Qualifications to obtain SSD benefits from the SSA.

Calling the Social Security Administration (“SSA”) office is unlikely to help you understand whether or not you qualify for Social Security Disability. This is because when you call the SSA office you will be speaking with a service representative, who is not qualified to make a determination regarding a person’s disability. That is a decision that is assessed by disability examiners who work at DDS, Disability Determination Services, a state agency which is entirely separate from SSA.

DDS assesses many factors in determining a person’s ability to return to the workforce. First, the determination is made whether the claimant can return to their old job. If they can, their claim is denied. Next, DDS will consider whether the claimant has transferrable skills, and will consider factors such as the claimant’s level of education, past work experience, and age. After the age of 50, a person is generally not expected to learn a new trade or skill. Assessing these factors along with a claimant’s physical or mental disabilities or limitations is part of a complex process that service representatives at SSA cannot and should not attempt to inform potential claimants on. This is why you are better off seeking an attorney who is knowledgeable and experienced in navigating the process of proving one’s qualifications to obtain SSD benefits from the SSA.

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Credit for Work and Social Security Disability

The Social Security Administration requires that you have earned enough “work credits” in the past  in order to be eligible to apply  for Social Security Disability benefits.

What are work credits?

When you work and pay Social Security taxes, you earn up to a maximum of four “credits” for each such year.

The amount of earnings it takes to earn a credit has changed since 1978. In the year 2016, you must earn $1,260 in covered earnings to get one Social Security or Medicare work credit and $5,040 to get the maximum four credits for the year.

The number of work credits needed for disability benefits depends on your age when you become disabled. Generally, you need 40 credits, 20 of which were earned in the last 10 years ending with the year you become disabled. However, younger workers may qualify with fewer credits.

This is why, when you call a Social Security Disability attorney about filing for disability, they will probably ask you the following question:

“Have you worked on the books for at least five of the ten years before you became disabled?

If you worked LESS, you may not even be eligible to apply for Social Security Disability Benefits (SSDB.)

In addition, the more you worked and earned over your lifetime, the higher your monthly benefit amount will be!

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SOCIAL SECURITY DISABILITY DENIALS: DOES EVERYONE GET DENIED THE FIRST TIME ?

Most people have heard the old adage that ” everyone gets denied at first” when applying for Government Disability—more correctly called Social Security Disability (SSD.) This is not actually correct.

The actual nationwide denial rate is around 65% for the first application… meaning you have a 35% chance of winning the case by simply filing an application for benefits.
Obviously the odds are against you in the beginning.

The GOOD NEWS is that on appeal, the 65% goes the other way: 65% of cases that have been appealed then result in an award. (Nationwide average.) The bad news : Appeals take up to a year and a half to be heard!

(Interestingly, the fees that are payable to attorneys are based upon the retroactive number of months and the amount of retroactive payments that are recovered. The more retroactive money recovered, the closer the attorney can get to receiving the maximum fee which is usually $6000. This means many attorneys won’t even TAKE a case at the application stage because there won’t be enough retroactive money if they win right away!)

We have filed MANY applications for disabled clients that are accepted IMMEDIATELY without having to appeal and/or go in front of a SSD Judge!

Feel free to call us if you know someone who plans to file a Social Security Disability!

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Perks of Winning Your SSD Claim

Did you know?
Applying for and receiving Social Security Disability Benefits, ( when one is UNDER retirement age and unable to work for at least 12 months,) bestows perks from the Government that many people don’t know about. These include (if you win):
*Wage Freeze: If there is a period of time you are not paying into your Social Security account due to being disabled, Social Security IGNORES this and computes your benefits as if you had been working! *Medicare: Two years after being approved for Disability Benefits, disabled workers may elect to receive Medicare coverage, regardless of age. *Children: When you qualify for Social Security disability benefits, your children may also qualify to receive benefits on your record. Your eligible child can be your biological child, adopted child or stepchild. A dependent grandchild may also qualify. To receive benefits, the child must be unmarried and be:

  • under age 18; or
  • 18-19 years old and a full-time student (no higher than grade 12); or
  • 18 or older and have a disability that started before age 22.

