One of the most common questions I am asked by people applying for Social Security Disability and SSI benefits is: “Do I need a lawyer for this or can I just do it on my own?”

My first response is this: “You need a lawyer only if these benefits are important to you!”

The claims process begins with the filing of an application and various related documents, as well as an interview. As I have discussed in earlier columns, the majority of claims are denied and a process of appeals is undertaken, often culminating in a hearing before an Administrative Law Judge. Sometimes appeals are necessary beyond the hearing stage and cases may have to be resolved in federal court.

Although Disability and SSI claims do not involve what people think of as “going to court,” the Social Security regulations which govern the claims process, are unique and complex. Consequently, you cannot always rely on “common sense” to understand whether or not you meet the strict definitional requirements of “disability” under the Social Security Act. For instance, it is usually not good enough to merely supply a doctor’s report with a statement that you are “disabled,” as there are usually very specific criteria set by the Social Security Administration (SSA) to determine whether you are in fact disabled under its rules and regulations. In short, the process is not as simple and easy as it may look.

Although an attorney’s help generally becomes most critical when the claim reaches the “hearing” stage, an attorney’s involvement early in the claims process can sometimes make the difference between winning and losing a case later on. Early involvement allows the attorney to exercise some degree of “damage control.” Also, since SSA has put new emphasis on making the “right” decision at the earlier stages, by applying the same legal rules at these earlier stages that used to be applied only at the hearing stage, a lawyer’s help at the beginning can be critically important.

A Social Security attorney can also help you with a number of common issues, such as the ability to revive earlier claims, obtaining benefits for dependents, and dealing with “return to work” scenarios.

Therefore, although you can file an appeal without being represented by counsel, applicants generally have more to gain than to lose by hiring an attorney as soon as possible. In fact, persons represented by an attorney received favorable decisions 62% more often than persons who did not hire an attorney. (Highlights for fiscal year 1998, “Social Security Bulletin”. Vol. 62 No. 1 (1999).

Most attorneys charge a “contingent fee,” a fee paid only if they obtain benefits. The most common type of fee charged is 25% of back benefits, up to a maximum of $6,000. Nothing comes out of current monthly benefits. You will usually be expected to reimburse expenses for items such as medical reports and records, but these expenses tend to be very modest. In some cases, attorneys may use a different type of fee arrangement when appropriate. However, fees may only be charged to a client if and when the Social Security Administration approves the fee. Therefore, because attorney’s fees are strictly regulated, you can get an experienced attorney at a very affordable cost.

Although there is a great variation from case to case, here are some examples of things Social Security attorneys can do for you:

1. Advise you as to all of your rights under the Social Security Act (something which the overworked people at your local Social Security office may not always be able to do);
2. Participate in the ALJ (Administrative Law Judge) hearing through direct examination of you and your witnesses, cross-examination of any vocational and medical experts, making oral arguments, etc;
3. Review and evaluate your medical situation as it pertains to SSA’s regulations for qualifying Disability and/or SSI;
4. Obtain and review additional medical evidence from your physicians;
5. Advise you as to your rights to “reopen” any earlier claims and to maximize your benefits;
6. Obtain and review documents from your Social Security file;
7. Review actions taken by the SSA and evaluate if they are proper;
8. Ensure that appeals are filed timely;
9. Prepare and submit appropriate evidence to SSA prior to, at the time of, or following any ALJ hearing;
10. Prepare you and your witnesses for the ALJ hearing;
11. Prepare and submit legal memoranda and briefs to the ALJ, Appeals Council, etc;
12. Request a review of the ALJ decision, if necessary, by the SSA Appeals Council or beyond to federal court;
13. Effectively communicate with your disability, health, or other insurers to obtain documents, maximize coverage, and otherwise protect your interests.

The Social Security Disability (SSD) and Supplemental Security Income (SSI) entitlement programs are the product of the first major expansion of the Social Security Act in 1954. These programs were radically expanded by amendments to the Social Security Act in 1957, 1960, 1965 and 1967.

