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Social Security Staff Fail to Develop Medical Evidence

September 17, 2014 by Randy Zeldin

The Social Security Administration Office of Inspector General recently found that the Disability Determination Services did not always develop all available medical evidence before making a disability determination. The report found that although DDS generally followed policy, sometimes evidence at the initial and reconsideration levels was absent either because the Claimant did not provide the information or the medical source did not respond to requests for the medical data. It was found that DDS staff did not always follow the regulations and policies to make every reasonable effort to obtain evidence and document the attempts in the disability folder.

The Inspector General estimated that about 214,500 cases contained medical evidence at the hearing level that DDS staff could have obtained at the initial decision level but did not. Additionally, the Inspector General estimated that about 235,000 claimants reported medical sources when requesting a hearing, but that SSA staff did not obtain the medical evidence for them.

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For What Reasons Can Social Security Terminate Benefits?

September 3, 2014 by Randy Zeldin

Between 1981 and 1984, the Social Security Administration terminated the benefits of almost 500,000 disabled Americans, including tens of thousand of beneficiaries with severe mental impairments. Congress became involved, in order to standardize the chaotic means by which benefits were being ceased. The legislative outcome adopted in 1984 was entitled the
Medical Improvement Review Standard. This standard is best described as follows:

There is "substantial evidence" that an individual has improved medically, enabling the individual to engage in "substantial gainful activity." Social Security will assess the impairments that the individual had at the time of the last disability decision.

Several exceptions to utilization of the above standard also exist in the law, which do not utilize the Medical Improvement Review Standard:

1. If the initial determination finding disability was "on its face" an error of fact or law.
2. If material evidence demonstrating the disability is missing or absent.

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Florida Court Declares Workers' Compensation Law Unconstitutional

August 27, 2014 by Randy Zeldin

Judge Cueto of the Dade County 11th Circuit Court, has declared that the Florida Workers' Compensation law, Florida Statutes 440.00, is unconstitutional in part. Specifically, the Court found that the current Florida Workers' Compensation law is an inadequate remedy as a substitute in cases of personal injury or negligence by the Employer. The Court found that dramatic changes made to the workers' compensation law, especially in 2003, have dramatically reduced benefits available to injured Florida workers. The most significant cut of benefits was in the area of permanent disability, which are now a trickle compared to most other States. For example, in the State of Virginia, injured workers are entitled up to 500 weeks of benefits due to an injury, even after the Claimant has reached a medical plateau, known as "maximum medical improvement." In Florida, the maximum temporary benefits allowed is 102 weeks and after maximum medical improvement, the benefits paid are only 2 weeks for every percentage of impairment attributable to the injury. Most States are similar to Virginia and only a handful, including Texas and Florida (thanks to the Bush brothers) have decimated benefits for working people.

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Expanded Use of Vocational Experts for Mental Impairments

August 8, 2014 by Randy Zeldin

The Social Security Administration, per the court case of Brock v. Astrue, has issued a ruling requiring a vocational expert to testify in hearings which involve an application for Social Security Disability, based on a "severe" mental impairment. This term "severe" mental impairment can include many diagnoses, such as Post-traumatic stress disorder (PTSD); bi-polar disorder and major depressive disorder.

The reasoning of the Court is that if a claimant seeking Social Security Disability benefits suffers from a severe mental impairment, only a vocational expert can ascertain whether the individual has the functional capacity to perform jobs which may exist in significant numbers in the national economy. Specifically, mental impairment can impact an individual claimant's capacity to function at work. For example, although such individual may be physically capable to work, a mental disability often impacts the ability to concentrate; focus; follow instructions and properly interact with co-workers or the public, is vital evidence as to whether someone is disabled. This is vital information for a Social Security Judge to understand in making a ruling on a case for Social Security Disability

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Social Security Considering Changes to Epilepsy and Multiple Sclerosis Listings

April 15, 2014 by Randy Zeldin

The Social Security Administration has proposed several changes to the "listed" impairments, which can qualify an individual to receive Social Security Disability Income.

The listing for "epilepsy", under section 11.02 and 11.03. Currently, non-convulsive epilepsy requires a seizure pattern occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. The proposed listings describe seizure frequency depending on the type of epilepsy, in terms of "occurring at least once a month for at least 3 consecutive months, at least once a week for at least 3 consecutive months or at least once every 2 months for at least 4 consecutive months. This would appear to be more limiting than the current listing, which allows for "averaging" seizures during a 3 month period. The proposed changes seem to require that the seizures occur on a more regular basis.

The proposed changes to listing 11.09 regarding multiple sclerosis would rely on two categories, rather than the current three. Current listing 11.09A deals with "Disorganization of motor function as described in 11.04B," and Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements or gait and station. In contrast, the proposed listing 11.09 would provide for extreme the ability to stand up, balance, walk or perform fine and gross motor movements.

Ft. Lauderdale Social Security Disability Attorney Randy Zeldin, Esq., assists individuals with epilepsy and multiple sclerosis to obtain Social Security Disability benefits.

Expedited Social Security for Veterans

March 27, 2014 by Randy Zeldin

The Social Security Administration has announced that effective March 17, 2014, it will expedited disability claims for veterans receiving VA service-connected compensation benefits and who have a rating of 100% "permanent and total" disability from the Veterans Administration. According to a recent press release, the VA rating can only expedites Social Security disability claims processing and does not guarantee an allowance for Social Security Disability benefits. Veterans must still meet Social Security eligibility and entitlement requirements fora disability allowance

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Veterans Receive Expedited Social Security Processing

February 27, 2014 by Randy Zeldin

The Social Security Administration has announced that it has instituted a new policy aimed at speeding up applications of wounded warriors. The new process applies only to Veterans who were injured after October 1, 2001.

