The Osterhout Berger Disability office is saddened to hear of the passing of Judge Manny Smith, who had a long career with the Social Security Administration. According to his obituary, he graduated from the University of Texas, Phi Beta Kappa and Harvard Law School. He worked in Washington, DC beginning with the Interstate Commerce Commission and elected to work with the Social Security Administration in Maryland and Virginia as well. He moved to Pittsburgh in 1991 to be an administrative law judge for the Social Security Administration and retired with over forty-five years of service to the federal government. Karl Osterhout has a great amount of respect for the work that Judge Smith did behind the bench and shares his thoughts:
Judge Smith was one of the good guys, a real Mensch, someone who was a straight shooter, and who told you upfront what the problems were with your case, as he saw it. He also graciously agreed to attend my wedding (imagine that happening these days).
He ended up retiring in response to pressure to what was viewed as his supposedly “too high“ award rate (in a local newspaper article, and by the agency, who try to send him back for “retraining“). He is the only ALJ I’ve ever met in 35 years of doing this who spoke frequently about the actual burden of proof in Social Security cases, “preponderance of the evidence.“ This was clearly the guiding principle of his decision making, whether you agreed with him or not. We extend our condolences and best wishes to his family.
Disability appeals have, unfortunately, become standard practice for many claimants. Judges frequently make errors in hearing decisions. OBL partners with many firms who are fierce advocates for their clients, yet come to us with unfavorable decisions due to legal error. Disability Specialists of Minnesota is one company we work with on a regular basis. They recently delivered incredible news related to an appeal Karl Osterhout handled, all because they refused to give up on their client’s case! “This case really demonstrates the value of working with a group like mine, who offers all services related to appeals. In fact, the reality is that we never made a dime on this case, since we offer free of cost Appeals Council briefing to our regular referral sources, among many other services” explains Karl. Our partnerships with groups like Disability Specialists are special to us and we always try to help when I can, but this case really stands out!
Amy Pearson, President of Disability Specialists, describes the history of the case:
We filed her application for benefits in 2014, with an alleged onset date in 1/13, when she stopped working due to her conditions. A hearing was held in April of 2016, with the judge awarding her a partially favorable decision with an onset date of October of 2015- the date her neurologist completed a supportive medical source statement. I sought out the advice of an appeals attorney who reviewed her decision and strongly recommended appealing. After a discussion of the risks/benefit of appeal, the claimant decided to move forward with an appeal. There were several inconsistencies in the judge’s decision and little rationale for why he chose the date of a supportive opinion vs. her longitudinal treatment records supporting the opinion. It was appealed to the Appeals Council.
The AC remanded her case. Instead of being scheduled with the same judge from her prior decision, it was scheduled with a new judge (the prior judge was on military leave). The new judge denied her claim altogether and this resulted in the loss of her monthly benefits as well as an overpayment. We were crushed. I had never had this happen before, and we never imagined that this would happen. I can’t count how many hours of sleep I lost agonizing about the outcome of her case. My disappointment was nothing compared to the effect it had on her life. She could no longer afford her apartment, so she and her daughter had to move into subsidized housing. She went from receiving a substantial check every month to relying on county assistance.
Clearly, this claimant went through a lot over the course of several years. Disability Specialists reached out to the original attorney who assisted with her federal court appeal but they declined to provide any additional help or guidance in this case. Disability Specialist then turned to Karl who accepted the case after hearing the case and the emotional turmoil it had caused the client. Amy adds, “I didn’t want to give up on this for her. I strongly felt that the judge made the wrong decision and that we could prove it. She was relieved that Karl agreed to appeal the decision to the Appeals Council. The denial was extremely upsetting for her, and she was glad to know that we were not going to give up on the claim- and that we would have Karl on our side.” After reviewing Karl’s appeal, the Appeals Council made a favorable decision and sent the case to an Administrative Law Judge who had never reviewed her case before.