I continue to be amazed, despite the fact that these important programs have now been in existence for many years, at how little the American public really understands about such an important component of the federal program which most directly affects the greatest number of Americans. Here are a few of the most common myths, which many people have come to believe as truth:

Myth #1: “You have to be disabled for a year before you can apply for Social Security Disability/SSI.” False. Confusion about this alleged requirement stems from the definition of disability, which provides that you must have an “impairment, which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve months.” While the law requires proof that you have been disabled or expect to be disabled for at least one year, there is nothing in the law that says you cannot apply for benefits earlier than this. My general advice has always been to apply for disability benefits as soon as you and your doctor expect that you will likely be unable to work in any capacity for at least one year. Unnecessary waiting to apply only prolongs what is already a very lengthy process.

Myth #2: “You can not apply for Social Security Disability benefits while you are getting workers compensation.” False. Not only is this belief not true, but also I’ve noticed that some workers’ compensation lawyers have the same misconception. While it is correct that, if you do receive Social Security Disability benefits after receiving workers compensation, your disability benefit may be reduced (the “workers’ compensation offset” rule), there is nothing in the law that prevents someone from getting both benefits. Of course, because the laws governing these two programs differ greatly, remember that entitlement to workers’ compensation does not assure qualification for Social Security Disability.

Myth #3: “Everyone who applies for Social Security Disability/SSI is denied the first time.” False. According to the Office of Disability Programs, 36% of initial claims are allowed (granted). This means that roughly two-thirds of claims are initially denied, but certainly a significant percentage of people have their disability applications approved without the need to appeal. Note: The percentage of denied initial claims for persons under the age of 50 is considerably higher than those over age 50.

Myth #4: “Everybody gets denied the first time but wins when they go before a judge.” False. As an attorney who tries hearings before judges on a regular basis, I only wish this was true. The fact is, the judges who hear disability cases — for any number of reasons — frequently deny claims. Among the most frustrating telephone calls I receive are from people who appealed their disability denials and went before a judge without an attorney, after being told by someone that all they need to do is “show up” at a hearing and they would win. Nothing could be further from the truth. Although it is statistically true that your chances of obtaining benefits improve when you appear before a judge, this is hardly a guarantee of success, and, without a Social Security attorney to effectively prepare your case and represent you at the hearing, you may lose your best opportunity to prove and win your claim.

If you have questions, I suggest you call your local Social Security office or the National Social Security toll-free number, 1-800-772-1213. You may also obtain helpful information by logging on to www.socialsecurity.gov. If, however, you still have questions, a Social Security attorney can be your best source of accurate information.

In previous columns, I have offered mostly “nuts and bolts” instructions for filing and succeeding in disability claims. Here is a modest suggestion, which I think, kills two birds with one stone:  LISTEN TO YOUR DOCTOR. This strengthens your chances of winning when you make a disability claim, while also (it is hoped), helping restore to you some quality of life.

In a prior column, I exhorted the reader to be fully compliant with her doctor’s instructions and prescriptions. It always amazes me how often this simple advice goes unheeded at the patient’s own peril. For instance:

1. If you still smoke, quit. I know — it’s easier said than done, particularly if you are a life-long smoker. Nonetheless, difficult as it may be, there is probably no better action to take to improve your health. If you have health insurance which will cover it, get a prescription for an appropriate aid. If this is not an option, talk to your doctor (as well as to friends and family who may have managed to quit) about a strategy to help you achieve this goal. Smoking is a nasty self-defeating habit under the best of circumstances, but when you are suffering through an illness or some exacerbation of a previously-controlled health condition, continued smoking can be disastrous.

2. If you are grossly overweight, lose weight. Again, often difficult, but well worth the effort. The connection between excess poundage and heart problems has long been established. Now we learn that weight-related diabetes is on the rise — one journal reports a dramatic one-third jump in the incidence of diabetes in just eight years. This increase has been sharpest among people in their 30s. As with smoking, consult your doctor for a strategy that will work for you. There is a “diet” and an “exercise” program for virtually everyone. Obviously, losing weight becomes even more challenging if your ability to exercise is limited by joint pain, muscle weakness, and the like, and the medication you may be taking (e.g. Prednisone) may cause you to gain weight, but now is not the time to give up. Whatever the nature and extent of your disability, the psychological benefits should make it worth the effort.

3.  Keep your appointments, take your medicine exactly as prescribed, and undergo whatever tests your doctor recommends without delay. This of course speaks for itself. It is not really fair to tell your doctor that the treatment you are getting is not working until you have given it your best shot as your doctor has prescribed.

