Fotolia_175061860_XS-300x199

It should go without saying that to be found disabled under the Social Security disability system, it is necessary to apply for Social Security disability benefits by filing a valid application for benefits. (20 CFR § 404.603 and 20 CFR § 416.305.) But what is “valid” application?

For an application for Social Security disability benefits to be “valid,” the form used must be a form which the Social Security Administration has approved. Also, the application needs to be signed by the applicant for benefits (unless an exception applies). Unless very limited exceptions apply, the person seeking benefits must be alive at the time the application is filed. The person signing the application must sign under the penalties for perjury. Finally, filing the application with the Social Security Administration is required. (20 CFR § 404.610 and 20 CFR § 416.310.)

When is a disability application considered “filed” under the program rules? The default rule is the Social Security administration considers an application for disability benefits “filed” on the earlier of either the date of receipt of the application at a location approved by the Social Security Administration (usually a Social Security office) or on the protective filing date. (20 CFRE § 404.614 and 20 CFR § 416.325.) Many applications for Social Security disability are filed on the internet using the Social Security Administration’s secure website ( www.ssa.gov.) If the application is filed using the internet, then the filing date is the date which Social Security receives the completed application. [TIP: When using the internet to complete and file an application, Social Security will produce a receipt showing the date which the application was completed and successfully filed. It is important to print and save that receipt. The receipt can establish the date of filing.]

Continue reading

Fotolia_175061860_XS-300x199
In October 2010, Congress passed Rosa’s Law (Public Law 111-256) which changed references of “mental retardation” in specified federal laws to “intellectual disability.”  Historically, the medical profession, our legal system and our laws have struggled with labeling a person with intellectual disorders.  At the beginning of the 20th Century, persons with intellectual disorders suffered under pejorative names like “idiot,” “imbecile,” and “moron.”  These names were used to describe a person’s IQ starting with the lowest and then advancing to a moderate score.  By the late 20th century, these names were replaced by the term “mental retardation.”

Rosa Marcelino, a 9 year old girl from Maryland, who is afflicted with Down Syndrome helped changed the pejorative labels.  Rosa, along with her parents and family, were instrumental in changing the law of Maryland so that the term “mental retardation” was removed from the health and education statutes of Maryland.  That effort then went to the U.S. Congress.  Both the Senate and House in 2010 unanimously passed a law amending the language in all federal health, education and labor laws removing the term “mental retardation” and in its place substituting the term “intellectual disabilities.”  President Obama signed the bill into law.  During the signing ceremony, President Obama quoted Nick, Rosa’ brother, as to the reason for the need of the bill: “What you call people is how you treat them.  If we change the words, maybe it will be the start of a new attitude toward people with disabilities.”  The federal law is named after Rosa.

In conformity with the mandate of Rosa’s Law, the Social Security Administration replaced the term “mental retardation” to “intellectual disability” in its Listing of Impairments.  (Cf. Change in Terminology “Mental Retardation” to “Intellectual Disability,” 78 Fed Reg. 46499 (2013).)  This change was effective on August 1, 2013.

Fotolia_175061860_XS-300x199

The answer is no!  On January 23, 2017, President Trump appointed Nancy A. Berryhill the Acting Commissioner of Social Security.  The appointment occurred under a federal law known as the Vacancies Reform Act (5 U.S.C.A. 3345 et seq.). The term “acting” in important.  The United States Congress did not confirm the appointment of Ms. Berryhill.  The Vacancies Reform Act permits a person to serve in a government position which requires the advice and consent of the United States Senate without Senate confirmation.  The point of the legislation is to allow a person to temporary full fill the duties of position while the Senate is considering a permanent replacement.  However, this permission is time limited.  In the case of the Social Security Administration, the President has not yet nominated a permanent replacement.

In Ms. Berryhill’s case, under the Vacancies Reform Act, the “acting” appointment ended November 17, 2017.  The Social Security website continued to show that Ms. Berryhill was the “Acting” Commissioner of Social Security after November 17, 2018.  On March 6, 2018, the U.S. Government Accountability Office, through its General Counsel, notified the President, Congress and the Director of the Office of Personnel Management.  The notice had to do with the Social Security Administration’s continued use of the title of “Acting” Commissioner of Social Security, after November 17, 2017.  The notice concluded that because of the continued use of the term “Acting” the Social Security Administration was in violation of the Vacancies Reform Act. Sometime after the letter was sent, the Social Security Administration changed its website.  Now the website suggests that Ms. Berryhill is the Deputy Commissioner for Operations and “performing duties and functions not reserved to the Commissioner of Social Security.”  For now, the position of the Commissioner of Social Security is vacant. Continue reading

Fotolia_175061860_XS-300x199
Every year, the Social Security Administration complies numbers which it says represents the allowances and denials the Commissioner of Social Security has made in the past fiscal year for applications and appeals for disability. The following numbers are not just for Indiana or the Indianapolis Office of Hearings Operations but for the nation. The numbers and their percentages are only for the decisions made in fiscal year 2017. Therefore, the application or appeal could have been filed a year or many years before fiscal year 2017.

The application process for federal Social Security disability is always started by the filing of an initial application. The initial application can be filed either on line at www.sss.gov or by going to a local Social Security office. (To find a local Social Security office near you just enter in you zip code at Social Security Office Locator.) In fiscal year 2017, 34% of the claims were approved and 66% of the initial claims were denied. These numbers are about the same as they had been last year.

If your initial claim falls within the 66% of those which were denied, then you should file a request for reconsideration. This first appeal is reviewed by in house physicians and psychologists at the Disability Determination Bureau in Indianapolis. The rate of approval was 12% with 87% denied.

