Posts Categorized: Blog Posts

header bg

Enforcing Guiding Principles in The Face of Changing Regulation

Sometimes the Social Security Administration seeks to change the rules to reduce the number of cases for which it must pay benefits. For example, the Administration has questioned the need for a doctor’s opinion when determining whether or not one can do work. This question arises especially in cases where the claimant is young or has a condition that a lay person finds difficult to understand (or even to accept as real). However, even with changing regulations, a claimant’s lawyer will hold the Administration to the timeless principle that diagnoses and determination of the impairing effects of those diagnoses are best handled by physicians—specifically, physicians that examine you and know your medical history.

The process of applying for disability begins with the initial level, where the Administration reviews your application and evidence, and it makes an initial decision (and sometimes a second opinion called a reconsideration decision). Next there is the hearing stage, during which an Administrative Law Judge (ALJ) will determine whether or not you are disabled based upon: i) your application, ii) the opinions of the Administration at the initial level, iii) your medical record and professional opinions, and iv) your testimony. Also, there is often testimony from a vocational expert that discusses what jobs might be available based on the limitations the ALJ finds after considering the evidence. However, sometimes (actually quite often) the ALJ will overstep his or her bounds and try to make a decision against the advice of medical professionals. This is an error that is often rubber-stamped by the Appeals Council after the hearing decision.

When this happens, it is time to consider taking the Administration to federal court. If the attorneys at Olinsky Law Group find that the ALJ has made an error in applying the law and regulations, we can sue the Social Security Administration. This means that a United States District Court will consider your case, and, if appropriate, the Court will order the Social Security Administration to rehear your case and to follow the District Court’s instructions when doing so.

Recently, the Administration has sought to repeal the regulations requiring ALJ’s to afford more weight to the physicians who treat you on a regular basis, instead allowing the ALJ to rely on the opinions of doctors who review your record on paper or who conduct a single consultation exam. However, despite this repeal of regulations, the District Courts understand that the principles behind the old regulations favoring treating doctors are as applicable today as they were years ago. The Administration must defend their decision by doing more than merely stating that they do not have to follow the old regulations.

Now, does this mean that if your doctor says you are sick or injured that the Administration must provide benefits? No. However, your doctor’s opinion is important, and it must not be taken lightly. A suit in federal court is meant to compel the Administration to afford your case the consideration that the law demands it be shown. In addition to providing professional service in helping claimants at the initial and hearing levels, Olinsky Law Group has a team of attorneys and staff dedicated solely to bringing cases to the District Court so that you can be sure that your case has been given as much consideration as the laws demand. Note by Andrew Flemming.


header bg

I Lost My Disability Case, What Now?

If your application for disability benefits has been denied, you may be wondering what you should do next. Your next steps will depend on what kind of disability benefits they are and what step of the process you are at. The good news is that usually there are several levels of the process and if you are denied at one level, you can appeal to the next level to hopefully get a favorable decision there.

There are different kinds of programs that may be considered “disability,” including worker’s compensation, Disability Insurance benefits (SSDI), and Supplemental Security Income (SSI). The programs differ in many ways and depending on which program you are applying for, the steps you may take will differ.

For example, with SSI and SSDI, you first apply directly to the Social Security Administration. If they deny your claim (which they will likely do), you may be able to ask for reconsideration. If your claim is denied at that point you can then ask for a hearing with an administrative law judge. The hearings can be held in person or over videoconference. (However, if those options don’t work for you your representative may be able to help you figure something else out.) If you are denied by the Administrative Law Judge, then you can ask the appeals council to look at your case. If the Appeals Council still denies your case, you may even be able to appeal to the Federal Court in your area!

In other words, don’t give up!

One thing that all of the programs have in common is that they have a lot of complicated rules and regulations, and if you want to be approved it is important that you have the necessary evidence, and present your case in the way most likely to be approved. There are also specific timelines for applications or for appeals, so you should contact an attorney or someone who specializes in this kind of law as soon as possible if you have been denied.

All cases are different and sometimes instead of appealing at a certain level it may be better to reapply. In the end, the circumstances of your case, the benefits you are applying for, and other factors will influence the best course of action.

Our experienced disability lawyers at Olinsky Law Group represent people from all over the country who are applying for disability. Contact us today to help you figure out your next steps!


header bg

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.)


header bg

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.


header bg

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


header bg

NYS WCB Maximum Weekly Benefit Raised

 

The new maximum weekly benefit for NYS claims with accident or disablement dates from 7/1/2016 to 6/30/2017 will be $864.32.


header bg

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.”


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.

 

 

 

 

 


header bg

What Crisis?

The number of people who receive Social Security Disability benefits have been decreasing since 2010.  Where is the crisis?