Tampa Social Security Lawyer Blog2010-03-10T13:12:23ZDavid W. Magann, PA - Social Security Lawyer in TampaCopyright 2010, David W. Magann, PA - Social Security Lawyer in TampaSPHPBLOGSSA Disability Application Involving Drugs & Alcohol Abuse: Problems? SSA has published a notice in the Federal Register "requesting your comments about our operating procedures for determining disability for persons whose drug addiction or alcoholism (DAA) may be a contributing factor material to our determination of disability.'' 75 Fed. Reg. 4900 (Jan. 29, 2010). Comments are due no later than March 30, 2010.
The issues are:
1.What evidence should SSA consider to be medical evidence of DAA? 2. How should SSA evaluate claims where there is a combination of DAA and at least one other mental or physical impairment? 3. Should SSA include use of cigarettes and other tobacco products in its instructions? 4.How long a period of abstinence or nonuse should be considered to determine whether DAA is material to the disability determination? 5.Is there any special guidance SSA can provide for individuals with DAA who are homeless?
]]>http://www.brandonssa.com/blog/index.php?entry=entry100308-1629532010-03-08T00:00:00Z2010-03-08T00:00:00ZSUPPLEMENTAL SECURITY INCOME: GENERAL INFORMATION
SSI MONTHLY FEDERAL BENEFIT RATES (FBRs) AND LIVING ARRANGEMENTS
See the amounts below to determine the maximum monthly SSI benefit you can get in the following living arrangements if:
• your State does not add to the SSI monthly FBR, and • you have no countable income. See SSI Income on page 19 for more information.
However, depending on what State you live in, you may receive a supplemental payment. Some States contribute to the total amount payable to SSI beneficiaries. This amount varies from State to State. See SSI Benefits on www.SSA.gov for more information on the State supplement. The amounts below refers to the amount you get from the federal government only, provided you or your spouse does not receive any other countable income as of January 2009.
Live alone or pay your share of food and housing costs: • Individual/Child $ 674
• Couple $ 1,011
Live in the household of another: • Individual/Child $ 449.34
• Couple $ 674
Live in a Medicaid Institution: • For each Individual/Child $ 30
NOTE: Amounts given are general guidelines only.
SSI RESOURCE LIMITS – You can get SSI in all States if we count the things that you own and they are worth less than the following:
• Individual/Child $2,000
• Couple $3,000
NOTE: SSA does not count all of the things you own as a resource. For more information about Resources, see www.SSA.gov.
SSI ELIGIBILITY REQUIREMENTS
WHO IS ELIGIBLE FOR SSI?
Anyone who is: • aged (age 65 or older); • blind; or • disabled.
And who: • has limited income; and • has limited resources; and • is a U.S. citizen or national, or a certain category of alien (Note: In general, an alien who is subject to an active warrant for deportation/removal does not meet the citizenship/alien requirement); and • is a resident of one of the 50 States, the District of Columbia, or the Northern Mariana Islands; and • is not absent from the country for a full calendar month or more than 30 consecutive days; and • applies for any other cash benefits or payments for which he or she may be eligible, e.g., pensions, Social Security; and • gives SSA permission to contact any financial institution and request any financial records that the financial institution may have about you; and • files an application; and • meets certain other requirements.
WHAT DOES “AGED” MEAN?
“Aged” means age 65 or older.
WHAT IS “BLINDNESS” FOR AN ADULT OR CHILD?
“Blindness” in Social Security disability programs is “statutory blindness,” which means: • you have a central visual acuity of 20/200 or less in your better eye with best correction; or • you have a limitation in the field of vision of your better eye, so that the widest diameter of your visual field subtends an angle no greater than 20 degrees.
If you have a visual impairment that is not “blindness” as defined above, you may still be eligible for SSI benefits on the basis of disability. See the definitions of disability for children and adults below.
WHAT DOES “DISABLED” MEAN FOR A CHILD?
An individual under age 18 is “disabled” if he or she has a medically determinable physical or mental impairment, which: • results in marked and severe functional limitations; and • can be expected to result in death; or • has lasted or can be expected to last for a continuous period of not less than 12 months.
If the individual is age 18 or older, the adult definition of disability explained below applies.
WHAT DOES “DISABLED” MEAN FOR AN ADULT?
An individual age 18 and older is “disabled” if he or she has a medically determinable physical or mental impairment which: • results in the inability to do any substantial gainful activity (see definition of substantial gainful activity on page 35); and • can be expected to result in death; or • has lasted or can be expected to last for a continuous period of not less than 12 months.