Fotolia_175061860_XS-300x199
In my November 24, 2017, blog post, “Does a Statement from A Family Doctor Writing “Disabled” Guarantee A Finding of Disability?” I discussed the need for the report of a treating physician to important details, medical findings, and medical reasoning.  Equally important is the need for sufficient and consistent medical evidence.

20 CFR 404.1520b and 20 CFR 416.920b details what is considered “sufficient” and “consistent” medical evidence.  For medical evidence to be sufficient when it contains all of the information which the Commissioner needs to make a decision.  Medical evidence is considered consistent when it does not conflict with other evidence in the case file, when there are no internal conflicts and is not ambiguous.    Finally, the Commissioner will not view the medical evidence as consistent if the evidence is not based on medically acceptable diagnostic techniques.

An example of how medical evidence might be considered to be incomplete is when one or more of the elements required in the Listings of Impairments are not found in the medical evidence.  Consider, Listing 5.06, inflammatory bowel disease.  Subsection A requires an obstruction of stenotic areas in the small intestine or colon that resulted in hospitalization for surgery.  There must have been two surgeries at least 60 days apart occurring within 6-months.  If the medical evidence includes only one hospitalization, the record will be insufficient.   If the record is insufficient, the Commissioner is allowed to request existing medical evidence.

Fotolia_175061860_XS-300x199

Numerous news television stations reported this evening that an ATIC-SWAT team arrested Eric Conn when he was leaving a restaurant.  The arrest took place in La Ceiba, Atlántida, Honduras.  The ATIC-SWAT team and the Federal Bureau of Investigation (“FBI”) worked together to bring about Mr. Conn’s arrest.  It is expected that Mr. Conn will be transported to the United States tomorrow.

Mr. Coon was indicted for conspiracy to commit mail fraud and wire fraud, mail fraud, and false statements.  The allegations centered around his alleged fraud in obtaining Social Security disability benefits for clients.  The federal charges were filed in the Eastern District of Kentucky in April 2016.  In March 2017, Mr. Conn entered a guilty plea to one count of theft of government money and one count of payment of gratuities.  Mr. Conn was scheduled to testify at a trial against one of the co-conspirators, Dr. Bradley Adkins, in the week of June 5, 2017.  However, Mr. Conn removed his ankle monitor on June 2, 2017 and fled.

Mr. Conn earned a place on a FBI “Most Wanted” poster as a result of his decision to flee.  On July 12, 2017, the Federal District Court in Lexington, Kentucky sentenced Mr. Conn, without him being in the courtroom, to 12 years in prison.   Mr. Conn was photographed on surveillance cameras in New Mexico in mid-July.

Fotolia_175061860_XS-300x199

Appealing the unfavorable decision of an administrative law judge is the final step in the administrative journey to receive Social Security disability.  Unfortunately, about 82% of the appeals to the Appeals Council result in a denial of the Request for Review.  To add insult to injury, not only does a Request for Review have about an 18% chance of success, it takes about a year and a half for the Appeals Council to arrive at its decision.

In some respects, a Request for Review may appear futile.  However, it is necessary to file a Request for Review with the Appeals Council so that you can seek further review in Federal District Court.  In court, depending on the case, the chance of having the decision of the administrative law judge reversed, is much higher than at the Appeals Council level.   If you are one of the 82% who are notified by the Appeals Council that the decision of the administrative law judge should not be changed, then you have 60 days from receiving the determination of the Appeals Council to decide whether to begin another journey, the litigation journey.

Every person who loses an Appeals Council Request for Review of an administrative law judge’s unfavorable decision in a disability case has the right to request a court review.  A court review is litigation.  It involves filing a suit against the Commissioner of Social Security in the Federal District Court which sits in the judicial district where the claimant lives.  A claimant who wishes to file a civil action in Federal District Court must pay a filing fee of $400 to the U.S. Court Clerk.  Most people who are disabled do not have $400 to pay to file a civil action.  It is possible to ask the court to waive the filing fee requirement.  The request is done by completing a written waiver form, detailing the assets and expenses of the claimant.  If the court allows the case to be filed without the payment of the filling fee, the court will order the U.S. Court Clerk to file the case without a fee and will also order the U.S. Marshals Service to serve the summons and complaint on the Commissioner of Social Security without the need for the payment of service of process.

Fotolia_175061860_XS-300x199
Often, a person will begin the disability process by going to a local Indianapolis Social Security office and apply for disability benefits.  Many times, the reason that the person is applying for benefits is because the family doctor said that the person can no longer work.  Sometimes the doctor writes  a note saying “patient is disabled.”  Armed with the note and the opinion from the his/her doctor that he/she can on longer work, the person expects to be placed on Social Security disability within weeks of applying.

The person is surprised to learn that after three to four months, Social Security has denied the initial application for disability benefits.  When that person comes to see me about the initial denial, we have a conversation about the effect of the family doctor’s statement and its impact on the decision making process at Social Security.  The fact is, a simple note from a treating physician has little influence on whether Social Security will award disability benefits.

Social Security regulations 20 CFR 404.1527 (d)(1) and (2) and 416.927 (d)(1) and (2) deal specifically with short physician notes.  (d)(1) states that “a statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are unable to work.”  (d)(2) reminds the reader that the final responsibility for deciding whether a person is disabled is a matter reserved for the Commissioner of Social Security.  This means that just because a treating physician writes that a person qualifies for disability under the rules and regulations for Social Security disability, there is no guarantee that the person will be found disabled.  The policy consideration underlying these regulations is that Social Security does not want private physicians and psychologists controling the federal disability system.

Indiana Trial Lawyers Association