Media scare about future of disability programs

Some of you may have seen an article in your local paper late last week announcing that the Social Security disability program is in financial peril.  Many papers picked up an article by the Associated Press which suggests that the disability program is being overrun by people who have been rendered unemployed by the recent economic downturn. The article describes a “stampede for benefits” and cites a Congressional Budget Office report that shows that the funds set aside for the disability program are set to expire in 2017.

This article may obviously alarm disability recipients, claimants and their loved ones. I don’t think there is reason to panic however. The article makes passing reference to the fact that Congress can act to make sure the program is properly funded. This is explained in greater detail by the Congressional Budget Office report itself:

CBO projects that the DI trust fund will be exhausted in 2017 and that the OASI trust fund will be exhausted in 2040. Once a trust fund’s balance has fallen to zero and current revenues are insufficient to cover the benefits that are specified in law, the corresponding program will be unable to pay full benefits without changes in law. The DI trust fund came close to exhaustion in 1994, but that outcome was prevented by legislation that redirected revenues from the OASI trust fund to the DI trust fund. In part because of that experience, it is a common analytical convention to consider the DI and OASI trust funds as combined. CBO projects that, if legislation to shift resources from the OASI trust fund to the DI trust fund was enacted, the combined OASDI trust funds would be exhausted in 2038.

In plain English, this means that the disability trust fund can be replenished by the retirement trust fund just as it has been before.  The only fear is that Congress will not act rationally and take the necessary steps to shore up the disability programs.  This projected shortfall in the disability trust fund has been known for quite a while. I recall being at a seminar in 2010 at which a congressional staffer spoke about this problem. She made it sound as if a forgone conclusion that Congress would direct that revenues be diverted from the retirement trust fund to assist the disability program.

The AP article is troubling in one other way. It focuses too greatly on the recent economic problems as the reason for the increase in disability benefit claims and recipients. As explained by Attorney Charles Hall on the Social Security News Blog (citing a piece written by Kathy Ruffing at the Center on Budget and Policy Priorities): “The reasons for the increase in the number of people drawing Social Security disability benefits are primarily the aging of the baby boom population, the increase in the number of women in the work force and the increase in the full retirement age.” The AP article makes passing reference to the aging-baby boomers, but ignores these other causes and chooses instead to focus the blame on the ailing economy.

Initial Consultations by Telephone

Beginning this month, Winter, Chewning & Geary, LLP will start offering potential clients the opportunity to talk to an attorney by telephone if they are unable to travel to one of our offices in Green Bay, Oshkosh or Two Rivers. Far too often we have clients who are unable to make it to one of our office locations. Sometimes this is due to financial limitations. Some clients are in no physical condition to drive for long distances. I am also aware of clients who, because of their panic disorders and agoraphobia, are afraid to leave their home unless absolutely necessary. To accommodate these potential clients, we are willing to schedule a time at which we can discuss your disability claim with one of our attorneys. To get the word out about our willingness to conduct an initial consultation with a potential client over the phone, we are rolling out a new ad this month which addresses the fact that many disabled people are unable to travel to meet with a lawyer.

 

 

We expect that all clients will eventually meet with us in person to discuss their case.  As I discussed previously, I think there is so much that can be learned during face-to-face meetings with clients that is lost by merely talking to someone over the phone.  We also ask that any clients interested in a telephone consultation be as prepared as they would be for an in-person office conference.  This means having information regarding your doctors, clinics, hospitals, medications and any work that you have done within the past 15 years handy.  It is also important that you have any paperwork relating to your Social Security disability claim with you when you speak with the attorney.

Like Us on Facebook & Follow Us on Twitter.

I’m pleased to announce that Winter, Chewning & Geary, LLP has recently become active on both Facebook & Twitter. We hope that by using both of these social networking sites we will be able to provide helpful information to our clients and potential clients throughout Wisconsin and beyond. Look for posts on matters directly related to Social Security disability as well as the medical conditions that we frequently see in our practice. Please help us spread the word by visiting our Facebook page and following our feed on Twitter (@wisdisability).

