The SSA considers earnings to consist of the income earned from your job or your net income from self-employment. Earnings also include bonuses, commissions and vacation pay because they are relevant to employment. But pensions, investments and other retirement income are excluded.

If you are employed after you have attained full retirement age, your Social Security benefits can increase. The calculation of your Social Security benefits is based on the 35 years in which you earned the greatest amount of income. If your earnings past full retirement age replaces one of those 35 years, then the SSA will recalculate your benefits, and you could receive increased monthly benefits.

However, if you collect Social Security benefits prior to reaching full retirement age, and you keep working, then your benefits could be lowered. If you are under full retirement age for the whole year, the SSA will reduce your benefit payments by $1 for every $2 you earn in excess of the annual limit. In 2014, that limit was $15,480, and in 2015, it was $15,720.

In the year in which you attain full retirement age, the SSA reduces your benefits by $1 for every $3 you earn in excess of a different limit. In 2014, your earnings were limited to $41,400, but only the earnings prior to the month in which you reached full retirement age were counted. In 2015, your earnings were limited to $41,880.

The attorneys at Hook Law Center assist Virginia families with will preparation, trust & estate administration, guardianships and conservatorships, long-term care planning, special needs planning, veterans benefits, and more. To learn more, visit http://www.hooklawcenter.com/ or call 757-399-7506.

The SSA considers earnings to consist of the income earned from your job or your net income from self-employment. Earnings also include bonuses, commissions and vacation pay because they are relevant to employment. But pensions, investments and other retirement income are excluded.

If you are employed after you have attained full retirement age, your Social Security benefits can increase. The calculation of your Social Security benefits is based on the 35 years in which you earned the greatest amount of income. If your earnings past full retirement age replaces one of those 35 years, then the SSA will recalculate your benefits, and you could receive increased monthly benefits.

However, if you collect Social Security benefits prior to reaching full retirement age, and you keep working, then your benefits could be lowered. If you are under full retirement age for the whole year, the SSA will reduce your benefit payments by $1 for every $2 you earn in excess of the annual limit. In 2014, that limit was $15,480, and in 2015, it was $15,720.

In the year in which you attain full retirement age, the SSA reduces your benefits by $1 for every $3 you earn in excess of a different limit. In 2014, your earnings were limited to $41,400, but only the earnings prior to the month in which you reached full retirement age were counted. In 2015, your earnings were limited to $41,880.

The attorneys at Hook Law Center assist Virginia families with will preparation, trust & estate administration, guardianships and conservatorships, long-term care planning, special needs planning, veterans benefits, and more. To learn more, visit http://www.hooklawcenter.com/ or call 757-399-7506.

Retirement Savings

Worries about your 401(k) and other retirement plans become more immediate when you go through a divorce after retirement.  Be sure that your divorce attorney is familiar with working on QDROs or Qualified Domestic Relations Orders. This separate court order deals with how retirement benefits are split during a divorce.

Be sure to involve your retirement plan administrator so you fully understand the terms of your plan. Learn about tax penalties as well as breaks on these penalties, check on survivor benefits and whether those hold even post divorce, find out if you can take a hardship withdrawal when needed, whether you have entitlements on contributions made post divorce, and get clarity on other specific concerns you might have.  For civilians that had a spouse who served in the military, also find out if the military retirements benefits you had been getting when you were married will continue as part of the Survivor Benefit Plan.

Don’t forget to check if your spouse has loans on the 401(k) that will need to be paid off before the funds can be split.

Social Security

With things like Social Security, the rules are fairly clear cut, with details available on the SSA website. For marriages that are 10 years or over, where the surviving spouse is 60 plus, and the survivor’s own retirement benefits are lower than their spouse’s, they become eligible to receive survivor benefits of 100% against their ex’s Social Security benefit. While both partners are alive, for those aged 62 and up, you are eligible to get as much as 50% of your ex-spouse’s benefit without impacting their benefits.

Your Home

Divvying up proceeds from the sale of the family home or deciding which spouse gets to keep it can play out differently when you’re 50-plus. As you grow older, you get certain tax breaks from the government which could be a game changer. Exclusions from gains when you sell the home, as well as deductions on mortgage interest will also be critical factors when you’re a senior.

You also could potentially earn rental income by letting out your home, if you choose to move into a smaller place or a nursing home. After 62, you become eligible for a reverse mortgage that can get you an additional income stream. For anyone qualifying for receiving public benefits like Medicaid, having a primary residence works in your favor.

Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.

[An article originally published in the Straight Word, March 2016.]

By Thomas D. Begley, Jr., CELA

A Self-Settled Special Needs Trust is funded with the assets of the individual trust beneficiary. These trusts usually involve funds received as a result of a personal injury, inheritance, alimony, or child support. Under federal law, 1 a Self­Settled Special Needs Trust may be established by a parent, grandparent, guardian or court. In cases involving an adult with capacity court involvement is often unnecessary, so it is convenient to have the trust established by a parent or grandparent. In some states, such as New Jersey, it is possible to establish a “dry trust.” This means that the trust is established but not funded until a later date. In other states, a trust is not established until it is funded with at least a nominal amount of money. These are called “seed trusts.” In a strange but significant case,2 the parents of Stephany Draper sought to establish a self­settled special needs trust for a personal injury settlement that Stephany was receiving. Under the federal statute, a parent of the trust beneficiary is permitted to establish a self-settled special needs trust but the individual is not. Stephany was a competent adult who had executed a power of attorney appointing her parents as agents. The trust was funded by the personal injury settlement. It should be noted that Stephany’s parents did not use the power of attorney to establish the trust. The Social Security Administration (SSA) held the trust to be invalid. There could be no question but that Stephany is the type of person whom Congress intended to benefit from a self-settled special needs trust. What went wrong?

Generally, under traditional trust rules, a trust does not come into existence until it is first funded. The person who first funds the trust is considered the person who established the trust. However, some states, such as New Jersey, permit the establishment of a “dry” or “empty” trust, while other states require that a trust be seeded to be valid. These are called “seed trusts.”

When the parents established the trust, they made no reference to acting as agents under the power of attorney for Stephany. If they had been acting as agents, they would be acting on Stephany’s behalf and the trust would be invalid, because it would have been established by an individual. What the parents did not do was either recite its status as a dry trust and cite the statutory authority, or treat it as a seed trust and fund it with the parents’ money (i.e., $10). It is not entirely clear that treating the trust as a dry trust would have satisfied SSA. Had the parents paid the $10 into the trust, it is likely SSA would have recognized the trust as a valid trust. It should be noted that at the Hearing before the Administrative Law Judge, the Drapers did not rely on the fact that South Dakota permitted dry trusts.

