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Presented by Michael D. Steinhardt Managing Attorney www.steinhardtlawfirm.com December 3, 2013.

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Presentation on theme: "Presented by Michael D. Steinhardt Managing Attorney www.steinhardtlawfirm.com December 3, 2013."— Presentation transcript:

1 Presented by Michael D. Steinhardt Managing Attorney December 3, 2013

2  A small percentage of attorneys practice social security disability law Knowledge is acquired through practice in a law firm Very few law schools teach social security disability law  Referrals from speeches and seminars  Referrals from clients  Referrals from other attorneys  Television advertising  Internet advertising

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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)

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7  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

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13  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?

14 Gainfully employed Gainfully employed Has a Severe Impairment Has a Severe Impairment Impairment will Last 12 months or Result in death Impairment will Last 12 months or Result in death Meets listing of Impairments Meets listing of Impairments Able to perform Previous work Able to perform Previous work Able to perform Other work Able to perform Other work Not Disabled Disabled according To vocational factors Disabled according To vocational factors Disabled According To medical listing Disabled According To medical listing no yes no yes no yes no

15 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 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 Fiscal Year 2011 Workload Data: Disability Appeals*

16  *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 Report 2) Administrative Law Judge and Appeals Council data: SSA Office of Disability Ajudication and Review (ODAR) 3) Federal Court data: SSA Office of General Counsel

17  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

18  Disabled Worker  Disabled Adult Child  Disabled Widow or Surviving Divorced Spouse  Blindness

19  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

20  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

21  Earnings requirement- Fully insured  Age 31 or older- 20 credits in 40 credit period (5 out of last 10 years)  Age – credits for half the time from 21- onset of disability  Under age credits in three year period pre-onset

22  Attorney fees – 25% of past due benefits withheld for direct payment, presently capped at $6, Or Counsel can submit a fee petition requesting a higher fee based on hourly work  Medical coverage – Medicare begins 24 months after eligibility for payments begin

23  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

24 Categories of Recipients  Disabled individuals who do not have enough credits  Disabled children  If eligible, you will receive cash benefits and Medicaid

25  Source of payment- general revenue  Amount of payment- federal amount set by Congress  Payment to children of disabled individual- No  Payment to spouse- No

26  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

27  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

28  Medical care and services  Social services  Income tax refunds

29  Primary Residence  One vehicle  Life insurance with face value of less than $1,500, and burial plots

30  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

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33  There is no attorney representing the SSA  Only Claimant is represented by counsel

34  Attorney Represented Services (ARS)  Encrypted CDs

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36  Get an assessment from the treating physician  In assessing functional limitations, make sure the claimant is specific and quantifies the limitations

37  PRIOR to the hearing, review with your claimant and ask all of the questions that can be expected to come up at the hearing

38  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

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40  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

41  Assessments  Objective Tests  Operative Reports  Psychological Testing  GAF scores  Consultative report from SS doctors

42  Be able to cite specific evidence in the record by exhibit number and page number

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44  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?

45  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

46  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

47  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.

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49 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.

50 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)

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