Social Security Disability Lawyer Blog

Considerations by your NH Social Security Lawyer in Picking an Alleged Onset Date

Published on: January 17, 2016 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

When filing your claim for Social Security disability benefits, it is important to establish appropriately your “alleged onset date.” Evaluation of The Social Security Administration will use your alleged onset date (AOD) in determining how far back your retroactive benefit payments can be paid. Benefits are only payable as far back as 1 year prior to the date of your filing, assuming you have met a full, 5 month waiting period.

The Social Security Program Operations Manual System (POMS) provide that “[i]n title II disability claims and title XVI adult disability claims, the AOD is always the date the claimant alleges he or she became unable to work because of his or her medical condition, whether or not that date appears to be appropriate.” See DI 25501.210 The standard for showing eligibility to Social Security disability insurance benefits is whether one remains totally disabled from all forms of substantial gainful activity (SGA) for what is expected to be a year or long (with substantial being defined as involving significant physical or mental activities, and with gainful activity being defined as work ordinarily performed for profit). The Social Security regulations provide that work performed at a level of $1130.00 or more in 2016 is ordinarily considered to be at a level of SGA. While at times it’s appropriate to use as AOD the date that one last undertook SGA level earnings, there are a number of exceptions to this rule. Continue Reading ›

The Social Security Disability Program in Massachusetts: a Non-Adversarial System

Published on: January 16, 2016 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

The Social Security disability program, a federal program that provides for disability benefits to those who remain long-term disabled from working, is administered through a set of rules and regulations that are promulgated as part of the Federal Social Security Act and is set up as a non-adversarial process for deciding whether an individual is entitled to disability benefits. That is to say, when one is applying for disability benefits before the Social Security Administration, there is no need to be concerned that there is a party on the other side that is fighting against them. Rather, the system is set up in such a way that the Social Security Administration, as an agency, is called upon to make a decision as a neutral party to the process. Unless and until you go through the entire agency process (that is to say, an initial determination and a resulting denial, a reconsideration determination and denial, an administrative law judge determination and denial, and an appeals council determination and denial), and then appeals to Federal District Court, there will be no attorney on the other side arguing against you. Unless and until you get denied throughout the Agency determination processes, and have to appeal the Agency to the Federal District Court, you will not be faced with a lawyer representing the Government and a position adverse to yours. Continue Reading ›

Offset Considerations When Receiving Both Social Security Disability and Workers’ Compensation Benefits in Maine, Massachusetts and New Hampshire

Published on: January 3, 2016 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

For those receiving weekly Workers’ Compensation (WC) benefits and considering an application for Social Security Disability Insurance (SSDI) benefits, there are offset considerations that need to take place. Unfortunately, our office has seen that many attorneys fail to properly advise their clients as to how the offset provisions work and what can be undertaken to minimize the consequences of such an offset.

When one is injured as a result of a work-related accident in Maine, Massachusetts or New Hampshire, it is rather commonplace for an individual to be entitled to receive weekly lost wage replacement benefits while they remain out of work. As one becomes long-term disabled from working, and it becomes more evident that one will remain totally disabled from working for what is likely to be a year or longer, consideration needs to given to applying for SSDI benefits. Unfortunately, many WC lawyers are not aware that they should be advising their clients that they may be entitled to additional benefits in the way of SSDI benefits. There are a number of additional considerations that do need to take place in this set of circumstances. Continue Reading ›

Time Delays with Proceeding to Administrative Hearing in New Hampshire and Elsewhere

Published on: December 6, 2015 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

It is important to understand that proceeding to hearing in New Hampshire and elsewhere is not a quick or easy process. In New Hampshire, upon facing an initial denial (which can take on average 3 to 5 months from the time the claim is initiated), one is entitled to appeal by requesting a hearing before an Administrative Law Judge. In Maine and Massachusetts, one must first undergo a request for reconsideration (which process presently carries with it an 85+% denial rate). Going through the reconsideration process can take another 3 to 6 months in those states, and further delay an ultimate decision at hearing. There are a number of important considerations to take into account if one is awaiting hearing.

First and foremost, one should understand that from the time one requests a hearing to the time a hearing is held can take upwards of a year (and in some cases, we’re seeing it take as long as 15 months). There have been additional backlogs encountered as a result of staffing issues encountered by the hearing offices (not to mention an increase in the number of cases presently awaiting hearing). One of the processes that has been established to try and cut down on the delays is what’s called a hearing by way of Video Teleconference (VTC). Within a month or two of requesting a hearing, the Office of Disability Adjudication and Review will send along to you a form whereby one can object to proceeding in this manner by returning a form to the hearing office within 30 days. Hallex Rule I-5-1-20 Continue Reading ›

The Importance of having an Experienced and Aggressive Social Security Disability Lawyer at Hearing in Massachusetts and Elsewhere

Published on: November 22, 2015 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

There are a number of reasons one should have their case reviewed and handled by an experienced Social Security disability lawyer as they head to hearing. Unfortunately, all too often we are contacted by individuals as they are either approaching hearing or following an unfavorable decision where one, their case has been handled by either a lawyer who does not concentrate their practice in disability cases or two, has been handled by an advocacy group (of non-lawyers) or a lawyer who is taking on too many cases to pay personal attention to their individual case. There are a number of considerations that should be taking place as an individual is approaching hearing to ensure that they will present the strongest case possible to the Administrative Law Judge (ALJ) that will be hearing the case.

