Friday, November 27, 2015
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
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
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
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
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
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
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 SSDISSDI 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 SSDIIn 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 ChildrenDisability 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.
Thursday, August 27, 2015
Can we continue to support our disabled citizens?
The Social Security funding for people with disabilities is, after more than half a century, facing a deficit. Unless Congress and the President can find a way to agree on new funding and possible reforms, changes may be implemented to the Social Security Disability Insurance program that will impact the monthly benefits counted on by millions of disabled workers and their families. A payroll tax of 1.8 percent, and the interest from the program's trust fund, has, until the past several years, financed the program successfully. To the dismay of a great many, however, the trust fund peaked in 2008 at $216 billion, but fell to just $60 billion in assets by the end of 2014.
Changes to Social Security Disability benefits might include expanding incentives for individuals to work rather than rely on benefits for their sustenance. At present, approximately 11 million people in the United States receive SSDI benefits; most of these individuals (9 million) worked previously, but have been deemed no longer able to engage in gainful employment. With program expenses exceeding payroll tax revenues by 26 percent during the past year, the projections for the future are dire. Most suggest that the trust fund will become totally depleted by late 2016 or early 2017, resulting in significant cuts in benefits to a population that cannot function without them.
There are several reasons for this disturbing news. One problem with maintaining the assets for Social Security Disability Insurance is the disparity in decision-making to qualify individuals for benefits. Research has shown significant variations in award rates determined by examiners, who evaluate applications, and judges, who consider appeals. Clearly, if this process could become more standardized, greater efficiency and lower cost would result.
Evidence of the discrepancies involved are found in the fact that half of the applicants for disability benefits who were initially denied them appealed the decision, and 60 percent of those individuals were eventually granted benefits. This means that almost 40 percent of decisions to award SSDI benefits were made on appeal. The hiatus between initial application time and final decision is not only inefficient and time-consuming, but may further harm applicants in terms both of their opportunities in the workplace, and their inability to receive benefits in a timely fashion.
Other factors contributing to depletion of funds in the SSDI program include:
- Economic hardship generally and wage inequality in particular
- Increased eligibility criteria for benefits, especially subjective ones (e.g. back pain)
- Aging of the Baby Boomer generation
- Increased number of women in the work force whose employment record makes them eligible for benefits
Recommendations for reform to stabilize and increase funds for the SSDI program include
- Introducing more frequent evaluations of clients' eligibility for disability benefits and possible increased capacity to work
- Increasing the financial incentive for those receiving benefits to return to the workforce
- Intervening sooner to assist individuals before they lose their ability to be gainfully employed
- Giving employers a financial incentive to assist employees by contracting with private disability insurance companies
Investigations to discover other means of increasing funding for Social Security Disability benefits are ongoing and crucial to the maintenance of a social net for the millions of genuinely disabled people in the United States who are unable, not unwilling, to populate the workplace.
If you, or someone close to you, is dealing with a disability issue, our compassionate and knowledgeable attorneys are available to help you. Serving the entire Central Valley, California area, we can be reached for a free consultation at 559.439.9700.
Tuesday, September 30, 2014
Many people are confused by these two important estate planning documents. It’s important to understand the functions of each and ensure you are fully protected by incorporating both of these documents into your overall estate plan.
A “living will,” often called an advance health care directive, is a legal document setting forth your wishes for end-of-life medical care, in the event you are unable to communicate your wishes yourself. The safest way to ensure that your own wishes will determine your future medical care is to execute an advance directive stating what your wishes are. In some states, the advance directive is only operative if you are diagnosed with a terminal condition and life-sustaining treatment merely artificially prolongs the process of dying, or if you are in a persistent vegetative state with no hope of recovery.
A durable power of attorney for health care, also referred to as a healthcare proxy, is a document in which you name another person to serve as your health care agent. This person is authorized to speak on your behalf in order to consent to – or refuse – medical treatment if your doctor determines that you are unable to make those decisions for yourself. A durable power of attorney for health care can be operative at any time you designate, not just when your condition is terminal.
For maximum protection, it is strongly recommended that you have both a living will and a durable power of attorney for health care. The power of attorney affords you flexibility, with an agent who can express your wishes and respond accordingly to any changes in your medical condition. Your agent should base his or her decisions on any written wishes you have provided, as well as familiarity with you. The advance directive is necessary to guide health care providers in the event your agent is unavailable. If your agent’s decisions are ever challenged, the advance directive can also serve as evidence that your agent is acting in good faith and in accordance with your wishes.
Saturday, September 20, 2014
Your family-owned business is not just one of your most significant assets, it is also your legacy. Both must be protected by implementing a transition plan to arrange for transfer to your children or other loved ones upon your retirement or death.
More than 70 percent of family businesses do not survive the transition to the next generation. Ensuring your family does not fall victim to the same fate requires a unique combination of proper estate and tax planning, business acumen and common-sense communication with those closest to you. Below are some steps you can take today to make sure your family business continues from generation to generation.
