Covid-19 and Your Disability Hearing

Regardless of where you stand on the political issues that surround the covid-19 pandemic, one thing is certain – life as we know it was upended in March of 2020.  Almost no facet of society escaped covid-19 unscathed, and the Social Security disability process has been no exception.  As health officials learned more and more about just how contagious covid-19 is, as well as how it is spread, leaders instituted shutdowns and even many essential businesses ceased in-person operations out of an abundance of caution and to prevent the spread of the disease.  The Social Security Administration was no different and ceased in-person hearings and services in March as well.  In some ways, ceasing in-person operations served (and continues to serve) the best interests of most individuals applying for disability benefits.  Many individuals applying for disability benefits suffer from chronic illnesses, injuries, etc. that leave them particularly vulnerable to the virus.  The result, however, is that many feel as though their claims are stuck in limbo, and now face difficult questions about how to move forward.

So where does the covid-19 pandemic leave those claimants waiting for a hearing in front of a Social Security Administrative Law Judge?  Are you waiting for a hearing and wondering what to do?  When the pandemic hit in March many claimants had been waiting for their chance to appear in front of a judge for a year – sometimes longer.  SSA’s decision to suspend in-person operations came as a devastating blow to many anxiously awaiting progress on their claims.

In April of this year, Social Security began conducting disability hearings over the phone and has announced that it will begin conducting disability hearings via video-teleconferencing in the near future as a result of the pandemic.  Of course, claimants have the option of postponing their hearing, agreeing to wait until the administration resumes normal operations before being scheduled in front of a judge – but when will that be?  No one knows the answer to that question.  And for many disability claimants struggling financially or struggling with decisions regarding much-needed medical care due to a lack of health insurance and/or financial resources, waiting just isn’t an option.  As a result, many claimants now face what seems like an impossible decision.   

Why is this a difficult decision?  If agreeing to a telephone hearing is the golden ticket to keeping your claim moving forward, why not?  If the only other option is waiting a seemingly indefinite amount of time for a hearing date, then what is the big deal?  For some historical context – Social Security has been offering and conducting disability hearings via video teleconferencing for several years now.  In the video teleconferencing hearings of pre-pandemic times, the administrative law judge appears via a television feed, while the attorney and claimant are still required to appear in-person at a Social Security disability hearing office. 

The complexity behind the decision regarding whether to choose to appear in person or agree to a telephone or video conferencing hearing lies in the simple ability of the judge to lay eyes on you, the claimant, in real life.  Your hearing in front of a judge is your opportunity to explain, in your own words, why you cannot work full time.  Simply put – it is your chance to tell your story – in person.  Up until the hearing, Social Security’s representatives have been reading your medical records and making their decision on what they can see in black and white print.  Medical records can’t possibly tell the whole story.  Being able to see you in person can give the judge a better understanding of your disability.  For instance, many of my clients who suffer from chronic pain have a very difficult time sitting through the hearing.  Your voice gives life to the medical records and translates those findings to real-life activities.  Many claimants struggle through tears to articulate to the judge how difficult it is that they cannot attend their grandchildren’s baseball games, prepare simple meals for themselves or their families, tie their own shoes, or even get out of bed some days.  Of course, an in-person hearing also allows a judge to better assess your history –  the very nature of having a conversation in person can make or break some cases.

So what do you do now that in-person hearings are no longer an option?  Ask your representative – weigh the advantages and disadvantages of choosing to wait vs. accepting a telephone or video-conference hearing.  Every case is unique.  Despite the fact that in-person hearings are, without a doubt, better, do not assume that you will lose your case if you accept a telephone or video hearing.  Having an advocate to help you navigate the process, make this difficult decision regarding a hearing, and help you with your hearing is the best way to ensure you present the strongest claim to the Social Security Administration. If you do not have a representative, call my office!  The consultation is free! 

As Seen on TV- Disability Cases?

“You can’t handle the truth!” – A Few Good Men

“If we are to have faith in justice, we need only to believe in ourselves.  And ACT with justice.  See, I believe there is justice in our hearts.” – The Verdict

Atticus Finch, Perry Mason and Michael Clayton Have Nothing on the ...

