What is Substitution of Party?

When a claimant dies while waiting to go to a hearing in front of an Administrative Law Judge (ALJ) regarding his disability claim, that does not necessarily mean the claim ends. If the claimant has an estate, surviving spouse, family member or dependent, they can be substituted on the deceased claimant’s behalf.

The first step is to make sure SSA is aware that the claimant has passed away. This can be done by either calling the national toll-free number (800)772-1213, or by calling or visiting the local SSA office that is handling the claim. A Claims Representative will also discuss any potential survivor’s benefits and/or death benefits due on the claimant’s record with the informer.

Once the surviving beneficiary is identified, Form HA-529 must be completed and submitted to SSA (please click here to see what the form looks like). The substituted party is usually a family member, but this varies depending on the type of benefit the claimant was applying for (SSI, SSD or both). A copy of the deceased claimant’s death certificate must accompany the form when it is submitted to SSA.

The substitute may also elect whether he or she wishes to appear before the ALJ. The decision may also be made “on the record,” meaning that the ALJ reviews the claim and issues a decision without a hearing. If the ALJ issues a favorable decision, benefits are then paid to the substituted party from the alleged onset date (AOD) of disability until the date of death.

The substitute may also be eligible for a continuing dependents benefit. For example, if you are the older parent of an insured worker who has died, and you were dependent on that person, you may collect the monthly benefit if:

-         You are at least 62 years old

-         You have not remarried since your child’s death

-         You are not entitled to your own, higher Social Security benefit, and

-         You were receiving at least one-half of your financial support from your child at the time of his or her death (proof of this must be submitted to SSA within two years of your child’s death)

When a person dies it can be a very difficult time for the surviving family members, especially when important choices such as these must be made. Because of this, it is advisable to seek the advice of a qualified Social Security attorney to help best decide who the Substituted Party can be, and guide that person through the remainder of the disability determination process.

Written by Anna Westfall & edited by Attorney Andrew November

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Disability and Unemployment

When a person files for disability benefits, that means he or she either has not worked or expects not to work in at least a 12 month period. When that same person files for unemployment benefits, that means he or she is willing and able to work at any time, should a job arise that fits their skills and abilities. As you can see, this could potentially create a conflict of claims in the eyes of a disability adjudicator or Administrative Law Judge (ALJ).

Filing for unemployment benefits alone does not mean a disability applicant will automatically be turned down, however. SSA looks at the “whole picture” of a person filing for disability, and because every case is different, there are circumstances that would explain why a person has filed for both types of benefits. On August 9^th, 2010, Chief ALJ Frank A. Cristaudo sent a memorandum to ALJs across the nation regarding this issue. In part, ALJ Cristaudo stated:

…the Supreme Court held, in a unanimous decision, that a claim for Social Security disability benefits is often consistent with a claim for relief under the Americans With Disabilities Act (ADA) even though there must be an ability to work in order to obtain relief under ADA. 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 as to 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.

Sometimes disability benefits are granted to people who are not only still able to work, but are in fact still working. For example, an older claimant is reduced to being able to perform only sedentary work. However, due to his age, skill set and education, he is not expected to be able to obtain such a job; therefore the granting of benefits is warranted.

Theoretically, the claimant could actually collect disability benefits and still work a sedentary job, as long as his earnings stay well below Substantial Gainful Activity (SGA) limits and it is not full-time (40 hours per week or more). He would also have to make sure his earnings don’t interfere with any SSI payments due to him. SSI recipients are allowed no more than $2,000 in their collective bank accounts, one vehicle and one residence.

Along those same lines, that same claimant could apply for unemployment benefits, while collecting disability benefits, if he says he is willing and able to work a sedentary job. He can potentially collect unemployment benefits until he finds a part-time, sedentary job, which he must actively seek in order to receive the benefits.

However, filing for unemployment can also potentially be used against you. As mentioned previously, filing for unemployment benefits alone does not prevent someone from receiving disability benefits, but SSA can count the unemployment filing as one of the factors in considering whether or not the claimant is disabled. For example, if a claimant applies for jobs that are physically demanding, but tells SSA he cannot do these types of jobs due to his disability, SSA can take that into account and may view the claimant’s statements as less credible.

The rules for unemployment are different for each state. Some states will even make an applicant pay the benefits back if it is discovered that he was ineligible for them at the time of receipt. Since it can be a difficult decision to make, talking the situation over with a disability attorney can help a claimant decide the best course of action, as well as the timing of both filings, if necessary.