WHAT DOES “LIMITED INCOME” INCLUDE?
Income includes: • money you earn from work; • money you receive from other sources, such as Social Security, workers compensation, unemployment benefits, Department of Veterans Affairs, friends or relatives; and • free food or shelter.
WHAT ARE “LIMITED RESOURCES”?
Resources are things you own such as: • cash; • bank accounts, stocks, U.S. savings bonds; • land; • vehicles; • personal property; • life insurance; and • anything else you own that could be converted to cash and used for food or shelter.
The SSI limits for resources that SSA does count are:
Individual/Child $2,000
Couple $3,000
CITIZEN/NON-CITIZEN STATUS
To get SSI, you must be: • a citizen or national of the U.S.; or • a non-citizen who meets the alien eligibility criteria under the 1996 legislation and its amendments. ]]>http://www.brandonssa.com/blog/index.php?entry=entry091028-1937112009-10-29T00:00:00Z2009-10-29T00:00:00ZSocial Security & the E-File: What You Should Know Part II The actual forms and bar code is being sent to a sub-contractor hired by SSA to process the documents electronically. In other words, to put the documents in an electronic format so the adjudicator can view the documents on his/her computer rather than having an actual paper file.
The problem that often arises is the fact that many claimant's do not have access to a fax machine or must pay a $1.00 plus for each page to be faxed and many adjudicators/SSA employees do not include a return pre-paid envelope via the paper method when specifically requested to do so in a claim.
It is important to note that the "bar code" at the initial and reconsideration claim levels is different than the "bar code" used at the Hearing level. Many times claimant's, SSA employees and representatives can confuse the two different bar codes which can cause chaos at the Hearing level. Although no human being can be expected to be a bar code reader, there is a noticeable page format difference between the two, which only an experienced practicioner or SSA employee can identify.
At the Hearing level a CD or disc is available for review and yes, you must have a computer to view the documents or Exhibits in your claims file. In Part III we will review what should be and what often is not on the CD that you may need to request.
]]>http://www.brandonssa.com/blog/index.php?entry=entry091026-1619402009-10-26T00:00:00Z2009-10-26T00:00:00ZSocial Security and the E-File: What You should Know About Electronic Files, Part I "The Internet is an open system and there is no absolute guarantee that the personal information you enter to request verification will not be intercepted by others and decrypted. Although this possibility is remote, it does exist. We have included the safeguards described below to reduce the risks: •SSA is taking all reasonable and appropriate measures, including encryption, to ensure that personal information is disclosed only to you. •So your Internet communications can remain confidential, you must use a Web browser which supports the Secure Sockets Layer (SSL) security protocol. Your Web browser probably already supports SSL. •Social Security will not give, sell or transfer any personal information to a third party. If you are not comfortable with these risks, please call 1-888-772-2970 to speak to a specially trained technician about your concerns. For TDD/TTY call 1-800-325-0778."
Generally, for the initial application I advise to either do an in person interview at the SSA offices or the phone interview. The internet application is both overly lengthy and labor intensive for the typical disabled person.
]]>http://www.brandonssa.com/blog/index.php?entry=entry091020-1744162009-10-20T00:00:00Z2009-10-20T00:00:00ZWhat do I offer you that my competition does not? 1) Is the person a Florida Bar Licensed attorney? I am, but companies such as Binder & Binder, Allsup, Disability Experts etc. are not Florida Bar licensed attorneys. Immorally, beware, Morgan & Morgan of Florida is sending non-attorney's to Social Security hearings with claimants.
2) Will you have a face to face meeting with your lawyer who will be with you throughout the entire process? I will, but law firms like Morgan & Morgan send, and shockingly so, clerks, yes untrained clerks, to a hearing with you. Not only is this morally wrong but appears to be a violation of the Florida Bar ethics rules.
3) Does your attorney or representative have a plan with you to WIN? I will discuss with you the strategy of winning your Social Security and any other claim. Believe it or not many of those aforesaid have no strategy to win, such as discussing your restrictions with your doctors, etc. Most of those above will lose marginal claims because there is no winning strategy. The catch is, how would you know if your case was difficult or not until it was too late, such as receiving a hearing unfavorable determination.
4) Has your attorney attended over 1,000 hearings? I have, if somone you are considering has not, you should factor in this obvious experience necessity. Often, you hear that the "firm" or "company" has experience but unless the actual attorney,your actual attorney, has experience the "firm's" experience is pointless.