Amy explains the procedural and emotional aspect of the new hearing:
I have been doing hearings for over 8 years, and I don’t think I have ever been as nervous about the outcome of a hearing as I was for hers. There was so much riding on this! Another denial would be catastrophic for her well-being. We just HAD to win. Her testimony was very compelling and she was extremely credible. The judge posed a hypothetical to the vocational expert for absenteeism at a rate of one day per week, including the need to leave work early or arrive late, and the expert said she would not be employable with this limitation. She further clarified that employer tolerance for absenteeism was 8-9 days per year. The judge stated that he felt this hypothetical was a true reflection of her limitations, and he would be awarding benefits! My client was relieved beyond measure. This will improve her quality of life, allowing her to move into better housing and provide financial stability for herself and her child.
“I was really happy to hear from Amy; I ask all my referral sources to let me know how things turned out, and most probably get busy and forget, but it’s really awesome to hear that a case like this ultimately came out right. This is especially true when the claimant’s representative is someone I respect as much as Amy and her group at Disability Specialist. They are so committed to the best outcome for their clients, and consistently develop incredibly good records on their behalf. This makes the job of someone like me, coming along later and trying to demonstrate error in the judge’s decision, so much easier,” explains Karl. Amy adds, “I am extremely grateful for Karl’s assistance in this claim. I don’t know if we would have secured a second AC remand without his help. He knew exactly what issues to present to the AC to strengthen our appeal. I have helped thousands of clients in my 17 years working for Disability Specialists. This case is definitely one that I will carry with me for the rest of my career. I am glad she didn’t give up faith and trusted us to keep fighting for her.”
We commend Disability Specialists and representative Amy Pearson for truly advocating for their clients and we are happy to be a part of this success story!
Looking back on 2019, one of our favorite moments was the 412 Food Rescue Benefit Concert featuring independent folk singer-songwriter Peter Mulvey. OBL Managing Partner, Karl Osterhout, organized the event to support the organization and opened for Mulvey. One of the songs he performed was “Nobody Knows Me When I’m Down and Out”. Karl describes the song:
I don’t play out often enough to have a setlist, so every time I do I end up kinda working a theme. And this setlist was easy: a list of love songs for this organization I love and admire so much…
This song talks about forgotten people, people who 412 Food Rescue refuse to forget about and in their insistent, but loving, way, refuse to let us forget about too. There aren’t enough words to express my personal gratitude for the leadership and seemingly tireless and endless volunteer energy of 412FR. 200 cities by 2030!
(BTW the very beginning of the first line is clipped; it goes “Once upon a time I was a millionaire…”)
Supplemental Security Income (SSI) benefits are paid to disabled persons who do not qualify for Social Security disability insurance (SSDI) program because they have not paid sufficient Social Security taxes or do not have enough work credits. The definition of disability and claims process is the same for both SSI and SSDI and in fact, many people are able to apply for both at the same time. The SSI program was designed to provide cash for food, clothing, and shelter it has kept many Americans from becoming homeless. SSI benefits total approximately $771 per month in 2019 (can be more with state supplements) and recipients usually continue to receive Food Stamps and retain their state Medical Assistance card.
When filing an SSI claim, the applicant must show that he or she meets a “needs test” by virtue of low income and resources. This test is similar to the one used to determine whether a person is entitled to Public Assistance. There are two components to the needs test; income and resources.
The problem with SSI is that most of the SSI eligibility rules have not been updated since the program was signed into law by President Nixon over 40 years ago. The economy has changed since then. The cost of living today is more than 5.5 times what it was in 1972. In addition, the asset (resource) limit for the program–$2,000/$3,000–has not been updated since 1989. Many Americans are finding themselves unable to qualify for SSDI because they lack work credits, and unable to qualify for SSI because they are over the income and resource limits.
The Supplemental Security Income Restoration Act of 2019 has recently been introduced and would update these income and asset limits to better reflect reasonable assistance in today’s dollars. The National Association of Disability Representatives has made it easy for you to support this legislation. Simply text “ssirestoration” to 52286 or click here to send a message of support to your representatives.
