CORONAVIRUS UPDATE: What We Are Doing to Protect Our Clients

Articles Posted in Social Security Disability

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.

Fotolia_175061860_XS-300x199
Before May 1, 2017, persons receiving notice of a scheduled hearing before an administrative law judge were advised to submit written evidence before the hearing.  They were also advised that if they were unable to submit the evidence before the hearing, they could bring the evidence to the hearing.  Based on 20 C.F.R. 404.935 and 416.1435 [51 FR 303, Jan. 3, 1986] the notice provided:

You are required to inform us about or submit all evidence known to you that relates whether

or not you are blind or disabled. Your representative must help you inform us about or submit

Fotolia_175061860_XS-300x199
Effective January 17, 2017, the Commissioner of Social Security has changed how and under which circumstances the Appeals Council will consider evidence submitted to it.  Amending 20 C.F.R. §§ 404.970 and 416.1470 accomplished these changes.  [81 FR 90987.]  (These two regulations are identical except for the fact that 20 C.F.R. § 404.970 deals with Title II claims, and 20 C.F.R. § 416.1470 pertains to Title XVI claims.  The changes made by the Commissioner are the same with both regulations.)

So, how have these regulations changed?  Under the rules in effect until January 17, 2017 (the “old regulations”) a claimant who appealed an unfavorable decision of an administrative law judge to the Appeals Council, was allowed to submit additional evidence.  For additional evidence to be considered as part of the disability claim, the Appeals Council had to determine that the additional evidence qualified under the regulations.  Additional evidence “qualified” under the regulations if it was “new” and “material.”  The evidence also had to relate “to the period on or before the date of the administrative law judge hearing decision.”  If the Appeals Council determined that the additional evidence was nonqualifying, it would not consider the new evidence as part of its review of the unfavorable decision.

The question of whether the Appeals Council made an error of law in applying the regulations is reviewable by the federal courts.  (See, for example, Farrell v. Astrue, 692 F3d 767, 771 (7th Cir. 2012).  However, the question of whether the Appeals Council erred by refusing to accept the case is not subject to federal court scrutiny because review is discretionary.  (Farrell v. Astrueat 771.)  Under the old regulations, additional evidence was “new” if it had not been submitted and considered by the administrative law judge.  The evidence was considered “material” under the old regulations if the evidence related to the issues in the case.

Fotolia_108671105_XS-300x296

The fact that some people use service dogs should not be overlooked in Social Security disability cases.  The use of service dogs for people seeking Social Security disability in Indiana can help establish a severe medical or mental issue. Normally, the people using service dogs must make some showing of a need for the use of the dogs to the organization which provides the dogs. This showing alone does not necessarily help establish a severe medical or mental issue. The services provided by the dog, however, can help establish a severe condition. Continue reading

Fotolia_162609699_XS-300x180

There are seemingly endless ways to take away the much-needed money belonging to the poor, disabled and elderly. On July 20, 2017, the Acting Inspector General of Social Security, posted a warning on Social Security’s blog (https://blog.socialsecurity.gov/inspector-general-warns-public-about-ssa-employee-impersonation-scheme/). The warning was about a person who impersonated a Social Security Administration employee. The impersonator made calls to persons telling Social Security beneficiaries that they were due an increase of 1.7 percent for a cost of living adjustment on their Social Security benefits.

Continue reading

IMG_0520o

The hiring of Social Security administrative law judges has its origins with the passage of the Administrative Procedure Act (the “APA”) on June 11, 1946.  The APA was passed by Congress to allay Congressional, and public concern about the propagation of autonomous federal agencies created as part President Franklin D. Roosevelt’s New Deal.    The APA sets out to regulate these federal agencies.  The APA also sets the standard for Federal administrative law judges.   The goal is the ensure the independence of these judges so that the public will have confidence in their decisions.

 

Under the APA, the U. S. Office of Personnel Management is the federal agency which serves as the gatekeeper for administrative law judge candidates. Other federal agencies select these candidates, including the Social Security Administration.  Within the Office of Personnel Management is an Administrative Law Judge Program Office.  This office is responsible the recruitment of administrative law judges.   It also conducts interviews and general background checks of potential administrative law judges.  It administers the testing for the potential administrative law judges.

Continue reading

Fotolia_110866435_XS1o

The Social Security Administration has recently changed its rules about the weight it gives to other agencies who have made awards.  Before September 2016, the Social Security Administration had regulations, 20 CFR 404.1512(b)(1)(v) and 416.912(b)(1)(v), and a Social Security Ruling, 06-03p, which dealt with the weight given to other agency decisions.  These other agencies were primarily the Department of Defense, the Veterans Administration and the Office of Personnel Management.  Under these earlier regulations and ruling, the decisions of these other agencies were not binding on the Commissioner of Social Security during the Commissioner’s evaluation of the disability claims process.  The reason that the decisions of other agencies were not binding was that the Commissioner of Social Security thought that the requirements used by the other agencies to give an award, did not mirror the disability requirements of the Social Security Administration.  Even so, SSR 06-03p, indicated that Social Security adjudicators must not ignore and must consider the evidence from another agency which made a disability assessment.

Continue reading

Fotolia_50259043_XSo

The analysis of “past relevant work” in the context of a Social Security Disability case is important.  The reason that this analysis is important is that at step 4 of the sequential evaluation process, a determination must be made about whether a claimant can perform his/her past job.  There are three main issues to consider when determining whether the job constitutes past relevant work: was the job recently performed, was it performed at the substantial gainful level and was the job performed for a long enough period so that it could be learned.

The recent component has to do with work which the claimant has done in the past 15 years.  (20 C.F.R. § 404.1506 (b)(1).)  The Commissioner of Social Security uses 15 years as a cutoff for considering which jobs fall into the category of “past relevant work.” The 15 years has to do with the acknowledgment that there is a change which occurs in most jobs in the nation.  When those changes do occur, according to the Commissioner of Social Security, it is no longer fair to think that whatever skills have been learned or acquired performing those jobs, continue to be relevant for those jobs.  (Social Security Ruling 82-62.)  In other words, once a claimant has stopped working in a particular job and has not done that job in 15 years or more, Social Security assumes that the skills learned in that job are no longer applicable to how a person performs the job today.  A corollary question to consider when looking at the 15 years, is “15 years from what date?”  The answer is that the look back period is the 15 years before the specific time of determination or adjudication of the claim.  For example, if the review of the claim is at the initial stage, then the 15 years look back is from the time of initial stage back 15 years.  If, however, the claim is at the hearing stage, then the look back is 15 years from the hearing.  Given the fact that there are lengthy delays (often time years) to have a hearing, jobs within the 15-year range at the initial stage, may not be in that range by the time a hearing occurs.

Continue reading

IMG_0520o

Illustration © Robert Wilson

Last week the Trump administration rolled out its first budget proposal.  Included in the proposal were deep cuts to the Enviromental Protection Agency (31.4%); State Department (28.7%); Labor Department (20.7%); Agricultural Department (20.7%); U.S. Army Corps of Engineers (16.3%) to name a few of the double digit agency reduction and not to mention program cuts and other programs which the Trump administration proposes to zero out or eliminate.  The budget proposal also include a 10% increase, to 54 billion, in the defense spending.

During the press conference for the role out, Office of Management and Budget Director, Mick Mulvaney, was asked if there would be cuts to Social Security and Medicare.  Largely silent on answering this

Justia Lawyer Rating
AV Martindale-Hubbell
Indiana State Bar Association
Super Lawyers
Indiana Trial Lawyers Association
Avvo Raiting
Best Lawyers
Contact Information