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We Write the Appeals Council Briefs; You Get the Remands!

Sometimes it can seem like preparing a Brief for the Appeals Council is an enormous waste of time and effort, since an overwhelming percentage are routinely denied.  But that’s not always the case.  In the last 2 months our referral sources have notified us of 4 remands (two of which are pending and two of which resulted in fully favorable decision at the remand hearing) as well as one case which was actually reversed by the Appeals Council and paid back to the alleged onset date of 2015.

Our Appeals Council brief writing service is available to our referral sources at no cost.  Our experienced staff reviews the ALJ denial, identifies errors of law, and provides you with a succinct, concise brief that you can file with the Appeals Council.  Our concept of brief writing is simple – make it short, to the point, and provide citations to specific errors of law.  In our experience, the ability to quickly identify issues without wading through mounds of extraneous documents is well appreciated by the staff at the Appeals Council.

Applying for LTD? Make Sure the Insurance Company Has the Relevant Evidence!

LTD claims involve many rules that are different from a typical insurance or contract dispute. One of the big differences is that the LTD company must be provided with all of the evidence in support of your claim before it issues its final decision. Otherwise, information not provided will not be evaluated if you later have to file a lawsuit against the LTD company. The application form is often very short, so you must not hesitate to attach additional pages to the application if necessary to fully explain all your medical conditions, your medical history (including all doctors you have seen, all procedures and testing that have been performed) and to describe the full effect of all your medical conditions (including all symptoms related to all medical conditions, as well as lingering effects of surgeries or other procedures, and side effects from medications or other treatments you are receiving).

In other words, it is much less of a problem if you tell the LTD company too much than if you leave out critical information. If you leave out something important, for instance, the LTD company will frequently argue later either that they are not obligated to consider it, or that the fact that you left it out means that it was/is not really a problem in the first place. Either way, of course, this can endanger your case.

What Does Disability Mean According to the Social Security Administration?

Obviously, the Social Security Act, the Regulations, the voluminous policy statements made by Social Security, federal court cases, etc., are far too extensive to completely review in a short article, but it is possible to give some useful information about this question without referring a claimant to law books and the regulations.

If you are under 50 years of age, you must show that you cannot perform any type of work that exists in the national economy to qualify for benefits. When people describe their disability to us, they talk about it by stating they are unable to do the type of work that they used to do, cannot find work they would rather do, or that there are no jobs available where they live. While these are certainly reasonable things to think about during a job search, none of them have any relevance whatsoever to how a Social Security Disability case is decided for a person who is less than 50 years old. This is a difficult standard to meet, but not impossible. This type of case usually requires careful preparation and presentation to be successful, and we recommend that such a person work with an attorney on the case as soon as possible.

Social Security defines “work” as a full-time activity. Therefore, even if there is some type of work a person could do part-time or on a sporadic basis, that person can still claim that he or she is disabled. Also, Social Security Disability law acknowledges that employers expect their employees to show up for work on a regular basis, and to be productive while they are at work at least 90% of the time. So, for instance, if a person would be likely to miss work on a regular basis because of a provable medical condition, then this would present a strong claim for disability. Also, if a person is usually able to make it to work, but cannot stay focused for six to eight hour periods, or needs frequent rest breaks during the day in excess of the typical morning and afternoon break period, that person would also have a strong claim for disability.

Read more about definition of disability for people over 50 HERE.

 

Disability Benefits for Anxiety

When applying for Social Security disability benefits for anxiety, there are some things that people with anxiety disorders should do to ensure a successful claim.

In order to qualify for SSA benefits, a person must be able to show that they have been unable to work for at least 12 months due to an anxiety disorder. For instance, a person might be unable to work because they become anxious to the point of fainting when in public.

There’s also some medical evidence that a person with an anxiety disorder should be prepared to gather when applying for benefits with the Social Security Administration. First of all, an applicant needs doctor’s notes that show that they’ve been consistently complaining of difficulties with anxiety and any treatments that have been prescribed.

