After an initial application for Social Security Disability benefits, a claimant is afforded 60 days to file a written appeal, for either a “Reconsideration” of the original claim or a “Request for Hearing before an Administrative Law Judge.” Unfortunately, there are many claimants, largely due to psychiatric or other disabilities, who miss the 60 day deadline and are often forced to re-apply for benefits from “square one.”

A relatively new ruling, Social Security Ruling 91-5P, can extend the deadline to appeal based on a “good cause.” This means that the Social Security Administration will not automatically dismiss the appeal and that proper consideration will be given to a claimant who presents evidence that mental disability, may have prevented the claimant from understanding the 60 day deadline to obtain review.

The Social Security Administration is to consider the following factors, in determining whether “good cause” exists for an untimely appeal beyond the 60 day deadline:

* Inability to read or write * Lack of facility with the English language * Limited education * Any mental or physical condition which limits the claimant’s ability to perform activities of daily living.

According to the rule, all doubts are to be resolved in favor of the claimant. Thus, the rule is to be interpreted and implemented in a liberal and caring manner.
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With the implementation of health care reforming proceeding under the Affordable Care Act (“Obamacare”), the Department of Health and Human Services recently published a Federal Register notice of a computer match with SSA to obtain certain information. Obtaining this information may lead to more Social Security disability beneficiaries becoming eligible for health insurance coverage, especially during the 24-month waiting period.

The Affordable Care Act requires the Department of Health and Human Services to establish a program for determining eligibility for certain Insurance Affordability Programs and an online system for verification of eligibility. The date provided by the Social Security Administration to the Health and Human Services Centers, will be used to make initial eligibility determinations and other eligibility determinations. These include:
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A new Bill introduced in a Senate Committee, would eliminate the 5 month waiting for Social Security Disability benefits, for those individuals deemed to be “terminally ill.” This would apply to tragic situations in which the claimant has a medical prognosis that his or her life expectancy is 6 months or less. At least 2 physicians who are not related and not in the same practice must certify that the individual is terminally ill. The benefits would not become 100% until the 3rd to 12th month. Similar Bills have been introduced with little success, except for two serious conditions, end state renal disease and amyotrophic lateral sclerosis (ALS).

Individuals often endure extreme financial hardship during the 5-month waiting period and may have to rely on SSI, if eligible. The Medicare 24-month waiting period causes even more onerous burdens for beneficiaries.

Social Security Disability Attorney and Lawyer Randy Zeldin, Esq., represents claimants pursuing Social Security Disability Benefits in Ft. Lauderdale, Boca Raton and West Palm Beach, Florida.

At hearings before Administrative Law Judges, telephone testimony by Medical Examiners and Vocational Experts has becomes far more common. Interestingly, until recently, there was no formal rule by the Social Security Administration as to this practice.

The Social Security Administration has recently revised regulations that specifically allow Administrative Law Judges to schedule telephone testimony by expert witnesses, so long as there is advanced notice given to the Claimant and his/her attorney representative. The new regulation is effective on June 20, 2013. The regulation is more or less consistent with previous court decisions on the matter.

The new rule will also allow the claimant or any other party to request an appearance by telephone. However, permission for telephonic testimony by the claimant or other parties will only be allowed in “extraordinary circumstances.” The hearing notice must state whether a witness (or the claimant) will appear in person, by video conferencing or by telephone. If the claimant objects to a witness appearing by telephone, the Administrative Law Judge will have the discretion to determine whether the appearance may be by telephone or in person. Thus, the Administrative Law Judge in the end, has the final say and discretion.
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An issue that has come up at recent Congressional hearings is the concurrent receipt of unemployment insurance (UI) and Social Security Disability Income Benefits (SSDI). A group of Senators recently introduced a bill that would reduce SSDI benefits for any month in which unemployment benefits were received. The bill is still in the Senate Committee on Finance.

The current proposed bill provides that for any month in which in an individual is entitled to unemployment insurance, the SSDI benefitshttps://www.zeldinlaw.com/lawyer-attorney-1303795.html for that month shall be reduced to zero. The Social Security Administration’s long-standing policy has been that receipt of UI benefits is a factor to be considered, but is not determinative of an individual’s ability to perform substantial, gainful activity. Another Memorandum from the Chief Social Security Administrative Law Judge similarly states the policy that a person may qualify for SSDI benefits, even though he or she remains capable of performing some work.