In the appeal to the Federal District Court, counsel for the plaintiffs further confused the issue by stating that the trust is created by the funder and that the trust was funded by the parents using a power of attorney from Stephany. Under traditional trust doctrine, the person who first funds the trust is the establishor. The problem with plaintiff’s counsel’s argument is that if Stephany’s parents usecl a Power of Attorney from Stephany to fund Stephany’s trust, this would mean that Stephany funded the trust ancf was, therefore, the establisher. The Trial Judge noted that the amount of money placed in the trust was the exact amount of the personal injury settlement. This supported the argument of SSA that since Stephany’s money funded the trust, Stephany was the establisher of the trust and, thus, the trust was invalid. The court never determined whether South Dakota was a dry trust state or a seed trust state. The court found that Stephany’s trust was never an empty trust.

It was funded with Stephany’s money and, therefore, she was the establishor.

The Drapers could have avoided the problem had they funded the trust with $10 of their own money. They may also have avoided the problem if they had recited reliance on the South Dakota trust statute declaring that South Dakota recognizes dry trusts.

In the appeal to the 8111 Circuit, the issue was first funding. Unfortunately, the 8111 Circuit upheld the District Court with the result that Stephany’s trust was determined to be invalid, because it was established by Stephany. Essentially, the court held that the person who first funds the trust is the establishor of the trust.

So where does Draper leave us? At a recent conference at Stetson Law School, Ken Brown and Eric Skidmore, from the Social Security Administration (SSA), indicated that SSA is now taking the position that whoever first funds the trust is the establishor of the trust regardless of whether state law authorizes dry trusts. SSA trust reviewers are looking at trusts to determine if a parent deposited $10 or more of the parent’s money. One way to do this is to send Social Security a trust with a $10 bill attached. A better way would be to open a trust bank account with $10 and deposit that $10 before the personal injury settlement is deposited. It is always best practice in selecting a trustee for a First-Party or Third-Party Special Needs Trust to use a corporate fiduciary rather than an individual. The rules for administering these trusts are extremely complex. SSI and Medicaid rules change constantly, and individuals do not have the time or the expertise to keep up with these changes. Improper administration of a Special Needs Trust will cause SSI and/or Medicaid to declare the trust to be invalid. Failure to open a trust bank account with $10 and deposit that first and then deposit the personal injury settlement, may result in the trust being held to be invalid. This is one more technicality.

Although this raises another issue. If a Special Needs Trust is funded with the assets of a third party, it is a Third-Party Special Needs Trust. If a Special Needs Trust is funded with the assets of the beneficiary of the trust, it is a First-Party or Self-Settled Special Needs Trust. What Social Security is now requiring is a hybrid. The trust would be first funded with the assets of a third party (i.e., the parents) and then funded with the assets of the trust beneficiary; however, the trust would be considered a Self-Settled Special Needs Trust.

by Thomas D. Begley, Jr., CELA

In an important case arising in South Dakota, the parents of Stephany Draper established a Self-Settled Special Needs Trust into which Stephany’s personal injury settlement was to be deposited. Prior to that case, this had been a common procedure used all over the country. However, the Social Security Administration (SSA) contended that Stephany’s parents did not deposit any of their own money into the trust, but simply arranged for Stephany’s personal injury settlement funds to be deposited. Therefore, SSA held that since Stephany’s money was used to fund the trust, then Stephany was the person who established the trust and under federal law an individual is not permitted to establish a Self-Settled Special Needs Trust.

What is the solution to this dilemma? SSA is now taking the position that where a parent establishes a Self-Settled Special Needs Trust for a child, the parent must deposit some of the parent’s money into the trust. This could be a token amount (i.e., $10). The rationale is that the person who “first funds” the trust is the establishor. Some lawyers are simply attaching a $10 bill to the trust and sending a copy of the trust with a copy of the $10 bill to Social Security. Better practice would be for the parent to deposit $10 into a trust bank account before the personal injury settlement proceeds are deposited into the account. Copying a $10 bill does not mean that the $10 was used to actually fund the trust. The parent could take the $10 bill out of their wallet, photocopy it, send it to Social Security, and put the $10 bill back in their wallet. Depositing the money into a trust bank account is evidence that the $10 was actually deposited into the trust.

[This article was originally printed in the Straight Word, a publication of the Burlington County Bar Association.]

by Thomas D. Begley, Jr., CELA

Individuals with disabilities are often able to travel and take vacations. A special needs trust can pay for vacations, but there are different rules that apply to third-party special needs trusts as opposed to first-party special needs trusts with respect to these payments. First-party special needs trusts must adhere to the “sole benefit of” rule with respect to distributions for a trust beneficiary. This means that, generally, distributions can only be made for the benefit of the beneficiary. If others receive an incidental benefit, they must pay their pro rata share. The “sole benefit of” rule does not apply to third-party special needs trusts, so administration of these trusts is much easier.

An issue often arises as to whether the payment for a hotel room and food on a vacation, or for a state room and food on a cruise, constitutes payment for food and shelter and would be considered in-kind support and maintenance (ISM), which would reduce the trust beneficiary’s SSI payment.

POMS Considerations

Under the POMS, ISM the individual receives during a temporary absence is not counted.[1] However, it should be noted that during a temporary absence SSA continues to value ISM as if an individual were physically in his or her permanent living arrangement. So, if the trust were paying a person with a disability’s rent in an apartment, the rent would be considered ISM while the individual was temporarily absent, but the payment for the food and shelter on the cruise would not be considered ISM.

Payment of Travel Costs

One way for a trust to pay incidental vacation expenses is for the trust to pay the provider directly. This works very well where the resort is an all-inclusive arrangement. The other way to pay for incidental expenses is to have a co-traveler pay these expenditures and reimburse them from the trust.

There are a number of issues that arise with respect to trust payments for vacations for the disabled beneficiary.

Other Family Members

It is often difficult, if not impossible, for an individual with disabilities to travel alone. The issue arises as to whether the trust can pay for other family members to join the beneficiary on the vacation. The Social Security Administration (SSA) has taken the position, with respect to self-settled trusts, that the trust can only pay for a skilled health care–trained professional if a travel companion for the beneficiary is necessary.[2] If the trust is a third-party trust, the “sole benefit of” rule does not apply and payment for other family members can more easily be justified regardless of whether they are a “skilled healthcare-trained professional.” Very often, the person with disabilities does not need a skilled health-care trained professional. He simply needs someone to push his wheelchair or perform other non-professional tasks.

