Tag Archives: Disability

Why an Obscure Securities Law Case Could Affect SSDI

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Social Security Disability Insurance (SSDI) cases are largely decided by administrative law judges (ALJs). A decision questioning the role of ALJs in another area of the law could cause some major complications for SSDI applicants and SSDI beneficiaries.

The 10th U.S. Circuit Court of Appeals recently set aside a conviction for securities fraud by the Securities and Exchange Commission (SEC) because the ALJ who decided the case should have been appointed under the Appointments Clause rather than hired by the SEC. The 10th Circuit’s decision directly conflicts with a recent decision made by the District of Columbia  Circuit Court of Appeals, which means the U.S. Supreme Court could take up the issue.

This matters to SSDI applicants, their attorneys and even present SSDI beneficiaries because the vast majority of administrative law judges, roughly 1,200 of 1,400, have been hired by the Social Security Administration to hear Social Security Disability appeals. Similar to ALJs from the SEC, ALJs who hear SSDI appeals are hired on merit and are federal employees.

If the U.S. Supreme Court followed the recent 10th Circuit decision and applied it to ALJs who heard Social Security Disability appeals, at least 1,200 ALJs would have to be appointed by the president and confirmed by the Senate. This could lead to further delays and uncertainty related to SSDI appeals. If the 10th Circuit decision were applied to SSDI judges, it is uncertain as to whether awards of disability would still be valid if they were made by unconstitutionally chosen ALJs. In 2014, in National Labor Relations Board v. Noel Canning, the Supreme Court held that the NLRB’s decision made by commissioners who were appointed by constitutionally invalid recess appointments was invalid.

The Social Security Administration has recently moved to abolish the treating physician rule in an effort to decrease claim payments. Uncertainty over whether the awards of SSDI benefits are constitutional would add additional hurdles to those needing SSDI benefits. If you are applying for Social Security Disability or thinking about it, contact an experienced attorney. Also, contact your lawmakers to express your concerns about the SSDI system to them.

What Happens If I Get Hurt at My Second Job?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

An estimated 7 million Americans work at least two jobs. As the holidays approach, many people will take on holiday jobs as well. Getting hurt at a second job or a holiday job can also create problems at your full-time or regular job. This post will help you navigate some of those issues:

  1. What benefits are you entitled to when you are hurt at a second or holiday job?Your benefits are limited by the wages you are receiving at your second job. You might be able to increase this amount with tips or other perks, but you cannot be paid for wage loss from your first job. If you do have permanent disability, that will be paid based off of a 40-hour week even if you worked part time.

    Receipt of workers’ compensation benefits assumes that you are an actual employee and not an independent contractor. For most relatively low-wage part-time work, this is a fair assumption. But since I wrote my holiday job post back in 2013, there has been the emergence of ride-hailing companies like Uber and other sharing-economy companies that have blurred the lines between employee and independent contractor. If you get hurt working for one of these companies, you should contact an attorney, as the distinction between an employee and independent contractor is very fact specific.

  2. How does a work injury at a second job affect your benefits at your regular job?

     

    Health insurance

    Assuming your other job’s workers’ compensation insurance company picks up your medical benefits, your health insurance from your regular job would not be affected. But in a disputed case, you may have to use health insurance from your regular job to pay for your workers’ compensation injury at your second job. In that case, you should list workers’ compensation from the company where you were hurt as the primary insurance and your private health insurance as your secondary insurance. Also be aware that if you settle your workers’ compensation claim, you may have to pay back your private health insurance. If you go to trial and win an award of medical benefits, your medical providers should refund the private health insurance and reimburse you for out-of-pocket expenses. In a disputed case, you should contact an attorney not only to get benefits but also to health navigate reimbursement.

    Short-term and long-term disability

    Larger employers will often have short-term and long-term disability policies to help employees make up for lost income. These are a mixed bag. Some won’t let you collect benefits for work injuries, some may allow you to double collect workers’ compensation and disability, while others may require you reduce benefits. These policies often have repayment policies if a workers’ compensation case is settled as well. It is helpful to have a lawyer to help you with this process as well.

  3. How does a work injury at a second job affect your employment at your regular job? 
    Assuming your injury requires you to miss time from work, you can claim the Family and Medical Leave Act, assuming your employer has 50 employees, you have worked there for a year, and you have worked there for at least 1,250 hours over the last year. Assuming your employer has 15 employees, your employer would be required to make some reasonable accommodations for your injury under the Americans with Disabilities Act. You should reach out to a lawyer if either employer requires you to return to work without restrictions. The Equal Employment Opportunity Commission has stated in final regulations implementing the Americans with Disabilities Amendments Act of 2008 that policies that force employee to return to work without restrictions are unlawful. Ironically, if you are hurt at your second job, that employer is probably more likely to return you to work at light duty so that they can avoid or reduce what you are owed in temporary benefits. The new ADA regulations were intended in part to end how work-caused and non-work-caused disabilities are treated.

Why I Am Thankful – Two Photographs

Recently I took photographs of two men who remind me of why I am thankful every day. One man is sitting in a wheelchair at a restaurant, with his right hand in a contorted position and he is being fed by another person. The other man, also in a restaurant, is in shorts and is holding a small child in his arms.  But something is missing – his right leg – he has a flesh colored prosthetic device as a substitute.

photo for LTJ blog 2 10.9.15 copyI have spent a lifetime helping disabled people and I have never heard any of them say “You know, Mr. Jernigan, when I got up to go to work that day, I knew I was going to be severely injured and my life would change forever.” We never know when life will take a turn like that. We never know when we will lose our independence and sometimes our dignity. Fortunately, that day will never come for most of us. But it could.