Osterhout Berger Disability Law handles both SSDI and SSI claims. If you or someone you love is unable to work due to a physical or mental impairment, call us for a free consultation: 1-866-438-8773
#GivingTuesday is a time to take a break from the hustle and bustle of holiday shopping and take a look at nonprofits that often get neglected this time of year. Giving back to the community is important to OBL partners Karl Osterhout, Erik Berger, and Lindsay Osterhout. Over the last year, we have focused on promoting and contributing to three specific nonprofits that we feel are important change-makers in our communities. If you are looking for an organization to give to today, consider one of these:
We will treasure the thank-you notes sent to OBL from GOTR participants like Alia.
Girls on the Run of UPMC Magee Womens Hospital – Girls on the Run is a national 501c3 dedicated to creating a world where every girl knows and activates her limitless potential and is free to boldly pursue her dreams. This local chapter is hosted by Magee-Womens Hospital of UPMC and established to serve Allegheny, Beaver, Butler, Lawrence, Mercer, Washington, Westmoreland, and Venango counties. Trained volunteer coaches lead small teams throughout a ten-week program, inspiring girls in the 3rd-8the grades to recognize their inner strength and celebrate what makes them one of a kind. The program ends with the girls completing a service project and a celebratory 5k event. Not only did OBL sponsor the group throughout the year, but our own Lindsay Osterhout served as a coach during both the spring and fall sessions. Your donation to this organization could have an immediate impact and makes it possible for GOTR to continue to inspire girls and such a transformational part of their lives. Click HERE to give to Girls on the Run of UPMC Magee Womens Hospital or click HERE to learn about volunteer opportunities.
OBL was happy to sponsor the 1st Annual Family Fun Day! It was great to see all of the smiling faces there!
The Adoption Authority – The Adoption Authority, Inc. is dedicated to providing compassion, respect, and loving care to each individual on their unique adoption journey. They are committed to honoring and nurturing expectant mothers through pregnancy, birth, and life after placement. The recognized 501c3 organization and licensed child-placing agency in the states of Florida and Georgia but works with birth mothers and adoptive parents nationwide. Last month, they hosted their 1st Annual Family Fun Day at the Jacksonville Zoo and OBL was a proud sponsor. One of the reasons we chose to promote this organization is because of its emphasis on counseling. They believe that money should never stand in the way of clinical counseling and bill fees on a sliding scale. Your donation can help provide for much-needed counseling that deals with issues such as grief and loss, attachment, family conflict, school issues, trauma, PTSD, coping skills, relationship issues, parenting, behavioral issues, and ADHD. Donate HERE.
Managing Partner, Karl Osterhout, at 412 Food Rescue Benefit Concert featuring singer-songwriter Peter Mulvey
412 Food Rescue – Did you know that 40% of the food produced gets wasted? 412 Food Rescue prevents perfectly good food from entering the waste stream and was founded as a direct response to the disconnect between food waste, hunger, and environmental sustainability. The organization works with food retailers to prevent surplus food from going to waste by utilizing a network of volunteers to directly transfer food to nonprofit partners that serve the community. The innovative nonprofit has an app (Food Rescue Hero) that matches food donations to the appropriate nonprofits and coordinates a last-mile transportation network of volunteers. Through these and other food education and rescue programs, 412 Food Rescue is truly making a difference in our community and fighting to help end hunger. One of the highlights of our year was the benefit concert Karl Osterhout organized featuring singer-songwriter, Peter Mulvey, to support 412 Food Rescue. Learn about the many ways you can volunteer to become a Food Rescue Hero or donate to the cause and help 412 Food Rescue continue to save food.
Whether you decide to donate funds or your time, we are sure that these organizations will appreciate any amount and you will contribute to their impact. If you champion a nonprofit that helps either the Pittsburgh or Jacksonville communities, please comment below to help raise awareness. Happy Giving!
Q: When I moved to my new home a few years ago, my neighbor told me that she’d had multiple back surgeries. She is in her mid-50s and does not work. She does, however, shovel three feet of snow from her roof, uses a rototiller in her yard, lugs mounds of leaves, etc.
