Team mentality dominates Balin Law's case strategy in recent victories

It’s often said winning cases is a team effort, but that “team” includes more than attorneys.

“One thing we tend to focus on very heavily is the treating physician rule,” said Matt Shupe, associate attorney at Balin Law. This treating physician is often relied on to provide expert medical opinions and a detailed patient history for the disability claimant.

In order to award disability benefits to the claimant, judges are required to give deference to that claimant’s doctors, provided the opinions given are supported by objective medical findings and not inconsistent with other “substantial evidence” in the record.

The Social Security Administration (SSA) also employs its own physicians to provide medical opinions on a claimant, though these physicians may not have treated that claimant for nearly as long or as extensively as a primary care provider.

“Administrative Law Judges (ALJs) will give more weight to the opinions of SSA’s physicians to deny an individual,” Shupe said. “In doing so, the ALJ’s decision often doesn’t include all the limitations a claimant faces as opined by SSA’s physician’s report.” This discrepancy in an ALJ’s ruling can be frustrating for clients, treating physicians, and attorneys alike.

“That’s why Balin Law brings suit against the government in federal court, when appropriate,” Shupe said.“ In these instances, we have a district court judge entirely separate from the SSA that rule on whether an ALJ adequately followed the law. If we prevail, the case goes back to the SSA instructing them to apply the law properly.”

Recently, Balin Law has succeeded in litigating this very issue in three recently published decisions: Moretti v. Colvin, Matejka v. Commissioner of Social Security, and Hovater v. Colvin.

The claimant is then entitled to a new hearing, this time with the law applied properly. “More often than not, the ruling is to the tune of a different result,” Shupe said.

Balin attorneys use "congressional interest" to aid clients

While the federal government offers multiple programs for disability compensation, bureaucracy can be a challenging obstacle to overcome when awaiting a decision on a case. In these situations, any time a constituent feels like they’re getting a raw deal, they can contact their congressperson and have a pending case marked as one of “congressional interest.”

When a case is flagged with “congressional interest,” three things happen:

1.       The Social Security Administration (SSA) must give high priority to inquiries received from members of Congress and their staff.

2.       The SSA must respond to congressional inquiries promptly, accurately and courteously.

3.       The SSA must communicate any concern about a particular congressional inquiry to the congressperson.

“The local SSA field offices have to report to their bosses every 60 days to show how the inquiry is being addressed,” said Matt Shupe, associate attorney at Balin Law. “If such reports aren’t made or if they have a surplus of these inquiries from a certain region, the SSA is able to follow up with those regions to ensure proper care is provided for applicants.”

Balin has had positive experiences in the past with congressional interest, noting that the SSA has responded promptly to the requests they filed.

“I just had a case we won at the federal court level,” said Shupe, who was waiting between four and six months for even a single document to change hands between the court and the SSA. “We contacted Representative Jim Renacci and asked the case be looked into to make sure it gets remanded as expediently as possible, which it did.”

Balin litigation attorney Andrew November remembers a case that was pending for four years since the filing date.

“That wasn’t unheard of,” November said of the four-year time frame. “But by flagging that case as one of congressional interest, it was nice just to get someone involved. Congresspeople represent a pool of constituents, but most people don’t ever contact their representative. It’s an option for someone to get their representative involved.”

The House of Representatives website offers a handy tool to find your congressperson by ZIP code, but we've compiled a list below for all our office locations.

Mentor/Ashtabula
Dave Joyce - 440.352.3939 (Painesville Office)

Lorain
Jim Jordan - 419.999.6455 (Lima Office)

Canton
Jim Renacci - 440.882.6779 (Parma Office)

Toledo
Marcy Kaptur - 419.259.7500 (Lorain Office)

Cleveland/Akron
Marcia Fudge - 216.522.4900 (Cleveland Office)

Youngstown
Tim Ryan - 330.740.0193 (Youngstown Office)


 

Ohio Medicaid expansion aids Balin Law clients

Earlier this year, Ohio Governor John Kasich expanded Medicaid eligibility for all state residents, adding to several existing financial assistance programs Balin Law clients can apply for while waiting for a ruling on their case.

Prior to the Medicaid expansion, Medicaid eligibility was provided to those with minor children or those found “disabled” by the Ohio Department of Job and Family Services. With the expansion Medicaid is now provided to individuals with income below 140% of the federal poverty guidelines. In signing up for the expanded Medicaid program, applicants have to mark whether or not they are “disabled.” If they mark no, a determination is made strictly upon financial eligibility. And if they mark yes, their application is processed through the existing Department of Job and Family Services program.

Balin Law associate attorney Matt Shupe called the expansion a positive, one that's brought a lot of Balin’s clients off the streets – with a catch. “The definition of ‘disabled’ is wide ranging to say the least,” Shupe said. “The Social Security Administration, Americans with Disabilities Act, and Bureau of Workers Compensation all have different definitions of ‘disabled.’ What ‘disabled’ means under the Ohio Medicaid expansion remains unclear and this lack of clarity makes it difficult to advise clients as to what Medicaid program to apply for.”