If a second travel companion is to be paid for by the self-settled trust, SSA has indicated informally that a letter from the beneficiary’s doctor that the travel companion is necessary may be required.

Appropriate

Another issue that might arise with respect to the distributions for vacation from a first-party special needs trust is whether the vacation is appropriate for the beneficiary’s special needs.

Expense

The trustee must determine whether the vacation is too expensive. Ideally, the assets in the special needs trust will last for the beneficiary’s lifetime. If funds are expended too rapidly for vacations or any other purposes, the funds may be exhausted prematurely. Factors to be considered in determining whether the expenses of a vacation are appropriate would be whether the beneficiary requires first-class air travel because of a need to spread out and proximity to restrooms. Handicap vans are often expensive, but may be an absolute necessity. Expenses can be controlled by avoiding expensive hotels and restaurants.

Spending Money

The trustee should require receipts for all purchases. If possible, credit cards might be considered.

Travel Ticket

The value of a ticket for domestic travel received by an individual (or spouse) is not a resource if the ticket is:

• Received as a gift;
• Not converted to cash; and
• Excluded from income per SI 00830.521.

The value of tickets for non-domestic travel received by an individual are a resource, unless the ticket cannot be sold or converted to cash due to restrictions placed on the ticket. For example, this means the ticket must be non-refundable.[3]

Special Vacations

In some cases, an individual with disabilities is able to take a vacation but they require non-family supervision. There are companies that offer vacations for individuals with developmental disabilities and other special needs. Many of these vacations are supervised tours. Some companies will even design custom travel packages for group travel for organizations or other affinity groups. These tour companies attempt to offer vacations ensuring a safe environment with emphasis on inclusion. The trips promote integration, socialization, friendship and fun for the travelers with disabilities. Many special needs tours are all inclusive, so that the special needs trust simply pays the tour operator and the distributions are not included as income to the beneficiary of the special needs trust.

Generally, the groups tend to be small so that there is a good ratio between chaperones and special needs travelers. The travel escorts usually consist of social workers, teachers, group home and day program counselors, and other caring individuals. The staff is trained to work with individuals with developmental disabilities and special needs travelers. One such organization offering these tours is:

Exceptional Vacations
P.O. Box 970220
Coconut Creek, FL 33097
Phone: (866) 748-8747
Email: info@exceptional-vacations.com
Web site: www.exceptional-vacations.com

[1] POMS SI 00835.040 2.

[2] Medicaid Trust Exceptions & Supplemental Security Income (SSI), Mandy Stokes, SSI Policy Expert, Philadelphia Regional Office, Social Security Administration, 2013 Trustee School, Begley Law Group, Philadelphia, Pennsylvania, October 25, 2013.

[3] SI 01120.150.A.

by Thomas D. Begley, Jr., CELA

This is the first part of a two-part article on distributions from special needs trusts for caregivers. It is often necessary for a family to hire a caregiver to assist in providing care for a child, even an adult child, with disabilities. The special needs trust can pay for this care, but certain rules must be followed. There are a number of considerations when a trustee hires a caregiver for the beneficiary with disabilities. Certain rules pertain whether the caregiver is a family member or not.

Insurance

One consideration is insurance. Whenever a trust employs a caregiver, whether it be a parent or other family member or even a non-family member, insurance is an important consideration. Worker’s compensation insurance should always be considered where a caregiver is being employed. If the caregiver suffers an injury in the course of employment, the trust will be responsible. Worker’s compensation insurance makes sense. Casualty insurance is usually not an issue. However, where an outside non-family caregiver is employed, casualty losses from theft may result and appropriate insurance should be obtained.

Wage and Hour Laws

Wage and hour laws must be considered in setting payment for caregivers.

Withholding

There is an issue as to whether the caregiver is an employee or an independent contractor. If the caregiver is an employee, there must be withholding for FICA and FUTA. No such withholding is required for an independent contractor. The trust may consider employing a payroll service to administer payment to the caregiver. Caregivers often want to be paid “under the table.” It goes without saying that a trustee should always resist these requests. Significant factors in determining whether the caregiver is an employee or independent contractor include:

• Instructions. Is the worker required to comply with the other person’s instructions with respect to when, where and how the work is to be performed?
• Personal Service. Are the services to be performed personally or can they be sub-contracted?
• Continuing Relationship. Is the relationship between the worker and the person being cared for continuing?
• Work Hours. Is the worker required to work set hours?
• Payment. Is the worker paid by the hour, week or month?
• Realization of Profit or Loss. Can the worker realize a profit or loss on an individual transaction?
• Right to Discharge. Can the worker be discharged? If so, he or she is likely an employee.

Agency

It is almost always good practice for the trust to employ any non-family caregivers through an agency. It is a little more expensive to use an agency, rather than deal direct with a potential caregiver, but the agency has the responsibility of supervising the caregiver and paying taxes. The agency will be responsible for withholding and for worker’s compensation insurance.

Distributions to Parent as Caregiver

Most families prefer to keep their family members with disabilities at home and to keep the family intact. This is usually in the best interest of the special needs trust beneficiary. Family members are often in the best position to provide the care required by family members with disabilities. Many family member providers make significant sacrifices with respect to their careers and outside commitments. Providing care for the disabled family member becomes a life-long priority. Compensating the family caregiver from the self-settled special needs trust is often the only way that a family member is able to provide the necessary care. In many situations, the family caregiver must give up outside employment to provide this care. However, distributions from a special needs trust, especially a self-settled special needs trust, to a parent serving as a caregiver for a child with disabilities is fraught with problems. Trustees must carefully read the language of the trust document with respect to authorizing the trustee to make distributions for the beneficiary’s personal care needs. A properly drafted special needs trust should include language authorizing the trustee to retain the services of family caregivers. In the New York Region, which includes New Jersey, SSA is now taking the position that it is a violation of the sole benefit of rule for a first-party special needs trust to pay a family member as a caregiver unless the family member is “medically trained.”

It should be noted that if a trust beneficiary is receiving only medical benefits under a Medicaid Waiver Program, these restrictions may not apply. For example, the Pennsylvania Department of Public Welfare (DPW) has indicated that it will not require training of family caregivers until the POMS are changed. Central Office did not indicate what is needed to document care-giver credentials. The Support Team suggested common sense be used and that the caregiver parent be trained appropriately. One factor that some State Medicaid Agencies consider is whether the parent left his/her job to care for the trust beneficiary.

An issue arises as to whether a special needs trust can pay for a family member’s expenses in receiving medical training to serve as caregiver. At least in the New York and Philadelphia Regions, the answer to that question is “no.”

