Fresno, CA Attorney Blog

Saturday, January 30, 2016

Veterans Seek Class Action Status over Disability Claims

What recourse do veterans have if they have been denied disability benefits?

The U.S. Court of Appeals for Veterans Claims, put in place by Congress in 1998, does not hear cases that aggregate veterans' denial of benefit complaints. Now, a group of veterans is arguing that this policy denies them of their right to bring class-action lawsuits to fight grievances.

The group has filed a federal lawsuit on behalf of thousands of veterans who have suffered financial and medical hardship because of delayed claims. The overarching issue is whether the court's refusal to hear cases brought on behalf of a class of veterans denies them recourse typically available in most state and federal courts.

What is a Class Action Lawsuit?

A class action lawsuit is one in which a group of people who have suffered the same or similar injuries caused by the same product or action sue the defendant as a group. By combining the suits, thousands of claims can be resolved at the same time, rather than being litigated individually.

In this case, the veterans argue that they have been harmed by delays in the Veterans Administration's response to disability claims. Each of the veterans in the group has waited for more than a year to have disability claims reviewed. By being denied recourse to bring these cases as a class action, the veterans must wait for their cases to be taken up individually, which will only result in further delays, given the backlog of veteran claims.

Backlog of VA disability claims

The VA has reportedly cut its backlog of disability claims over the last two years by 88 percent to 74,955. However, the number of appeals over initial disability decisions has risen during this time: 14.6 percent of disability decisions were appealed. The average appeal can take as long as four years and often involves multiple rounds of appeals.

Meanwhile the VA agrees that the Veterans Appeals Court should block class actions. In fact, at legislative hearings in 2009 and 2001, agency representatives testified that class actions would "divert the court's scarce resources."  The U.S. Court of Appeals for the Federal Circuit is considering whether the veteran's court should now allow class actions to be heard.

In the meantime, if you have been denied disability benefits by the Veteran's Administration, you should consult with a qualified attorney.


Monday, January 25, 2016

Going Back To Work After Receiving SSDI

What will happen to my SSDI benefits if I go back to work?

 It is a common misconception that those who receive Social Security Disability (SSDI) benefits are lazy and don’t want to work. This is far from true. In fact, SSDI only provides a small monthly cash benefit which is hardly enough for one person to live on without any other income.  For this reason, and many others, a large number of SSDI recipients want to get back into the workforce.  But, many of these people are confused about what will happen to their benefits if they decide to re-enter the workforce. Here is how it works.

As long as a person has not already worked while collecting SSDI benefits, he or she is entitled to these benefits for a 12-month period after returning to work. The period is 12-months because the person is entitled to a 9-month trial work period followed by a 3-month grace period. It does not matter how much the person earns during this 12-month period. After the 12-months is up, if the person continues to work and earns over a certain amount per month (currently $1,330), his or her benefits are suspended. The person is still considered eligible for benefits during this extended period of eligibility, but benefits are determined on a month-by-month basis.  Therefore, if the person earns less than $1,330 in a month, he or she will be provided with benefits for that month.

Many SSDI recipients are also worried about their eligibility for Medicare after returning to work. Medicare benefits are provided after the age of 65. If the person is younger than 65 and he or she was once eligible for these benefits, he or she will remain eligible for 7 years after returning to work.

If you have become disabled but are considering retuning to work, you need an experienced disability attorney by your side.At the Fresno, CA offices of Peña & Bromberg we regularly assist our clients in demystifying the SSDI process.  

Wednesday, December 23, 2015

Social Security Disability Payments and Pension

How does your pension affect your SSD payments?

If you are a worker who suffers from a disability that leaves you unable to work, you can receive disability payments from the Social Security Administration. These payments are calculated by agency's review of your work history, but they may be reduced if you have other types of income. Some pension payments will lessen the amount of the SSD benefit check you receive.

Receiving Pensions While Receiving SSD

For most individuals receiving SSD benefits, pensions will not t alter the SSD payments they receive. As long as you had to pay Social Security withholding taxes on the earnings that now qualify you for a pension, your benefits will not be impacted by your receipt of pension payments.

There are, however, some government employers, particularly those from state and local government agencies, that don't have to withhold Social Security taxes from employees' wages. In such cases, something called the Windfall Elimination Provision can effectively reduce your SSD payments. Figuring out what your reduction in payments will be can be complicated since it is determined by how many years you have worked in jobs in which you were not subject to Social Security taxes. If you have worked for 30 or more years in jobs in which you did have Social Security tax withheld, your SSD benefit checks won't be reduced at all.