Written by Anna Westfall & edited by Attorney Andrew November


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To Exam or Not to Exam...

A consultative exam (CE) is an appointment set for a disability claimant by SSA for the purpose of having that claimant undergo a medical evaluation.  The doctor, referred to by SSA as the “examiner," tests and observes either physical or mental/emotional disabilities, depending on the nature of the disability claim. The examiner then summarizes his or her findings in a report that is submitted to SSA. These tests are paid for by SSA and the examiners involved are physicians with their own practices contracted to do this work for SSA.

There are a few different reasons why SSA orders these exams, but it may not always be necessary and may even damage a disability claim. When a disability claimant has a representative, he or she can best determine as to whether the CE is necessary and can object to it if need be.  To the contrary, sometimes a representative may encourage SSA to order a CE when the medical evidence is incomplete or a representative believes there is an undiagnosed impairment.  This is often the case with mental limitations where remote school records suggest possible mental retardation.  In that case, SSA would have the ability to request IQ testing.

The foremost reason why CEs are ordered is when a claimant’s medical evidence of record (MER) is “thin,” meaning there is not enough information from the claimant’s treating sources to make a determination. Another reason is if the MER in the file is old and updated information on the claimant’s current condition is needed. There are also reasons beyond the claimant’s control, such as lack of cooperation from the treating source to release the records or pertinent, objective information such as diagnostic imaging or lab results are not included in the treating source’s records.

While this information could potentially help SSA find a claimant disabled, there is the possibility that it could also do the exact opposite. Because the examiner sees the claimant only one time, from a few minutes to possibly up to one hour, it is difficult to see the “whole picture” of a person’s disability and create an accurate report.

For example, a claimant suffering from back pain may be asked by the examiner to stoop, bend, crouch, etc. The examiner then records how well the claimant can do these things as well as for how long. If the claimant happens to do “well” on the exam (i.e: able to stoop, bend and crouch with little to no difficulty), the examiner will, of course, report same to SSA.

However, if the MER from the claimant’s treating providers shows that the claimant has been complaining to his doctor that he can no longer weed his garden or pick up his grandson due to back pain, this creates a conflict of information in the claimant’s file that SSA must sort out. Disability examiners must decide how much “weight” they can place on the examiner’s report compared to the MER already in the file. Typically, more weight is usually given to the treating providers’ opinions over that of the CE examiner, but it is a conflict of information nonetheless. If the claimant has a representative, he or she can object to a CE if it is felt that this sort of conflict would be created by the CE examiner’s findings.

Generally, people do not like to attend consultative exams and that is understandable. SSA tries to schedule the exam as close to where the claimant lives as possible, but sometimes that can still be quite a drive depending on where the claimant lives. Claimants are usually given a little under a month’s notice to make arrangements to attend the exam. Attending is vital, because if a claimant does not show, it is considered failure to cooperate by SSA and the claim can be turned down for that reason alone (unless the CE is objected to).

Because the issue of “to exam or not to exam” can be complicated, it is advisable for a disability claimant to obtain representation so he or she can determine whether or not a consultative exam would help or hurt the claim.

Written by Anna Westfall & edited by Attorney Andrew November


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Social Security and Health IT

Disability claims are driven by medical records. Unfortunately, the process of requesting and obtaining medical records is the most frequent source of delay in the disability determination process. SSA requests over 15 million copies of medical records from over 500,000 providers each year to determine over three million disability claims. Because this is such a huge undertaking, not to mention a lot of paper, SSA has developed Health IT (HIT).

Established in 2008, HIT is a program that partners SSA with medical providers in order for SSA to gain easier access to the medical records via electronic methods. By electronically requesting and receiving records, the delay to receive the records goes from weeks or months to mere minutes or a few days.  The goal is to reduce the burden of copying and mailing records on healthcare providers, as well as offer applicants faster and more consistent disability decisions.

So how does it work? First, a health care provider must determine whether they qualify to participate in HIT. They must already be equipped to share electronic medical records, as well as possess the budget and resource allocation necessary for HIT. If the provider can fulfill these criteria, SSA asks that the provider:

1.       Accept patient authorizations to release medical information, and

2.       Provide the following medical information:

a.       Health problems and medication lists;

b.      Patient encounter information;

c.       Admission summaries and other medical notes;

d.      Procedures information and interpretation; and

e.      Information regarding treatments.