The next issue is what is the effect of a distribution to a non-medically trained family caregiver? Is the distribution unearned income? Is it a transfer of assets? In the New York and Philadelphia Regions, the answer is that such a distribution violates the sole benefit of rule and renders the trust invalid.

NOTE:  As of this writing, SSA is reexamining its position with respect to payment of family caregivers and its final position is not yet clear.

Training

Is the proposed family caregiver trained to provide the services that are required by the person with disabilities? If no, the family member must receive training and even certification to perform these services. There are individuals available, usually nurses, who will visit the family home and provide the necessary training. Since the trust cannot pay for this training, the parent usually makes payment out of the caregiver payments received by the parent.

[This article was originally printed in the Straight Word, a publication of the Burlington County Bar Association.]

FACT GUIDE FOR NATIONAL TRUST TRAINING:  THE IMPACT ON SPECIAL NEEDS TRUSTS

by Thomas D. Begley, Jr., CELA

The Social Security Administration (SSA) has divided the country into ten Regions. Historically, each Region has had one individual primarily in charge of reviewing special need trusts. Trusts in New Jersey are reviewed by the New York Region. Trusts in Pennsylvania are reviewed by the Philadelphia Region. About a year ago, SSA decided to train additional individuals to review these trusts. A team of seven SSA trust experts developed a training manual known as the “Fact Guide for National Trust Training” (the Guide). While the Guide was dated December 16, 2013, it was not released until April 23, 2014. The Guide probably raises more questions than it answers. These are particularly important as to how first-party special needs trusts will be reviewed by the new trust reviewers. Caution: train wreck ahead.

Legislative History

On October 1, 1993, President Clinton signed OBRA ’93, a portion of which dealt with the establishment of special needs trusts for individuals with disabilities.[1] The statute stated that assets contained in clearly-defined trusts were not to be counted as assets of the individual for Medicaid eligibility purposes and transfers to those trusts were exempt from the Medicaid transfer of asset penalties. The language in the statute is as follows: “A trust containing the assets of an individual under age 65 who is disabled (as defined in §1382c(a)(3) of this Title) and which is established for the benefit such individual by a parent, grandparent, legal guardian of the individual, or a court, if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.”[2] The statute also contained language authorizing pooled trusts operated by non-profit organizations so long as a separate account is maintained for each beneficiary, but for purposes of investment and management of funds the trust pools these accounts, and the accounts are established solely for the benefit of the individual by a parent, grandparent, legal guardian of such individual, by the individuals, or by a court. The section further provides that to the extent amounts remaining in the beneficiary’s account upon the death of the beneficiary are not retained by the trust, the trust pays to the state from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary.”[3]

In 1994, CMS (then known as HCFA) issued HCFA Transmittal 64. Essentially, this document repeated the language in the statute with respect to special needs trusts.[4] In 1999, Congress again acted by adopting the Foster Care Independence Act[5] and essentially applied the provisions of 42 U.S.C. §1396p(d)(4)(A) & (C) to SSI.[6] Subsequently, SSA issued guidance in the Program Operating Manual System (POMS). The most recent revision is effective May 14, 2013.[7]

Purpose and Outline of the Guide

The purpose of the Guide is to train the new SSA trust reviewers. The Guide is divided into eleven sections:

1. Key players involved in a trust
2. Trust policy
3. Basic trust identifiers
4. Revocable vs. irrevocable
5. Common types of trusts
6. Exceptions to counting self-funded trusts as resources
7. Helpful reference tools to determine if the trust is a countable or excluded resource
8. Additional trust considerations
9. Disbursements
10. Role of the public/attorneys
11. Reminder items and documentation

Conflicts Between The Current Law And The Guide

Structured Settlements

The first conflict appears to be in Section F 1 b of the Guide that states that additions/augmentations to a trust at/after age 65 would violate the rule that requires assets to be transferred prior to the individual attaining age 65. While the Guide sets forth the exceptions, including interest, dividends, and other earnings of the trust, it does not mention payments under a structured settlement. The POMS specifically authorizes such payments after age 65, so long as the structure was in place prior to age 65.[8]

Early Termination

Section F 1 d conflicts with the POMS in that the Guide provides that the special needs trust exception does not apply if the trust allows for termination of the trust prior to the individual’s death and payment of the principal/corpus to an individual or entity (other than the state). While this is not a serious conflict, the POMS provide that a special needs trust may contain an early termination provision, so long as after repayment to the State for all medical assistance previously paid no entity other than the trust beneficiary[9] may benefit from early termination. This is less a conflict than language that is likely to cause confusion, unless clarified.

Court-Established Trusts/Petitions

The biggest problem in the Guide section entitled “Who can establish the trust?”[10] The Guide states creation of the trust may be required by a court order. This is consistent with the POMS. It would appear from this language that the court order can incorporate the trust by reference, so long as the word “required” is used in the order. Good practice would dictate that the same word be used in the trust document. The potential pitfall is who may petition the court to create a trust for the beneficiary? The Guide states that if an “appointed representative” petitions the court to create a trust for the beneficiary, the trust would be invalid. Normally, either the Personal Injury attorney or the Trust attorney petitions the court for approval of the trust. Does this render the trust invalid? If so, who else could petition the court for approval? Would a guardian ad litem meet the tests? How about the trustee? The attorney for the defendant? Or is there any other person? If a homeless person was offered $100 to petition the court, would that make the homeless person an “appointed representative” and render the trust invalid? The author has requested clarification from SSA and is awaiting a response.

Medicaid Payback/Administration Fees and Costs

The final area of conflict is Medicaid reimbursement. The Guide states that “the only items that may be paid prior to the Medicaid repayment on the death of the beneficiary of the trust are taxes due from the trust at the time of death and court filing fees associated with the trust. This clearly violates the POMS,[11] which states that upon the death of the trust beneficiary the trust may pay prior to Medicaid reimbursement taxes due from the trust to the State’s or federal government because of the death of the beneficiary AND reasonable fees for administration of the trust estate such as an accounting of the trust to a court, completion and filing of documents, or other required actions associated with the termination and wrapping up of the trust.

With respect to pooled trusts, the same conflicts appear to arise.

Conclusion

While the purpose of the Guide is to train more field workers to be available to review trusts with certain expertise, it would appear that there will be a tremendous amount of confusion if those newly-trained field workers are not also aware of the language contained in the statutes, HCFA Transmittal 64, and the POMS.

[1] 42 U.S.C. §1396p(d)(4)(A) & (C).

[2] 42 U.S.C. §1396p(d)(4)(A).

[3] 42 U.S.C. §1396p(d)(4)(C).