People who want to qualify for Social Security Disability Insurance need to show records from their doctor that they have been diagnosed with an anxiety disorder. Within the documents, there must also be records of at least three of the following symptoms: concentration difficulties, restlessness, tense muscles, irritability, sleep disturbances, or general tiredness.

People who meet at least three of the above criteria must also demonstrate that they have severe problems in at least one or marked problems in at least two of the following areas while at work: difficulties concentrating enough to finish tasks, difficulties socially interacting in appropriate ways, difficulties remembering and learning new things, or difficulties adapting to new situations.

If a person doesn’t meet the above criteria, the SSA will administer a Residual Functional Capacity test to determine which tasks the person can and cannot do. For instance, there might be time limits on certain tasks, depending on the triggers for panic attacks.

How We Can Help

There are several ways in which the team at Osterhout Berger Disability Law can help you receive the benefit you deserve. We help individuals who need to…

  • Apply for Social Security Benefits and want to ensure everything is done right the first time
  • Appeal an existing denial of Social Security Disability Benefits
  • Appeal an existing denial of Long Term Disability (LTD) Benefits

If you are facing one of these situations due to Anxiety, please do not hesitate in reaching out. Our team of experienced attorneys is here to help, and your consultation is free.

 

Will You Have to File for Social Security Disability to get Long Term Disability Benefits?

When you are approved for benefits through your long term disability coverage, your insurance company will likely require that you file a claim for social security disability benefits. The amount that you receive from your insurance company can be offset by the amount that you receive from SSDI. Insurance companies thus have vested interests in your approval for social security disability benefits. In some cases, the companies may retain disability lawyers to represent their insureds in their social security claims.

If you are approved for long term disability benefits because of a workplace injury, the company might also ask you to apply for workers’ compensation benefits. If you are approved, then your insurance company will be able to offset the amount it pays to you by the amount you receive from workers’ compensation. In order to continue receiving your long term disability benefits, it is important for you to follow through on applying for benefits for social security disability or workers’ compensation.

Insurance companies commonly attempt to limit their losses by denying claims. Getting professional legal help can improve your chances of securing the benefits that you deserve from your long term disability insurance company. We can help you prove your claim. We can assist you with gathering and submitting the types of evidence that may be needed, and if necessary, litigate the matter on your behalf in the event the company tries to deny your claim. Contacting an experienced long term disability attorney from the team at Osterhout & Berger Disability Law may make the difference in whether or not your claim for benefits is ultimately approved.

Learn more about how Osterhout Berger Disability Law can help you HERE.

Long Term Disability Coverage and Benefit Options

While some workers may not think that they may become disabled and unable to work, many do. The Council for Disability Awareness reports that 25 percent of people in their 20’s will become disabled at some point during their careers, and the average disability-related absence from work is nearly three years. Some people have short-term disability insurance provided to them by their employers as optional benefits, and they might not understand the difference between that coverage and long-term disability coverage. Short-term disability coverage lasts for a short duration, normally no longer than three to six months. By contrast, long-term disability coverage picks up when short-term disability coverage ends and may continue indefinitely until the worker receiving the benefits is able to return to work. It is important to understand the coverage and the available options since some benefits must be chosen when getting a new policy.

Coverage and Benefit Options

There are several options available with long-term disability coverage, and everyone should be aware of these choices so that they ensure they get the most robust protections possible. Here are some of the common policy options one should consider.

Non-cancelable

It is important that the coverage that a person chooses is non-cancelable. Non-cancelable policies may not be terminated by the insurance company. The premiums must also remain the same as when the coverage was purchased as long as the insured continues making the monthly payments. The other terms of the policy will also remain the same as when it was purchased. If people purchase long-term disability coverage when they are young, their premium payments will stay at the same low level when they grow older with non-cancelable policies.

Untaxed

When people purchase long-term disability coverage, they should purchase enough coverage to replace between 60 and 70 percent of their current salaries. This percentage is sufficient to provide approximately the same amount of money each month as a worker’s take-home pay from their jobs because long-term disability benefits are not taxed.