Even though so many programs share the same or similar requirements, qualifying for both state and federal programs isn't always easy. A lot of times, judges don't give deference to other agency findings. “They'll rule the findings of other government agencies are not controlling on their court,” said Balin litigation attorney Andrew November. “So many of these programs don't allow a basic narrative to articulate how an individual met the Social Security disability definition and how that was applied to the medical and objective findings.”

Shupe, November and the entire Balin team have extensive experience navigating these cross-court deliberations, serving as staunch advocates for their clients. 

Balin’s winning strategy pays off

Disability in America
The increased prevalence of disability in the U.S. today cannot be overstated. According to the Social Security Administration, disability claims in 2013 totaled 2,640,100 – nearly twice as many as in 2000.

“We’re faced with a time when the baby boomer generation has been aging out,” said Matt Shupe, associate attorney at Balin Law. “Those who have performed manual labor in particular, their bodies tend to start wearing out from 54 onwards. They have a great deal of pride in their work, but also a great deal of fear with what they can do in their fifties until they meet the qualifications for SSDI.”

Complicating that fear is the constant attack on federal disability programs, which are often – mistakenly – listed as entitlements.

“The SSDI program is just an insurance policy,” he said. “These individuals are paying a premium on this policy, which comes in the form of FICA taxes taken out of paychecks.”

With SSDI claims, Balin provides clients with a questionnaire to fill out then files the application online. This saves valuable time and gives relief to clients knowing the application process is seamless.

Even after an application is filed, there can be a lengthy approval process due to the increase in baby boomers, the recent fiscal crisis and the diminished number of hours federal employees have to process these claims.

“We’re talking a year or two – or more – in particular cases, especially when issues are more mental than physical,” Shupe said. “It's easy to look at an injury and say, ‘This femur has been rebuilt.’ It’s a very different evaluation process for mental disabilities.”

Thankfully, Balin’s standard of excellence and history of winning cases sets the bar for ensuring this process goes as smoothly and painlessly as possible.

Balin’s winning strategy

“We take the hard cases,” Shupe said. “A lot of firms would look at a client and say, ‘This person’s in their thirties, sporadic work history, criminal record, or issues with alcohol or substance abuse – no way we can take this on.’ We would be an advocate for that client if we thought we could develop the facts and if the claimant was compliant with medical treatment.”

Balin’s focus on a cohesive, team-oriented approach helps clients not only win cases, but educates them about subsidized medical care programs like Medicaid for the disabled, disability cash assistance, and hospital financial aid programs.

This approach extends to clients with mental disabilities, too.

“There needs to be great communication between our staff, our attorneys and the mental health care providers,” Shupe said. “A lot of times this involves getting opinions from the treating psychologists and psychiatrists and nurses who see this person to rebut the opinion of one-time  SSA consultants who see the client and evaluate them for maybe twenty minutes, at most an hour.”

Balin also takes time to sit down with case managers and case workers to make sure a client understands an appeal is due and that new case notes and progress notes from physicians are in their file.

Additionally, clients are assigned a member of Balin’s staff to help put their mind at ease throughout the entire process, and the firm’s tireless attitude certainly accomplishes that.

“It's about managing expectations,” Shupe said. “You hire an attorney not necessarily to speed the process up but to make sure everything gets done right. Most places, five o'clock comes around and you're clocked out,” Shupe said. “Then there are people like us, where work is always on our mind. We do whatever it takes to properly win the case for our clients as early as we can.”

 

So, How is SSA Doing?

There has been a lot of press lately regarding the financial health of the Social Security Administration. On May 31st, 2013, SSA issued a press release stating that the combined assets of the Old-Age and Survivors Insurance, and Disability Insurance Trust Funds are projected to become depleted in 2033, with 77 percent of benefits still payable at that time. The Disability Insurance Trust Fund will become depleted in 2016, with 80 percent of benefits still payable.

Obviously this is worrisome to just about all of us – those of us currently collecting benefits and dependent on that income, as well as those of us who may need to rely on receiving some type of benefit in the future.

Polls have been conducted throughout the general populous to get an idea of what Americans think of the SSA’s current financial state and what should be done about it. Selzer & Company conducted the Bloomberg National Poll between February 15th and 18th of 2013 and asked 1,003 adults several questions pertaining to what they thought about the current health of SSA. One question asks, “How certain are you that Social Security will be there if you need it in retirement?” The Americans polled were almost 50/50 on this one: 39% of people polled said SSA will probably be there, while 30% responded it probably won’t be there. A smaller percentage of Americans responded that it will definitely be there – 15% - while a similar number of Americans said SSA will definitely not be there – 13%. A small percentage – 3% - remained unsure.

Interestingly, even though most Americans polled believed SSA would either probably or definitely be there when they needed it; most Americans polled also believed a major overhaul would be necessary to reduce the deficit the agency faces. While 39% of Americans polled stated that it was not necessary, 51% felt it was needed while 10% remained unsure.

Another question asks, “Do you favor or oppose reducing the cost-of-living adjustment that automatically increases the amount of benefits Social Security pays out to help the program remain financially secure?” Americans polled responded with an overwhelming 64% that they would favor this reduction.