When I think about the man in the wheelchair and the man holding his child, I think how lucky I am, and I am thankful each and every day.

THE TRUTH ABOUT CHEATIN’ AND LYIN’

Today’s post comes from guest author Susan C. Andrews, from Causey Law Firm.

     You hear it all over the place these days: there are lots of people out there who lied and cheated to get Social Security Disability (SSD) benefits. I’m here to tell you that is a myth. You don’t have to drill down very far to find out differently. I should know, from where I sit, as an attorney who handles SSD cases. Where I sit most days is in front of a big pile of medical records—I mean HUNDREDS of pages of medical records, all belonging to the same person. You see, some of my clients have just one great big medical issue—like cancer, or Multiple Sclerosis, or Parkinson’s, and many of my clients have multiple medical problems. Either way, they have spent more time in doctors’ offices and hospitals than any of us would ever choose to do.

 There is a mistaken notion floating around out there that a person can just waltz into Social Security, claim to be disabled, and voila—he’s granted benefits!

     There is a mistaken notion floating around out there that a person can just waltz into Social Security, claim to be disabled, and voila—he’s granted benefits! Nothing could be further from the truth. The burden of proof is on the claimant (the person claiming benefits) to show that he or she is disabled from engaging in substantial gainful activity (SGA) for a period of at least 12 continuous months. More about SGA in a bit. That proof starts with medical records, and diagnoses made by doctors. Self-diagnosing just doesn’t cut it, even if you’ve read up on your condition all over the internet, and you’re absolutely positive you know what’s wrong with you! Sometimes we get calls from people who do not have health insurance, and even though they have a serious medical condition, they have been unable to access much in the way of health care. Sadly, some of those folks who should be able to qualify for benefits do not, because they simply do not have the necessary treatment records to document the seriousness of their conditions.

     As mentioned above, Social Security’s definition of disability is the inability, due to one or more medical impairments, to engage in substantial gainful activity for a period of at least 12 continuous months. Social Security defines SGA in part by a dollar figure that usually goes up a little every year. In 2013 it is $1,040. Social Security looks at a person’s GROSS earnings, not net earnings or take-home pay. So if I’m able to gross $1,040 or more per month, I can engage in substantial gainful activity and I do not qualify for SSD. This concept is important especially for individuals with progressive conditions.

     Take, for example, a person diagnosed with Parkinson’s. One famous example is the actor Michael J. Fox. His Parkinson’s affects his functioning, but he is still working. Many people with progressive conditions continue to work for some time after receiving their diagnosis. At some point, progression of the disease may force some of them to go to part-time work. When the hours worked decrease, their earnings may no longer qualify as SGA. Or—and I see this a great deal in my practice—some people begin to have more bad days than good days, and work performance is impacted. There are days so bad that they really have no choice but to call in sick. Then this begins to happen more frequently than a couple of days a month. In my experience, at that point most employers become very unhappy campers. Not only are the employees taking sick leave faster than they are accruing it, they can’t tell their employers ahead of time which days they will wake up with an exacerbation of symptoms that keep them in bed, or at least in their bathrobe, all day.

     Which brings me to my final point: Many of my clients look okay to the casual passer-by. Take the guy with a serious heart problem. Well sure, if I followed him around for half a day, I’d see that he can barely exert himself without getting out of breath. But if I just passed by, he might look fine. And the day he spends at home in his bathrobe because he can hardly catch his breath—I’m not going to see him at all when he’s having one of those really lousy days. His condition may be largely invisible.

     To sum it up, I’d say there’s a bit of wisdom in being slow to judge. Thank goodness we take our good health for granted—it’d be a miserable existence if I spent too much time worrying about getting sick before it actually happened. But, of course, serious illness can strike any of us when we least expect it. And on the other side of that defining moment, the world can look a whole lot different.

 Photo credit: Gemma Grace / Foter / CC BY-NC

My Friend Got SSD Right Away. Why Is My Case Taking So Long?

Today’s post comes from guest author Barbara Tilker from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Many people currently applying for Social Security disability benefits know someone who has been through the process before and is currently receiving benefits.  In fact, many of our current clients were referred to us by former clients who were pleased with how we handled their case.  This means we often hear the question “Why is my case taking so long?  My friend was awarded disability right away and didn’t have to wait.”

The short answer to this question is that every case is different.  Each case is assigned to someone at the Social Security Administration to handle, and some people work faster than others, or have less cases to work on.  If the person handling your case at SSA get sick or goes on vacation, you may wait longer for a decision.  If you are treated by several doctors, it may take SSA longer to get your records, and the more records there are to review, the longer the case can take.  Make sure you tell your doctors that you have filed your application so that their office staff will be aware that SSA’s request for records will be forthcoming.  The faster your doctors respond to SSA’s requests, the sooner a decision can be made.

The SSA does the best they can, given the increase in claims and decrease in staff members, to make decisions in a timely manner.  The best way to get a quick decision is to make sure that you give SSA all the information they need to process your claim and get your records.  If SSA is not told about a doctor that you see until they have already started the process, it may take them longer to get those records, delaying your decision.  You should also make sure that you respond to letters and phone calls from SSA as soon as possible.  Make sure that you promptly report any changes in your medical condition or care, such as a new doctor, a new medication, or a hospital visit. 

If you want assistance with your Social Security disability claim, please contact our office and speak with a member of our staff.  We’ll be happy to set up a free consultation so that we can discuss your case, either in one of our offices or over the phone.