Top 7 Social Security Disability Blunders: How Honest Hardworking Texans Destroy Their Entitlement to Social Security Disability Benefits

Transcription

1 Top 7 Social Security Disability Blunders: How Honest Hardworking Texans Destroy Their Entitlement to Social Security Disability Benefits The social security disability assessment system was designed to be claimant-friendly, and to allow disabled workers to pursue their own claim. It was intended to be free of pitfalls and traps for the unwary. But every day of my professional life I talk to hard-working, honest Texans who should be entitled to social security disability benefits, but have made honest mistakes in their disability case that have virtually destroyed their chances of receiving social security disability benefits. No one warned them about the devastating consequences of their actions, or inaction. By the time they call me, the damage often times has already been done. In making this harsh indictment of the social security disability assessment system, I do not mean to denigrate the social security administration (SSA) or the many government workers at SSA that are well-meaning and want to help disabled workers. But the social security disability assessment system is a big bureaucracy, and it seems bureaucracies can have a life of their own. No one at SSA want to get you, but it does seem that the system works to tell you no, get you out the door, and make sure you don't come back again! It is my earnest hope that you, as someone considering social security disability, will take my comments to heart. It is not intended as legal advice because I do not know your exact circumstances. I hope you will respond to this booklet by calling competent legal counsel. I am available to talk to you at no charge at If you don't talk to me, talk to a qualified and competent attorney immediately.

2 Blunder #1: Failing to Understand the Consequences of Not Appealing a Social Security Disability Denial Over the last 20 years of handling social security disability claims in Dallas Fort Worth & North Texas I have heard from a lot of claimants who just received their social security disability denial. The emotions seems to run the gamut some claimants are in tears, and others are red hot with anger. Most feel rejected and hurt. They feel betrayed by their own government. They have paid for social security disability insurance through their hard work, but now that they need the insurance benefits they have paid for, they are denied. Receipt of a social security disability denial is a moment to remember, and it is point where you are very vulnerable. Most of us make poor decisions when emotions run high. And over the years, I have witnessed many of these bad decisions. A social security disability denial states that you have 60 days to appeal the denial if you disagree. There is a deadline for appealing the social security denial. SSA will NOT accept an appeal outside the 60 day period unless you establish good cause for missing the denial. What is good cause? I can tell what it is not. It is not that you got mad

3 and torn up the denial letter, or that you left it at your friend s house, or that you lost it, or that you misunderstood what the deadline date was. It is not that you changed your mind and decided to appeal after the deadline has passed. It is not that you talked to me on day 66 and only then did you understand the importance of appealing. It is not even that you did not receive the denial because you moved but had failed to tell SSA about the new address. SSA generally finds that you have good cause for missing a denial appeal deadline, and therefore will accept your late appeal, only if you were incapacitated or hospitalized during the appeal period. Very few people are in the hospital or otherwise incapacitated for 2 months. Moreover, there is no right to appeal an SSA decision that you did not have good cause for missing a deadline. You are totally at the mercy of SSA if they find you did not have good cause for missing an appeal deadline. I hope I have convinced you that when Uncle Sam says you have 60 days to appeal, he means it. Yet a social security disability claimant can always re-file, right? That is correct. But it is a different claim, and addresses a different period of disability. This is where claimants get into trouble, and I need to talk like a lawyer for a while to fully explain it. It is, however, very important.

4 Let s talk about what the social security disability denial really says. For that, let s take a simple illustration: Joe Texas files for SSDI on 1/1/10, alleging that he became disabled on 8/1/2009. He receives a denial on 4/1/10. The denial says Joe Texas is not disabled, right? Of course. But more precisely it is a decision that he was not disabled on 8/1/09 AND has not been disabled at any time through the date of the denial, 4/1/10. If that denial is not appealed, a legal doctrine called res judicata says that the finding of that denial (i.e., that Joe Texas was not disabled from the date his alleged disability through the date of the denial) cannot be disputed. It is now carved in stone, so to speak. Res Judicata means that the legal matter has been decided once and for all. The consequence of failing to appeal an SSDI denial is always that the claimant has forfeited the right to disability benefits for any time period through the date of the denial. If you file a claim for SSDI and re-file later instead of appealing you have, at the minimum, left money on the table needlessly. But for some claimants, the failure to appeal an SSDI denial can be much worse. Social Security Disability Insurance is an insurance program. Your social security disability benefits insurance premium is paid through your FICA

5 taxes paid by your employer. A U.S. citizen that has never worked a day in their life but becomes disabled cannot receive SSDI, because they are not insured. In order to have insured status for SSDI purposes your must meet the earnings tests. For workers who become disabled and stop working there is a point where coverage for SSDI ends: it is called the Date Last Insured (DLI). Here is a tragic illustration of what can happen: Sue Dallas is 40 years old, and had to stop working due to her undifferentiated spondyloarthropathy in She has a DLI of 12/31/09. She files for disability is denied on 1/1/10. She fails to appeal, listening to her brother-inlaw Richard Dallas who said it is better to re-file than appeal. She goes to the local SSA office to file for SSDI on 4/1/10. SSA refuses to accept the application, citing res judicata. Sue will have to look to her brother Richard for support for the next 22 years until she reaches entitlement to early social security retirement. Blunder # 2: Failing to Consider the Possibility of Disability While Still Able to Work Statistics demonstrate that 1 in 7 people can expect to be disabled for 5 years or more. Yet most Texans do not have any long-term disability benefits. Most major employers offer long-term disability benefits, but in my experience many workers do not take out LTD benefits if they have to