With the new data that was released in May, it would be interesting to know whether the opinions of those polled have changed. One factor that is not disclosed in this poll, and would be interesting to note, is whether any of these Americans polled are already receiving benefits? A dependence on the income Social Security provides would surely color the opinion of a person giving these answers. A major overhaul may be warranted, and the cost-of-living increase may require some adjusting, but at what cost? In 2012, an estimated 57 million people received over $775 billion dollars of benefits. That’s a lot of people and a lot of money. It may be enough for some to live comfortably, but not nearly enough for others to scrape by. According to ssa.gov, the average monthly benefit is $1,269.00.

It begs the question of who would be affected by what choice? If a major overhaul is executed, will anyone suffer? On the other hand, if it is not done, will the suffering come down on us all? This problem could potentially be avoided by moving funds from the Old-Age and Survivors Insurance fund to the Disability Insurance Trust fund. SSA has done this many times in the past as the amount of disabled workers vs. retired workers has waxed and waned. If Congress has known that this problem was approaching, why wouldn’t they take this proactive step? Without this transfer, only 80% of benefits will be payable to disability recipients. With many disabled people already on tight budgets, how will this decrease affect them?

This is an important question the decision-makers at SSA must strongly consider for the well-being of this country and its people. Thousands of people – our friends, family member and coworkers - have been saved from destitute poverty and even death by the receipt of much-needed Social Security benefits. Let us, as the American people, who either now depend or may come to depend on programs such as these, continue to let our voices be heard so the choice that is made is in the best interest of us all.

Written by Anna Westfall & edited by Attorney Andrew November


Need someone on your side during these troubling times? Chances are we are right around the corner from where you live. We have offices in Akron, Canton, Youngstown, Toledo, Mentor, Lorain and Ashtabula for your convenience. Click HERE for more information!

H.R. 1502 and Your Disability Benefits

Bob, 55 years old, has severe arthritis. He has been working the same job as a machinist for the last 20 years. Due to the economy, Bob is laid off from his job. Since he is still in need of income to care for himself and his wife, Judy, he applies for unemployment benefits while he looks for other work. 

As the months go by, and Bob finds his arthritis seems to be getting worse. He has a harder time getting around and doing simple things like opening jars. After a visit with his doctor, the doctor tells Bob that perhaps he should consider filing for disability. Bob’s doctor is concerned that he would have a hard time going back to work as a machinist.

This puts Bob in an unusual situation. Bob wants to go back to work, but no one is calling him in response to his job applications, and his doctor warns if he goes back to strenuous work such as a machinist he may not be able to perform like he used to.

So, what is Bob supposed to do?

Fortunately, Bob can apply for disability while he is receiving his unemployment benefits and still seeking work. However, Congress might be putting and end to this option soon.

The purpose of H.R. 1502 is “to amend title II of the Social Security Act to prevent the concurrent receipt of unemployment benefits and Social Security disability insurance, and for other purposes.” Also known as the “Double Dip Elimination Act,” should this bill become law, it will prevent people like Bob from collecting disability benefits for any month in which he was receiving unemployment.  

Those months in which a person is collecting unemployment would be considered the same as engaging in substantial gainful activity (SGA), a term used by SSA to describe a certain monthly amount earned by working. The current SGA amount for non-blind individuals is $1,040.00. 

This basically means that people like Bob may have to choose either one route (collecting unemployment and seeking work) or the other (seeking disability). If someone in Bob’s position does collect unemployment while seeking disability, any months in which unemployment was received will disqualify him from any disability benefits he may be entitled to for those months. 

This is particularly disheartening when you take into consideration the amount of past-due medical bills most disability claimants are faced with. Many awarded-claimants rely on their back-benefits to catch up on these bills, as well as the mortgage, credit card bills and auto loans.

A memorandum released by the Social Security Administration to Regional Chief Judges on November 15^th, 2006, references Supreme Court case Cleveland v. Policy Management Systems Corp and states:

 “The Court noted that, under the presumptions embodied in our five-step sequential evaluation process, a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work. Similar logic applies to applications for unemployment benefits.

“In addition, it is often uncertain whether we will find a person who applies for unemployment benefits ultimately to be disabled under our rules, and our decision-making process can be quite lengthy. Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.”

While it can be argued that collecting unemployment benefits while telling the government you can’t work is contradictory, there are exceptions to the rule, such as in Bob’s case.

The ultimate purpose of H.R. 1502, according to Representative Johnson, Chairman of the Ways and Means Committee, is to save our country $1 billion over the course of ten years. This may be the case, but at what cost to the individual benefit claimant? We still have a chance to tell Congress what we think of this bill. Write to your Congressman today and voice your opinion on H.R. 1502 before it is voted into law.

Written by Anna Westfall

Are you feeling overwhelmed by information such as this while your disability claim is pending? Our knowledgeable staff will put your mind at ease. Chances are we are located in your hometown: Cleveland, Akron, Canton, Youngstown, Toledo, Lorain, Mentor and Ashtabula. Learn more by clicking here, and send us an email so we can start helping you TODAY!