For more information please call us at 813-657-9175
]]>http://www.brandonssa.com/blog/index.php?entry=entry090615-1549222009-06-15T00:00:00Z2009-06-15T00:00:00ZWidows or Widowers' Benefits: Basic Requirements If something happens to you, benefits may be payable to your widow or widower with a disability if the following conditions are met:
1. You and your wife or husband were "legally" married in the State where the insured decedent had his or her permanent home. See, 20 C.F.R. section 404.345 (2008).
2. Generally 9 months of marriage is required under See 20 C.F.R. section 404.335 (2008) but there are many exceptions and you must refer to regulation aforesaid. See also, SSR 67-8: SECTION 202(e) and 216(c). -- WIDOW'S INSURANCE BENEFITS -- DEFINITION OF WIDOW -- ENTITLEMENT TO WIDOW'S INSURANCE ANNUITY UNDER RAILROAD RETIREMENT ACT IN MONTH BEFORE REMARRIAGE.
Key note: do not confuse the one year rule for wife's or husband's benefits: The marriage lasted at least one (1)year. See, 20 C.F.R. section 404.330 (2008).
3. The widow or widower is between ages 50 and 60.
4. Seven year rule: The disability started before your, the decedent's, death or within seven (7) years after your death.
4A. Disability start date is generally the last day worked and is also called the "alleged onset date (AOD)".
5. The widow or widower meets the definition of disability for adults, e.g., "totally and permanently disabled and unable to engage in gainful or substantial employment for 12 consecutive months or more".
5A. Medical evidence is critical at step 3.
Key Note: If your widow or widower caring for your children receives Social Security benefits, he or she is eligible if disability starts before those payments end or within seven years after they end. See 20 C.F.R. section 404.345(c)(1)(2008).
SSA uses the same definition of disability for widows and widowers as for workers.
II. Benefits for surviving divorced spouses:
If you have been divorced, your former wife or husband who is age 60 or older (50-59 if disabled) can get benefits if your marriage lasted at least 10 years. Your former spouse, however, does not have to meet the age or length-of-marriage rule if he or she is caring for his/her child who is under age 16 or who is disabled and also entitled based on your work. The child must be your former spouse’s natural or legally adopted child.
Benefits paid to you as a surviving divorced spouse who meets the age or disability requirement as a widow or widower won’t affect the benefit rates for other survivors getting benefits on the worker’s record. However, if you are the surviving divorced mother or father who has the worker’s child under age 16 or disabled in your care, your benefit will affect the amount of the benefits of others on the worker’s record.
III. What if I remarry?
Generally, you cannot get widow’s or widower’s benefits if you remarry before age 60. But remarriage after age 60 (or age 50 if you are disabled) will not prevent you from getting benefit payments based on your former spouse’s work. And at age 62 or older, you may get benefits based on your new spouse’s work, if those benefits would be higher.
See, SSR 87-7c: SECTIONS 202(e)(4) AND 202(f)(5) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(e)(4) AND 402(f)(5)) WIDOW(ER)'S INSURANCE BENEFITS -- NONENTITLEMENT OF SURVIVING DIVORCED SPOUSES WHO REMARRIED AFTER AGE 60 -- CONSITUTIONALITY OF FORMER PROVISIONS 20 CFR 404.336(e); Bowen v. Owens et al., _____ U.S. _____, 106 S. Ct. 1881 (1986).
]]>http://www.brandonssa.com/blog/index.php?entry=entry090331-1715542009-03-31T00:00:00Z2009-03-31T00:00:00ZAllsup and Other Thrid Parties "Monitoring" Your Claim: Do not allow it! Monitoring your Social Security claim has no advantage to you! Insurance Companies simply want to collect your back benefit monies to "offset" the payments made to you under the private disability policy which you paid for over years of employment. Its a "have your cake and eat it to" payoff for the insurance company. So how do they do it? The insurance company "hires" a company like Allsup to get a "jump" on your Social Security monies and God forbid if you are actually represented by a person who is hired by your insurance company, they more than likely had you already sign documents allowing them, your "supposed" representative, to collect your back benefits and then turn them over to the insurance company. Do not allow this to happen. Terminate this relationship immediately if this is the case!
Simply put, get a licensed attorney, not hired by your insurance company, who has done at least 1,000 Social Security cases to represent you! For more details call us for a Free Consultation at 813-657-9175 or e-mail us.