The Government Accountability Office issued a report in 2012, in which it concluded that under certain circumstances, individuals can legitimately receive SSDI and unemployment insurance at the same time. However, the GAO also indicated that receipt of both benefits could be an indicator of improper payments.
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As a Social Security Attorney in Ft. Lauderdale, Boca Raton and West Palm Beach, I am frequently asked whether Social Security Disability Benefits may be “garnished” or seized by creditors. Currently, one receiving Social Security Disability Benefits is protected from creditors. A new rule was published in the Federal Register, which became effective on June 28, 2013.

Prior to this rule, creditors could obtain garnishment order in secret, without the creditor or the court having knowledge as to whether the account contained protected federal benefits. To comply with the order, financial institutions might temporarily freeze the account. Until the matter was resolved in Court, Social Security beneficiaries might temporarily lose access to their SSD funds.

The new rules set forth procedures and rules for financial institutions to follow, to protect recipients of Social Security Disability, including those who receive their benefits on a prepaid card.

Following is a summary of the new procedures:

1. The financial institution must determine whether the garnishment order was obtained by the United States or a State child support enforcement agency (who are not impacted).

2. Next, the financial institution must must notify the account holder within two (2) days regarding the protection from garnishment that applies to the exempt funds.

An account holder must have “full and customary access” to the protected amount of funds in an account Continue reading

It is no surprise that the poorest U.S. States generally have the greatest number of Social Security Disability recipients. In general, Social Security Disability recipients have doubled in the past 20 years, from 5.2 millions to over 11.7 million individuals.

Those States having the greatest number of Social Security recipients, also have high rates of poverty and chronically low wages. The 10 States with the highest number of Social Security beneficiaries is West Virginia; Mississippi; Alabama; Kentucky; Arkansas, Tennessee; Michigan and Maine. Unfortunately, citizens of these areas often are faced with jobs which pay wages little more than what is paid by Social Security. These tend to be unskilled manufacturing or retail jobs, often at or near minimum wage. According to the Brookings Institution, many workers in these States actually have declining wages and income, due largely to the great recession.

Not surprisingly, the poorest States in the U.S. often have the worst health care and therefore higher rates of disease, illness and resulting disability. A Gallup-Healthway survey recently found that generally, the states with the highest rates of disability also have the most serious health conditions, including cardiac disease; orthopedic problems involving the back and knee and of course, diabetes. West Virginia takes the cake for both the highest disability rates, as well as the highest rates of disease and illness.

In order to receive Social Security Disability benefits, a claimant must prove an inability to engage in substantial gainful employment for at least one year. In virtually all States, including the State of Florida, in order to receive unemployment compensation, one must affirm a readiness, willingness and ability to engage in employment. In other words, seeking Social Security Disability and unemployment compensation at the same time, is an apparent contradiction. A person can’t be both unable to engage in substantial, gainful employment because of a disability, yet affirm an ability to work.

Both President Obama in his newest budget and House Republican Sam Johnson, agree on this issue. Rep. Johnson has recently introduced H.R. 1502, “The Social Security Disability Insurance and Unemployment Benefits Double Dip Elimination Act of 2013.” Both proposals would outlaw receipt of Social Security Disability Benefits, during any period that a Claimant receives unemployment compensation benefits.

The proposal codifies what many Social Security Judges are already doing-denying benefits for any period of time that a claimant is receiving unemployment benefits.
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For approximately the past year, the Social Security Administrated had implemented a new policy: the name of the Judge assigned would not be disclosed. This resulted in a situation, whereby a claimant and Counsel, would not know the identity of the Judge at hearing, until moments before the hearing commenced.

Recently, the Social Security Administration did an “about face” and reversed its “secret” Judge policy. Since April 20, 2013, the name of the Social Security Judge will be disclosed at the time that the Notice of Hearing is disseminated. Under current rules, this Notice must be sent out at least twenty (20) days prior to the hearing date. As a matter of practice, the Office of Disability Appeals and Review, usually sends out the Notice of Hearing approximately 60-90 days before the scheduled hearing date.
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The Association of Administrative Law Judges, which encompasses “Social Security Judges,” recently brought a Federal law suit against the Social Security Administration. The contention of the litigation is that Social Security Judges must meet a “quota” of between 500-700 cases annually. This is interpreted as approximately two rulings each day.

The litigant Social Security judges contend that this quota system, compromises the due process rights of the litigants and can lead to erroneous decisions. That could translate to denying claims which should be approved and of course, approving claims which should be denied.

Several Judges interviewed acknowledged that approved claims typically require decisions of 3-5 pages in length and are mostly routine in format and substance. A denied claim, however, is more complicated both legally and factually and decisions are often as long as 15 pages. Thus, according to parties in the litigation, there is an incentive for Social Security Judges to approve, rather than deny claims, in an effort to meet work quotas.