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So your client received a DENIAL at their social security disability hearing, what’s next? Maybe another Appeal!

Before evaluating whether a case should be taken to the Appeals Council, representatives should know a Request for Review must be filed within 60 days of the date you receive the Administrative Law Judge’s decision. Social Security assumes that you receive the decision within 5 days of the date on the decision, so you have exactly 65 days to file your Request for Review.  The Appeals Council will not accept late filings absent good cause.

Procedural status

The claimants last date insured for disability benefits should always be considered in deciding whether to appeal. Before deciding that a new application is be best course, be sure that the Claimant is eligible to reapply. Specifically, if the claim was Title II Disability Insurance Benefits, eligibility depends on insurance status. Therefore, if the claimant’s insured status expired prior to the ALJ’s hearing decision, the only way to preserve the claim and pursue benefits is with an appeal. If the claimant filed a Title XVI Supplemental Security Income claim and remains financially eligible for benefits, a consideration of other factors may reveal she has a better chance of obtaining disability benefits through a subsequent application rather than an appeal.  Therefore, representatives must carefully review numerous factors including the medical evidence and the type of claim in deciding whether a hearing loss should be appealed.

Medical Evidence

The next step after a hearing denial is often to appeal. This is especially true in cases with a fully-developed medical record containing evidence favorable to a finding of disability, and also true when the ALJ jumped the gun and issued a decision despite outstanding material evidence. The ALJ’s errors in weighing the evidence or deciding the case without a fully developed record are strong arguments that the case should be remanded for further proceedings.

Some errors the ALJ commits are more likely than others to result in remand. For the year 2015, the most common reasons the Appeals Council remanded cases included the following: The ALJ failed to properly evaluate mental limitations; new and material evidence was presented upon appeal; a treating source opinion was not identified or discussed; exertional limitations were inadequately evaluated; the ALJ failed to provide an adequate rationale for the weight accorded to opinions from consultative examiners; the ALJ failed to adequately consider a mental disorder; an opinion from a non-examining source was not identified or discussed, or there was an inadequate explanation for the weight accorded; or, a treating source opinion was rejected without adequate articulation.

The Appeals Council denies a substantial majority of the Requests for Review it receives; in the year 2015, only 13.6% of appeals were remanded to a judge for further review.  During this time, a claimant is prevented from filing a new application for disability benefits, because an individual may only have one claim pending with the Administration at a time. The Appeals Council rarely considers any evidence dated after the ALJ decision, because it is outside the time period relevant to the appeal.  This means that even if a claimant’s medical conditions worsen while the case is pending at the Appeals Council, that evidence will not be considered relevant to the claim. Therefore, in cases where the strongest evidence may be dated after the ALJ decision, a claimant may be better served by filing a new application to consider their more severe medical conditions. The latest statistics released by the Administration state that the average processing time for a Request for Review was 374 days. [1] However, this is an average, and many cases may be pending longer. Given the low percentage of favorable outcomes at the Appeals Council Level, many claimants who develop new medical impairments may find a quicker resolution to their case through a new application.

Conclusion

A claim need not end with an Unfavorable Decision following a hearing, but there are important factors to consider in determining whether a claimant should appeal the hearing denial or file a new application. Often, even the Appeals Council denial may not be the end of the claim, and representatives should seek a Social Security Federal Court Attorney to evaluate the claim for Federal Court.

[1]Appeals Council Request for Review Statistics. https://www.ssa.gov/appeals/appeals_process.html (Last visited August 30, 2016.)


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Continuing Disability Reviews, the Burden of Proof

Congratulations to Paul Eaglin, Esq who has been chosen to present at the NOSSCR Seattle Conference.

Continuing Disability Reviews, the Burden of Proof

Paul Eaglin, Esq.

This is the latest of a series of NOSSCR sessions in recent years relating to CDRs.  It looks at the representative’s role at the agency level as well as advocacy in federal court litigation.  The focus strives to draw closer attention to the burden of proof upon the agency to prove the elements for CDR at each of the steps of the process.