From the very outset, an attorney should be helping guide their client as to the types of treatment and medications that are appropriate given their individual medical circumstances: have the appropriate tests been undertaken, have they attempted the right types of medication, have they been referred to the right types of specialists? These are the types of questions that need to be asked from the outset of representation (which is not to mention, on an ongoing basis as the claimant is proceeding through the hearing process. Continue Reading ›

How Do I Know if I’m Eligible for SSDI Back Payments?

Published on: November 7, 2015 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

The process of applying for benefits through the Social Security Disability Insurance (SSDI) program in Massachusetts and the rest of the United States is often complicated and lengthy. Once a person files an application, it can take months for the Social Security Administration (SSA) to make an initial determination in their case. Considering that few claims are approved at the initial stage, the process can take much longer once you factor in requests for reconsideration and hearing before an Administrative Law Judge (ALJ): in many cases it can take 2 years or longer to receive a final approval at the hearing level. This is not to mention those cases where appeals beyond a judge hearing level take place and ultimately get approved following an Appeals Council or Federal District Court process (which may involve an additional hearing before an ALJ.

Once the SSA approves your claim, however, the claimant will be owed retroactive benefits for the period of time they have been waiting for their final approval. These past-due SSDI benefits are commonly known as “retroactive benefits.” Three factors may affect when your period of eligibility for back pay begins: (1) the date you applied for benefits; (2) the alleged onset date (AOD) of your disability and the established onset date (EOD) determined by the SSA, which might not be the same date; and (3) the mandatory five-month waiting period from your EOD to the date SSDI benefit payments are payable.

Backlogs in SSDI Applications

The SSDI program is one of the most backlogged programs in the federal government. A report in the Washington Post in October 2014 stated that the program had a total of 990,399 claims awaiting attention. A 2008 review of backlogs by the SSA’s Inspector General found that the agency took an average of 131 days to process initial SSDI applications. Requests for reconsideration took an average of 279 days, and appeals to an administrative law judge (ALJ) took 811 days on average. Claims that went before the SSA Appeals Council or into the federal court system took much longer. The SSA’s back pay system is intended to compensate beneficiaries who are forced to wait for benefits.

How Does the SSA Define “Substantial Gainful Activity”?

Published on: October 24, 2015 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

The Social Security Disability Insurance (SSDI) program provides benefits to qualifying individuals who are unable to work due to an injury, illness, or other condition. Congress has further defined the term “disability” under the Social Security disability program (for purposes of claiming entitlement to Title II Social Security disability insurance (SSDI) benefits or Title XVI Supplemental Security Income (SSI) benefits as meaning an inability to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for for a continuous period of not less than 12 months.” 42 U.S.C. § 423 (d)(1)(A)

The Social Security Administration (SSA) the Social Security Administration (SSA) is not looking to see if It is not any manner of work that one can perform, but rather what is defined as the ability to undertake Substantial Gainful Activity (SGA). The first step in the sequential evaluation process is to determine whether one is undertaking Substantial Gainful Activity: if so, a claimant is deemed “not disabled” under Social Security’s rules. Generally, if one is earning in 2015 $1090.00 per month on a regular and ongoing basis they will be deemed “not disabled” from the outset of their application. Continue Reading ›

Will A Mental Health Condition Qualify Me for SSDI?

Published on: October 24, 2015 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

Individuals can qualify for benefits through the Social Security Disability Insurance Program (SSDI) as long as they meet the Social Security Administration (SSA)’s financial and medical eligibility requirements. An applicant in Massachusetts, or throughout the country, is medically eligible for SSDI if the applicant has an impairment or disability that prevents him or her from working a current or past job and would prevent the individual from being able to work another type of job available in the economy. Both mental disorders and physical impairments can form the basis for SSDI eligibility.How the SSA Evaluates a Disability

A disability is typically measured in one of two ways. First, the applicant may qualify for benefits under SSA’s Listings of Impairments contained in their “Blue Book” of disability impairments. This book lists a wide variety of medical conditions, diseases, and disorders that qualify an individual for benefits, and it includes specific symptoms, test results, or other requirements that an individual must meet in order to qualify under a given listing. When an applicant meets a medical Listing of Impairment, he or she is presumed to meet the medical requirements necessary to be entitled to SSDI benefits.