4.     Be sure to provide your doctor/nurse practitioner with a complete and accurate history/recitation of your complaints and limitations at each visit. It’s always a good idea to write things down and bring them with you to your visits — you can even give written notes to the doctor/nurse to be placed in your chart.  Try to be sure that your doctor/ nurse is listening to your issues and recording them in your chart — don’t be afraid to politely but firmly assert yourself here.

As with smoking and weight loss, making your best effort to follow your doctor’s instructions and recommendations has the added benefit of proving compliance, which is often crucial to succeeding in a disability claim. The judge who may eventually decide your case will be much less sympathetic if you disregard your doctor’s suggestions.

If you read my first two columns about disability insurance, you should now have a basic understanding of both the need to protect one’s ability to earn an income and the essential features of disability insurance policies.  What happens, however, if you actually suffer the misfortune of a disability, file a claim, provide all the necessary documentation to the insurance company and then have your claim denied (or terminated)?

If you are covered under an ERISA long-term disability plan (most long-term disability (LTD) claimants have purchased long-term disability insurance through their employers, pursuant to the federal law “ERISA”), you will have to go through an administrative process consisting of an initial determination and an appeal or “review.” You must generally exhaust these administrative remedies before suing. The denial notice allows at least 180 days for requesting review and the company must respond within 45 days, unless there are extraordinary circumstances (allowing them an additional 60 days to determine the matter), or unless you waive the 45-day deadline imposed upon the company by ERISA (something I do routinely to buy more time to develop claims at the administrative level). It is also common that the denial notice will neglect to mention the finality of a subsequent appeal, and will not invite the submission of additional evidence. This is a critical pitfall because, if evidence is not submitted prior to a final determination, that evidence may be excluded from consideration in the federal lawsuit. You generally have three years to bring suit from the date of the review denial, although the policy may reduce this period.

It should be noted that you don’t even get to your LTD claim unless you pass the hurdle of short-term disability benefits (STD). Risk management is so aggressive these days that denials of short-term disability benefits are no longer uncommon. The rules of review of STD denials are usually the same or similar to LTD claim denials.

ERISA does not allow for any punitive damages, and, although in certain circumstances a successful plaintiff may receive an award including attorney fees, those too are generally the responsibility of each party.

No jury trials are available under ERISA. ERISA is federal law, so LTD claims end up in federal district court. A key issue is whether the federal court must perform a “de novo” review of the administrative proceedings, or, in contrast, simply make a determination as to whether the insurance company abused its discretion; in other words, the decision was “arbitrary and capricious.” A “de novo” review is usually far more preferable, as a federal magistrate or judge then has the opportunity to take a fresh look at the evidence and make a determination based on the “preponderance of the evidence.” Winning a case under the “arbitrary and capricious” standard is much more difficult, although, as with all cases, this will depend greatly on the facts particular to the case.

It must be remembered that, even if your claim is allowed, it cannot be taken for granted that your claim will continue to be paid by the insurance company indefinitely. Not only must you and your physician continue to supply “proof of disability” on a regular basis, other potential obstacles may be thrown in your way by the insurance company. Surveillance is common in disability claims: videotape of you going to the supermarket, attending your child’s soccer game, or doing a hundred other everyday routines may be used in an effort to demonstrate that you are not really “disabled.” In my experience, much of the surveillance typically done proves utterly nothing, but insurers don’t seem to mind paying investigators to go on such “fishing expeditions.” Another tactic employs a “rehabilitation nurse” or other insurance company representative to hassle your doctor, therapist, etc., looking for any “evidence” available to also show that you are no longer disabled. “Independent” medical exams and reviews are also frequently used. Suffice to say that the term “independent” is a gross misnomer.

Since both the definition of disability and the limit on payment of claims involving mental impairments typically comes up after two years, that is the point at which a large number of claimants get terminated and seek legal assistance. In the first instance, this occurs because most LTD policies have a change in the definition of disability after two years from being disabled for your occupation to being disabled for any occupation. With the latter, most LTD policies have a two-year limit on payment of claims involving mental impairments, so that in addition to overcoming the hurdle of now having to prove disability for “any occupation,” you now must also prove that the disability is not “mental.” This is not much of a problem where the “mental” is secondary to say, a stroke, but gets thorny in, for example, cardiac claims where there is little new evidence for ischemia and your claim is that stress produces cardiac symptomatology either on exertion or at rest, or where the basis for your claim is chronic fatigue syndrome (which is largely debunked by insurers and considered nothing more than neurosis with secondary somatic complaints).