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What Every Social Security Lawyer Should Know About Electronic Medical Records

Reducing Costs, What Every Social Security Lawyer Should Know About Electronic Medical Records

If a firm relies on medical records in their cases, recent legislation can help. Indeed, medical records are the most important evidence in numerous types of claims, but their costs may be prohibitive to law firms and clients themselves.  This is where the Health Information Technology for Economic and Clinical Health Act (“HITECH”) is so important for law firms and their clients; and a scary piece of legislation for health care providers or any agency they contract to maintain their medical records.  This legislation creates a serious impediment to facilities charging outrageous fees for medical records already created and electronically stored.

HITECH, although enacted in 2009, has only recently received attention as a powerful tool for patients and their representatives.  Broadly, with the exception of psychotherapy records, HITECH requires that medical facilities that maintain electronic records must make such records available to patients who request them at no more than the cost of labor and copying supplies.  This means that under HITECH, medical facilities must provide records stored electronically for the cost of the digital transmission of electronic medical records, or the cost of copying such files onto a CD or flash drive.  The only fees with respect to electronic records a medical facility can charge for is labor for copying the protected health information; supplies for creating the electronic media (such as if the patient requests an electronic copy be provided on portable media); postage (if the individual requests it be mailed); and for preparing and explaining a summary of the medical records provided (should the individual agree to such a summary).  Thus, this legislation gives patients a much cheaper means of accessing the health records.  HITECH does not allow charging patients for overhead costs such as maintaining computer systems, so the cost structure is clear and there should be no mysterious charges.  Indeed, HITECH goes on to address and define what a “reasonable” cost would be, strictly precluding excessive charges and reducing a reasonable price to a few dollars.  This is certainly a cost-saving benefit to patients everywhere.

HITECH applies to traditional medical providers that maintain electronic records or any contracted company medical providers use to manage their medical records.  This legislation prevents these entities from charging enormous unclear fees that often prevent patients from obtaining their own medical records for which they have a right.  Because this legislation has the ability to significantly cut profits realized by medical facilities overcharging for records, pushback is to be expected, with some medical facilities citing state law or internal policy in an attempt to continue to overcharge patients for medical records.  Here, patients should consult their attorneys who in turn can educate medical facilities about the preemptive nature of HITECH; in other words, federal law trumps state law, and therefore, HITECH wins.

Importantly for attorneys, HITECH can save hundreds of dollars per case. The cost of copying data to a CD or transmitting electronic records should only be a minimal amount compared to ordering paper medical records from medical facilities or contracted copying companies which can cost in to the hundreds of dollars.  Important to remember is that the individual/patient/client must request these records, not the attorney representing them.  However, the HITECH legislation provides that the individual/patient/client can designate the receipt of such records to their attorney (or any third party), provided that the request is in writing, signed by the individual, and clearly identifies the designated person and where to send a copy of the protected health information (e.g. the lawyer’s name and law firm address).  This means that lawyers early on must work with clients to obtain signatures and create the proper forms granting authorization of the designation.  Because of the nature of HITECH, HIPAA releases are not necessary as the request is coming directly from the patient. Neither does the HITECH designation form need be as specific as a HIPAA release.  HITECH provides a simplistic, cost-effective method for obtaining medical records.

Finally, medical facilities must provide the electronic medical records within 30 days of the receipt of the written request from the individual/patient/client absent a few situations outlined in the regulations that clients should speak with their lawyers about.  Violations of this act can be addressed via a Complaint filed with the Department of Health and Human Services form HHS-700, and violations can result in fines and penalties to unwilling providers ranging from $50,000.00 to $1.5 million.  These stiff penalties hopefully will prevent too much pushback from medical providers who stand to lose significant amounts a money as a result of this legislation.

Lawyers should take HITECH seriously as a means to reduce costs to their clients and their firms.  This is key legislation that may help save significant costs and reduce wait times, especially as more and more health facilities store their medical records electronically.

 

Ted Wicklund, Esq. and Howard Olinsky, Esq.

