January 24, 2010

It is no fun being disabled

Posted by Geri Kahn under Health, Social security | Tags: , |
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Perhaps due to California’s budget problems, it seems that the disabled are an easy target. I have received comments on my blog accusing the disabled of being freeloaders. There is similar talk on the street; something akin to that it is easy being disabled and collecting a government check. I understand that people who make such remarks are just blaming problems on others but you have to wonder what would happen if they became disabled.

No one chooses to become disabled. No one chooses to have a serious accident or to get a long-term disease. I recently spent some time at a hospital with a friend who was having surgery. My friend was having what is considered routine surgery and will make a full recovery, but while I was there I was thinking about my clients who do not make full recoveries and who have not just one surgery, but multiple surgeries. I spent two days at the hospital and was very stressed the entire time. While I was there, I observed the stress that families and friends of other patients had. I realized, I think for the first time, that is not just my clients who are under stress due to their disabilities but also their families and not just at the time of surgery but also in taking care of them later. When my friend had an allergic reaction to one of the medications, I thought about my clients who take multiple medications and who experience side effects that are sometimes as bad as the symptoms of their impairments.

It only gets worse for my clients when they apply for Social Security disability They apply to an agency where the prevailing attitude seems to be that the claimants are lying. It is not a search for the truth. It is a search for how to deny their claims. Since most claims are denied, my clients have to appeal and hire an attorney while at the same time, struggle to live with their emotional and physical impairments. My clients lose their savings, their standard of living, and nowadays, lose their homes while waiting for their claims to be processed.

I cannot believe that anyone thinks there are people who want to be disabled on purpose. I believe that most people would rather work and be productive. Most people do not choose to live in pain. I hope that those who think being disabled is easy never have to actually experience a disability. It would be a rude awakening.

 

November 18, 2009

Are survivors divorced spouse’s benefits retroactive?

Posted by Geri Kahn under Survivors Social Security benefits | Tags: , |
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My new motto is to file early and often. It can be detrimental to wait and file for Social Security disability benefits. Perhaps I am being silly by saying “early and often, ” but the point is to file as soon as you can.

I recently saw someone at my law office with a situation that is probably not uncommon. She had been in a long-term marriage. After 40 years, she and her husband divorced. Ten years later, her former husband died. Two years after his death, she applied for survivors retirement benefits.

Surviving divorced spouses may receive Social Security retirement benefits based on the earnings record of their former spouse beginning at age 60 if the marriage lasted ten or more years. I would have thought that my new client would have been able to receive the benefits retroactively from the time of her ex-husband’s death. I learned that Social Security retirement benefits for survivors do not work like that. The furthest one can go back and obtain benefits is for six months prior to the date of death. Thus in my client’s situation, she lost about 1 and 1/2 years of benefits by waiting to file.

The answer is a little different if the surviving spouse is disabled. If the surviving spouse is disabled, he or she can apply for survivors disability benefits at age 50. The surviving spouse has the same burden of proof as any applicant for SSDI to prove disability. In this situation, the surviving divorced disabled spouse can obtain benefits up to one year retroactively. I have attached Section 1513 from the SSA Handbook which lists the retroactive time periods for both types of benefits.

The one important lesson my client’s inquiry taught me was that people should apply for benefits as soon as they able to do so.

 

November 7, 2009

U.S. District court orders SSA to provide correspondence in alternative formats for the blind or visually impaired

Posted by Geri Kahn under Blindness, Health, Social Security cases in district court, Social Security disability hearings | Tags: , , |
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As reported on the NOSSCR (National Organization of Social Security Claimants’ Representatives) website, “a federal judge in the northern California district has ruled that SSA violated Section 504 of the Rehabilitation Act, and its implementing regulations, by failing to provide “meaningful access” for SSA programs to all blind and visually impaired individuals. American Council of the Blind, et al v. Astrue , No. C 05-04696-WHA (N.D.Cal. Oct. 20, 2009).”

The history of this case is fairly amazing.  It has been going on for four years and involved 329 filings made either by the government or the plaintiffs’ lawyers. The Social Security Administration (“SSA”) had an opportunity to end it earlier. Last year, after the Judge ruled that the SSA had to comply with Section 504 of the Rehabilitation Act, he gave both sides the opportunity to stay the proceedings and allow SSA to engage in rulemaking so as how to comply with the Rehabilitation Act.  The Social Security Administration refused and continued on with the litigation.  The judge stated in his order:

Both sides, including SSA, requested that the litigation continue with a decision on the merits. Having spurned the opportunity for a stay pending rulemaking, the agency has, in effect, consented to resolve the case by litigation, not rulemaking.

The Court ruled that the SSA has to provide two alternative modes of communication when sending out notices to people who are disabled by blindness.  The notices must be either:  1) written in Braille or  2) contained on a CD in  Microsoft Word.

And since the Judge was now making the rules, he did so. He gave the SSA strict guidelines as to when they must comply:

  • November 29, 2009, Defendants must file with the court a description of the Braille or Microsoft Word CD and plans on how it is to be distributed;
  • December 31, 2009 – the SSA has to send out notices asking claimants to elect either receipt of a CD or notices in braille;
  • April 15, 2010 – the SSA has to develop and offer either a Braille alternative or a navigable CD in Microsoft Word;
  • The SSA  has to post a notice to their website and train staff on how to deal with people who are blind or visually impaired.  They must offer to read the notice which indicates how claimants are supposed to choose between a Braille format or a CD;
  • April 16, 2010 – no social security benefits may be reduced or terminated to any individual shown in the SSA records to be blind or visually impaired (or whose authorized payee is shown to be blind or visually impaired) unless such person was first provided with the notice prescribed above and the method of notice, if any, selected by said person was followed.

This is a great result and will undoubtedly benefit many people in the future.

 

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