From conversations and from what I’ve witnessed, it is my understanding that she is on disability. It is disturbing to be contributing financially for her welfare via my tax dollars, when it is obvious that she’s very able-bodied. Additionally, she is an ever-present annoyance who is unable to respect boundaries, even after we’ve repeatedly asked her to respect our space. One of her dogs bit my husband in our yard. She can be spiteful and has temper tantrums.
The bottom line is that it’s highly likely that I contribute to her well-being (through disability), just so she can make our lives uncomfortable. I’d like your take on this. I’ve taken a few photos showing her physical abilities — just in case. Should I bring it to the attention of the Department of Social Security? I suspect this is a common issue facing many people.
– Upset Neighbor
This question appeared in a recently published national advice column and is a common complaint we hear, not only from the general public but from some of our own disability clients. It can be frustrating to have to endure a complicated process such as filing for disability benefits, only to see someone who you believe is faking it receive monthly benefits. Though columnist Amy Dickinson did a fine job at answering the question, we wanted to take our own stab at it, particularly with respect to some key phrases we noticed immediately.
“Multiple Back Surgeries” – With any back surgery, there is a long recovery period and a good chance that either the surgery doesn’t resolve the issue or that the patient is left with new pain-causing problems. The fact that this woman had to have multiple back surgeries leads us to believe that she either had a failed surgery or that she had issues at multiple levels in her back; neither leading to a good prognosis for a pain-free life. Nevertheless, just based on this detail alone we would have a hard time disagreeing with the author’s complaint. But, as we will see as we move through some of the other comments, even this fact is not necessarily inconsistent with a legitimate award of disability benefits.
“Mid-50s” – If the woman is receiving Social Security disability benefits, her age could have been a factor. “Disability” as SSA defines it does not necessarily mean that the recipient must be unable to perform all types of jobs; this is most obvious when one considers the age of the person applying for benefits. SSA considers that at “advanced age” (age 55 or older) the claimant’s age is a significant additional factor which affects the ability to adjust to other work. Basically, the older someone is, the harder it is to adjust to work that -requires different skills. It is kind of a “you can’t teach an old dog new tricks” rule; SSA does not, for instance, expect someone who is older and who has been doing heavy construction all their life to go out and get a job as a secretary when they are 55 years old. So, to put it yet another way, a combination of impairments that could not be disabling for a 40-year-old person can be disabling for a 55-year-old.
“Obvious That She’s Very Able-Bodied”– Again, based on the surface facts of the ability to do yard work, etc., this does not strike us as necessarily way off base. But, even then, this activity is not necessarily inconsistent with receiving disability benefits, because the question in a disability case is not what a person can do intermittently; rather, the question is whether the individual can work “8 hours a day, 5 days a week…on a regular and continuous basis.” In other words, as anyone would agree, making oneself a meal, driving a car, or cleaning one’s apartment is not the same type of activity as being a cook, a taxi driver or a janitor for a living. Does the author observe her after she works in the yard? It’s not uncommon for individuals that live with chronic pain to have the ability to do manual labor for short periods of time. Often, the pain does not set in until hours later and they often pay the price for the physical work with increased pain, and a need for bed rest, potent pain medications and lots of heat and ice, etc.
“My Tax Dollars” – Social Security disability benefits (SSD) are not welfare or an entitlement program and with all due respect to the author is not “her money.” Working Americans pay, from their own paychecks, into the disability trust fund with FICA withholdings from their paychecks. If they have paid enough in (typically this means they have worked 5 of the last 10 years) they are insured for disability benefits and may be eligible to draw monthly benefits from the trust fund, if they meet the medical criteria. Supplement Security Income (SSI) is the other disability program administered by SSA and eligibility is based on need; not based on work history. From the information given, we do not know if the woman is drawing SSD or SSI, or any disability for that matter since this is all an assumption on the author’s part. If we assume she is drawing SSD, then it is important to understand that she contributed to her trust fund with her own FICA contributions.