Within your family, each qualified child may receive a monthly payment up to one-half of your full disability amount.

Bet you didn’t know these things… Feel free to call my office with any questions about Social Security Disability or NY Workers’ Compensation.

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Winning Your Social Security Case- some “hidden” factors

Winning. It’s the focus of professional athletes, and lawyers, too. Winning the case is paramount. So what goes into winning a Social Security Disability (SSD) case? After all, the Government can deny your case, and you could end up with nothing. My experience is that, especially when you get to the “hearing level” which means in front of a SSD Judge, there are several, sort of “hidden” (not obvious) factors that can enter into a Judge’s thinking that you as the claimant may not immediately think about. But a Judge will look at these things:

1. Is there a long , solid work history? Yes, believe it or not, judges look at how long the person has worked before they became disabled. If the work record is spotty—some years of work, some years of not much or no work—a Judge may feel the disabled worker is not a motivated individual, and hold it against them.

2. Is there regular treatment? If a disabled individual hasn’t seen their doctors on a regular basis or stopped going, causing large gaps in the medical records, that’s a bad thing. A judge may assume their medical conditions really aren’t as severe as they allege.

3. Is the claimant seeing the right kind of doctors? Treating with MD’s who specialize in the condition that they are suffering from- good. Only seeing physician’s assistants or family doctors—bad.

4. Is the claimant honest?  Claimants who exaggerate their symptoms or try to “guild the lily” can be punished by receiving a denial. Credibility is key. The reason there is a Judge making a decision is because a Judge can look at and listen to the claimant and assess whether he/she is being truthful or not.

Judges almost always look at these “hidden” factors when deciding a SSDB case. Like the commercial says, “The More You Know……”

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Workers’ Comp and Pro Sports

I’m a sports nut- like many people I know. I follow all four major pro sports and have read literally hundreds of sports books and publications in my lifetime. I’ve been to and watched countless games. What many people don’t know, interestingly, is that almost all pro sports injuries in the U.S. are covered by Workers’ Compensation.

In February this article appeared in the L.A. Times:

Last fall, the National Football League scored a huge victory in California, helping push through a new law barring most professional athletes from filing workers’ compensation claims in (that particular)  state.

But that win has come at a cost.

Publicity from a high-profile battle over the legislation prompted players from around the country to file more than 1,000 injury claims just prior to a September deadline – a huge influx that could cost the nation’s top professional sports leagues hundreds of millions of dollars to resolve.

In the first two weeks of September, current and retired players filed 569 claims against NFL franchises, 283 claims against Major League Baseball clubs, 113 against National Hockey League teams and 79 against NBA squads, a Los Angeles Times analysis of state workers’ compensation data found.

Nearly 70% of the filings include allegations of head or brain injuries caused by repetitive trauma. Most of these athletes appeared to have never played for a California team; they filed claims based on repetitive injuries they say were sustained in part during road games played in the state. It is those claims that are now barred under the new California law.

Among the athletes rushing to beat the deadline were sports legends such as Miami Dolphins quarterback Dan Marino, Baltimore Orioles pitcher Jim Palmer and Houston Rockets center Hakeem Olajuwon, as well as many lesser-known retirees, some suffering serious physical impairment. A number of active players, including San Francisco 49ers standouts Michael Crabtree and Frank Gore, also filed claims.

My understanding of what happened in California is that every NFL injured player- whether they played for a California-based  team or not- used to file for comp in California because that state had the most favorable comp law. (Every state has its own separate Workers’ Comp law.) In California, even visiting players could file, and California allowed claims for “cumulative” injuries—successive blows led to concussions that added up to brain damage. However, after the law changed, players weren’t allowed to do this unless they played for a California team (like the Lakers or Sharks, for instance.)