Currently, providers located in California, Idaho, Indiana, Massachusetts, Michigan, Minnesota, New Mexico, Oregon, Ohio, Texas, Virginia, Washington and Wisconsin are participating in HIT. Kaiser Permanente is the latest big name to partner with SSA on HIT, just recently in June, 2012. For a complete list of current participants, please visit http://www.socialsecurity.gov/hit/partners.html.

What benefits do HIT participants gain? Because the cost of copying and mailing medical records can be monstrous and time-consuming, HIT participants enjoy reduced administrative and supply costs (paper, toner, postage, etc).

Faster disability determinations also mean less uncompensated care for HIT participants. When a disability claim is approved in a timely manner, the claimant has more timely access to Medicaid or Medicare, as well. In 32 states, including the District of Columbia, when a claimant applies for SSI, they are also automatically applied for Medicaid. An awarded claimant must be eligible for SSI cash benefit for at least one month before becoming eligible for the Medicaid benefits, and must also receive at least $1 in benefits. On the other hand, the wait for Medicare benefits is 24 months after a SSD claim is awarded, so time is truly of the essence.

HIT participants may also enjoy higher revenue by having the ability to respond to a higher number of SSA requests in a timely fashion. SSA also pays HIT participants electronically and automatically for the medical records.

Disability claimants can also potentially benefit from HIT. Thanks to the reduced wait time for SSA to obtain a claimant’s records, a well-informed decision can be made in a more timely fashion, as long as the proper records pertaining to the claimant’s disability are received.

By obtaining a claimant’s full medical record from all treating providers, it becomes less necessary to send claimants to consultative exams funded by SSA. This is a plus for claimants who often have transportation issues as far as getting to the exams.

Unless the claimant has a representative, it is up to him or her to help SSA get all the records they need to make a decision. Usually medical providers charge a fee for the copying of the records, and the already hard-up claimant has a difficult time paying twenty dollars for records that may or may not be of use to their claim. In the state of Ohio, representatives have access to one free copy of medical records from treating providers, and have the ability to make sure SSA sees the right information that pertains to the claimant’s disabilities and specific time frame of disability. With more and more providers enrolling in HIT and making their records available, hopefully it will become less of a concern for claimants who do not have representation and rely on their treating providers to make the pertinent information available to SSA.

In 2011, the number of providers participating in HIT doubled. SSA hopes to keep up this trend for the greater good of claimants and their doctors alike. However, this is not a guarantee of a positive outcome for a claim. It is always advisable to hire a professional representative to make sure all of the information pertinent to a disability claim is seen by SSA. (Please read our previous blog entry, Obtaining Representation and How it Affects Your Claim, to read about what else representation can do for you)

Source: http://www.socialsecurity.gov/hit/index.html

Written by Anna Westfall and edited by Paulette Balin

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National Hearing Centers and Their Impact on the Disability Back Log – Part 2

Last week we explored the role National Hearing Centers play as far as attaining SSA’s goal of reducing the back log of cases waiting to be heard in front of an ALJ. The decision to open the National Hearing Centers in Falls Church, VA, Albuquerque, NM, Chicago, IL, Baltimore, MD and St. Louis, MO was helpful in many ways. However, it has also created several challenges SSA must overcome.

The first challenge is the availability of VTC equipment and locations. Most ODARs must devote the space they have to accommodate in-person hearings, leaving less space to devote to video hearings. SSA had opened several temporary remote sites back when the National Hearing Centers were being established, but these are being done away with as they are replaced with more permanent sites in the ODARs.

A solution that has been successful so far in the Chicago region is use of Claimant-Only Video (COV) sites.  This is a room large enough to hold only the video equipment, the claimant, the claimant’s representative, the hearing monitor, and any experts. The Representative Video Project was also created in an effort to accommodate VTC hearings by setting up remote sites in disability representatives’ offices.

Scheduling conflicts present another challenge to NHCs. Even though they can use medical and vocational experts from any region, NHCs prefer to use experts that are located in the same area as the claimant. This creates a potential for scheduling conflicts, as the local ODARs use these same experts for their hearings.

This is also an issue when it comes to scheduling representatives, as most representatives have many clients who live in many different areas. NHC schedulers try to relieve these problems by scheduling the hearings months in advance, so both experts and representatives can plan accordingly.