Olinsky Law Group


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How to Expedite Social Security Disability Process

Attorney Howard Olinsky Examines How to Expedite Social Security Disability Process

Orlando, FL (May 2016) — Attorney Howard Olinsky, of Olinsky Law Group, lists the top three tips for speeding up the Social Security Disability process.

Howard Olinsky, founder and managing partner of Olinsky Law Group, focuses solely on Disability Law, and has a thorough understanding of the Social Security Disability process, “which can frustrate disabled claimants and their representatives as they await a final decision on their application for benefits,” said Olinsky. “This process can take years; meanwhile, disabled claimants struggle just to stay alive as they cannot work and therefore have little or no ability to pay their bills.”

“Even after a hearing,” adds Olinsky, “a claimant still has to wait three to five months to get a decision, and if that decision is favorable, another two months to start receiving payments. Therefore, speeding up the process is pivotal to claimants who have no other means of financial support or who are experiencing life-threatening health crises.”

Because of these unfortunate wait times, Olinsky shares the top three ways representatives can expedite the process for their clients:

No. 1: Have a client-first mentality. “This means being aware of the claimant’s circumstances throughout representation,” said Olinsky. “A client-first mentality starts with properly training staff members and representatives. Although time consuming, staff members and representatives need training regarding the methods of expediting a case, which includes dire need, compassionate allowances, terminal illnesses (TERI), on-the-record requests, military casualty/wounded warriors, and potentially violent (homicidal/suicidal) claimants.”

No. 2: Request updated information. Updated information should be requested regarding the current status of a claimant’s financial and health situation. Staff members should also request eviction notices, foreclosure documentation, utility shut-off notices, the last three months of bank statements, proof of income, letters from homeless shelters, and documentation relating to health-care denials due to inability to pay. “This will help determine dire-need situations and provide documentation to support expediting the claim,” said Olinsky.

No. 3: Be aware of impairments. For very serious health situations, Olinsky stresses staff members be aware of impairments and diagnoses that fall under the TERI and compassionate allowance lists. Once a TERI or compassionate allowance case is identified, representatives should confirm treatment information and obtain proper documentation of the impairment and the required diagnostic documents. “Representatives should also obtain, whenever possible, a statement from a treating source regarding the impairment,” said Olinsky. “This will help to prove TERI, compassionate allowance, and cases that can be granted on-the-record. Once trained staff and representatives are aware of these expediting situations, proper procedures must also be in place. A thorough intake questionnaire is extremely important.”

“These practices will allow representatives and their staff to quickly flag cases that should be expedited, or that could be granted on-the-record,” said Olinsky. “This means shortening an already exhausting wait time for numerous claimants, which can literally mean the difference between life and death.”


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Sometimes you have to go to the Appeals Council.

Suffering from major depressive disorder, generalized anxiety disorder, back problems and diabetes, a woman files for Social Security Disability benefits and Supplemental Security Income.

She went to a hearing with an Administrative Law Judge. She had a non-attorney representing her. The judge denied her claim.

Then she hired Olinsky Law Group. Howard Olinsky took her case to the Appeals Council, which ordered a new hearing.

The next time, she won her case. Not only that, but she won years of back benefits covering all the delays, going back to when she first reported her disability.


Superlawyer

Press Release: Olinsky Law Group Announces Paul Eaglin’s Achievement for Super Lawyers List for five years

Olinsky Law Group Announces Paul Eaglin’s Achievement for Super Lawyers List for five years

Superlawyer

 As a nationally recognized law firm specializing in disability law, with an unparalleled depth of knowledge for successful disability benefits claims, Olinsky Law Group is proud to recognize one of our attorney’s for being on the Super Lawyers list for a period of five years. For five years, Super Lawyers has recognized Paul B. Eaglin for his outstanding legal achievements. Paul B. Eaglin has demonstrated excellence in the practice of law year after year. Each year, less than five percent of lawyers in the state are selected by the research team at Super Lawyers to receive this honor. The annual selections are made using a high degree of due diligence that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. Attorney Paul B. Eaglin has had a fulfilling and award winning career and continues his dedication to our clients here at the Olinsky Law Group.

For more information about attorney Paul B. Eaglin please visit www.windisabilty.com.