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Disability Newsletter – Summer 2015

Social Security Backlog in Our Region: Among Worst in Nation

According to the Social Security Administration, our clients in Northeast Missouri and West Central Illinois are some of the worst-served in the United States.  The St. Louis Office of Disability Adjudication and Review (ODAR) ranks 158th out of 162 offices.  At the end of May, the office had a waiting list for each judge of 1,276 people!  The Columbia, Mo ODAR (for those of you living in the Kirksville and Moberly areas) was 154th with a waiting list of 1183 people per judge!

We are seeing waits of approximately 24 months to get from application to hearing in Missouri and about 30 months in Illinois.  Illinois still goes through the reconsideration step after denial at application.

Cob Web Dude

A huge problem is that the SSA has virtually quit paying cases on the record.  Prior to 2014, two-thirds of our clients did not have to go to hearings.  Since January of 2014, virtually every case denied on application has had to go to a full-blown hearing.  In 2013, nationally, 38,000 cases were paid without a hearing after being denied on application.  In 2014 that number dropped to 1,200.  The only cases being paid in this fashion now are “Compassionate Allowance” cases.  This is a list of 223 loathsome and deadly diseases deemed so terrible that the SSA will still look at them quickly.

 If you or someone you know is applying for disability, tell them it will likely be a long, drawn-out process.

A Sad True Story

Sometimes those who intend to help really screw things up.  A couple of social workers in a local Illinois agency were convinced that all attorneys want to do is drag out Social Security cases so they can get fees.  In fact, they were convinced that the best way to get disability benefits was for their clients to do their own applications and requests for reconsideration.  These social workers actually told clients not to consult with attorneys.

After being denied, one of these clients came in to see us.  We were horrified by what they had done. The social workers did not know to advise the client to do an SSI application with the disability app.  The client is as poor as a church mouse.  Even though he is insured for Social Security Disability, that doesn’t pay until the sixth full month after the date he is found to be disabled. This simple mistake will end up costing the client between $3,700 — $4,300.  The damage cannot be reversed because SSI payments can only go back to the date of application.

The case actually might have been paid on application if someone who knew what they were doing had reviewed the paper work.  The client, who has a less-than-high-school education, said that he became disabled several years before he applied.  This is a common mistake.  People think they are disabled when they become sick.  This is not Social Security’s definition of disabled.  He absolutely was not disabled while he was working.  There was no medical evidence going back to the date he alleged. That alone virtually assured the case would be denied on application.

Though the client has little education, no one reviewed his paperwork. On both the application and the reconsideration paperwork, he didn’t list the problems he had doing household activities and personal care – and they are substantial.  On his work history, he significantly understated the lifting and amount of time he spent standing for many of his jobs. (He was over age 50 and this mistake makes his case much tougher.)  Things have changed substantially in the past few years.  The percentage of cases being paid has dropped by fifteen percent nationwide.  A newly trained administrative law judge I was in front of last month, structured her questions for the vocational expert not on the testimony at the hearing, but on the activities of daily living form first prepared by the client!

In 2014, approximately half of the people we got Social Security Disability or SSI benefits received them on application.  Of those people, we received no fee on approximately one-third.  Social Security Disability payments do not begin until the sixth full month after the date a person became disabled.  On another third we received a small fee of two to three hundred dollars. On the final third we received a fee of a quarter of their back benefits – usually the equivalent of a couple of month’s payments.  In and of itself, doing applications makes little money for our law firm.

However, it does pay dividends for our clients and ultimately ourselves on those cases that have to go to hearings.

We have our clients submit everything to us for review before we ship them to Social Security.  It can make a huge difference.  Even our clients with M.D.s and Ph.Ds. have made some serious mistakes on their paper work.  Unfortunately, now more than ever, these mistakes are critical.

THREE YEARS OF WORK RESULTS IN CHANGE OF LAW

Attorney Vicki Dempsey saw an injustice in Missouri law and has been successful in getting it changed.  Dempsey has practiced bankruptcy law for 28 years and has represented thousands of people in Chapter 7 and 13 cases.  In 2011 she filed a case for a couple in Missouri who had substantial medical bills.  Sadly, a few months after the case was filed, the husband died of cancer.  He had a $15,000 life insurance policy and the wife wanted to use some of that for funeral costs.

Unfortunately Missouri was the only state of 50 that did not protect some, if not all, of these matured life insurance proceeds.  Federal bankruptcy law has a rule that any inheritance or life insurance arising from a death within six months from the date the bankruptcy was filed becomes an asset upon which the court will administer.  Dempsey filed a request for her client to use $7000 of the $15,000 to cremate her husband, but the court ruled in April of 2012 that all the life insurance must be turned over to the Trustee.  As a result of this decision, Dempsey became determined to change the law.