So what’s my point here? My point is, that professional athletes who are suffering these head injuries, with attendant brain damage, or career-ending injuries, actually do have Workers’ Compensation as one way of recovering lost wages and for obtaining medical treatment for their injuries. But professional athletes are subject to what the law in their particular state says about cumulative injuries.

New York allows claims for cumulative trauma. I have both a love of sports and  a career-long enthusiasm for my law practice of Workers’ Comp—so maybe I can combine the two! I would be happy to help any injured pro player.

So, to any and all injured New York Jets, Giants, Mets, Rangers, Knicks, Nets, Yankees and Islanders : feel free give my law firm a call!

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Social Security Disability: Common Illnesses and Injuries

I often get the question, what types of conditions would qualify me for Social Security Disability?

The answer is: there are hundreds of conditions, from common to unusual. Disabilities can be purely physical or psychological. They can result from accidents (including work-related accidents), or they can arise as an unexpected diagnosis or steadily worsening condition. Depending on their severity, disabilities can include:

  • Back and neck injuries
  • Knee and hip injuries
  • Paralysis
  • Traumatic brain injuries
  • Strokes, seizures and other neurological disorders
  • Bipolar disorder
  • Depression
  • Heart and Lung Conditions
  • Cancer

Certain diagnoses are so terrible that they automatically qualify for benefits. You just have to prove you have the condition. These are called “compassionate allowance” cases.

Social Security Regulations cover EVERY  different system of the body and almost every disease you can think of . Have leukemia? There’s a section covering that. Cardiac arrythmia? There’s a section covering that. Every condition has a “Listing” that basically says, if you meet these requirements, you are considered “disabled.” And all mental impairments are considered right along with the physical.

An example of one of the most commonly used “Listings” is the section that applies to spinal disorders. Generally, in order to “Meet or Equal” this Listing (so that you immediately qualify medically for benefits) you would have to show through medical reports, etc:

“nerve root compression;limitation of motion of the spine; motor loss, atrophy, sensory or reflex loss, positive straight leg raising………”

The trick part of Social Security Disability is that YOU CAN WIN EVEN IF YOU DON’T MEET THESE REQUIREMENTS.

These Listings for each condition just mean that BASED ON YOUR MEDICAL CONDITION ALONE, YOU WIN without taking into account other factors such as age, education, work experience.

Whether someone meets or equals a “Listing” is just  “Step Three” of a Five Step Process that Social Security uses to determine if you are disabled.

Bottom line: almost any condition can render someone disabled under Social Security’s rules. But how severe that condition is, and how it affects the particular individual, is the key.

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Workers’ Comp in New York, Social Security, and Medical Marijuana

Section 10 of the Workers’ Compensation law in New York State says, among other things,  that there shall be no liability for compensation “when the injury has been solely occasioned by intoxication from alcohol or a controlled substance………”

It has long been the law that if someone gets injured on the job SOLELY because they are drunk or stoned, the employer is NOT responsible.

But what about the recent legislation regarding medical marijuana? Does this affect the Workers’ Comp system in New York?

In my opinion, New York State and Governor Cuomo’s recent passage of a limited medical marijuana bill should NOT affect Workers’ Comp. Why? Because the bill says:

To be prescribed medical marijuana, a patient must receive a certification from a licensed practitioner who must register with the Department of Health and be qualified to treat the serious condition for which the patient is seeking treatment. The serious conditions for which medical marijuana can be prescribed are cancer, HIV/AIDS, ALS (Lou Gehrig’s Disease), Parkinson’s Disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication on intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s Disease, or as added by the commissioner by DOH.

Looking at this list, there are few if any such conditions that could possibly be work-related. The only ones that are possible are the nerve damage situations but those seem to cover only the most severe. So this law likely won’t affect Workers’ Comp.

But what about Social Security Disability and Medical Marijuana? I googled these together and found some interesting articles. Remember, marijuana is still illegal on the federal level and Social Security is a federal program. If someone is alleging a mental disability and is taking marijuana on a daily basis it might be hard for the Judge to decide their case. Anyone who is found to be disabled because of drug use can be denied benefits on that basis.