Meet with an estate planning attorney to develop a comprehensive plan that includes a will and/or living trust. Your estate plan should account for issues related to both the transfer of your assets, including the family business and estate taxes.
Communicate with all family members about their wishes concerning the business. Enlist their involvement in establishing a business succession plan to transfer ownership and control to the younger generation. Include in-laws or other non-blood relatives in these discussions. They offer a fresh perspective and may have talents and skills that will help the company.
Make sure your succession plan includes: preserving and enhancing “institutional memory”, who will own the company, advisors who can aid the transition team and ensure continuity, who will oversee day-to-day operations, provisions for heirs who are not directly involved in the business, tax saving strategies, education and training of family members who will take over the company and key employees.
Discuss your estate plan and business succession plan with your family members and key employees. Make sure everyone shares the same basic understanding.
Plan for liquidity. Establish measures to ensure the business has enough cash flow to pay taxes or buy out a deceased owner’s share of the company. Estate taxes are based on the full value of your estate. If your estate is asset-rich and cash-poor, your heirs may be forced to liquidate assets in order to cover the taxes, thus removing your “family” from the business.
Implement a family employment plan to establish policies and procedures regarding when and how family members will be hired, who will supervise them, and how compensation will be determined.
Have a buy-sell agreement in place to govern the future sale or transfer of shares of stock held by employees or family members.
Add independent professionals to your board of directors.
You’ve worked very hard over your lifetime to build your family-owned enterprise. However, you should resist the temptation to retain total control of your business well into your golden years. There comes a time to retire and focus your priorities on ensuring a smooth transition that preserves your legacy – and your investment – for generations to come.
Wednesday, September 10, 2014
You’ve hired an attorney to draft your will, inventoried all of your assets, and have given copies of important documents to your loved ones. But your estate planning shouldn’t stop there. Regardless of how well your will is drafted, if you do not take certain steps regarding your non-probate assets, you run the risk of unintentionally disinheriting your chosen beneficiaries from a significant portion of your estate.
A will has no effect on the distribution of certain types of property after your death. Such assets, known as “non-probate” assets are typically transferred upon your death either as a beneficiary designation or automatically, by operation of law.
For example, if your 401(k) plan indicates your spouse as a designated beneficiary, he or she automatically inherits the account upon you passing. In fact, by law, your spouse is entitled to inherit the funds in your 401(k) account. If you wish to leave your 401(k) retirement account to someone other than a surviving spouse, you must obtain a signed waiver from your spouse indicating her agreement to waive her rights to the assets in that account.
Other types of retirement accounts also transfer to your beneficiaries outside of a probate proceeding, and therefore are not subject to the provisions of your will. An Individual Retirement Account (IRA) does not automatically transfer to your spouse by operation of law as is the case with 401(k) plans, so you must complete the IRA’s beneficiary designation form, naming the heirs you want to inherit the account upon your death. Your will has no effect on who inherits your IRA; the beneficiary designation on file with the financial institution controls who will receive your property.
Similarly, you must name a beneficiary on your life insurance policy. Upon your death, the insurance proceeds are not subject to the terms of a will and will be paid directly to your named beneficiary.
Probate avoidance is a noble goal, saving your loved ones both time and money as they close your estate. In addition to the assets listed above, which must be handled through beneficiary designations, there are other types of assets that may be disposed of using a similar procedure. These include assets such as bank accounts and brokerage accounts, including stocks and bonds, in which you have named a pay-on-death (POD) or transfer-on-death (TOD) beneficiary; upon your passing, the asset will be transferred directly to the named beneficiary, regardless of what provisions are in your will. Depending on the state, vehicles may also be titled with a TOD beneficiary.
To make these arrangements, submit a beneficiary designation form to the applicable financial institution or motor vehicle department. Be sure to keep the beneficiary designations current, and provide instructions to your executor listing which assets are to be transferred in this manner. Most such designations also allow for listing of alternate beneficiaries in case they predecease you.
Another common non-probate asset is real estate that is co-owned with someone else where the deed has a survivorship provision in it. For example, many deeds to real property owned by married couples are owned jointly by both husband and wife, with right of survivorship. Upon the passing of either spouse, the interest of the passing spouse immediately passes to the surviving spouse by operation of law, irrespective of any conflicting instructions in your will. Keep in mind that you need not be married for such a provision to be in effect; joint ownership of real property with right of survivorship can exist among any group of co-owners. If you want your will to be controlling with regard to disposition of such property, you need to have a new deed prepared (and recorded) that does not have a right of survivorship provision among the co-owners.
You’ve spent a lifetime of hard work to accumulate your assets and it’s important that you take all necessary steps to ensure that your wishes regarding who will get your assets will be honored as you intend. Carve a few hours out of your busy schedule, several times a year, to review all of your deeds and beneficiary designations to make certain that they remain consistent with your objectives.
Peña & Bromberg, a Professional Law Corporation serves clients throughout Central Valley CA including San Francisco Bay, Oakland, Bakersfield, Madera, Stockton, Fresno, Sacramento, & Modesto.
The office assists Social Security Disability & Veterans Disability clients nationwide.