New Social Security Ruling Requires Some Claimants to Make a Difficult Decision

The Commissioner of Social Security issued a new ruling this week, SSR 11-1p, that went into effect on Thursday, July 29, 2011.  It eliminates subsequent disability applications while a claim is pending before the Appeals Council.  In other words, if your claim was denied by an Administrative Law Judge, you can appeal the decision to the Appeals Council, but you cannot file a new claim until the Appeals Council has issued its decision.  This creates a terrible dilemma for some claimants.  The Appeals Council can take up to two years to decide an appeal.  If you believe the judge’s decision was incorrect and wish to pursue your entire claim for back benefits you can appeal, but in doing so you give up the right to pursue a new claim until that lengthy and uncertain process is over.  Previously, filing a new claim allowed you to preserve the back benefits that accrued while the appeal was pending.  Now you cannot preserve your claim for that period of back benefits while the appeal is pending. If you win your appeal, there is no problem.  However, if you lose your appeal, you’re back at square one.

I’ve simplified things a bit for purposes of this post.  There are some exceptions.  For instance, if the claim on appeal is for Title II benefits (SSDI), you may be able to file a new claim for Title XVI benefits (SSI).  The new rule also does not appear to foreclose a new application for beneftis if your case is in federal court (after the Appeals Council denial).

The ruling is a game-changer for Social Security disability and SSI claimants.  If you receive a denial from an ALJ, you should definitely consult with an attorney about whether to appeal.  There are benefits to appealing, but now there are risks too.

Significant Improvement in Wisconsin Disability Hearing Processing Times

As I’ve noted in prior posts, one of the longstanding problems in the Social Security disability process is the amount of time at which claims linger at hearing offices before the case is decided.   It looks like Wisconsin claimants are now facing much shorter wait times than in recent years.   Data published in the most recent NOSSCR Social Security Forum shows that both hearing offices in Wisconsin have wait times that are currently less than one year.  As of January 2011, the Madison hearing office has an average case processing time of 301 days.  The Milwaukee case processing time is down to 357 days.    This is compared with wait times in excess of 500 days which were common for several years.

DO YOU KNOW WHO YOUR ATTORNEY IS? AND DOES YOUR ATTORNEY KNOW YOU?

Far too frequently I hear of situations where a Social Security disability or SSI claimant meets their attorney for the first time on the day of the hearing. This troubles me. At Winter, Chewning & Geary, LLP we try to establish an individual attorney-client relationship in every case. The attorney you meet with you at your initial consultation should be the attorney that handles your case and appears with you at the hearing, if we are unable to obtain benefits beforehand. In my opinion, you should have the same attorney handle your case every step of the way rather than being passed off from associate to associate within the same firm. At Winter, Chewning & Geary, LLP we do our best to make sure this happens. In the unusual situation where scheduling may prevent me from appearing at one of my client’s hearings, I will ask my partner to take on the case only with the client’s consent.

Knowing the identity of your attorney is important, but it’s also important that the attorney know you – not just your name, your medical conditions and your work history. It is important that the attorney understands your personality and has a sense of who you are as a person. Social Security disability hearings can be very dynamic situations. It is not simply a circumstance in which an attorney reads a list of questions to his clients. Rather, there is an interaction – a give-and-take – between the attorney and the client (and the judge). For your attorney to truly present your case in the best fashion in such a circumstance, it is important that the attorney has spent time with you talking about your case beforehand, preferably in person. Because I need to get to know my clients, I usually require an in-person meeting with them. While I will accept a case from time to time based on telephone contact alone, I almost invariably advise the clients that I prefer to meet face-to-face with them and expect to meet with them face-to-face prior to a hearing.