Effects on Spousal Benefits

Similar rules apply if you are not disabled, but your spouse is. In cases where you qualify for spousal benefits under SSD, while those benefits aren't subject to the Windfall Elimination Provision, they may be subjected to the Government Pension Offset regulation. This will occur if you are receiving a pension from a job in which you didn't pay Social Security withholding tax.
The calculations for the Government Pension Offset are simpler that the Windfall Elimination Provision. Typically, your Social Security spousal or survivor benefits will be reduced by two-thirds of your pension. In some cases, that may prevent you from receiving a Social Security check at all, because there is no maximum amount for the reduction.

If you are among the great majority of people collecting Social Security Disability payments, your SSD benefits will not be impacted by any pension you collect. It is only if you have spent at least part of your earning years working at jobs in which you paid no withholding tax into the Social Security system that you will have to be concerned about your pension checks reducing your disability income.

Because of the complexities of the Social Security Disability system, you should take the time to consult with a highly qualified Social Security Disability attorney who will be able to guide you through the process of procuring and maintaining the benefits to which you are entitled.

Monday, December 21, 2015

Disability for Depression

Can I receive disability benefits if I suffer from severe depression?

Depression is a feeling of sadness, helplessness or worthlessness that continues over an extended period of time.  Depression can take many forms and cause a wide variety of symptoms.  It is one of the most common mental disorders in the United States affecting approximately 7 percent of adults in the country.

According to the DSM-V a person is clinically depressed when they experience five or more of the following symptoms at the same time:

  • Sadness throughout the day
  • Fatigue or feelings of low energy
  • Inability to concentrate or make decisions
  • Insomnia or excess sleepiness
  • Inability to enjoy previously enjoyable activities, e.g. sex
  • Restlessness
  • Weight loss or gain
  • Suicidal thoughts

While many people believe depression is within a person’s control, this is not the case.  Depression can cause a person to have difficulty functioning normally and can impair a person’s ability to work. Luckily, Social Security Disability Insurance (SSDI) and Supplemental Security Insurance (SSI) are available to individuals suffering from depression.

There are two ways a person can qualify for SSDI or SSI -- proving that he or she meets the Social Security Administration’s (SSA) requirements listed in the impairment manual or by being granted a medical vocational allowance.

The Social Security Administration maintains a manual of disorders that lists criteria for each of the recognized ailments.  In order to be considered depressed, you must be found to have at least four of the symptoms listed in the manual.  These include lack of enjoyment, appetite disturbance resulting in loss or gain of weight, insomnia or excess sleep, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, suicidal thoughts and hallucinations, delusions or paranoia. To qualify an individual for benefits, these symptoms must interfere with daily functioning.

If a person does not meet the criteria outlined in the impairment manual, he or she may still qualify for disability under a medical-vocational allowance. In order to qualify in this way, the SSA must make a determination as to how the person’s depression affects his or her ability to work.

As with any impairment, your chances of getting disability benefits depend on the thoroughness of your application. It is in your best interest to retain a qualified disability attorney before filing an application for SSDI or SSI benefits.


Friday, November 27, 2015

New Federal Budget Includes Several "Fixes" to SSDI System

Are there any new updates to Social Security laws?

Social Security Disability Insurance (SSDI) is a vital component of the Social Security system, and provides much-needed financial support to Americans facing debilitating illnesses that render them unable to work. Under the current timeline, applicants for SSDI benefits are generally required to endure a predetermined waiting period, which can be up to 5 months in some cases. Over time, however, it has become increasingly clear that a waiting period for SSDI benefits creates an unconscionable obstacle to those applicants relying on efficiency and timeliness: the terminally ill.

Currently, patients facing a terminal illness are subject to the same SSDI wait times as all other applicants, which has proven especially problematic for family members hoping to focus less on the household bills and more on what matters – their ailing loved one.

Under the provisions of a new bill introduced in September of this year, any applicant for SSDI benefits who is also facing a terminal illness would have the wait period waived, and could begin receiving benefits the same month as the diagnosis. Under the terms of the bill, a “terminal illness” is described as any illness likely to result in the death of the patient within 6 months. To qualify for the expedited processing, the applicant must submit affidavits from at least two physicians certifying that the condition is, in fact, terminal in nature.