She drafted an amendment to the Missouri law on bankruptcy exemptions.  She approached the Commercial Law Committee of the Missouri Bar in the fall of 2012.  She agreed to chair a sub-committee comprised of trustees, creditor attorneys and debtor attorneys.  After a number of meetings, she hammered out language that was unanimously agreed upon by the sub-committee.  Dempsey traveled to Columbia to get unanimous approval of the full committee in 2013, then on to Kansas City for the approval from the Missouri Bar Association Board of Governors in 2014.

She testified before the state senate in Jefferson City in the spring of 2015 and Bill 164 was passed.  On July 10, 2015 Governor Nixon signed the bill which allows debtors to use up to $15,000 for the funeral and burial costs of a spouse, child or parent who dies in that six month window.  Persistence paid off.  This is just another example of how the attorneys at Dempsey, Dempsey & Moellring fight for the rights of sick and poor people.  We are all proud of Vicki Dempsey!

Vicki Dempsey

Working Part Time and Social Security Disability

A common problem we encounter is the person who believes he can be working part time and get Social Security Disability benefits.  It isn’t surprising that people are confused about this.  The SSA clearly tells people that you can earn up to $1090 a month and still be considered disabled.  However, this is very misleading.

The claimant has the burden of proof in a Social Security Disability case.  For example, if a person is between the ages of 45 to 49, he must prove that he has a condition or conditions that keep him from performing any type of work that exists in the national economy and that the condition(s) will keep him from working for more than a year.  If the person is not working, he must prove he is unable to work with medical evidence.

If the person is working part time, the burden of proof is much more difficult.  If, for example, the person is working twenty hours a week and earning $710, he has to prove he couldn’t possible work another eleven hours a week and earn more than the $1090.

Time Card

The only times we have been able to get benefits for people working part time has been in the scenario where a person has a serious degenerative disorder and a physician has ordered them to work no more than a certain number of hours per week.  These individuals have typically been employees with a long relationship with their employer.  The employer makes special accommodations for them that would not be generally available in the national economy.  The most important factor is that the limitation of work hours is clearly set out in their medical records and is clearly related to their diagnoses.

The Social Security Disability case that will be successful for an applicant working part time, is extremely rare.

 The War on Social Security Recipients

A sad thing is taking place in our culture. Some politicians are trying to brand Social Security Disability as the “New Welfare.” Nothing could be further from the truth in West Central Illinois and Northeast Missouri.  Our clients are already burdened with tremendous guilt for being sick or injured.  We can’t tell you how many people cry and tell us how much they want to work.  I’ve had people break down completely when they get notice that they are getting Social Security benefits because they don’t want to be disabled.

 We have the privilege and honor to represent the majority of people who go to Social Security hearings in this area.  We are frequently told of “the bum down the road who is getting disability and isn’t really disabled.”  We will ask who they are talking about.  Frequently we have represented the person at their hearing.  We can’t straighten out the mean person who disparages our client because of confidentiality rules, but frequently the person they are speaking of, is getting benefits for their mental health.  When asked, they say something vague about a back injury.  People don’t like telling others  that they hear voices or see things others don’t.  Then someone sees them stacking firewood or loading an air conditioner into a truck…

If you are reading this, you probably work with people like our clients.  You know they are hard-working, proud people like the rest of us Midwesterners.  They deserve better than to be used as political scapegoats. It is in the interest of all of us to see that our clients with mental health issues get the help they need.

Even those of us who are working to try to ameliorate the suffering of people get so busy with our little part of the equation that we often do not thank the others who are working with our clients. Sometimes we seem to be working at cross-purposes.  Thank you to all of you who are helping our clients with their medical, mental health and social work issues.  Here at Dempsey, Dempsey, and Moellring, we know how difficult it is.  Everyone working with the sick, poor, and disabled is over-worked and under-appreciated. Compassion fatigue is a real problem for all of us.

One of the things we do at our office is keep a bulletin board in the back where we put thank you notes and cards from clients.  When one comes in, we pass it around before it gets pinned in place.  It helps, especially when our clients and those of us trying to help them are attacked by politicians.

 If you know someone who is unable to work because of an illness or injury, have them see us before they apply for Social Security Disability Benefits.  It can make a huge difference.  We give free initial consultations and only get paid if we get our clients benefits.

Nation Association of Consumer Bankruptcy Attorneys
The Missoui Bar
NOSSCR
Illinois State Bar Association