I Missed My Social Security Disability Hearing – What Happens Next?

I have been practicing Social Security Disability law for over 35 years and I sometimes run into this scenario. A disabled person has a hearing scheduled in front of an administrative law judge. The judge will decide whether or not the person is awarded disability benefits. The person misses the hearing or shows up for the hearing late. The judge will normally “dismiss” the person’s case. This can be the end of the road for the applicant unless the applicant had a good reason for missing the hearing. Typically, judges will not dismiss the case until the individual is more than 15 minutes late.

THE CASE OF JOHN DOE: In a recent case, Mr. John Doe could not make it to the courtroom because of a snowstorm. His case was dismissed. We appealed and the Appeals Council reversed the judge and found the snow storm was “good cause” for his failure to appear.

THE CASE OF JANE DOE: In a more recent case, Ms. Jane Doe went to the wrong building and did not show up until 30 minutes after the scheduled time for the hearing. When Ms. Jane Doe got her dismissal she contacted us and we appealed. The Appeals Council which hears appeals of judge’s decided send it back to the judge for a hearing regarding whether she had “good cause” to miss the hearing.

THE CASE OF RICHARD ROE: . Richard had his case set for a hearing six months ahead of time. Unfortunately, Richard had an automobile accident the day before his hearing. This caused him to be hospitalized at a local hospital. he was released the day of the hearing but he was in no shape to come to the hearing. he did call the hearing office but they failed to register his call. His case was dismissed but when we appealed his case the Appeals Council ruled his hospitalization was “good cause” for him to miss the hearing.

THE CASE OF JANE ROE: Jane had a hearing scheduled three months before her incarceration. At the time of the hearing she was in jail and could not attend the hearing. When she failed to show, her disability case was dismissed. Her appeal to the Appeals Council is pending.

In summary, even though you miss the hearing, that omission is not fatal to your case as long as you can establish “good cause” for your failure to appear. Generally, it should be a cause outside your control.

Air Travel – Long Haul Flight Tips for the Disabled

For those of us who are lucky enough to travel to far off places on our planet, whether it is for business or pleasure, the flight can prove a nightmare, especially if you suffer from a disability. With more planes being designed to fly further such as the 777ER (extended range), and Boeing developing an aircraft that can fly so far it will not require a hub, so no changing planes, our flight time in the same cramped seat is getting longer.

Some people obviously have the money to fly Business Class or First Class, which gives you more comfort, but for the majority of disabled travellers, we are packed up like freight in economy.

So what can you do to improve your trip?

You can start from the point of when you book your flight. The majority of long haul operators will not allow you to book seats in advance, so you can end up being seated anywhere on the day of your flight. The best thing to do here is as soon as your flight is confirmed, is search the airlines web site for the internal seating plan for the aircraft you will be on, and note down the reference numbers for those seats that are only doubles, as these tend to have the most leg room, and are usually situated close to a toilet.

Once you have done that, contact the company concerned informing them that you are disabled, state what your disabilities are, and tell them that it would help your health tremendously if they could reserve the seats you noted earlier. In the majority of cases they will do this.

Another helpful tip when you contact the airline is to ask them for a ‘special’ meal. All airlines now do these, and range from salt free to meat free, fish only to carbohydrate only, etc. You will usually find a list of these on the airlines web site, so check first, if you are unable to find it, just ask them for the list. This service has is extra cost.

The reason you do this is that these ‘special meals’ are handed out before the normal meals, so you finish before everyone else, and do not have to queue up for the toilet, as the majority of other passengers are eating.

If you are looking for a better service on the aircraft, treat the stewards with respect. I always hand them a couple of boxes of chocolates as soon as we reach cruising altitude, this usually ensures I get preferential treatment.

Most of all enjoy your flight and trip.

Disability Claim Denials, Is This the Wrong Time to Be Disabled in America?

14 million Social Security disability applications were denied in a single decade, between 2000 and 2010, while the percentage of denials escalated from 34 percent to 65 percent. Is this the wrong time to be disabled in America?

Note the following headlines:

Federal Disability Traffic Jam The Washington Times

Soldiers risk ruin while awaiting benefit checks Associated Press

Disability Claims can be tough to collect Wall Street Journal

It’s time to stop billions of dollars of disability benefits from being denied, unnecessarily.