In a statement by the bill’s sponsor (Barasso, R-WY), “[t]he last thing Americans facing end-of-life decisions should be concerned about is navigating Washington red tape . . . Our bipartisan bill will ensure that people with terminal illnesses receive benefits in a timely manner while still preserving the integrity of the system….”

If you are facing a difficult situation involving Social Security benefits, you would be well-advised to consult with a reputable attorney to help guide you through the bureaucratic maze. Call Peña & Bromberg, PLC, fresno SSDI and SSI attorneys.  We are here to help you get the benefits you deserve.

Tuesday, November 24, 2015

Disability According to the Social Security Administration

How is disability defined?

A person who becomes injured or ill and is unable to work might be entitled to Social Security Disability Insurance or Supplemental Security Income benefits from the federal government. In order to receive these benefits, however, the disability must fall under the definition of disability established by the Social Security Administration (SSA). The SSA definition of disability is a complex one. In order to be considered disabled by the Administration a person must be unable to “engage in any substantial gainful activity’ due to a physical or mental impairment that is expected to last at least 12 months or result in death.

Many are confused about what substantial gainful activity means. Substantial gainful activity is a level of work activity that one engages in for pay. So, if a person is unable to perform work in order to support him or herself, due to a physical or mental impairment, he or she is unable to engage in substantial gainful activity and might be considered disabled by the SSA. The SSA measures whether work is a substantial gainful activity based on earning guidelines that vary depending on when the wages were earned.  Each year, the level for "SGA" goes up.  It is important to note that there are special rules for blind persons.

If you are unable to work due to a physical or mental impediment, you should consider applying for government benefits. An experienced disability attorney will know whether you are likely to be considered disabled by the SSA and will be able to guide you during the initial application process. This guidance is critical as the SSA denies a large amount of claims.

Saturday, October 31, 2015

Arlington, Virginia Family Members Claim Various Psychiatric Disorders to Get SSDI Benefits

How does SSDI fraud hurt the community?

In a rare case of Social Security Disability fraud, a family managed to convince authorities that several members of the family were disabled and to collect close to half a million dollars over a period of years. The maximum penalty for conspiracy to defraud the Social Security Administration is 5 years in federal prison and $250, 000 in fines. The case is now being presented to a grand jury.

Apparently, the fraudulent activity began when the mother of the family was 15 years old -- she is now 53. For 37 years, Doreen Mitchell claimed to have hallucinations and to be unable to drive or work. Mistakenly diagnosed as having schizophrenia, she received SSDI benefits for decades.

Her cousin, John Mitchell, followed suit. She later claimed that her two sons had inherited her illness. When examined, the various family members claimed to be unable to work, drive, shop or clean themselves. Doreen recently told a clinical psychologist that she didn't "like to see nobody or go nowhere." Family members, at different times, said that they saw ghosts or feigned an inability to speak. 

Suspicions of Fraud Confirmed

Suspecting fraud because four members of the same family were receiving benefits, the Social Security Cooperative Disability Investigations Unit started to perform surveillance, documenting the behavior of the various individuals.  At times, Doreen's benefits were discontinued, but she always managed to get them reinstated.

Though during clinical interviews Doreen appeared disheveled, mumbled, and claimed that she could not go out alone, eventually she was observed shopping, banking, driving, and scrolling on a cell phone while dressed appropriately.

Her son, Michael, who had been diagnosed as autistic, mentally retarded, and psychiatrically disturbed, appeared to be fully competent during a covert interview. He stated during that interview that he did automotive work, drove, and had gotten married in Las Vegas. The other two family members had similarly astonishing discrepancies between their "patient" and everyday personae.

In the face of government investigations into such activities, far less than 1 percent of SSDI claims are proven fraudulent. Those who commit fraud do a terrible disservice not only to taxpayers from whom they are flagrantly stealing, but from the vast majority of people receiving benefits who have severe disabilities and often subsist on those benefits alone.

When trying to navigate the Social Security Disability Insurance system, it is always wise to have a skilled attorney by your side, to ensure that you receive the benefits to which you are entitled, and avoid any implication of fraudulent behavior.

Friday, October 30, 2015

Eligibility for Social Security Disability Insurance

Am I eligible to receive Social Security Disability Insurance (SSDI)?

You have fallen ill or were in an accident and are now unable to work. You have a family to take care of and you need a source of income to put food on the table. Fortunately, the federal government provides benefits to those who are disabled in the form of Social Security Disability Insurance (SSDI) and Supplemental Security Insurance (SSI). In this article, we will focus on SSDI.