So the use of medical marijuana will make disability claims more complicated.

Bottom line—this is still new territory for the disability field, so stay tuned………

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Interesting Data Regarding Social Security Disability Cases and Judges

New York ODAR Offices

Source: disabilityjudges.com

The Office of Disability Adjudication and Review (ODAR) conducts Social Security Disability (SSD) hearings and Supplemental Security Income (SSI) hearings in 10 different offices in New York. Currently, in New York, the average wait time for a SSI or SSD hearing is 12.2 months. The average case processing time in New York is 416 days.The New York average for winning a disibility hearing is 50%. Click on one of the cities below to see detailed information about the hearing office and the administrative law judges (ALJ) that work there. This information for ODAR offices located in New York was last updated on 5/5/2014.

All new york12.2 months416 days1.82.050%31%National Average:12.1 months394 days2.019%44%38%

Office Judges Avg. Hearing
Wait Time
Average
Processing Time
Avg. Dispositions
Per Day Per ALJ
Cases
Dismissed
Cases
Approved
Cases
Denied
Albany 9 12.0 months 420 days 2.0 15% 58% 27%
Bronx 7 10.0 months 416 days 1.9 19% 46% 35%
Brooklyn 12 16.0 months 505 days 1.6 23% 53% 24%
Buffalo 14 13.0 months 462 days 1.2 22% 44% 33%
Jericho 8 11.0 months 328 days 2.0 12% 63% 25%
New York 11 12.0 months 363 days 2.2 21% 45% 34%
Queens 9 11.0 months 418 days 1.2 20% 56% 24%
Rochester 4 13.0 months 484 days 2.0 21% 49% 30%
Syracuse 10 13.0 months 390 days 1.9 25% 42% 33%
White Plains 8 11.0 months 383 days 1.7 20% 40% 40%

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Social Security Disability: It’s Often A Long Road

It’s a standard question: How long will it take for me to be approved for Social Security Disability Benefits? (SSDB)

As with so many other things, the answer is: it varies. In truth, it can take from one month to up to two years or more!

Let’s look at this a little closer. First of all, not every one’s disability case is the same. Some individuals will present medical impairments on their disability applications that will immediately stand out as obvious approvals (though this happens in only a small percentage of cases). Examples of clear cut cases include ALS, advanced cancer, severe kidney disease, blindness, AIDs, and double amputations.

Social Security has a list of “225 compassionate allowance” diagnoses. The Compassionate Allowances program expedites disability decisions for Americans with the most serious disabilities to ensure that they receive their benefit decisions within days instead of months or years.

But what about the most common disorders—back injuries, depression, heart attack, etc? How long does the average case take?

Nationally, it takes an average of 120 days for a Social Security disability applicant to receive an answer from the Social Security Administration on his or her initial application. 35% are awarded benefits at this level.

In 2013, here was how many days it took to process an appeal from an initial denial (remember, at that point you’ve already waited 4 months) and have a hearing in front of a Judge on an appeal (in NY, this is the second step in the process) in some local regions:

Brooklyn: 478 days

Manhattan: 320 days

Bronx: 359 days

Queens: 363 days

Long Island (Jericho) : 292 days

just to get a hearing!!!!

Source: NOSSCR Social Security Vol. 5, No. 5,  May 2013

The waiting time for the Jericho (Long Island) Hearing Office, by the way, in 2013 was 8th fastest among 165 hearing offices in the country!

So to recap- if you file an application for benefits and you live in Long Island, it takes about 4 months to get a decision, and if you are denied, another 10 months to get a hearing. (And then a couple of months to get the actual decision from the Judge.)

And that’s comparatvely quick. In St. Louis, Mo., the worst hearing office in the country in terms of time to wait for a hearing, the wait to get a hearing in 2013 averaged 547 days!!!

And let’s not forget that since almost all SSDB applicants are not working, that’s an awfully  long time to wait for income.

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