[4] HCFA Transmittal 64 §3259.7 A & B.

[5] 42 U.S.C. §1382b.

[6] 42 U.S.C. §1382b(c)(1)(C)(iv) & 42 U.S.C. §1382b(e)(5).

[7] POMS SI 01120.203.

[8] POMS SI 01120.203.B.1.c.

[9] POMS SI 01120.199.F.

[10] Section F 1 e 3.

[11] POMS SI 01120.203.B.1.h. and 203B.3.a.

The Social Security Administration should have reason to celebrate. After all, August 14, 2014, marked the 79th anniversary of the day when President Franklin Roosevelt signed the Social Security Act, which ushered in the landmark entitlement program. However, the agency’s birthday was a less than cheerful one, coming on the heels an audit that criticized the SSA for deciding to cut staffing and reduce its service hours as well as the news that its new multimillion-dollar computer system may very well have turned out to be an expensive failure.

According to the audit that was produced by the SSA’s own inspector general’s office, “overall service has suffered” because of the agency’s decision in 2011 to trim its staff by nearly 11,000 employees and reduce its weekly field office hours from 35 to 27. The audit found that the end result of the agency’s cutbacks was felt as soon as fiscal year 2013, when “the public waited longer for a decision on their disability claim, to talk to a representative on the National 800-Number, and to schedule an appointment” at a field office. (1)

The process of applying for Social Security disability benefits is already an exercise that can take a significant amount of time and become rather complex. The inspector general’s findings are not welcome news for disabled Americans who need a speedy resolution of their claims. In addition to the critical assessment from the inspector general’s office, an internal report recently concluded that the SSA’s new $300 million computer system that was designed to handle its disability claims does not work. The agency laid the groundwork for the new system six years ago, when its aging computers were being swamped by disability claims, but the report found that delays and mismanagement have plagued the new system. And SSA officials have not been able to provide an answer for when the new system will be up and running. (2)

The Social Security Administration may have thought that its new computer system could make up for its decision to cut back service, but that assumption would have been dependent on the system actually working. Instead, already long wait times for the processing of disability claims will get even longer. Also, SSA has attempted to thwart phone applications by not advertising such are available and at times tell claimant’s the only two avenues to apply are on the computer or a personal appearance at the local SSA office. It is clear the phone application is the easiest for the public, but the “consumer” being right has fallen on deaf ears in most SSA offices.

www.FloridaSocialSecurity.com

David W. Magann, P.A.

813-657-9175

Sources: (1) The Washington Post 2014, (2) The Associated Press 2014

New York State residents who receive Supplemental Security Income (SSI) also receive a state supplement.  For 2014, the maximum federal SSI amount is $721 and the NYS supplement is $87 bringing the maximum SSI benefit to $808 per month.  At this time, New York State residents receive these benefits in one payment from the Social Security Administration (SSA), usually direct deposited into the recipient’s bank account.  Starting October 1, 2014, New York SSI recipients will receive their federal SSI benefit and the state supplement benefit separately.  The reason for this change is because New York State will realize significant savings by administering the state supplement benefits directly instead of paying the SSA to administer this program on its behalf.

The New York State Supplement Program, Bureau in the Center for Employment and Economic Supports within the NYS Office of Temporary and Disability Assistance (OTDA) will be responsible for administering this benefit. All business will be conducted by telephone, fax or mail only. There will not be walk-in offices to handle questions or requests. A customer support center with a toll free number will be available to assist recipients and is expected to be available starting August 2014.

The only change NYS SSI recipients will notice is that they will receive two monthly payments instead of one.  NYS SSI recipients will receive their state supplement benefits in the same manner that they receive their SSI benefit. Direct deposits will go into the same account and payments will be issued on or before the first of each month.  Starting in August 2014, NYS SSI recipients should receive notice by the State Supplement Program Bureau of this change. If the recipient has a representative payee for SSI purposes, this payee will remain the same for the state supplement benefit.

For more information please visit http://otda.ny.gov/programs/ssp/.

The Social Security Disability Benefits Reform Act of 1984 (“DBRA 1984”) was passed by a unanimous, bipartisan vote in the House and Senate (99-0) in September 1984. President Reagan signed the law on October 9, 1984, when it became Pub. L. No. 98-460. One of the main provisions required “medical improvement” before benefits could be terminated where years prior SSA was arbitrarily terminating benefits under false medical assumptions, specifically of those claimant’s with mental disabilities.

The Medical Improvement Review Standard:

Under Section 2(a) of DBRA 1984 sets forth the medical improvement review standard (MIRS): SSA shall terminate disability benefits only if such finding is supported by substantial evidence which demonstrates that there has been any medical improvement in the individual’s impairment or combination of impairments (other than medical improvement which is not related to the individual’s ability to work), and the individual is now able to engage in substantial gainful activity. 42 USC sections 423(f)(1) and 1382c(a)(4)(A). ”Medical improvement” is any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. 20 CFR sections 404.1594 and 416.994. SSA will only consider the impairments that the individual had at the time of the last disability decision, and not those which have developed since that time. However, SSA will consider any new impairments when it assesses whether the person is now able to engage in substantial gainful activity (assuming medical improvement of prior impairment(s) is found) under the second prong of the statutory standard. SSA will find that there has been medical improvement if only one impairment has improved, even if another impairment(s) present at the time of the most recent favorable decision has worsened. There are exceptions such as fraud where SSA can immediately terminate benefits and where SSA finds and obvious error, such as the misapplication of the rules, missing evidence, etc., SSA may “reopen” the matter for further adjudication.

As a claimant who was awarded benefits it is important, not only for your personal well being to see your treating doctors regularly, but to understand that you will be reviewed via SSA. No medical treatment usually equals “medical improvement”. If a “cessation of benefits” does occur you should immediately seek an experienced attorney.

David W. Magann, Esq.

USMC Veteran

David W. Magann, P. A.  Attorneys at Law Phone: 813-657-9175    156 W. Robertson St., Brandon, FL  33511

www.DavidWMagann.com Lakeland Ph.: 863-802-8060

The post SSA is Ramping Up Disability Reviews in 2014 first appeared on SEONewsWire.net.]]> http://www.seonewswire.net/2014/02/social-security-expands-list-of-conditions-eligible-for-fast-track-benefits-approval/ Wed, 19 Feb 2014 05:00:59 +0000 http://www.seonewswire.net/2014/02/social-security-expands-list-of-conditions-eligible-for-fast-track-benefits-approval/ The Social Security Administration (SSA) recently announced an expansion to its list of Compassionate Allowances conditions. The Compassionate Allowances program affects those applying for Social Security Disability Insurance who have certain very serious illnesses or disabilities. Benefit determinations for those…

The Social Security Administration (SSA) recently announced an expansion to its list of Compassionate Allowances conditions.