In fairness to the insurance industry, assuming that your legitimate disability claim has been presented and documented both timely and thoroughly (see my last column), insurers generally pay and will continue to pay your claim. However, if your claim is unfairly denied or delayed, you should not be intimidated or otherwise deterred from asserting your legal rights.

While most Americans insure their lives and material assets, like their homes, cars, etc., many overlook the need to protect their most valuable asset  — the ability to earn an income.

In my last column, I reviewed individual disability insurance (“D.I.”). This article will look at group disability insurance policies, commonly referred to as “LTD” policies. First, though, everyone should be familiar with New Jersey’s law, which provides up to six months of disability benefits.

Short-Term Disability (STD) Benefits:
All disability claims begin with a claim for “short-term” benefits (STD) as opposed to long-term disability benefits (LTD). If you live and work in New Jersey, you have the benefit of the fact that New Jersey is one of only five states which provides compulsory short-term disability benefits to workers (Pennsylvania, for example, does not). Under the New Jersey Temporary Disability Benefits Law, cash benefits are payable when you cannot work because of sickness or injury not caused by your job. Employees whose employment is covered by the New Jersey Unemployment Law are also protected by a mandatory disability insurance system. In order to have a valid claim for disability, you must have had at least 20 calendar weeks in covered NJ employment in which you earned $143 or more (called “base weeks”), or have earned $7,200 or more in such employment, during the 52 weeks immediately before the week in which you became disabled (called “base year”). The weekly benefit amount is calculated on the basis of your average weekly wage. Claimants are paid 2/3 of their average weekly wage up to the maximum amount payable, which is $572.00 for disabilities beginning on or after January 1, 2012. The maximum amount of benefits which may be paid for each period of disability is 2/3 of the total wage in New Jersey covered employment paid to you during the base year, or 26 times the weekly benefits amount, whichever is less.

You may be eligible for temporary disability insurance benefits if you are disabled due to pregnancy. Eligibility for benefits is determined in the same way as any other disability. The usual payment period for a normal pregnancy may be up to four weeks before the expected delivery date and up to six weeks after the actual delivery date. However, if there are medical complications or you are unable to do your regular work, your doctor may certify to a longer period before and after the birth of your child during which you cannot do your regular work.

Long-Term Disability (LTD) Benefits:
If you have the misfortune of being unable to return to work after six months, but had the foresight to have purchased long-term disability insurance, you should now make a claim for LTD benefits. Most LTD claimants have purchased long-term disability insurance through their employers, pursuant to the federal law known by the acronym “ERISA”. There are marked differences between individual and group policies, primarily because of the differences between the “common law” and ERISA. Suffice to say that claims brought under the ERISA law tend to be more difficult to win if they are denied and/or terminated. Regardless of which type of long-term disability insurance you may have, there are some general rules of thumb to keep in mind:

1. First, be sure to obtain and read a copy of your actual policy. As simple as this may sound, I have found that few people ever bother to do this, and most employers don’t provide a copy unless specifically asked. You have a right to obtain a copy of your policy and you are strongly advised to read it fully as soon as possible. Your policy, in conjunction with the ERISA law, defines your rights and duties. Important: obtain the actual policy, not just a summary from an employee handbook.

2. Complete and file your claims application in a timely fashion. I suggest to my clients that, whenever possible, they employ certified mail. It is not unusual for claims to be denied because of the allegation that a claim was not received in time. Watch your deadlines carefully. Just as important, it is up to you to follow up with your doctor(s) to make sure that he/she completes any necessary claim forms timely as well. Whenever possible, review the claim form with your doctor personally (or at least with the doctor’s nurse or secretary), make sure it is signed by the doctor, and then file it yourself with your employer or your employer’s insurer. Similarly, if, as in most cases, your disability plan is being administered by an insurance company, be sure that your employer provides any documentation necessary, e.g., proof of earnings, job description, etc.