See other Blog Article below: Short or Long Term Disability Benefits: Beware of Representatives Recommended By Your Insurance Company.]]>http://www.brandonssa.com/blog/index.php?entry=entry090225-1546042009-02-25T00:00:00Z2009-02-25T00:00:00ZReverse Mortgages: A Scam of Your Wealth, Don't Do it! Reverse mortgages are products specifically designed for and targeted to senior citizens by supposed trust worthy actors such as James Garner and that Hart to Hart has been. Essentially these products are financinally raping senior citizens of their long term wealth and preventing the passing of the most important asset, the homstead, to one's heirs and family.
Unfortunately, the poor will beome poorer with legitimizing reverse mortgages to the main stream borrower and the near future we will see an unprecedented transfer of the middle and poorer income families wealth. The middle class and below will not reap the benefits of the family's homstead because the reverse mortgage will cause the homestead to end up with a third party institution or bank.
By all accounts, reverse home mortgage growth is exploding. Baby boomers are reaching retirement and, for most, home equity makes up the largest part of their nest egg. Reverse mortgages will be the tools that many of these retirees will use to tap into this nest egg for retirement living expenses. The number of new HUD Home Equity Conversion Mortgages (HECM) already has increased seventy-five percent in the most recent twelve-month period over the same period one year ago.
Along with reverse home mortgage growth come increased opportunities for fraud and scams. Reverse mortgages are different from traditional mortgages in ways that make them attractive vehicles for scam artists: scam artists know that a reverse mortgages provide the senior homeowner with relatively easy access to a sizeable pool of cash.
Reverse mortgages are harder to understand than traditional mortgages making it easier for the scam artist and legitimate lenders to confuse and take advantage. Even in a "legal" or legitimate loan fees are in the thousands of dollars and essentially unregulated. The lack of regulation has confused the general public as to what is legitimate and consequently spawned unprecedent scams on the American public. The following are cautionary tales for those considering the last resort "reverse mortgage".
Scam Tactic One, Downplay Pre-Loan Counseling:
All three major reverse mortgage programs HUD HECM, Fannie Mae’’s Home Keeper and Financial Freedom require potential borrowers to have counseling with an independent counselor specially trained in reverse mortgages before taking out a loan.
In a recent Detroit-area fraud case, a corrupt lender was able to keep the borrower in the dark about the amount she was eligible to borrow. She thought her loan would be for $61,000 when in fact she was borrowing $103,000. Guess who pocketed the $42,000 difference? A thorough counseling session would have given the homeowner an accurate idea of the true amount of eligibility.
Scam Tactic Two, A counseling meeting by phone is inadequate:
Although counseling by telephone is allowed, it is always best to meet face-to-face with the counselor. If you find that anyone you’’re working with in the process suggests that counseling can be done quickly over the phone or otherwise downplays the importance of pre-loan counseling, be highly suspicious.
Scam Tactic Three, Forgery:
Forgery is a key part of many scams. In one case, the lender requested the title company to prepare two checks payable to the homeowner: one for $61,000 which the homeowner received and a second one for $42,000 which the corrupt lender endorsed with a forged signature and deposited into his own account.
In one California case, two con artists one working as a financial advisor the other a handyman - convinced an elderly homeowner to take out a reverse mortgage to pay for home repairs. The financial advisor opened an account for the proceeds of the loan and forged the victim’’s name to gain access to funds.
Another California case reported in the Santa Cruz Sentinel shows how dangerous it can be to sign “unfinished” documents. Mrs. Sally Scott is 66 years old. While she receives Social Security and pension checks, she still can’t make ends meet. She saw an ad for a “reverse” mortgage a loan that allows seniors age 62 or older to receive cash by borrowing against their homes and does not require repayment as long as they live there. Seeking a little financial cushion, she spoke to a mortgage broker about a $10,000 reverse mortgage.
When she received the loan papers, she noticed that the loan amount was $200,000. The broker promised that he would change the figure, but insisted that she sign the paperwork first. Trusting the broker, Mrs. Scott signed.
A week later, she received a check for $200,000. She immediately notified the broker, who apologized for the mistake and instructed her to wire the money back. As it turned out, the account that Mrs. Scott returned the money to belonged to the broker. He disappeared, leaving her with a mortgage in default and no way to repay the loan. Precaution: Never sign documents with blanks to be filled in or corrections to be made later.
Scam Tactic Four,Charging for Free Reverse Mortgage Information:
The complexity of reverse mortgages means that it is natural for borrowers to seek assistance and guidance to help them understand the loan process, find a lender or, generally, better understand what they are getting into. Some scammers have seized on this to offer - for a fee - reverse mortgage information and services that are available to consumers at no charge.