Own Occupation

The own occupation option is important for people to consider purchasing. When a person becomes disabled, own-occupation coverage will continue paying them disability benefits as long as they are unable to return to the same occupation at which they worked before the disabling condition occurred. This option allows people to continue receiving disability benefits payments even if they are able to return to work in a different occupation but are unable to perform the duties of their previous jobs. By contrast, any occupation coverage means that the benefits will be terminated if the insured is able to return to any type of job even if it is not similar to the type of work that the person had before. People should take care to read the descriptions of their occupations in their policies to make certain that they closely match the required duties of their current jobs.

Benefit Period

Some cheaper policies have benefit periods lasting as little as two years. People should avoid long-term disability coverage carrying such short benefits periods. The average disability will last longer than two years, meaning that a person who opts for the short benefit duration may run out of disability benefits while they are still unable to work. The best coverage option allows people to receive benefits until they turn 67. At a minimum, people should try to choose policies that have a minimum benefit period of five years.

Elimination Period

Policies that have longer elimination periods, which are the times from the date of disability to when people receive their first checks, are cheaper, but they may not be the best choice. Available elimination periods may be 30 days, 60 days, 90 days, 180 days or 365 days. While the premium payments will be higher for shorter elimination periods, most people will find that coverage with a 90-day elimination period is the most cost-effective. It is a good idea for people to review their finances in order to determine what elimination period length they would be able to handle in the event that they suddenly became disabled. If people also have short-term disability coverage, they may choose an elimination period for their long-term coverage that will pick up when their short-term coverage ends. People may also use savings to cover longer elimination periods, but they should be aware that they may have medical expenses associated with their disabilities during the interim.

Residual Benefits

Residual disability benefits are another important option because they provide some benefits during periods of time when people are able to work some of their normal schedules but not return to full-time work at their jobs. Many more people suffer partial disabilities than total disabilities, and residual disability benefits may help them to make up the difference between their drops in income and their former incomes while their partial disabilities continue. When people are choosing residual disability benefits as an option for their coverage, they should avoid selecting residual benefits that are only paid after the insured first qualifies for a period of total disability coverage, however.

 

Read more about Handling a Denied Claim

Should You Hire an Attorney for Long Term Disability Benefits?

 

OBL Partner Erik Berger manages our Long Term disability division and is ready to help you with your claim!

If you have long-term disability insurance and have suffered an injury or illness, you may expect that your company will approve your claim for benefits.    Unfortunately, insurance companies often try to deny claims in order to minimize their losses. If your claim is denied, it can be financially devastating. There is an appeals process that you can follow if your claim is denied so that you can try to recover the benefits that you rightfully deserve to replace a portion of your former income while you are unable to return to your job. However, this process can be lengthy and complicated. Our team at Osterhout Berger Disability Law has the experience you need when selecting a long term disability attorney to fight for your benefits.

If your claim for long term disability benefits has been denied, you will likely need to get the help of an experienced long term disability attorney in order to recover the benefits that you should receive. We can advocate for you throughout the appeals process to help you win approval of your claim. Some of the tactics insurance companies engage in to avoid paying out long term disability claims are unfair. For example, a company may hire an investigator to surveil you and videotape you engaging in different activities. It is common for an insurance company to only show clips from the videos that portray the individual as being more physically capable than he or she is. We may be able to get copies of all of the video footage or seek to suppress it in its entirety.

It may be a good idea to secure representation before filing your benefits claim with your long term disability insurance company. Many companies request information from disability claimants at the outset of their claims that the companies may turn around later to use against them. We can advise you on what information to provide in order to better protect your interests and your claim. It is especially important for you to secure legal representation if a hearing is scheduled for your claim. We can make certain that the record contains all of the medical evidence that is needed in order to support the grounds for your claim.

Read more HERE

 

 

Aetna Reverses its Decision to Terminate Long Term Disability benefits after Osterhout Berger file its Appeal

Aetna terminated the benefits of our client, an Executive Administrative Assistant, after she had been receiving disability benefits for only eleven months.  Our client suffered from significant limitations in the use of her arms and hands as a result of medical conditions to include neuropathy, carpal tunnel syndrome and cubital tunnel syndrome.