“Unable to Respect Boundaries” – The columnist answered correctly that the disability payments could be unrelated to the back surgeries. Frankly, given the author’s description, this is quite likely; it is quite common for disability to be based upon a combination of multiple impairments that includes mental impairments, and it seems likely that this woman could have also had a mental diagnosis that leads to problems with boundaries. This limitation could certainly affect her ability to sustain full-time employment, especially when considered together with the physical limitations caused by back issues. Another factor is that it is also possible that this woman has impairments that the author has no idea about, since not all disabilities are visible. For instance, while this woman apparently has difficulty hiding her obvious social impairments, she may also have episodic impairments, such as migraine headaches or seizures, which occur intermittently and, often, out of view of other people. Some people have chronic gastrointestinal issues with embarrassing symptoms like needing to use the bathroom frequently during the day, soiling oneself, etc., that people do not usually go around talking about. When we hear people say things like, “My neighbor is getting disability and there’s absolutely nothing wrong with him” one of the things we always say is that you really can’t always know if someone meets the criteria just by looking at them.
The other thing we always point out is that these rules regarding the effect of age in a disability claim, that SSA does not use the ability to perform intermittent activities as a basis to deny disability claims, that the combined effect of all impairments must always be considered, etc., apply in their case as well and that, where appropriate, we will rely on all of these rules, and any others that apply, to ensure that their legitimate claim of disability is awarded.
Nobody really knows what is really going on with someone. Another way that a potential reporter of fraud who is also a disability claimant can look at it is this: “What if someone made a movie of my daily life?” Would that movie demonstrate intermittent activities which, if taken out of context, could make it look as though you were a lot more able than you are? While SSA encourages citizens to report fraud, we’d like to remind you that unless you have read someone’s medical records and have evidence that they are able to work on a regular and continuing basis, maybe you should reconsider. The original column can be read HERE. Read it and decide for yourself whether the author has enough to prove her neighbor is fraudulently collecting benefits.
Disability beneficiaries receiving Medicare should be asking the following questions right now:
Do I have proper prescription drug coverage?
Should I enroll in a Part C Medicare Advantage plan?
Am I on the best plan for me?
Can I save money?
This time of year, it’s hard to turn on the tv without being bombarded by insurance company commercials advertising their Medicare products. Each year, the Medicare annual enrollment period is between October 15th – December 7th. During this time, Medicare beneficiaries have the option to add, change or remove coverage. Many assume that the commercials are targeted to senior citizens but the insurance carriers also want to get the attention of individuals receiving Social Security disability insurance (SSDI).
SSA automatically enrolls SSDI recipients in Medicare after receiving benefits for two years, but typically, it is only Original Medicare, Part A (hospital coverage) and Part B (medical). The SSDI recipient has the option to enroll in a Part C (Medicare Advantage) plan or a Part D (stand-alone prescription drug) plan. Part C plans, which replace traditional Medicare, are offered by private insurance companies such as Humana, Aetna, AARP, and other carriers. These plans cover everything that traditional Medicare does and they usually have a very low and sometimes no monthly premium. Not only do they protect costs by limiting out of pocket expenses, but most of them include prescription drug coverage as well as dental, vision, and hearing coverage. A lot of times, Part C may be the best option for Medicare recipients under age 65, but not always. Sometimes the best option is to stay on Original Medicare (A&B) and add a Part D prescription drug plan. Once Medicare starts for SSDI recipients, they only have a limited initial enrollment period to elect Part C or Part D. If the deadline is missed, the recipient must wait until the annual enrollment period to enroll for the next year.
If you would like to see if there is a better plan for you that can reduce your cost, this is the time! After December 7th, beneficiaries may not be able to make these changes until the next annual enrollment period begins in October of 2020.
We can help you with this confusing process. We have a licensed insurance agent on staff who is prepared to help you understand your options at no cost. Complete the form below to have someone from our team call you for a no-charge consultation.
When we represent SSDI claimants before the Social Security Administration, part of our goal is to secure Medicare benefits in order to give them affordable medical coverage. There is no obligation for OBL clients to use our in-house agent; we simply want to help our clients and others get the best care possible.
Don’t leave money on the table! If you are unable to perform substantial work, you should apply for Social Security disability benefits, EVEN IF you are already drawing VA disability benefits. While the Social Security Administration does not base its decision on the VA disability rating, we can utilize the same medical record evidence to prove an inability to sustain competitive full-time work. SSA may even expedite your claim if you have a 100% VA P&T compensation rating or if your impairment was combat-related (https://www.ssa.gov/people/veterans/).