VTC hearings have been declined by claimants and representatives for many reasons, such as due to the fact that the claimant is Spanish-speaking. Spanish interpreters used during a VTC hearing can cause miscommunication and misunderstanding of very important facts, which leads to the prevention of due process for the claimant. However, because a VTC hearing can be declined up until the day of the hearing, it creates more work for SSA, as the file must be transferred back to the local ODAR with all the proper paperwork filed.

Now that these challenges have been identified, the OIG recommends that SSA:

1.       Monitor video capacity and, as resources permit, consider increasing the number of video locations, which may include permanent remote sites, COVs, and RVP locations.

2.       Ensure steps are taken to prevent claimants from choosing the ALJ hearing their case, such as removing the ALJ’s name from all hearing notices and reminding schedulers not to reveal the name of the ALJ when asked by a claimant’s representative.

3.       Consider modifying the regulations to prevent claimants from declining VTC hearings close to the day of the hearing.

SSA has agreed to these recommendations, so it will be interesting to see what steps will be taken next in the effort to continue to decrease the hearing back log.

Source: Office of the Inspector General Audit Report, April 2012

Written by Anna Westfall and edited by Attorney Andrew November

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National Hearing Centers and Their Impact on the Disability Back Log

In fiscal years 2010 and 2011, 82,000 disability cases were transferred from SSA’s 10 regions to National Hearing Centers (NHC) in Falls Church, VA, Albuquerque, NM, Chicago, IL, Baltimore, MD and St. Louis, MO. Here, video teleconferencing (VTC) technology is used to connect the ALJ at the NHC to the claimant at their local Office of Disability Adjudication and Review (ODAR) in order to conduct a hearing.

The purpose of this transfer was to relieve the local hearing offices of the back log of disability cases waiting to be heard by an ALJ, while new local ODARs were being constructed. The Chicago region, which handles Cleveland-area hearing offices, transferred approximately 41,000 cases alone, making up approximately 50 percent of the cases transferred to the NHCs.

Was this a successful plan? According to a report made in April, 2012 by the Office of Inspector General (OIG), ALJs in the National Hearing Centers have issued approximately 56,000 dispositions during the 2010 and 2011 fiscal years. This equals out to be about 2.77 dispositions per day, compared to the national average of 2.42. This higher disposition rate is based on several factors, according to the OIG’s report: high decision writer-to-ALJ ratio, how attorneys are supervised, the lack of travel to remote sites, useful pre-hearing briefs, and the processing of NHC remands at the hearing office level. 

The greater decision writer-to-ALJ ratio has a tremendous impact on productivity. Only one regional ODAR out of 10 possesses a ratio above 2, the lowest being the Chicago region at 1.60. The NHC ratio is 2.90. SSA hopes to get the national ratio to average out to at least 1.85. The more decision writers per ALJ, the sooner decisions can be written and issued in a timely manner.

Rather than ALJs and attorneys both answering to a Group Supervisor as is the case at ODARs, staff attorneys at NHC hearing offices report directly to ALJs who act as managers. This way, according to the OIG’s report, staff attorneys gain a better understanding of the ALJ’s preferences. Unfortunately this style of leadership cannot be replicated at ODARs, due to the fact that those ALJs do not carry managerial title.

Because NHC ALJs are not required to travel to remote locations to hear cases, they have more time to hear more cases as a result. Thanks to VTC technology, a NHC ALJ can hear a case from any where in the country from the comfort of his own courtroom, as long as the claimant has access to the same technology at his location. Typically claimants travel to their local ODAR, but VTC hearings can also be held at local field offices as well.

Pre-hearing briefs are another helpful practice that has been implemented at the NHCs. These are composed by the senior attorneys for the managing ALJs in preparation for a hearing. They include pertinent details such as the claimant’s education, medical conditions, past relevant work and impairments found by Disability Determination Services (DDS). The attorneys can also state their recommendation on the decision based on their research. ALJs told the OIC that they find these briefs more helpful than the pre-hearing worksheets used by ODAR attorneys.