3. If you have supplied your employer and/or insurer with all documentation requested, don’t assume that your claim will be quickly approved. Delays are common. Don’t be afraid to follow up on a regular basis to ascertain the status of your claim. Document all telephone conversations and make written inquiries. If additional documentation is requested, make sure it is provided as quickly as possible, notwithstanding that all too often these requests for “additional documentation” are unnecessary and used by insurers to delay and discourage claimants. Regardless of the request, don’t give the insurer any reason to deny your claim based on “lack of cooperation.”

Standard Provisions:
Long-term disability policies under ERISA typically have a number of other significant provisions which could dramatically affect your claim. One provision typically restricts claims for “mental impairment” to 24 months. This provision can get particularly nasty for claimants who have a physical disability but are also suffering from depression. Insurance companies will often invoke the “mental impairment” clause to terminate claims, even when depression is a secondary diagnosis. By no means should you forego treatment for depression or other mental health problems if you need it. However, be sure that your medical records accurately portray the physical predominance of your disability, if this is the case.

Another common restriction allows for termination of claims unless you can demonstrate the inability to return to any gainful employment after 24 months, as opposed to the inability to do only your previous job. This standard is similar to that used in Social Security Disability claims. This is also a complex area, in which it may become necessary to obtain a vocational assessment to verify continuing disability.

In conclusion, long-term disability insurance is vital. Buy as much as you can afford through your employer if it is offered. Better yet, buy your own private policy through a reputable agent. And don’t overlook applying for Social Security Disability if your policy requires it and/or if you expect to be disabled for at least one year.

In my next column, I will discuss the interplay between Social Security Disability and LTD benefits, as well as how to deal with the denial of disability insurance claims.

While most Americans insure their lives and material assets, like their homes, cars, etc., many overlook the need to protect their most valuable asset — the ability to earn an income.

According to Kenneth Podell, CLU, a financial advisor with Mass Mutual, insurance claims studies indicate that the odds of becoming disabled for 90 days or longer are much greater than dying during one’s work years.

• At age 27 = 2.7 times greater
• At age 42 = 3.5 times greater
• At age 52 = 2.2 times greater

This article will briefly review individual disability insurance (“D.I.”).

Individual Contract (“D.I.” Policy)
An individual who is concerned that a disability may drastically reduce or eliminate current income will often purchase individual income insurance – a “paycheck protector”– from an insurance carrier. An application is completed, providing medical history for at least the past five years, employment background and income for at least the past three years, and other documentation, which may be required for underwriting purposes (the company assesses whether it’s worth taking the risk). These policies are commonly underwritten for white-collar workers. There are some available for blue-collar workers, but they are often limited to five years of coverage. Most of these policies do not offset for workers’ compensation or social security benefits.

Benefits, Costs, Options
Underwriting guidelines until the past few years were, generally, to allow insurance to cover up to 60% of gross income. There is very aggressive risk management now, so applicants may be lucky to get 50%. If an applicant’s income is $3,000 per month, the company may allow $1,800 per month in Disability Income. The less expensive policies have longer elimination periods (or “deductibles”). That is, if one secures a policy with a 30-day elimination period (where the check becomes payable for the period commencing on the 31st day of disability), that will be much more expensive than a policy with a 90-day elimination period. Just as with a life insurance policy, options or “riders” a/k/a “endorsements,” are available at additional costs. There is the “option to purchase additional insurance” without medical re-examination, which is generally offered every three to five years up until a cut-off age, and, which still requires proof that current income has increased to justify the amount of increased coverage requested. Some D.I. policies stop coverage at age 65, or reduce benefits payable if disability occurs after age 60, but then offer “lifetime” riders so that the monthly income will go up annually with inflation. Finally, as to cost, D.I. policies cost more to initially purchase the older you get, but, premiums do not go up once purchased. Benefits are tax-free, since the insured pays the entire premium.

What to Look for in a Disability Insurance Policy

Definition of Disability: Are education, experience, and past earnings taken into account in determining whether the insured is qualified to resume work? Many policies provide for an initial own-occupation definition of disability, for a specified period of time, after which a different definition of disability applies.

Partial or Residual Benefits: Partial or residual disability benefits may be paid in some policies when the impairment allows the insured to perform only a portion of his or her duties. The provision may also pay benefits in the event the disability reduces the insured’s income by a certain amount (for example, 20% or more) from pre-disability levels.