The Compassionate Allowances program affects those applying for Social Security Disability Insurance who have certain very serious illnesses or disabilities. Benefit determinations for those applicants are expedited, and the SSA typically renders its decisions in days (instead of months or even years).

The SSA announced 25 new additions to the list, including 12 cancers, bringing the total number of its conditions to 225.

In a statement, Acting Commissioner of Social Security Carolyn W. Colvin said, “Social Security disability benefits are a vital lifeline for individuals who are facing severe diseases, and we must ensure that they receive the benefits they rightly deserve.”

The SSA has held public outreach hearings in order to get feedback on the determination of the conditions best suited to the Compassionate Allowances program. To date, the program has helped nearly 200,000 severely disabled people get quick approval for disability benefits.

Contact a Virginia elder law attorney at Hook Law Center by visiting http://www.hooklawcenter.com/.

The Social Security Administration (SSA) recently announced an expansion to its list of Compassionate Allowances conditions.

The Compassionate Allowances program affects those applying for Social Security Disability Insurance who have certain very serious illnesses or disabilities. Benefit determinations for those applicants are expedited, and the SSA typically renders its decisions in days (instead of months or even years).

The SSA announced 25 new additions to the list, including 12 cancers, bringing the total number of its conditions to 225.

In a statement, Acting Commissioner of Social Security Carolyn W. Colvin said, “Social Security disability benefits are a vital lifeline for individuals who are facing severe diseases, and we must ensure that they receive the benefits they rightly deserve.”

The SSA has held public outreach hearings in order to get feedback on the determination of the conditions best suited to the Compassionate Allowances program. To date, the program has helped nearly 200,000 severely disabled people get quick approval for disability benefits.

The post Social Security Expands List of Conditions Eligible for Fast-Track Benefits Approval first appeared on SEONewsWire.net.]]>

Occupations: When considering an applicant for SSDI, the agency must evaluate the applicant’s employment prospects. Currently, it tasks vocational experts to match the applicant with potential occupations. But these experts are supposed to use a “dictionary” of occupations that has not been updated since 1991. It still includes anachronistic occupations like “blacksmith,” and, more importantly, it does not reflect the technology boom of the past twenty years. Numerous jobs working with computers are well-suited to physically disabled individuals. Rewriting the dictionary is a huge job that may not be completed until 2016 at the earliest.

Grid Use: Administrative law judges who rule on SSDI applications use a decision-making tool known as the “grid” to help them decide whether an applicant qualifies for benefits. It accounts for age, education, disability and other factors. But like the occupation dictionary, the grid has not been updated in years, and it does not reflect the ability of some people to work productively into advanced ages. Additionally, some judges believe it is too easy for lawyers and other experts to tailor applications to the grid so that an award of benefits is more likely.

Disclosure: Currently, SSDI attorneys may withhold medical records that weaken a client’s case for disability benefits from submissions. Many believe that this practice should not be allowed, and some claim the SSA has backed down from pressure against implementing a rule against it in the past. An agency official recently stated the SSA would soon propose a rule preventing the withholding of relevant information from applications, but the official would not elaborate on the nature of the proposal.

Caseload: To deal with large case backlogs, some judges have, in recent years, handled upwards of 1,000 cases per year. Many judges claim due diligence on so many cases is impossible. The agency has now placed a cap of approximately 800 cases per year for each judge.

Third-Party Groups: The SSA and its inspector general are investigating whether doctors and lawyers are facilitating fraud in disability applications. This investigation only began recently, and no targets or findings have yet been identified.

Judges’ Job Description: It is very difficult for SSA judges to be removed from their positions. For some, the post amounts to a lifetime appointment. But the agency is changing the job description to clarify that judges are subject to supervision and to oversight from various parties. The SSA has also intensified scrutiny over the judges’ casework and can recommend additional training for those whose results (e.g. the percentage of applications approved) fall outside the norm.

As the SSDI continues to grow, it is important to keep the program modern and to remain vigilant against fraud so that the benefits of future, worthy applicants are not endangered.

Alston & Baker, an Affiliation of Professional Associations: The Law Office of Robert C. Alston, Esq., P.A. and The Law Office of Marcie L. Baker, Esq., P.A. To contact a social security attorney call 1.888.500.5245 or visit http://www.alstonbakerlaw.com.

The Social Security Administration (SSA) has begun processing benefits claims for surviving spouses of same-sex marriages.

On December 16, 2013, the SSA released a statement from Acting Commissioner Carolyn W. Colvin confirming that such claims had begun to enter processing that same day. Claims from widows and widowers of legally-married, same-sex couples were being processed, as were one-time, lump-sum death benefit claims.

Colvin asked the public for “continued patience” while policies concerning same-sex couples are developed and implemented.

In June 2013, the U.S. Supreme Court invalidated the section of the Defense of Marriage Act that denied federal benefits to same-sex couples who were legally married under state laws.

Since then, various federal agencies have been hashing out exactly how to rework policies to reflect the ruling. The SSA encourages those who believe they may be eligible for benefits to apply as soon as possible in order to protect against the loss of potential benefits.

Contact an estate planning lawyer at the Hook Law Center.

On June 26, 2013, the Supreme Court invalidated Section 3 of DOMA, which denied federal benefits to legally married same-sex couples. On August 9, 2013, the SSA issued a statement from Carolyn W. Colvin, acting commissioner, announcing the administration “is now processing some retirement spouse claims for same-sex couples and paying benefits where they are due.” The statement encouraged all individuals who believe they may be eligible to apply for Social Security benefits.

Most same-sex couples who are married reside either in the state in which they married or another state that recognizes their marriage. Others relocated after marrying to states that do not recognize their marriage. For now, it is only certain that the former group will be eligible for federal benefits. It remains to be seen whether those in non-recognizing states will receive equal treatment by the federal government.

President Obama weighed in following the Supreme Court ruling, saying, “It’s my personal belief – but I’m speaking now as a president as opposed to as a lawyer – that if you’ve been married in Massachusetts and you move someplace else, you’re still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple.”

The elder law attorneys at Hook Law Center assist Virginia families with will preparation, trust & estate administration, guardianships and conservatorships, long-term care planning, special needs planning, veterans benefits, and more. To learn more, visit http://www.hooklawcenter.com/ or call 757-399-7506.

