DISABILITY BENEFIT TIP OF THE WEEK: When should I apply for Social Security Benefits?

In general, you should apply for Social Security Benefits as soon as possible. First, you want to get the process started as soon as possible. The initial decision can take anywhere from 3-6 months. If you are denied and must appeal, it can take another 3-6 months for the reconsideration. If you are again denied, it can take 12-24 months to get a hearing, depending on where you live. This means that the entire process can take up to 3 years! The sooner you apply, the sooner you can get the process started and the faster you can get your benefits.

By applying sooner rather than later, you can also maximize the amount of your benefit. Under the Supplemental Security Income ("SSI") program, your benefits are only payable from the first full month after the date you apply. For example, if you apply on September 30, 2008, your benefits would start as of October 2008, but if you wait until October 2, 2008, your benefits would not start for another month (November 2008). Just a few days of waiting can mean losing a month's worth of benefits.

Under the Social Security Disability program, your benefits are only payable for up to a year before you apply, depending on the date of the onset of your disability. Again, the longer you wait, the less money you are eligible to receive.

REMEMBER: Waiting to apply can cost you money! After getting your paperwork together and making sure your doctor is on board, you should submit your application to Social Security and get the process started.


Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

DISABILITY BENEFIT TIP OF THE WEEK: How often should I see my doctor?

One of the things that both insurance companies and the Social Security Administration use to determine if you are disabled is the frequency with which you visit your doctors. Here are a few pointers.


Long Term Disability

• Most insurance companies would like to see you treating once a month to once every two months.
• Most insurance companies have a provision that requires you to be under the "regular care of a physician." You can find out what the definition of regular care is by reading your plan document.

Social Security Disability

• Social Security generally weighs the opinion of a "treating physician" more heavily than a one-time evaluating physician. A treating doctor is one that has seen you at least three times.
• Social Security also values the opinions of specialists (i.e., rheumatologists, oncologists, orthopedists) more than general practitioners (i.e., internists and family medicine doctors).
• Most of the time, it is better to see a doctor with an M.D. or D.O. degree than a doctor of eastern medicine, a chiropractor (D.C.), physical therapist, or nurse.
• In general, you should be seeing a doctor at a minimum of once every 2-3 months, though more is better.

REMEMBER: The more frequently you treat, the more credibility you have and the more documentation you will have of your disability. In order to make sure you have proper documentation, please click here and here for additional tips.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

Americans with Disabilities Act Amended

President Bush signed the ADA Amendments Act (the "ADA-AA") of 2008 into law today. The new law will be effective on January 1, 2009. This law was Congress' fix in response to a recent Supreme Court case which construed the terms "disability" and "significantly limits a major life activity" in a way that have drastically limited the group of Americans that truly can benefit from the ADA.

The ADA-AA significantly changes court interpretations of the ADA as follows:

• It explicitly removing the Supreme Court's requirement that mitigating measures (like taking medication) be considered when evaluating whether an individual has a disability within the meaning of the ADA;

• It included language in the findings and purposes section to clarify that the courts' previous interpretations of the term "substantially limits" [in the phrase "substantially limits a major life activity"] was wrong;

• It defines the phrase "major life activity" to include "operation of a major bodily function" such as the neurological, circulatory, and reproductive systems, though other bodily functions may also be included as well;

• It clarified that a physical or mental limitation that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

• It ordered the courts to interpret the ADA liberally, not restrictively;
  

• It aligned the definition of "disability" under other federal laws, such as the federal Rehabilitation Act, which covers federal, state, and local government employees, to the ADA-AA. However, it did not include ERISA plans - employee benefit plans that offer disability benefits - or insurance policies in this new definition, so ERISA plan sponsors are still free to define disability however they like (so you must read an employer's disability plan or an insurance policy to see what conditions are needed to get paid disability benefits.
  

It will be interesting to see what impact this new law will have on the meanings of these terms in other disability contexts. It will also be interesting to see if the Long Term Disability insurance carriers and ERISA plan administrators change their attitude toward work accommodations, as many have long said that a disability that could be accommodated under the ADA meant that a person could work, despite language in disability insurance plans and policies that seem to say exactly the opposite.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved.