Does the Disability Safety Net have holes in it? If more than 60 percent of Social Security disability claims are denied initially, then why are 63 percent approved at the hearing stage? What causes the turn around? Unfortunately 39 percent of claimants give up before determining if they would be successful going through the appeal process!!

1.2 million Social Security Disability applications were filed in 1999 (48 percent of 579,000 were declined). In 2009, ten years later, 2.8 million Social Security Disability applications were filed (and 65 percent or 1,830,530 were declined). The number of disability applications more than doubled while denials more than tripled. In one year, more than $23 TRILLION dollars of annualized benefits were lost. That’s 1.8 million Americans who won’t collect benefits they thought they were entitled to.

Based on the 2010 average payment to those who qualify, that represents more than $19.5 million of monthly benefits that won’t be paid. Annualized, $23+ trillion dollars per year is an overwhelming amount of disappointment.

Many initial disability claims are denied for simple mistakes and omissions which have absolutely nothing to do with the claimant’s disability status. Think about what it is like to wait 17 months to hear you didn’t answer one question. Then you can wait another 17 months after you’ve added one simple answer. There must be a better way. Those facing claim denials are filing an unprecedented number of appeals burdening the already damaged system even more. With an average of nearly 17 months waiting for a judge to hear their appeal, what’s happening in the meantime?

Currently there’s three-quarters of a million Americans stuck in the Social Security disability backlog. Not being able to pay their bills causes the man of the house enormous mental anguish. The state of marital relationships in these situations deteriorates rapidly. Soon our divorce courts will be experiencing the same type of backlog the Social Security Administration is now facing.

Is this the wrong time to be disabled in America? Tens of millions of dollars in disability benefits go unpaid by private insurers. Over 40 states jointly investigated how one insurer handles their disability claims. Another state set up a system to scrutinize the handling of every rejected claim. What led to the dramatic change in the handling of disability claims? Or has anything changed at all and there’s just more adverse publicity?

As reported in USA Today… 22,500 Veteran’s PTDS disability claims denied as personality disorders. How is it possible that a personality disorder, assuming it existed prior to military service, is diagnosed when psychological evaluations aren’t done prior to induction?

According to the data obtained through the Freedom of Information Act, more than 25 percent of Iraq and Afghanistan vets seeking care at the VA have PTSD. And this statistic doesn’t include the mentally ill vets who haven’t had treatment at the VA due to the stigma associated with PTSD. In the meantime, families go on welfare and food stamps. Homes are being foreclosed. Drugs and alcohol disrupts any hope for family harmony. Homelessness occurs! Suicides begin to take lives that the battlefield didn’t.

One very simple yet insurmountable obstacle is the application process itself. The VA has a long history of bureaucracy. The disability claim form itself is a 23 page document. How many vets are accustomed to 23 pages of paperwork? The word “intimidation” comes to mind as a reason many veterans will never file a claim. A claim for benefits they were eligible for.

Each year TRILLONS of dollars in Insurer, Social Security and Veterans Administration disability claims WILL continue to be denied. It’s imperative the claimants understand how to correctly file a Long Term Disability claim, “doing it right” the first time and dramatically improving the likelihood of collecting benefits.

The U.S. Census Bureau recently projected a 75 percent increase in the age 65+ population by 2030. That will increase the number of age 65+ Americans to 69 million, more than 20 percent of the entire population. An aging population brings with it an automatic growth in the disability “TSUNAMI”. Since the Americans with Disability Act forces disability insurers to continue disability coverage to those over age 65, an older workforce guarantees more claims.

We haven’t seen any valid creditable source that has identified any reason for the escalating rate of claim denials or what we’ll call disability claim “deterioration”. Hence, I can offer what I believe is happening in the backrooms of the insurers claims departments.

Americans currently face the highest unemployment level we’ve experienced over the last three decades. The current state of the economy has impacted our American workforce in disastrous proportions. There’s a natural escalation of disability claims incidence with increasing unemployment.