Last year’s day-long event hosted over 400 elder law attorneys and professionals, who gathered to learn about the latest changes in elder law as well as gain practical insights from fellow elder law professionals.

Mr. Begley will speak at two different sessions including a presentation about the impact of the Affordable Care Act and SSA policy changes on Special Needs Trusts.

Other topics at the Institute include Medicaid estate recovery, long term care planning for married couples and Social Security 101.

For more information about this evet, visit the Pennsylvania Bar Institute web site.

To that end, the Social Security Administration (SSA) encourages its administrative law judges (ALJs) to hear between 500 and 700 claims each year – they call the numbers a “goal.” But some judges claim that the numbers constitute an unlawful “quota.” And now the judges are taking the SSA to court.

The Association of Administrative Law Judges (AALJ) recently filed suit on behalf of 1400 of its members, claiming that the SSA’s expectations cause them to have to improperly rush evaluations. It also creates an incentive to approve cases because approvals are faster than denials. This leads to the potential approval of claims that should be denied, which results in greater fraud, abuse, waste, and expense to taxpayers, the judges say. Their specific legal allegation is that the agency’s directive violates the Administrative Procedure Act and the Social Security Act. They also claim, contrary to the agency’s statements, that judges who do not hear enough cases are subject to reprimands, “counseling,” and “threats and intimidation,” according to the lawsuit.

SSA Commissioner Michael J. Astrue, who was appointed by President Bush, stepped down in February, 2013. President Obama has not yet named a successor – the agency is currently headed by acting commissioner Carolyn Colvin, a former secretary of the Maryland Department of Human Resources. Judge Randall Frye, president of the AALJ, says a lack of permanent leadership may be contributing to the problem.

“One way to protect the treasury and help deserving claimants is to end the quota system,” Frye said. “However, an acting commissioner may not feel that she has the authority to make the necessary changes and correct problems.”

Meanwhile, the Disability Insurance Trust Fund, from which disability benefits are paid, is currently paying out more than it is taking in. It is projected to reach zero in 2016. If that were to happen, it would result in an immediate 21 percent cut in benefits to nearly 11 million Americans with disabilities.

Disability insurance, like most government programs these days, faces intense budgetary pressures. Even in good economic times, ALJs will scrutinize disability claims to make sure taxpayer money is not wasted. If you are disabled, it pays to have an experienced Social Security Disability attorney on your side to get you the benefits you deserve in a timely manner.

Alston & Baker, an Affiliation of Professional Associations: The Law Office of Robert C. Alston, Esq., P.A. and The Law Office of Marcie L. Baker, Esq., P.A. To contact a social security attorney call 1.888.500.5245 or visit http://www.alstonbakerlaw.com.

Disabled individuals who cannot work are entitled to Social Security disability benefits, but the process of applying can be lengthy and difficult. The majority of applicants are denied benefits at the outset, and they may be uncertain of how to proceed.

When we discuss Social Security disability benefits, we are talking about two different programs. Social Security Disability Insurance (SSDI) is available to people who have paid into the Social Security system through taxes during the 10 years before they became disabled. Supplemental Security Income (SSI) is available for people who have not paid enough into the system to be eligible for SSDI. To be eligible for either type of benefits, one must be “unable to engage in any substantial gainful activity” – i.e. “work” – because of a “medically determinable” disability lasting one year or more or expected to result in death. The questions of whether or not an individual is disabled and whether or not he or she can work are the key factors in determining eligibility for benefits.

The first stage in the process is the initial interview. A disabled individual may contact the Social Security Administration (SSA) to set up an appointment. One must have been disabled for five months before applying for SSDI benefits; there is no waiting period for SSI benefits. An applicant should bring two forms of identification to the interview, and any medical records that provide evidence for the disability. If there are records the person has not obtained, he or she may sign a medical records release form permitting the SSA to obtain them. If an individual is not able to go to a Social Security office, he or she may conduct the interview by telephone or appoint another person such as a family member to represent the disabled person at the interview. The process of deciding on the application takes from three to six months.

The majority of claims are denied at the initial application stage, but this should not deter disabled individuals from continuing with the process. Often a denial is the result of insufficient records or information that has not been presented persuasively. The second stage of the process is a request for reconsideration, which also involves an interview and the submission of any additional evidence. If the request is denied, then the third stage is to file for a hearing before an administrative law judge. An attorney can assist an applicant at any stage of the process; at the hearing stage and beyond, such assistance may be invaluable.

At an administrative hearing, the disabled person may present the testimony of witnesses and any other additional evidence. The government may also hear the testimony of a vocational expert and/or a medical expert who will offer their expert opinions regarding whether the applicant is disabled and whether he or she is unable to work. If the applicant is unsuccessful at this stage, he or she may file a claim with the Appeals Counsel Review Board. If the appeal is denied, then the last option is a civil lawsuit in District Court.

At any stage at which the benefits are granted, they will be retroactive to the date of the original application. If it is determined that the disabled individual is not able to handle the cash benefit appropriately, then a representative payee will be appointed to handle the money for the disabled person’s benefit.

For more information about disability law, visit www.specialneedsnewyork.com.

There are many lawyer representatives which can provide a realistic analysis and help in your Social Security Disability claim. Also there is a governing body in each lawyer’s state who can take real action in case the lawyer misrepresents himself/herself. On the contrary, non-lawyers have little regulation, educational requirements, and no license is required. Being “certified” as a non-lawyer is taking a couple hour test via SSA which does not give any oversight to actual educational requirements besides passing a singular test.

It is easy to be mislead by a multitude of the non-lawyer advertising in the Social Security Disability process, just don’t make the mistake of being fooled by absurd success rates.

David W. Magann, Esq.

USMC Veteran

www.TampaVeteransLawyer.com

813-657-9175

SSA has recently changed its policy regarding the availability of the annual Social Security Statement. Effective May 1, 2012, SSA will begin to provide real-time online access to the Statement with the release of the new “MySocialSecurity” portal, www.socialsecurity.gov/mystatement. In March 2011, due to budget issues, SSA suspended the mailing of all annual Social Security Statements and disabled the online and automated telephone service for requesting the Statement. It also discontinued the use of Form SSA-7004 (Request for a Social Security Statement). In February 2012, SSA resumed the mailing of the Statement, but only to workers age 60 or older.

SSA will offer the revised Form SSA-7004 (Request for a Social Security Statement) only to individuals unable to access their Statement online, either because of the inability to register for the MySocialSecurity account or to access any online services. In those situations, access to the SSA-7004 will be available by contacting the local SSA.

More information is available in Emergency Message EM-11021 REV2 (Eff. Date 5/1/2012), https://secure.ssa.gov/apps10/public/reference.nsf/links/05012012024529PM.