After the client retained us, Attorney Berger obtained updated medical treatment notes and medical opinions from our client’s treating physicians and a detailed vocational report.  Attorney Berger also filed an extensive brief arguing why Aetna was unreasonable in terminating benefits and after a review of all of our submissions, Aetna reversed its previous decision and reinstated benefits, resulting in our client receiving almost one year of past due benefits and ongoing benefits.

Please do not hesitate to contact our office to speak with Attorney Berger if you need assistance with your claim for Long Term disability benefits.

Appeal Deadlines for LTD Claims Extended Due to COVID-19

We have received very good news! People who need to appeal their LTD claims have had their appeal deadline extended because of COVID-19. This means that if you think you may have lost the opportunity to appeal because you were unable to do so during the lockdown, you may still have the rights to appeal!

President Trump issued the Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) and by a separate letter made a determination that a national emergency exists nationwide beginning March 1, 2020.

As a result of the National Emergency, participants and beneficiaries covered by group disability plans may encounter problems in filing or perfecting their benefit claims.  In order to address this issue the Employee Benefits Security Administration, Department of Labor, Internal Revenue Service and Department of Treasury (the Agencies) have taken steps to minimize the possibility of individuals losing benefits because of a failure to comply with certain pre-established timeframes.

Typically, group disability plans must provide claimants at least 180 days following receipt of an adverse benefit determination to appeal.  Now, all group disability plans subject to ERISA must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a further notice.

An example of this rule in action is as follows:

Individual E received a notification of an adverse benefit determination from Individual E’s disability plan on January 28, 2020. The notification advised Individual E that there are 180 days within which to file an appeal. What is Individual E’s appeal deadline?

Answer. When determining the 180-day period within which Individual E’s appeal must be filed, the Outbreak Period is disregarded. Therefore, Individual E’s last day to submit an appeal is 148 days (180 – 32 days following January 28 to March 1) after June 29, 2020, which is November 24, 2020.

If you need assistance filing an LTD claim or appealing an LTD denial, contact us today!

Long Term Disability Helps Social Security Disability Claimants

Linda worked for many years as a dentist before degenerative disc disease in her back prevented her from carrying out her normal job functions. She applied for Social Security Disability, but because she was highly skilled and under 50, she was denied at the initial level and was told that she may have to wait a year or longer before actually receiving benefits. She didn’t actually remember her Long Term Disability (LTD) policy until her Social Security disability representative asked if she had purchased a disability policy of any kind that may provide benefits while she waits for the Social Security case to be approved. Her Social Security disability representative immediately put her in touch with Osterhout Berger Disability Law and Erik Berger was able to assist her with her LTD application. Linda’s LTD benefits were approved and provided her with significant monthly payments. The successful LTD claim allowed her to maintain her lifestyle and afford needed medical care which in turn, provided needed medical evidence for her Social Security claim.

 

Erik Berger, OBL Partner, Long Term Disability Division

Erik Berger adds, “LTD claims are very different from Social Security disability cases. While both involve evaluation of complex medical and vocational issues, the huge difference is that in LTD claims the insurance company is not obligated to help the claimant with their case like Social Security personnel are. Therefore, something as innocent-sounding as a mistake or omission in the application itself, or failure to understand what the definition of “disability” is under the LTD policy (it is frequently different than Social Security’s definition), can continue to haunt the case, because the insurance company’s lawyers’ job is to fight the award of disability benefits every step of the way. It is our job from the beginning of the case to make sure these mistakes don’t happen, which gives our clients the best chance of winning their claim as quickly as possible, like Linda.”

 

If you have filed a Social Security Disability claim, and have a Long Term disability policy through an employer or one that you have purchased yourself, take advantage of those benefits! Many times, benefits can be paid out faster through these policies than with Social Security disability. We can work with your Social Security disability representative to provide the evidence needed to secure LTD benefits which can help your Social Security claim by providing an income while you wait and allowing you to continue treatment.

 

If you are a Social Security disability representative, you should be asking every single one of your clients if they have a disability policy through an employer or one that they purchased themselves. Not only can it help them, but it can help you win the case! We will help your client with the LTD application and will share any records or evidence we obtain in order to help you with the disability case. It really is a win-win!