, car crashes, slip and falls are a few examples of how arms and hands can become injured. Without question, the loss of the use of a hand or in arm may serve as the basis for a disability award. But what makes a person disabled? The loss of the use of the arm? The pain caused by the injury to the arm? Or is the fact that no employer would hire a person who has no real use of an arm?

This question was answered in the case of Odle v. Secretary of Health and Human Services, 788 F.2d 1158 (6th Cir. 1985). Joe Odle claimed he was entitled to disability benefits because he had arthritis in his left arm along with the serious tendon injury in that same arm (Joe had injured his left arm while lifting heavy boxes from a pallet to a tractor-trailer). When splinting did not relieve his pain, a doctor performed exploratory surgery, which revealed extensive problems with his left wrist. A series of treatments by the doctor left Joe with limited use of his left hand and arm due to severe pain. Joe testified that since the tractor accident he has experienced continuous pain in his left shoulder, arm, and hand, saying that his hand “tingles all the time.”

Joe was able to prove that he was incapable of performing his past relevant work as a truck driver. He also proved through a vocational psychologist that he was basically unemployable because he only had the function of one arm. However, there was another vocational expert who testified at the hearing and identified several specific jobs that Joe could perform with the use of only one arm. The expert said that the claimant could work as a clerk for a self-service station, self-parking lot, or drug store, or as an unarmed guard or doorkeeper.

The ALJ decided that the proper framework within which to decide Joe's case was not whether Joe was “employable” but rather considering Joe's residual functional capacity and his age, education and past work experience, Joe can perform any other jobs that exist in significant numbers in the national economy. The point here is that there is a difference between “employability” and the ability to do work. The Social Security Disability program focuses on the ability to do work and not whether someone is employable. Social Security Ruling 87-11c adopted this concept.

The ability to receive Social Security Disability benefits says something about all of us:

"The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped." Hubert Humphrey (38th Vice President of U.S. 1965-1969)

One case decided by the Social Security Administration concerns individuals with disabilities who are subject to treatment that could lead to a restoration of their ability to work and whether they are required to follow their prescribed treatment plan to remain eligible for disability benefits.

The Social Security Administration makes clear right away in this ruling that those who fail, without good cause, to follow treatment that can be expected to restore that person’s ability to work, cannot be found to be disabled.

The first step before deciding whether this has occurred is determining whether there has been a failure to follow prescribed treatment. The SSA can declare that a failure has taken place only where all of the following conditions exist:

1. The evidence establishes that the individual’s impairment precludes engaging in any substantial gainful activity; and
2. The impairment has lasted or is expected to last for 12 continuous months from onset of disability or is expected to result in death; and
3. Treatment which is clearly expected to restore capacity to engage in any gainful activity has been prescribed by a treating source; and
4. The evidence of record discloses that there has been refusal to follow prescribed treatment.

If all of the above conditions are met and the person is found to have failed to follow a prescribed treatment, a determination must then be made as to whether the failure was justifiable.

The claimant or beneficiary should be given an opportunity to fully express the specific reason(s) for not following the prescribed treatment. Detailed questioning may be needed to identify and clarify the essential factors of refusal. The treating physician should also be contacted concerning the individual’s reasons for refusing treatment to clarify what the individual was told.

The following are examples of circumstances where a person’s failure to follow prescribed treatment will be seen as “justifiable” and thus will not preclude a finding of “disability”:

1. When the acceptance of a prescribed treatment would be contrary to the teachings of the claimant’s religion. In such a case, the claimant will be asked to identify church affiliation and provide a statement or other information from either church authorities or other members of the religious to substantiate that the individual is a member of the church. Additionally, the church’s position relative to medical treatment must be documented by obtaining either church literature or a statement from church authorities.
2. In an unusual case, a claimant’s fear of surgery may be so intense that it serves as a reason to not have surgery. However, lack of a guarantee that the surgery will be a success (something no doctor can provide) or fears based on stories of others who have failed to improve after similar surgery will not negate a finding of
“failure.”
3. A conflict among licensed medical doctors also serves as a valid reason for not pursuing a prescribed treatment. If a person has two treating sources who take opposing views regarding treatment, one recommending and one advising against the same treatment, failure to follow the recommended treatment is justifiable.
4. If the treatment carries a high degree of risk because of the enormity or unusual nature of the procedure that can be seen as a justifiable reason not to follow a prescribed treatment.
5. Finally, another justifiable reason is if the treatment recommended involves amputation of an extremity.

These are a sample of the most significant reasons why a refusal would be deemed justifiable, but there are other specific reasons that should be considered depending on the particular circumstances of your case.

If the decision to refuse treatment is not deemed justifiable, the SSA may decide to deny the disability claim or cease payment of benefits. However, before such a determination is made, the individual must be informed of this fact and of its effect on eligibility for benefits. The individual will be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for failing to do so.

Continue reading "Failure to Follow Prescribed Treatment While on Disability" »

While many of those who receive Social Security Disability benefits are American citizens, disabled non-citizens who meet certain qualifications may be eligible for the exact same benefits. If you are a permanent resident and have paid taxes into the Social Security system for the specified number of years or a non-citizen veteran of the U.S. military then you too might be eligible for disability benefits.

Besides being a veteran or active duty member of the armed services, the Social Security Administration (SSA) says that those lawfully admitted for permanent residence under the Immigration and Nationality Act (INA) with a total of 40 credits of work in the United States are eligible to receive benefits. It is important to note that a spouse’s work hours may also count towards this number.

When you apply for disability, you must prove your non-citizen status. Non-citizens who have served in the U.S. armed forces also may need to give us proof of military service. The SSA says that the following documents will be required when applying for disability benefits:

• For non-citizens - a current Form I-94 or I-551 from the Department of Homeland Security (DHS) or an order from an immigration judge withholding deportation or granting asylum; or
• For those in the military - U.S. military discharge papers (DD Form 214) showing honorable discharge not based on your noncitizen status.

As with all things involving the federal government, there are exceptions to exceptions. Even if you meet all the other requirements to receive disability benefits, if you are part of the unfortunate few from some select countries you will not be able to receive SSD benefits. These countries are Cuba and North Korea.

It is important to note that being a citizen means more than just being born in one of the 50 states. You can apply for Social Security disability benefits as a citizen and have a few less hurdles to jump through if you have a valid birth certificate from any of the following places:

• The United States;
• Puerto Rico;
• Guam;
• U.S. Virgin Islands;
• American Samoa;
• Swain’s Island; or
• Northern Mariana Islands.

Continue reading "Disability Benefits for Non-Citizens" »