“Uh . . . everything that guy just said is bull***.” – My Cousin Vinny

If you haven’t seen any of these movies for yourself, you have at least heard the quotes.  These are some of the most popular legal movies of our time and they, along with legal television shows (Suits, Law & Order, The Goodwife, Bost Legal, just to name a few) have helped to shape how most people view the legal system.  Unfortunately, these dramatic portrayals have heavily influenced how individuals view every kind of legal process, no matter the type of case or issue. 

If you are facing a hearing on your claim for Social Security disability benefits, you should note that your hearing will look nothing like what you see of the legal system on television.  Your disability claim isn’t a trial, with one side pitted against the other.  Your hearing is designed to be an impartial, factfinding process.  If you find yourself yelling “you can’t handle the truth!” during your disability hearing, then something has probably gone horribly wrong.  Most Social Security disability claimants start with no idea what to expect at a disability hearing.  My hope today is to dispel some myths and give you a practical overview of the process.

First of all, your disability hearing will have a much smaller cast of characters.  The following individuals will most likely be the only in attendance at your hearing:  an administrative law judge, the judge’s assistant, a vocational expert, and your attorney or representative (should you choose to hire one).  In some cases there may also be a medical expert.  While witnesses are allowed, they are needed in only some cases.  Most notably, there is no jury – the decision on your claim rests solely in the hands of the judge.

Second of all, your disability hearing will be informal – more of a conversation than anything else.  I tell all of my clients to think of the hearing as an opportunity to finally tell their story.  Up until the hearing, Social Security is relying on treatment notes from your physicians, operative reports, and maybe some imaging reports as well.  What Social Security is missing is the human element – the face behind the records.  While you will be sworn in and giving your testimony under oath (with a hearing assistant making an audio recording of the process), you will be answering questions only you know the answer to and in an informal, conversational manner.  Your attorney and the administrative law judge will ask you questions about your physical and/or mental conditions.  In contrast to the medical jargon in your records, the judge wants to know how your conditions impact your ability to function on a day-to-day basis.  You will be asked the simplest of questions – for example, how do you spend your typical day?  Do your conditions cause you to have good days and bad days?  What do your bad days look like, etc.?

At the end of your testimony, the judge will ask questions of the vocational expert in attendance.  A vocational expert is a “job” expert.  The judge asks questions of the vocational expert in the form of “hypotheticals.”  The vocational expert’s purpose is to help the judge understand what kind of work you have done in the past, whether you can still perform that work, and whether there is any other type of work that you could do.  His or her answers will be based solely on the hypotheticals proposed by both the administrative law judge and your attorney/representative.

Third, as there is no jury, there is no dramatic reading of a verdict at the conclusion of your hearing.  While the judge has the ability to announce a decision on your claim at the conclusion of the hearing, this is not all that common.  More often than not, you will walk away from the hearing not knowing whether or not your claim has been approved.  Then begins the process of waiting, more often than not for a few more months, for a written decision to arrive in the mail.

So before you walk into your hearing, follow the advice of your attorney or representative.  Take a deep breath.  Tell your story.

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What your social media says about you

Do you have a facebook account?  Twitter?  Instagram?  The number of social media platforms available in 2020 is astounding.  People are posting about their lives from the moment they wake up in the morning until they go to bed at night.  Even those that aren’t fans of social media find this platform useful for things like keeping up with family members that live across the country or finding out what their old college roommate is up to.  Picking up the phone and giving someone a call to “chat” is a thing of the past.  We reveal more of ourselves than ever on our social media pages, but we aren’t forming closer relationships as a result.  Perhaps the reason for this is that we post on our social media only what we want people to see about ourselves.  This is problematic, but not just because we are cheating ourselves out of the benefits of face-to-face interactions and real relationships with the rest of the world.  Can the “throwback” picture you posted of yourself running a half marathon ten years ago cause you to lose your disability benefits?  Could a post about the hike you recently went on with your friends hurt your pending application for disability benefits? 

            If you’re currently receiving disability benefits, you might already be aware that the Social Security Administration regularly conducts “continuing disability reviews,” to determine whether those receiving ongoing disability benefits have experienced “medical improvement” and are no longer entitled to receive benefits.  How often SSA conducts a review of your claim will depend on the type of impairment for which you receive benefits and the likelihood of medical improvement with regular, appropriate treatment.  If you’re wondering whether or not SSA is looking at your social media page for red flags as a part of their review, you should know that they might very well be.  Currently, SSA states that it only views social media pages on a selective basis, when fraud is already suspected.  In 2019 the Social Security Administration began seriously considering an increase in the use of social media monitoring for the purpose of rooting out fraud in the disability benefit system.  SSA also considered the use of social media when reviewing new applications for disability, primarily as a way to corroborate medical evidence in a claim.  Disability advocates responded in outrage right away.