Cost of Living Adjustment: Is there a cost-of-living adjustment (COLA) which would increase benefit payments after a disability occurs?

Cancellability and Renewability of a Policy: Except for nonpayment of premiums, is the policy non-cancellable or guaranteed renewable? “Non-cancellable” generally means that the policy can be renewed each year at a fixed premium, for a specified time period. Guaranteed renewable is similar, but allows the insurance company to increase the premium.

Waiting and Elimination Period: Is the waiting or elimination period proper for the insured’s circumstances? Commonly available periods include 90, 180 and 360 days. Naturally, the longer the elimination period one selects, the lower his or her premium payments will be. However, a person’s needs, cash reserves and income sources should be the deciding factors in selecting a proper elimination/waiting period.

Benefit Period — What benefit period should be selected? Since a long-term medical disability can be financially devastating, one should elect a long term benefit where possible. Some companies offer lifetime benefit periods, but periods as short as 24 months to 60 months are also available.

My next column will look at group disability insurance policies, commonly referred to as “LTD” policies.

Julia Robertson (a pseudonym) is a 42 year-old mother of two.  After earning her associates’ degree in nursing, she worked full time as an RN for several area hospitals for 14 years.  When she decided eight years ago to stop working so that she and her husband could start and raise a family, she was earning over $75,000.00.  Julia had intended to return to work on a part-time basis when her youngest child entered kindergarten this past fall.

Julia’s plan to return to work was put on hold, however, when she began experiencing debilitating symptoms of weakness and fatigue last summer.  Many days were now spent on the couch, and she often barely had the energy to do the grocery shopping or play with her children.  Julia’s husband, Eric, who had always shared the household chores with Julia, was now forced to be both the household’s sole breadwinner and primary caretaker of the house and family.

Julia was devastated when her rheumatologist diagnosed SLE (lupus), an autoimmune disease.  Although Julia was upset that she would have to indefinitely postpone returning to the nursing work she loved, she assumed that she could at least receive Social Security Disability benefits.  This additional income would be critical, as Eric had to cut his own hours at work so he could spend more time at home caring for Julia and the household.  Also, Eric’s employer was cutting back on health insurance benefits for employees, and Julia would need the Medicare benefit that comes with Social Security Disability if she and Eric could no longer afford medical coverage.

Julia had heard from friends and colleagues, and had also seen for herself with some of her patients, that Social Security Disability benefits were routinely denied, particularly for workers under age 50.  However, she had also heard that applicants willing to persevere, especially with the help of a disability attorney, stood a good chance of ultimately being awarded those benefits.

Julia was shocked when, after having filed her online application with the Social Security Administration, going through five months of completing long and confusing forms, reminding her doctors to send their records, and submitting to several medical examinations with “Social Security” doctors, she received a “form letter” from the Social Security Administration telling her that her claim had been denied.  What Julia found particularly confusing and upsetting was not only wasn’t she “disabled,” but rather, that she was not properly “insured” for disability benefits.

What Julia encountered is, sadly, a problem I have come across hundreds of times.  Few applicants for Social Security Disability benefits are aware that the Social Security Act requires that, not only must a worker have accrued sufficient “quarters of coverage” through the payment of FICA taxes, but that there must also be sufficient recent earnings in order to be eligible for disability benefits.  In Social Security parlance, one must not only be “fully insured,” but must also be “disability insured” in order to be eligible for benefits.

This means that, if you are age 31 or older, you must have earned at least 20 “quarters of coverage” (QC’s) in the 40 calendar quarter period ending with the quarter in which disability is alleged/established.  (NB: “Quarters” are often referred to as “points” or “credits.”)  In 2011, a quarter of coverage is earned for every $1,120.00 of taxed earnings.  If you earn four times or more of the quarterly amount, four “QC’s” are received.  If you earn three times or more, but less than four times the quarterly amount, you receive three “QC’s.”  The same proportion exists for earnings being more or less than one, two, or three times the quarterly amount for each year.  No more than four “QC’s” can ever be earned for any year.

In Julia’s case, because she had not worked for earnings more than five years (20 “QC’s”) prior to her having become disabled, she was not “disability insured” and therefore was ineligible for Social Security Disability.