What Does the SSA Count as Income in New Hampshire and Elsewhere?

Published on: October 17, 2015 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

The Social Security Administration (SSA) manages multiple benefit programs, including Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Each program has its own set of criteria for qualifying for benefits, but all of them require an applicant to submit income information. SSDI and SSI claimants in New Hampshire and around the country should understand the types of income considered by the SSA for its various programs and the reasons behind Social Security’s rules with reference to these different types of income.

Income Limits vs. Substantial Gainful Activity

The Supplemental Security Income (SSI) program is specifically intended as a welfare program meant to assist those who are disabled from working and whose household income cause them to fall below federal poverty guidelines and whose assets remain quite limited. The SSDI program, on the other hand, is geared towards people who likewise remain long-term disabled from working but who have sufficiently paid into the Social Security disability trust fund through their past wages or self-employment income to qualify for an SSDI benefit: these benefits are not needs based benefits (that is to say, welfare based) but rather is income that is in the form of an insurance benefit that one has paid for through their payroll taxes. While SSDI does take an offset for certain forms of public pension benefits and workers’ compensation benefits, it does not look to whether one is in need of money when determining the benefit: rather the benefit is based on the amount of contributions one made through their payroll taxes.

Whether one is applying for SSI or SSDI, the SSA looks to see whether a claimant remains capable of undertaking work that rises to the level of “substantial gainful activity” (SGA) on a “regular and continuing basis.” A person who is deemed capable of performing SGA level earnings is not considered disabled and therefore is not eligible for SSDI benefits. The determination can be very complicated, but SSA has established that income received from employment or other work at or above a certain level constitutes evidence of the ability to undertake “gainful “activity. In 2015, income of at least $1,090 per month for a non-blind claimant, or $1,820 per month for a blind claimant, is considered to be “gainful” activity. SSA Levels SSA defines Substantial Gainful Activity is defined as significant physical and/or mental activities ordinarily performed for profit or pay. Social Security Handbook Section 603 Social Security Ruling 96-8P makes clear that a “regular and continuing basis” generally means 8 hours a day, 40 hours per week. There are many times when an individual’s earnings fluctuate vastly from one month to another given the episodic nature of their disabling medical impairments: in such situations, it becomes imperative that one speak with an experienced Social Security disability lawyer so as to determine whether one’s condition might meet what is called an unsuccessful work attempt (which rules will be the subject of a subsequent article given the complex nature of these rules).

It is likewise important to keep in mind that SSA is not simply looking to see whether one’s earnings have reached SGA levels such that they are deemed capable of undertaking SGA level work, but is also looking to see whether one remains “capable” of undertaking such employment. Thus, even if one is earning for example $800.00 per month, SSA may look at these earnings as evidence of one’s “capability” of undertaking substantial gainful activity. In other words, they may find that the claimant could undertake additional hours for additional pay either at the same type of employment or at an occupation potentially more suitable to their medical conditions. A lack of income, by itself, does not serve as evidence of disability for the SSA, nor does it necessarily prove that a claimant is unable to do SGA. The SSA will look at a person’s actual income, their claimed disability, and their potential ability to work in determining whether they remain capable of SGA.

What is a Representative Payee?

Published on: October 10, 2015 | Russell J. Goldsmith, Esq. (Law Offices of Russell J. Goldsmith)

The Social Security Disability Insurance (SSDI) program offers benefits to qualifying individuals who are unable to work because of an injury, illness, or mental condition. The program provides monthly benefit payments, but some SSDI beneficiaries are not able to manage their financial affairs on their own for a variety of reasons. In such situations, the Social Security Administration (SSA) may appoint a representative payee (RP) to receive the beneficiary’s payments and see to the beneficiary’s basic needs. The SSA will make the determination that a beneficiary should have a representative payee. A disability examiner or administrative law judge (ALJ) might recommend an RP, the beneficiary may request a particular person, or an individual may request appointment as RP.

Who Might Need a Representative Payee?

In general, minor children and “legally incompetent” adults must have an RP. The parent(s) or guardian(s) of a minor beneficiary typically serve in this capacity. The SSA may make benefit payments directly to a minor beneficiary, however, if they “show the ability to manage the benefits,” such as by living independently, serving in the military, or establishing a track record of receiving and managing SSDI benefit payments.

The SSA presumes that an adult beneficiary is competent to manage their benefit payments and finances, but it may decide to appoint an RP based on medical records and other evidence. Conditions that might result in the appointment of an RP for an adult SSDI beneficiary include an intellectual or cognitive disability, an injury causing a mental impairment, dementia, physical injuries or disabilities rendering them particularly vulnerable to abuse or exploitation, or drug or alcohol addiction.