SSDI is a monthly cash benefit provided by the federal government, administered by the Social Security Administration (SSA), to those that are disabled under the SSA definition.  According to the SSA, a person is disabled if he or she cannot engage in substantial gainful activity due to a medical or physical impairment that is expected to last for 12 months or more, or to result in death. You will be considered disabled if you are unable to do the work that you previously did, even if adjustments are made.

Just being disabled, however, is not enough to qualify you for SSDI. SSDI is a program that must be paid into. Therefore, in order to be eligible, you must have worked and paid Social Security taxes for a required number of annual quarters based on your age. If you are disabled and meet the other eligibility requirements, you may be granted SSDI.  If you have not met the work- related requirements for SSDI, you may be eligible for SSI instead.

These benefits are not granted automatically. You must apply for SSDI benefits and your application should be as complete as possible in order to reduce the chances that it will be denied. Applying for SSDI is a complicated process and requires that you present the SSA with a large volume of personal and medical information. It is in your best interest, therefore, to retain a qualified attorney to represent you during the application process. 

Monday, September 28, 2015

Appealing a Denial of Disability Benefits for Surviving Child Social Security Disability Benefits

Is it possible for an adult child to receive disability benefits after his parents' deaths even if he has done minimal work during his lifetime?

Most people would agree that it is stressful enough dealing with a disabled child during their most dependent years of childhood and adolescence without having to worry about how they will manage  financially after your death.  Nonetheless,  this is the situation thousands of parents are confronted with as their children reach adulthood and middle-age.

 If the challenged individual has worked during her or his lifetime, even sporadically for a few years at minimum wage, the amount earned is deducted from that individual's monthly Social Security Insurance (SSI) stipend. Assuming the disabled child is being supported by her or his parents during this period, and the SSI check represents a small contribution to living expenses (expenses which in all likelihood are higher than average because of the disability), how is the challenged individual supposed to survive after the parents are gone?

On average, , SSI benefits for disabled individuals who do not work range from approximately $1000 to $1200 per month, barely enough to cover rent alone.  Assuming the individual has had the ability to work for some period of time, albeit at minimum wage, her wages will have been deducted from her benefit checks. Even more disturbing, she would not be able to claim a surviving child benefit after her parents' deaths because of her previous  work experience.  Further inequity surfaces when it becomes apparent that the adult child cannot receive Social Security based on his own work because he did not work for a long enough period of time. For families whose disabled children fall into this catch-22. the odds of receiving justice may seem insurmountable.

Fortunately, according to Jerry Lutz, a  former Social Security technical expert, there are possible ways to fight such an unjust decision.  The premise of the Social Security Administration that a childhood disability can be ruled out if that individual performed substantial gainful activity (SGA) -- $800 per month -- after the age of 22 is often unfair and can be disputed for any of the following reasons:

  • The individual was hired under a special workshop program
  • The individual had a job coach
  • The individual's supervisor certifies that disability prevented the employee from accomplishing more than 80 percent of the work required
  • The individual required impairment-related work expenses (IRWE), such as special transportation costs which can be subtracted from employment earning

If you, or a loved one, has been denied childhood disability benefits and any of the above issues apply, it is possible to reapply.  Even if the claim is disallowed again, there is an appeals process in place. The first part of the appeals process,  known as reconsideration, is handled by Social Security, and is, therefore, not likely to be reversed. The second part of the appeals process, however, involves a hearing before an administrative law judge (ALJ).  Such judges have much more flexibility in altering a previous rejection and, in fact, overrule more than 80 percent of Social Security decisions.

If you are confronting a seemingly unjust Social Security ruling regarding childhood disability or other disability issues, please contact one of our attorneys at Peña & Bromberg, all of whom have expertise in this field.  Proudly serving clients throughout the San Francisco and Central Valley area of California, we can be reached at 559.439.9700.

Friday, September 18, 2015

The Need for Social Security Disability Reform

Why is there a crucial need for SSDI reform?

It is projected that in only one year the Social Security Disability Insurance (SSDI) fund will be completely depleted. Unless steps are taken in the immediate future, this  will mean a 19 percent reduction of SSDI benefits in 2016. This means a crisis for 11 million Americans who are disabled and now receive Social Security Disability Benefits. These individuals, through no fault of their own,  will lose a significant percentage of the monies they receive to cover payments  for their housing, food, and care. The income of almost a third of our most  vulnerable citizens will be reduced to below the poverty level. In a society that prides itself on freedom and compassion, this is clearly not acceptable.