6 pay for it, or choose it over other benefits that may be available in an employer's cafeteria plan. Not taking advantage of LTD benefits offered by an employer or failing to buy your own LTD policy is a blunder. If you are reading this booklet I must assume you have some health problems at the very least that cause you to be interested in social security disability benefits. If you are still employed immediate determine whether you have LTD benefits if they are an option, and you are able to become eligible, do so immediately If you do not have LTD available to you, consider buying your own LTD policy There are other steps the working wounded can take when they believe it is just a matter of time before they have to quit, or get fired because their health has taken a toll. Your life style should be radically reduced. Start saving money like never before, and slash all non-essential expenses. Moreover, you should carefully consider how the job ends. It has been my experience that far too many of the working wounded are too concerned about how they look rather than how they are going to survive once the

7 job is gone. Many quit a job even though they are still not in danger of being fired because they feel bad that they are no longer able to perform at their previous excellence. Quitting a job when you are still able to muddle through it is a blunder: you need to maximize your savings for as long as you can to survive while waiting for your social security disability insurance benefits to come through. Blunder # 3: Failing to Maintain Medical Insurance/Treatment & Prioritize Medical Care Like it or not, we live in a county in which medical insurance is usually tied to employment. Lose your job, lose your medical insurance. Yet ongoing medical treatment is an essential part of prevailing in a social security disability claim. This is a troubling conundrum for those that have lost their job due to disability. Extended medical insurance through COBRA remains the primary source of medical insurance coverage for disabled Texas workers. Yet everyone knows that COBRA coverage is expensive: COBRA allows the employer to pass significant costs on to the insured in COBRA premiums. When you have just lost a job, you don't exactly have money to spare to pay medical insurance premiums.

8 I talk to Texas disabled workers often who did not take advantage of COBRA, telling me that they could not afford it. I am not in a position to dispute that, and I know that their finances are tight, to put it mildly. The question I always have when I talk to someone like that is this: if they knew the consequences that their not having medical treatment will have in their social security disability case, would they have found the money to exercise their COBRA medical insurance rights? In my opinion, the absence of current medical treatment reduces your changes dramatically. I am going to say something that might shock you. If you are disabled and unable to return to work, and have been offered COBRA coverage, there is NOTHING in your family budget that is more important than paying the COBRA premiums. Blunder # 4: Failing to Recognize the Psychological aspects and implication of your Disability We live in a society that continues to be very uncomfortable with mental illness. We fear it, do not understand, or do our best to ignore and deny it. We think of mental illness as limited to the street persons we see carrying

9 on a brisk conversation with an imaginary person. We think of depression or anxiety as a character weakness, and fear the reaction of those we love if we seek out psychiatric help. In 20 years of social security disability practice I can count on one hand the number of clients I have had that did not suffer from some mental health problems, even though most alleged only a physical disability when they filed for social security. It is a normal reaction to suffer some degree of depression and anxiety when you are no longer able to work and provide for your family as you have been accustomed to. Seeking help from a mental health professional due to depression or anxiety is not a sign of weakness. Moreover, it can dramatically improve your chances of getting disability. This is because SSA needs to see medical treatment for all conditions that impact your ability to work. Often times, an administrative law judge will believe a claimant is disabled due to the combination of physical and mental impairments. But if you are not getting treatment for the mental issues that impact your life, the judge will find it impossible to find that your mental issues limit the ability to work. Blunder # 5: Failing to Hire a Competent Attorney Most disabled Texas workers have little experience with attorneys, often

10 limited to divorce, probate or personal injury matters. Many potential clients have reported poor experiences with attorneys and the legal profession to me in the past. Many assume that they will have to be outof-pocket for attorney fees in a social security disability case, and do not call an attorney because they can't afford it. As an attorney I am sad to acknowledge our profession does not enjoy a great reputation, and many disabled claimants with a limited education feel they are vulnerable to being taken advantage of by an attorney. I know many social security disability attorneys throughout the US, and in Texas. The vast majority are ethical and competent. Many attorneys that do not handle social security disability can refer potential claimants to an attorney who specializes in social security disability benefits. If you take only one thing from this booklet, let it be this. Do not be reluctant to seek out a social security disability attorney for counsel about a social security disability claim. Blunder # 6: Misunderstanding What Disability Proof Needed Competent representation can help you understand what is important and what is not important in your social security disability case. In my

11 experience the general public does not understand what it takes to win. In fact, often times there is a wide gap between most claimants think are important, and what SSA needs to approve a disability claim. Here are a few examples of incorrect and widely held beliefs about social security disability: Disability is there to help if you can't find a job (Wrong) If you know someone on disability that is not a sick as you, it s important to tell the administrative law judge (This is not important. SSA disability is a big program, and there are lots of people on disability that don't belong on the program. The issue is your health, not who else is on disability) It is your role to educate the government about your disease (your role is to talk about your own experience, not present internet websites, papers, or findings about your disease) It is your job to go around and get all the medical records in your case (Wrong- SSA's job is to do that) All you need is a letter from your doctor saying that you are permanently and totally disability Wrong doctor opinions are

12 important, but whether you are legally disabled under the Social Security Act is for SSA to determine) Blunder # 7: Letting Fear Control Your Decisions In my experience representing Texas social security disability applicants, I know that losing ones livelihood due to health and then being denied social security disability is one of the worst, if not the worst, experiences in life! In trying circumstances like this, it is very hard to not be fearful. But fear usually doesn't help us make good decisions; usually decisions made in the grip of fear are bad decisions. In my opinion, acting out of fear is a common denominator in the above list of mistakes people often make. It is fear that causes people to give up on their disability case. It is fear that causes people to hide from difficult financial choices and how they can keep medical insurance coverage. It is fear that keeps people from calling a qualified social security disability lawyer, even though attorneys like me are available to talk with them about their situation at no cost. I hope that you have found this booklet to be of assistance. I am available to you to consult about your Texas social security disability case at no charge at