            Rooting out fraud in a system funded by taxpayer dollars is important.  But think about what you post on social media.  Is it an accurate reflection of how you live your life from moment to moment?  Or is it what you want people to see?  Think of someone who is receiving disability benefits for debilitating back pain as a result of an injury.  Perhaps on an average day they require the assistance of a family member to do simple things like prepare their meals or even just to get dressed.  But like any person with a chronic condition, they may have the rare and elusive “good day.”  So on their facebook you may not see the full story – that they cannot bend down far enough to tie their own shoes or that they can no longer go for a run, hike with their grandchildren, do their own grocery shopping, take out their own trash, etc.  The list goes on and on. On their facebook you may see the triumph on their face on the one day out of an entire month when they are able to make it to the park for a walk or the one day out of an entire month that they were able to attend a neighborhood barbecue.  No one creates a photo album or scrapbook commemorating the “bad” days to look back on – on the other hand, we carefully document and preserve the “good” days.            

Recently the Commissioner for Social Security, Andrew Saul, publicly provided that SSA will not be making any changes to the rules with regards to social media and disability determinations.  While Social Security will not currently be taking a more widespread look at social media to make their determinations, it is important to know that they are already looking, even if only on a selective basis.  In this day and age you can never be too careful about the kind of information you provide to the world on the internet.  The lesson here is not to immediately delete your social media accounts and never share your “good” days on the internet.  The lesson here is one that applies to using social media in general – it is a lesson of caution and awareness. 

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Protecting Those who Protect and Serve

By Rachael Pas

Are you a disabled veteran?  Is someone you love a disabled veteran?  American veterans face a unique set of challenges in today’s society, from accessing adequate healthcare to understanding benefits potentially available to them.  After serving their country faithfully, many struggle to make ends meet on their monthly VA disability benefit alone. Many veterans do not know that they may be able to simultaneously receive VA disability benefits and Social Security disability benefits.  Having grown up in a military family, I am familiar with the struggles that are unique to our military families and our disabled veterans.

If you have a service-connected disability and are receiving VA disability benefits, you may be eligible to receive your full Social Security disability benefit at the same time.  In addition, the Social Security Administration may expedite your claim for disability benefits, if provided with the right information.     When applying for Social Security disability benefits, you will want to provide the Social Security Administration with a copy of your disability decision from the VA, DD-214, your medical information (names and contact information for your providers, as well as a list of medications that you take), and any medical records you have on hand.  In some cases, the Social Security Administration will expedite your claim for disability benefits – a crucial factor, considering that it can take up to 2 years to be awarded Social Security disability benefits.

Social Security provides for two different types of disability benefits, depending on your work history and household income – Social Security Disability Insurance Benefits and Supplemental Security Income (SSI) benefits.  Once SSA finds you disabled medically, your eligibility for either SSDI or SSI benefits is determined by work history and household income. If you have worked 5 out of the last 10 years, you may be eligible for SSDI benefits – your monthly benefit will depend on what you paid into the system over the years that you worked.  If it has been several years since you worked, you may only be eligible for SSI benefits. SSI benefits are currently capped at $783 per month for an eligible individual. SSI benefits can be offset or denied based on other sources of household income and financial resources. For instance, veterans receiving VA disability benefits will likely not be eligible to receives SSI benefits, even if Social Security finds you medically disabled.  The reason for this is that many veterans become disabled or stop working and then wait several years before applying for Social Security disability benefits. By this point your Social Security Disability Insurance benefits have likely expired.  Receipt of a monthly VA disability check is considered other household income that impacts financial eligibility for any SSI benefit.

Helping our disabled veterans access benefits and achieve financial stability is an important part of my practice.  If you or a loved one is a disabled veteran with questions about Social Security disability benefits, call my office for a free consultation.  If you have a disability finding from the VA, you may be entitled to simultaneously receive Social Security Disability Insurance benefits and expedited processing of your disability claim – you want to act now before your Social Security benefits expire.  I can help!

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