SSDI is currently funded by payroll taxes of employers and employees at a rate of 6.2 percent.  A large portion of the amount, 5.3 percent, is allocated to Social Security's Old Age and Survivor benefits, while only .9 percent is designated for SSDI.

There are a number of reasons  that the claims for SSDI benefits have catapulted in recent years, heightening the crisis. These reasons include:

  • Some alterations (believed by some to be relaxations) of rules qualifying individuals for disability benefits
  • Increased awareness among the population that such benefits are available
  • A generally larger workforce
  • Fraudulent claims

Fraudulent claims have become, unfortunately, a big business, bilking the SSDI coffers of millions of dollars annually.  In addition, there appears to be a certain amount of wastage and careless recordkeeping.  A 10-year study by the Social Security Administration found that almost half of beneficiaries were being overpaid during that time.

In addition to the need to cut waste and increase funding  so that disabled individuals can continue to live in comfort and dignity, there are other changes that could improve the failing system.  Many disabled people are able to work, albeit in somewhat limited capacities, and should not be discouraged from doing so. The current system has established a very low income threshold, just over $1,000 per month.  Any individual earning over this amount loses his or her benefits. Since the amount is not sufficient to sustain self-support, many people who might otherwise seek gainful employment cannot do so because working would force them to relinquish their benefits. The result is that they continue to depend exclusively on SSDI.

Several ways of addressing the SSDI crisis are being discussed, and, as usual, the two political parties seem unable to agree on how to solve the problems inherent in the system as it now exists.

If you are facing difficulties relating to collecting benefits due to you through the SSDI program, you don't have to face the complexities of the system alone. Please call the offices of Peña  & Bromberg to receive expert  guidance from  one of our competent, compassionate attorneys.  Proud to serve clients throughout the Central Valley, California region, we can be reached at 559.439.9700

Monday, August 31, 2015

Applying for Disability Benefits

Who is Entitled to Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI)?

Becoming unable to work because of a serious physical or psychiatric ailment is distressing enough. Unfortunately,  trying to obtain well-deserved benefits can sometimes be equally troubling. While, theoretically, the application process is a straightforward one that any individual can successfully navigate, in reality, the complexities and prolonged steps of the procedure often made more difficult by the original disability, can exacerbate the patient's symptoms.  Well-meaning family members, friends, and even professional social workers who try to assist may also find the process extremely frustrating.

Where to Apply for Benefits

Peña & Bromberg, a Prof Law Corp, can assist inidivuals seeking to apply for SSDI or SSI benefits. Remember, there is no fee unless we win your case.  Alternatively, people who believe themselves to be eligible for SSDI or SSI can apply at any Social Security office. Once individuals meet the nonmedical criteria of those agencies, application forms will be forwarded to the Disability Determination Service Division, part of the California Department of Social Service, for further assessment.

Eligibility Requirements for SSDI

There are two basic types of requirements that must be met for SSDI: earning and disability. The qualifications for both are listed below.

  • Disability Requirements for SSDI

    SSDI is not intended to cover you for a temporary disability. In order to be deemed eligible for SSDI, you must be unable to perform "substantial" work (monthly earnings of $1090 or more in 2015) due to a physical or psychiatric condition expected to last for at least a year, or expected to result in your death. In addition, your ailment must prevent you from working not only at your previous type of job, but in any occupation for which your age, education, and experience qualify you.
  • Earnings Requirements for SSDI

    In order to be entitled to receive SSDI benefits, you must have made sufficient contributions to the Social Security trust fund, so your eligibility is based on the amount of your tax contributions through the years you have been able to work. These amounts are designated according to the age at which you have become disabled, meaning that the longer you have been able to work, the more money you will be expected to have contributed.
  • Eligibility Requirements for Children

    Disability requirements for children under the age of 18 follow Social Security's established medical standards.

Filing for SSDI or SSI for yourself or a loved one can feel like a punishment in a situation in which you already feel victimized. For skilled, compassionate assistance, please turn to our experienced attorneys at Peña & Bromberg. We have been successfully serving clients throughout California including the Central Valley and Kern County area as Social Security Disability experts for over 30 years and can be reached at 559.439.9700.

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