There are a few key differences between the VA and Social Security disability processes you should know about:
Social Security disability is all or nothing. The VA bases disability on a percentage. It is not uncommon for someone to have a 10% VA disability rating. With Social Security, there is no partial disability; you meet the criteria or you don’t.
The definition of disability is different. For VA disability, the applicant must show that they have a disabling condition that was “incurred or aggravated by their military service.” (Source: “Federal Benefits for Veterans, Dependents, and Survivors,” U.S. Department of Veterans Affairs, 2016 Edition). In contrast, SSA requires applicants to prove that they have an impairment that has lasted or is expected to last, at least 12 months or result in death and that prevents their ability to work at a substantial, gainful level.
With SSA disability, your age, education and past work may be a determining factor. The SSA adjudicator must decide whether you can perform work. If your impairment does not meet the criteria found in the SSA Listings of Impairments, the next steps of the process involve looking at your vocational factors such as age, education, and skills.
You have served our country and deserve to be justly compensated for your sacrifice. We want to help you. Attorneys at Osterhout Berger Disability Law can help guide you through the claims process. Contact us today for a free consultation!
In this profession, it is crucial to stay on top of recent developments and policy changes! The National Association of Disability Representatives holds conferences each year designed to allow representatives to sharpen their skills and get necessary updates in order to better help their clients. OBL has sponsored this conference for years and we want to help representatives with the costs of attending. Once again, we are offering three scholarships for $395 each! The 2020 conference will be in Puerto Rico, April 4-8! If you are a disability representative that would like to attend, but need to cut costs, apply for an OBL scholarship!
Here’s how it works:
The scholarship is offered as a rebate. If you are selected, we will have a check for $395 to present to you at the conference.
The deadline to apply is 11/30/19. Three entries will be chosen at random and all contestants will be notified on 12/1/19.
Previous OBL scholarship recipients are not eligible.
Karl Osterhout knows how important it is for representatives to stay on top of recent developments and social security court cases and that is why he has added the Circuit Reporter to our website. “Just as a natural course of doing business in district courts all across the country, we need to keep track of case law developments throughout all the federal circuits. It dawned on me one day that since we have all this information that we have to accumulate anyway, it might be worthwhile to folks if we published it. For someone, for instance, practicing in the Second Circuit, it could be very helpful to read through the reported and unreported cases of that court in no more than an hour or so, which might guide a representative out there in developing their case on their client’s behalf,” adds Osterhout.
Example from Fifth Circuit:
Garcia v. Berryhill, 880 F.3d 700 (5th Cir. 2018).
Plaintiff, a Vietnam veteran, applied for social security disability benefits based on hearing loss and PTSD. The ALJ denied Plaintiff’s application, concluding that plaintiff was not disabled and capable of performing his past relevant work. The Appeals Council declined review. Plaintiff appealed under 42 U.S.C. § 405(g), arguing (1) the ALJ impermissibly relied on the VA’s summary of his treating expert’s evaluation, rather than obtaining directly reviewing a copy of the evaluation itself; (2) the ALJ improperly determined that plaintiff’s PTSD was non-severe; and (3) the ALJ was required to and failed to properly consider the VA’s “100% disability rating.”
The court disagreed. The court found that any failure to obtain the actual report was at most harmless and an ALJ’s failure to include certain documentation in the record is ground for reversal only if the applicant can show prejudice. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (requiring applicant to show that omitted material “might have altered the result”). Plaintiff presented “no reason to believe the original report would somehow swing the evidentiary pendulum in his favor.” Second, the court found the ALJ “rigorously considered the four broad functional areas set out in the disability regulation for evaluating the severity of mental disorders.” Finally, the court found “the VA’s determination does not bind the Commissioner; it is merely “evidence . . . that must be considered” and that the ALJ did just that. Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). The court affirmed the district court’s judgment.
Click HERE to access the Circuit Reporter. We’ll continue to update this section with relevant decisions that can help you WIN!