Veterans may still be eligible for Social Security disability, even if they are still actively receiving military salaries. This is particularly true when a Veteran is in active medical rehabilitation or on limited duty.

The website for application by Veterans for Social Security Disability is warriors. Applications can be done via telephone or at the Veteran's local Social Security Disability office. Social Security Disability attorney Randy Zeldin, Esq. of Boca Raton, Ft. Lauderdale and West Palm Beach is available to assist U.S. Veterans in the application or appeal of a Social Security Disability claim.

Under the current regulations, a Veteran may remain on active duty, yet receive Social Security Disability. If there is a permanent change of station for a Veteran, it is important to notify the Social Security Administration.

Obesity as a Disability for Social Security

December 9, 2013 by Randy Zeldin

It is not well known, but "obesity" can be a disability and form the legal basis for entitlement to Social Security Disability benefits. Claimants may not recognize themselves as "obese" and not realize that it is a medical condition. Several years ago, the formal Listing 9.09 for obesity was deleted from the law. Since that time, assessments of obesity are "hit and miss" and lead to inconsistent findings by Social Security Disability adjudicators and Administrative Law Judges.

There are several ideas brewing to reform and standardize the obesity standard, which include the following:

1. A new medical listing should focus on the Body Mass Index (BMI) and particularly target individuals with a BMI greater than 48.

2. The adoption of stricter guidance as to when obesity must be evaluated as a severe impairment and must be specifically addressed by a Social Security Judge.

3. Use of other measures if BMI does not capture the composition of a claimant's weight. The BMI is not considered a perfect measurement and is more problematic with females.

Randy Zeldin, Esq. is a Social Security Disability Attorney representing Claimants in Ft. Lauderdale; Boca Raton; West Palm Beach and throughout South Florida.

"Intellectual Disability" as Basis for Social Security Disability

November 13, 2013 by Randy Zeldin

Beginning September 2013, the Social Security Administration replaced the outdated term "mental retardation" with the term "intellectual disability" in it's regulations. The change is consistent with the modern adoption of the concept of intellectual impairment as a recognized disability, rather than a stigma or slur. The term has been adopted by the U.S. Congress, many government agencies at the State and Federal level and a myriad of public and private organizations. SSA recognized that the term "mental retardation" has negative connotations and is offensive to many people, not unlike a racial or ethnic slur. The original Congressional change of the term originated with "Rosa's Law' in 2010.

The adoption of the term, "intellectual disability" in no way amends the substantive law regarding the administration or granting of Social Security Disability benefits. It is only a change in terminology. Notwithstanding, these basic changes go a long way with the widely expressed desire of people with intellectual disability for usage of respectful language. The change was praised by many national organizations representing professionals practicing in the field, including the American Association on Intellectual and Developmental Disabilities.

Social Security Disability Attorney Randy Zeldin, Esq., of Ft. Lauderdale, Boca Raton, Lake Worth , and West Palm Beach, Florida, also lauds the Social Security Administration for respect of the intellectually impaired.

Social Security Explores "Symptom Validity Tests"

October 21, 2013 by Randy Zeldin

There are many controversial psychological based tests, utilized allegedly to determine whether an individual seeking Social Security or other government benefits is presenting a valid medical claim. Put another way, these psychological tests, including the Minnesota Multiphasic Personality Inventory or the Test of Memory Malingering, are designed to spot malingering or outright fraud.

Initially, the Social Security Administration frowned on these tests as being a waste of money and time. More recently, there appears to have been a reversal of that policy. The Inspector General for the Social Security Administration has issued a report that generally supports the use of Symptom Validity Tests in determining eligibility for Social Security Disability Benefits. The Inspector General cited that the Veteran's Administration and the Railroad Retirement Board utilize this type of testing.

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Missing the Social Security Appeal Deadline

October 16, 2013 by Randy Zeldin

After an initial application for Social Security Disability benefits, a claimant is afforded 60 days to file a written appeal, for either a "Reconsideration" of the original claim or a "Request for Hearing before an Administrative Law Judge." Unfortunately, there are many claimants, largely due to psychiatric or other disabilities, who miss the 60 day deadline and are often forced to re-apply for benefits from "square one."

A relatively new ruling, Social Security Ruling 91-5P, can extend the deadline to appeal based on a "good cause." This means that the Social Security Administration will not automatically dismiss the appeal and that proper consideration will be given to a claimant who presents evidence that mental disability, may have prevented the claimant from understanding the 60 day deadline to obtain review.

The Social Security Administration is to consider the following factors, in determining whether "good cause" exists for an untimely appeal beyond the 60 day deadline:

* Inability to read or write
* Lack of facility with the English language
* Limited education
* Any mental or physical condition which limits the claimant's ability to perform activities of daily living.

According to the rule, all doubts are to be resolved in favor of the claimant. Thus, the rule is to be interpreted and implemented in a liberal and caring manner.

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Social Security and Obamacare

September 30, 2013 by Randy Zeldin

With the implementation of health care reforming proceeding under the Affordable Care Act ("Obamacare"), the Department of Health and Human Services recently published a Federal Register notice of a computer match with SSA to obtain certain information. Obtaining this information may lead to more Social Security disability beneficiaries becoming eligible for health insurance coverage, especially during the 24-month waiting period.

The Affordable Care Act requires the Department of Health and Human Services to establish a program for determining eligibility for certain Insurance Affordability Programs and an online system for verification of eligibility. The date provided by the Social Security Administration to the Health and Human Services Centers, will be used to make initial eligibility determinations and other eligibility determinations. These include:

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