Mortgages are being foreclosed at an unprecedented rate. Several states have begun to deny previously valid claims as Medicaid budgets have become overwhelmed. Is it any wonder that the cost of medical care, and not being able to pay for it, is the largest cause of mortgage foreclosures?

To continue, we now have causes of disability that didn’t exist two decades ago. Carpel tunnel and chronic fatigue syndrome are being diagnosed more than at any other time in our history. When we add fibromyalgia to the new list, we have an evolving problem that’s creating a nightmare for the disability insurers. These are known as “self reported” disabilities in that there’s no specific medical testing that can diagnose these conditions. It’s easy to understand how disability claim examiners can mistrust “self reported” symptoms. This makes it an onerous process for those who are truly adversely effective by one of these conditions from collecting benefits they’re entitled to.

In summary, we now face a dramatic increase in the 20 percent of the population in an older age group. They’re still working with an increasing incidence of disability. Unemployment compounds the problem even more. And adding new causes of disability and our litigious society results in more PROMISES UNKEPT.

Allan Checkoway

Copyright 2011

The Fair Housing Act – Service/ Emotional Support Animals

My last post, Service Animals/Emotional Support Animals – What You Need to Know, discussed the fact that, if you have rental properties, you need to know the laws on service and emotional support animals. We covered rules laid out by the ADA, but there are 2 agencies that create regulation regarding these animals:

  1. The Americans with Disabilities Act (ADA)
  2. The Fair Housing Act (FHA)

Here we will discuss the additional laws laid out by the FHA. Note that ADA covers commercial areas where FHA covers residential. Also, ADA does not cover emotional support animals but FHA does.

The Fair Housing Act – protects renters from landlord discrimination. It prohibits discrimination of home sales, rentals, and financing based on race, color, national origin, religion, sex, familial status or those with disabilities.

Fair Housing Amendments Act (FHAA) of 1988:

  • Assistance Animal – an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability or provides emotional support that alleviates one or more symptoms or effects of a person’s disability
  • an assistance animal does not have to be individually trained or certified
  • once an assistance animal is approved, the landlord is not permitted to charge any associated pet fees or deposits
  • a landlord is not permitted to put weight or breed restrictions on an assistance animal

What can you require:

  • the prospect or resident must have a disability within the meaning of the Fair Housing Act
  • there must be a disability-related need for the animal

Permissible questions:

  • Is the disability apparent or known?
  • Is the disability-related need for the animal apparent or known?
  • If both the disability and the disability-related need for the animal are apparent and know, you may not ask any further questions and you may not require any additional verification or documentation.
  • If the disability is not apparent or known, you may request reliable documentation of the disability and the disability-related need for the assistance animal.

For emotional support animals, you may request documentation from a physician, psychiatrist, social worker or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability.

You may deny an accommodation request when:

  • it would cause undue financial hardship on the property
  • it would create an administrative burden on the property
  • the specific animal would be a direct threat to the property or would cause substantial physical damage to the property
  • if there is insufficient verification when the disability is non-apparent

The prospect/tenant can make a request from you for their animal in pretty much any manner including something as simple as writing their request on a sticky note. There is no formal request form and you can’t require that they use one that you create.

Your next step is to ask that written verification be provided by the doctor or medical provider. Again, it does not need to be on a specific form. You must accept verification from a reliable third party that confirms the applicant has a disability within the meaning of the Fair Housing Act and confirms that there is a disability-related need for the animal.

Without sufficient verification, you may deny the applicant. And – beware – there are many online sites that provide certifications without requiring any verification of a disability.

How the ADA and FHAA are different:

  • The ADA applies to areas of public accommodation. It does not apply to areas of the property not open to the general public. (i.e. Service animals must be allowed into the leasing office.)
  • The FHAA applies to the entire property. (Qualified service and emotional support animals must be allowed to live in your rental property.)

Most of your concern as a landlord is going to be regarding regulations laid out by the FHAA.

Wow, there’s a lot in those 2 posts. What’s been your experience with service animals?

As I mentioned in the last post, this topic was covered in our Landlord Association Meeting. If you have more questions or need legal assistance in this matter, contact our speaker – Attorney Sean Doyle, [email protected], 919-256-4295.