 

Forms, Forms, Forms

When you apply for Social Security disability or SSI benefits, the Social Security Administration will send you a number of forms in the course of developing your file. The forms that you will often be sent are Work History Report (Form SSA-3369-BK) and Form SSA Function Report Adult (Form SSA-3373-BK). It is vitally important that disability claimants take time and care in answering the questions in these forms. I have found that some clients view them as a chore that must be breezed through as quickly as possible. Doing that is a bad idea. The answers in these forms can come back and haunt you. It is important that when completing these forms you are honest and complete.

Honesty: It goes without saying that you cannot lie to the Social Security Administration. You must be honest in answering these forms. Do not exaggerate your symptoms or try to make yourself sound worse off than you really are. If you do, you are not only committing Social Security fraud but you are undermining your credibility. When you end up in front of a judge at a hearing, the judge will have access to the actual handwritten forms that you have completed and will see how you have overstated your case. The state agency that makes the initial disability determinations also will not be fooled by any exaggerations. The agency’s examiners will look for objective medical evidence supporting the descriptions that you offer. If the medical evidence doesn’t document the pain or symptoms of which you complain in the function report, you can expect the state agency to disregard your complaints and find that you lack credibility or are only “partially credible.”

Completeness: Most of the forms that I read are entirely honest; however, many of them are problematic because they don’t tell the whole story. A person may list their daily activities, such as “wake up, drink coffee, eat breakfast, watch TV, walk the dog, eat lunch, watch more TV, make dinner, go to bed,” without taking any opportunity to describe how each of those activities is affected by their physical or medical limitations. Far too often, the bland, plain vanilla answers that are given by disability claimants are interpreted by the state agency as an indication that there are no limitations in these activities of daily living (ADLs). Even if it seems like a lot of work, it is worthwhile to take the time to explain point-by-point how your physical or mental limitations affect your daily functioning. If you don’t tell Social Security about these problems, Social Security will assume that there are none. One example that I see frequently is the failure to differentiate between activity on a “good day” and a “bad day.” Many individuals suffer from physical problems (e.g., fibromyalgia) or mental illness which is subject to flare-ups or bouts of worsening that may completely incapacitate a person. For instance, I often hear of cases of depression where people have good days and are relatively functional and may not seem disabled at all, but those good days are interrupted by bouts of severe exacerbations, in which the person cannot get out of bed much less leave the home. It is important when completing the forms that Social Security sends that a complete picture is provided, not just a snap shot of your functioning on a good day.

 

Social Security offices closed Friday after Thanksgiving

Thursday is Thanksgiving, which is a federal holiday of course. I just learned that in addition to Thanksgiving, SSA offices will also be closed Friday, November 26. The day after Thanksgiving is not normally a day off for federal employees, but SSA Commissioner Astrue granted the day off in this memo which is reprinted in on the Washington Post’s website.

October 2010 Spotlight on Social Security focuses on audio verisons of Social Security

This attached newsletter, Spotlight on Social Security, is from Ken Hess, SSA’s Public Affairs Specialist for Northern Wisconsin.  It is a brief article highlighting the availability of audio versions of Social Security’s publications.

SSA Webinar on September 21: Tips for People Who Receive Social Security

I received news of this webinar for recipients of Social Security through an email from the National Organization of Social Security Claimants’ Representatives:


SSA is holding webinars on its website, www.socialsecurity.gov, on a variety of topics.  Coming up on Tuesday, September 21, 2010, at 2:00 p.m. ET, is the following webinar:

Using socialsecurity.gov: Tips for People Who Receive Social Security
There are many Social Security services available online. You can replace a Medicare card, request a proof of income letter, change your address or phone number, start or change direct deposit, get or change a password or receive updates by email. We give you some tips on how to make the most of using those services.

You can sign up for the webinar on Social Security’s home page, www.socialsecurity.gov. Scroll down to the bottom of the center column to “Watch Our Webinars.”  Double click on “Learn More.” You will be directed to a description and link to RSVP for the webinar.

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