For example, some senior homeowners have been contacted by firms offering to assist them in finding a reverse mortgage lender, in exchange for a percentage of the loan. This type of arrangement should always be avoided. According to HUD’’s website: HUD does NOT recommend using an estate planning service, or any service that charges a fee just for referring a borrower to a lender. HUD provides this information without cost, and HUD-approved housing counseling agencies are available for free, or at minimal cost, to provide information, counseling, and free referral to a list of HUD-approved lenders.
Walk away from anyone who offers to find a reverse mortgage lender for a fee. Use the internet to find free information about reverse mortgages or, read one of the several excellent reverse mortgage books that have been published in recent years.
Scam Tactic Five, Posing as a Government or Non-Profit Representative:
The most popular form of reverse mortgage - the Home Equity Conversion Mortgage (HECM) - is an official program of the U.S. Department of Housing and Urban Development (HUD). However, neither the HECM program nor other reverse mortgage programs are marketed directly to senior homeowners by government employees.
Unscrupulous reverse mortgage salesmen have been known to represent themselves to elderly homeowners as government representatives or volunteers for non-profit organizations.
Be sure you know who you are dealing with and what organization they represent. Do not be timid about asking for information such as their home office location and phone number. Use resources like HUD and the National Reverse Mortgage Lenders Association (NRMLA) to check out the company. Also, check complaint sites like www.ripoffreport.com or bbb.com.
Scam Tactic Six, Bundling Things with Reverse Mortgage Financing:
A common tactic of scam artists is to bundle reverse mortgage financing with something else such as home improvements, annuities, risky investments, living trusts or other estate planning products. In one Seattle-area case, elderly consumers were told that living trusts must be purchased in order to obtain a reverse mortgage. In another case, seniors were encouraged to take out a reverse mortgage and use the proceeds to “invest” in truck-mounted billboards. Frequently, two or more scammers work as a team. For example, in the California case cited earlier, an unscrupulous financial advisor steered the homeowner to a home repair contractor who was party to the scam and who grossly overcharged the victim for repair work. If you find yourself dealing with someone who attempts to bundle a reverse mortgage with another product or service or steer you to a particular contractor/lender, be highly suspicious. If you feel at all uncomfortable or that the person is using a high-pressure sales tactic, then walk away.
Whether legitimate or a scam the reverse mortgage should only be entered into as a last resort. Of all of the loan products it ranks up there as the worst and second only to a "pay day" loan from AMSCAM. I say just don't do it because it probably can not be undone.
]]>http://www.brandonssa.com/blog/index.php?entry=entry090210-1456282009-02-10T00:00:00Z2009-02-10T00:00:00ZThe Disability Application Check-List: The Phone Interview The following is a check-list of items you should gather together for the phone interview:
Checklist - Adult Disability Interview:
You should have as much of the following information as possible ready for your interview. Keep your appointment, even if you do not have all of the information. We, David W. Magann, P.A., can and will help you get any missing information.
Check off the items below as you get them together for your interview.
1. Medical Information:
Names, addresses and phone numbers of all doctors, hospitals and clinics.
Patient ID number(s):
Dates seen:
2. Names(s) of medicine(s) you are taking:
3. Medical records in your possession.
4. An original or certified copy of your birth certificate. If you were born in another country, SSA needs proof of U.S. citizenship or legal residency.
5. If you were in the military service, the original or a certified copy of your military discharge papers (Form DD 214) for all periods of active duty.
6. If you worked, your W-2 Form from last year, or if you were self-employed, your federal tax return (IRS 1040 and Schedules C and SE).
7. Workers' compensation information, including date of injury, claim number and proof of payment amounts.
8. Social Security Number(s) of your spouse and minor children.
9. Your checking or savings account number if you have one.
10. Name, address and phone number of a person who we can contact if we are unable to get in touch with you.
11. Kinds of jobs and dates you worked in the 15 years before you became unable to work.
The check-list will help you collect the information you need for your interview. You should always default on making the application rather waiting to see if you might get better. Go to www.ssa.gov for more information.