Interestingly, NHC ALJs were not hearing their own remanded cases. This was so they had more time to hear new cases. However, the Chief ALJ amended this in December, 2011, and the following protocol was put in place for ODARs, effective January 3^rd, 2012:

1.       Determine whether the NHC is still providing assistance to the hearing office.

2.       Verify that the NHC ALJ who issued the decision is on duty at the NHC .

3.       If the remand meets both requirements, transfer the remand to the NHC.

However, if a claimant declines a VTC hearing, the remand would then be transferred back to the local ODAR.

While these are steps in the right direction, NHCs are also facing a few challenges: availability of video capacity, conflicts with scheduling experts, and claimants declining VTC hearings. Next week, we will explore these challenges and what SSA is doing to overcome them.

Source: Office of the Inspector General Audit Report, April 2012

Written by Anna Westfall & edited by Attorney Andrew November


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Your Online Presence – Why Disability Claimants Should Be Mindful

It is common knowledge these days that a person has to be careful about how they present themselves on the internet, whether it is through pictures, videos, blog posts, or even comments you leave on your friends’ Facebook pages. How you portray yourself online is essentially how you portray yourself to the world. When you are a disability claimant, you must be especially mindful of these things.

Until April of this year, some ALJs were utilizing the internet to research claimants whose cases were to be heard. SSA has since told ALJs they are no longer to seek out information on the internet to help decide cases. This has become a controversial issue for several reasons.

The ALJ’s Point of View

Senator Tom Colburn, an Oklahoma Republican, has been vocal in regards to what this ban could mean for taxpayers. Senator Colburn, along with many ALJs, believes the Internet is a valuable source for catching fraudulent disability claims. If a person is claiming disabling back pain, yet posts pictures of himself playing tag football with friends, it could be a huge red flag for an adjudicator.

Senator Colburn’s goal is to protect taxpayer dollars. He believes that by being more stringent on whom we award disability to, tax dollars won’t be going to people who don’t “deserve” it. Last year, Senator Colburn accused Stanley Thornton, Jr., who lives as an “adult baby,” of SSA fraud. Senator Colburn pointed out that, if Thornton is able to manage his own website dedicated to the adult baby lifestyle, as well as construct an adult baby high-chair of which he had posted pictures of on his website, that Thornton has the skills and knowledge to make a living. After a lengthy investigation, Thornton was cleared of fraud. Thornton suffers from PTSD, along with a range of other impairments, which in combination deem him disabled.

It is also argued that looking on the Internet is no different than looking out a window and seeing a claimant mow his lawn or work on his car. Casual observation of the claimant has always been part of the adjudication process, and it is believed that using the Internet falls along those same lines.

Another thing claimants must be mindful of is the fact that, when they make their application for SSD or SSI, they are required to sign a release that allows SSA to collect any and all information related to their ability to perform tasks. However, it can also be argued that information on the Internet is public, so no such release is even necessary to see any information an ALJ can find on a claimant.

Because deeming someone is disabled is such an important decision, all facts of the matter must be brought to light, not just what the claimant or the claimant’s representative wants the ALJ to see. 

The Claimant’s Point of View

As mentioned earlier, disability claimants must be especially mindful about what they post on the Internet. However, if the picture a claimant posts of himself playing tag football with friends is five years old, it should not be given any weight in a current disability claim. People post old pictures all the time, but the problem is the casual viewer being unaware of the picture’s age.

When an ALJ considers evidence without the claimant’s or the representative’s knowledge, it is called ex parte evidence. This is a serious legal matter because it denies the claimant due process. When evidence is requested and received by the ALJ, a copy must be made available to the claimant or his representative in order to allow time for a response. As in our example, if an ALJ found a picture of the claimant playing tag football with friends, and the picture is indeed five years old, the claimant should have the opportunity to explain same to the ALJ.

SSA officials have stated that, even though using information from the Internet can be potentially helpful, they do not want “front-line deciders” using it. Rather, this practice is reserved for the likes of fraud investigators that are hired to research awarded claimants that may be attempting to deceive SSA.

Arguments on both sides of the coin are strong. On one side: Should SSA take more steps to prevent fraud in the first place, such as ALJ internet research? Would this help prevent benefits from being paid to the “wrong people?”

On the other side: How much does this tool affect a claimant’s due process? Is it fair?

Because you never know who your ALJ is going to be, or what tools he or she may utilize to decide your claim, it is always better to err on the side of caution and maintain your internet presence wisely.

Source: The Washington Times, May 3^rd, 2012

Written by Anna Westfall & Attorney Andrew November

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