DISABILITY TIP OF THE WEEK: Surveillance

"Surveillance" is video taken of you in secret when you do not expect it.

Most insurance companies hire private investigators to perform surveillance on their Long Term Disability claimants. They will film you, and often use the footage they obtain to prove that you are capable of more than you claim on the various forms they require you to complete. This is particularly common on the days surrounding an examination they have scheduled for you with one of their doctors (the so-called "independent medical exam").

Most investigators will spend a period of two to three days obtaining video footage of you around your home and running errands. They will not be filming inside your home, but will find an inconspicuous place near your home from which to film. They may also interview your neighbors for additional information.

Some things to keep in mind:

• If you and/or your doctor say that you cannot bend at the waist, the investigator will attempt to get footage of you bending over to do something simple like check your mailbox.

• If you and/or your doctor say that you cannot lift over 10 pounds, they will try to get footage of you lifting heavy groceries.

• If you and/or your doctor say that you cannot sit for more than 20 minutes, the investigator will try to get footage of you driving for long periods.

If you do something out of the ordinary, like take a long road trip, be sure to stop frequently, keep receipts from those stops, and document the trip and any physical consequences you experience as a result (for example, increased back pain, etc.). Be sure to tell those around you of any of the extra pain or other consequences you experience so that they can attest to it later. Do not "gut it out" just to save time or avoid being a bother to others you are traveling with.

If your insurance company gets surveillance footage that it considers incriminating, they will often send a field representative to your house to interview you. They will ask about your daily activities in hopes that you will use absolutes like, "I NEVER drive long distances," or "I CANNOT bend over." They will record your responses on a computer (not necessarily in your own words), print it out, and ask you to sign the record. Once they have your written statement, they will use that to question your credibility (if they have video footage of you driving long distances or bending, etc.). If your insurance company sends someone to interview you, be sure to avoid absolutes like those stated above. If you have an attorney, do not speak to the field representative without your attorney present. Do not sign any statement if it does not accurately represent the whole truth. Do not be afraid to tell the field representative to change anything on the written statement that you do not agree with.

REMEMBER: The insurance company can request surveillance of you at any time throughout your claim. Just because you have been approved does not mean that they will not try to obtain evidence that you are not disabled.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved.

DISABILITY TIP OF THE WEEK: How long do I have to appeal?

ERISA PLANS
Every disability insurance plan is different, but those that are governed by the Employee Retirement Income Security Act ("ERISA") must allow you an opportunity to appeal if your claim is denied. The letter denying your benefits must tell you how long you have to appeal. Usually you will have 180 days from the date of the denial letter to appeal. Once your plan administrator has received your appeal, it will have 45 days to render a decision. If necessary, your plan administrator can take an additional 45 days. If they take longer than 90 days, your attorney can advise you whether filing a lawsuit is advisable. In some instances, your insurance provider will pay you a lump sum "by exception" while they continue to review your claim beyond the 90 day deadline.

Most plans have a provision that requires a second appeal before filing a lawsuit. The deadline to appeal varies, but is often another 180 days. Again, the plan administrator can take 45 to 90 days to render a decision.

INDIVIDUAL POLICIES
Every individual policy has different deadlines. The letter denying your claim should tell you how long you have to appeal. Your policy will also have a provision that explains the appeal process and any deadlines.

SOCIAL SECURITY
If your claim for Social Security Disability benefits is denied, you are allowed 60 days to file an appeal from the date of the denial, plus 5 days for mailing. If you miss the deadline, you will be required to start the process over from the beginning. At the initial application phase, as well as after you have filed a Request for Reconsideration, the Social Security Administration can take anywhere from 3 to 6 months to make a decision. If your claim is denied after your Request for Reconsideration you again have 60 days plus 5 days for mailing to appeal.

REMEMBER: Every plan is different, whether governed by ERISA or not, so be sure to request a copy from your insurance carrier or employer. Pay close attention to the deadlines stated, or you could lose your chance to appeal or file a lawsuit.



Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.