Any self employed person has a duty to report ANY and ALL work activity to SSA. Beware, often the Office of Inspector General (OIG) (investigative unit for SSA) will follow or use surveillance on an SSA claimant who was or is currently engaged in self employment work. Do not take a chance, assume you are being watched. Report all work activity to SSA in writing via U.S. Certified Mail. Obtain legal counsel for specifics on what the reporting should consist of to the SSA.

The interplay of the 12 consecutive month rule, meaning you have not engaged in SGA work activity over 12 consecutive months, and those “self employed”, is a SGA minefield for not qualifying for disability benefits. In general, those “self employed” claimants who go before a Judge must provide a monthly breakdown of an income and loss statement, provide details on the type of business, volume of business, and with specific regard, as to the “significant services” (services rendered rule) you the claimant/worker performed. The Judge must also consider the comparability and worth of the work.

The above details are a minefield which can be easily avoided. Simply do not engage in self employed work while your Social Security Disability claim is pending. If you have an incorporated business you should resign all officer positions. In Florida see, www.sunbiz.org if you are not sure about being an officer of the corporation. Holding stock in a corporation, closely held or otherwise does not impute “self employment” in and of itself. Self employment work is detail specific. If you are answering a phone for a business, this is indicative of work activity. Arranging deliveries, setting up work or jobs for another, scheduling deliveries of business related goods, etc., are examples of engaging in work activity. Do NOT split hairs in regards to self employment work. For example, a claimant may have a spouse or relative in the house who is self employed. The claimant must not “help” the spouse or relative with anything for the business enterprise. That spouse or relative is not to depend on a Social Security Disability claimant who alleges “total disability”. Common sense should be utilized. In the end, obtain an actual attorney, do not hire a law firm from the television, many send non-attorneys to your hearings which is not fully disclosed to you. Do your research, hire an attorney who will see you in person and can discuss the law of SSA’s self employment rules.

For more information please contact:

David W. Magann, Esq.

Although there can be experienced and non-experienced representatives in both realms of attorney and non-attorney representation the problems is that non-attorney representation has a weak baseline standard and is virtually unregulated. Attorneys as a group have undergone the greatest, training, education and testing  standards of higher education available. The GAO in their 2007  Report found the SSA standard for a non-attorney representative as the following: 

“[SSA] currently allows nonattorneys who have represented as few as five disability claims before SSA over a 2-year period to qualify for fee withholding. Most judges we interviewed and more than half of the eligible nonattorneys considered this insufficient. And, according to an association of representatives, fee withholding is attracting more inexperienced nonattorneys to the field of disability representation….”

As stated in prior blogs repeatedly, ask your representative the following questions:

1. Will you be at my hearing and have you been to over 1,000 SSA hearings?

2. Will you be writing a prehearing brief with a chronological history of my medical records for submission to the hearing Judge?

3. Will you meet with me well before the day of the hearing to review the documents in my file and go over my testimony?

4. Will you obtain and purchase medical records before my hearing?

5. Will you contact each of my doctors with a questionnaire about my restrictions?

If your representative can not say YES to these basic questions you should find one who can.

Call 813-657-9175 for more information. www.TampaSSA.com

www.TampaVeteransLawyer.com

In general, Adult “Child Disability Benefits” retroactivity is determined in the following manner:

If the wage earner (the parent in this claim) is disabled, the application for adult-childhood disability could pay 12 months before the date of application but not before the wage earner’s onset (disability) date. 20 CFR §§ 404.620(a), 404.621(a)(1). If the wage earner is deceased or retired, the application for adult-childhood disability could pay 6 months before the date of application but not before the wage earner’s retirement entitlement date, in this case the “full retirement” date, age 65, considering the wage earner’s DOB which is in 1946. 20 CFR § 404.621(a)(2).

Also a key consideration is the calculation of the benefit amount:

If the wage earner is alive, the disabled adult child is entitled to 50% of the wage earner’s primary insurance amount (monthly benefit), subject to the family maximum. If the wage earner is deceased 75% of the wage earner’s primary insurance amount (monthly benefit), subject to the family maximum. 20 CFR § § 404.353, 404.304, 404.403.

As always we recommend that you find an experienced attorney in the matters above to represent you in your Social Security claim. The key considerations are the difference in obtaining thousands of dollars in benefits rightly owed. Just because you received an Award from SSA does not mean that its correct. In this case there was only 60 days to appeal the Award and the non-attorney failed to recognize the error. A second opinion from an actual attorney made all the difference. For more information please contact us at 813-657-9175.

Often, upon review of the hearing transcript an ME’s appearance and testimony goes uncontested via an inexperienced representative especially in the case of non-attorneys and those “last minute” day of the hearing representatives.

Some basic tips regarding the appearance of the ME are the following:

1.) If the ME appears by telephone object to phone testimony. Would a doctor diagnose or review a patient over the phone without seeing that person?

2.) If no Notice of a ME appearance by phone, object.

3.) If no Notice of a ME appearance, object.

4.) If the ME is an internist and is testifying regarding an orthopaedic condition then object. This kind of objection holds true in a multitude of “speculations” a medical expert often makes at SSA hearings where he/she is not “qualified” to answer, etc.

The above objections should only be done by a experienced and licensed attorney. Sometimes if testimony of a doctor can be “foreseeable” then the objection may not be warranted. This is a decision only an experienced attorney can make.

Some of the above objections may hold true for Vocational Expert (VE) testimony. VE’s will testify about jobs and the ramifications of your restrictions on the ability to perform work.

The objections above are only a small sampling of objections and problems at your SSA hearing.  The key factor is to obtain an experienced attorney you have met well prior to your hearing and an attorney who has gone over your testimony in depth with you before your hearing. For more information you can call us toll free at 1-855-418-9354 www.FloridaSocialSecurity.com.

SSA is still digesting and issuing the procedures around SSR-11-1p. Recently, SSA Office of Appellate Operations Executive Director Judge Patricia Jonas has implemented a policy change where a claimant may be able to file a “new”/”subsequent” application if there is an allegation of a “new critical or disabling condition” with an onset date AFTER the date of the hearing decision. Such requests are suppose to be processed within in 2 days.

However, what defines a “new critical or disabling condition” AFTER the onset date remains to be seen. There has not been any data that suggests a 2 day response time has been effectively followed.

SSR-11-1p implementation is just one of a thousand reasons you should hire an actual licensed attorney who has handled at least a 1000 Social Security Disability claims.

813-657-9175

David W. Magann, P.A.

Attorneys at Law