]]>http://www.brandonssa.com/blog/index.php?entry=entry081219-1521202008-12-19T00:00:00Z2008-12-19T00:00:00ZSocial Security Disability and the 12 Consecutive Month Rule: Have You Heard of It? In the case of Barhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 1271-72, 152 L.Ed.2d 330 (2002), the Supreme Court held that the SSA’s interpretation of the statutory definition of disability as requiring that a claimant’s “inability to engage in any substantial gainful activity” (SGA) last, or be expected to last, for at least 12 months, was based on a lawful construction of the statue. The Court also held that the regulation set forth in 20 C.F.R. § 404.1592(d)(2), which provides that a return to work prior to the lapse of a 12-month period after onset of impairment, and prior to adjudication of disability, precludes a finding that a claimant is disabled, or is entitled to a trial work period, is a reasonable interpretation of the statue and lawful. Id. at 1273-74.
Often Social Security uses the 12 consecutive month rule as a general basis of a claim's denial because you, the claimant, have not proven that the impairment will last the entire 12 months. However, when making the application you should not let the 12 month rule deter you but you should have your treating physician give a statement that your impairment will last beyond the 12th month of disability. In fact, the sooner you make your application is always the best course of action for many other reasons not covered under this topic.
So now that we know the basics of the 12 consecutive month rule what exceptions may be applicable? The 12 consecutive month rule mispplication has been used by the Social Security Administration in cases usually involving those who had already received disability benefits, but at some point went back to work earned substantial wages and then became disabled again. Below are some fact intensive case law holdings:
The Eleventh Circuit has found that SGA only bars entitlement to benefits during periods of employment where a claimant’s employment during the last three months of a four year period only barred receipt of benefits during the SGA activity and did not undermine the original determination that the claimant met a listed impairment. Merely, the claimant would not be entitled to receive benefits during periods of employment that rise to the level of SGA. Williams v. Apfel, 73 F. Supp.2d 1325, 1341 (M.D. Fla. 1999), citing Powell on behalf of Powell v. Heckler, 773 F.2d 1572, 1576 (11th Cir. 1985).
For example, suppose a claimant had a terminal illness such as Huntington’s Disease where he was out of work for a 12 month period but such period was before 2 years of continuous SGA work and now currently was out of work for only a 6 month period. One can argue that an applicable onset date was the prior 12 month period before the 2 years of SGA work. Notably, there still must be medical evidence to support the onset date and a fact intensive case by case analysis is required.
As far as partime work the Eleventh Circuit has held that at Step Five of the sequential evaluation process, “an ability to do part-time work does not preclude a finding of disability.” Kelly v. Apfel, 185 F.3d 1211, 1214 (11th Cir. 1999). One is to keep in mind the levels of SGA for each year worked and if evidence of Impairment Related Work Expenses (IRWE) and subsidies under Social Security Ruling (SSR)-83-33 is applicable.
In dealing with the 12 consecutive month rule one must consider many factors such as the claim status and the claimant's earnings to name a couple. As a general rule it is best to seek advice from an attorney who has conducted at least several hundred hearings, if not more, in order to understand the applicability of the rule and those fact intensive claims which the 12 consecutive month rule may have an adverse effect upon in Social Security claims processing.]]>http://www.brandonssa.com/blog/index.php?entry=entry081211-1447472008-12-11T00:00:00Z2008-12-11T00:00:00ZEstate Taxes and Exemption and Exclusion Amounts On June 7, 2001, the Economic Growth and Tax Relief Reconciliation Act of 2001 was singed into law and provides for a reduction in the federal estate and gift tax rates between the years 2002 through 2009. The law also increases during those years the unified credit amount which exempts assets from the federal estate tax. For gifts made after 2001, the new law provides for a lifetime exemption amount of $1,000,000. The law provides for an outright repeal of the federal estate tax for persons dying after 2009. From 2002 through 2009, the highest estate and gift tax rates and the unified credit which exempts assets from the payment of the estate tax are the following:
Calendar Year Estate Tax Exemption Highest Estate/Gift tax rates 2007 $2 million 45% 2008 $2 million 45% 2009 $3.5 million 45% 2010 and therafter no estate tax 35% (gift tax only)
Federal Gift Taxes and Exclusions:
For gifts made in the calendar year 2006 the annual gift tax exclusion is $12,000. The annual exclusion will increase from $12,000 to $13,000 when the cost-of-living adjustment (COLA) is at least another 10%. At current levels of inflation, it may be several years before the annual gift tax exclusion rises to $13,000. Any amounts paid on behalf of any individual (1) as tuition to an educational organization or (2) as payment for the individual's medical care will not be considered a gift. The exclusion for medical expenses and tuition is in addition to the $12,000 annual gift tax exclusion and is permitted without regard to the relationship between the donor and the donee. ]]>http://www.brandonssa.com/blog/index.php?entry=entry080826-1433502008-08-26T00:00:00Z2008-08-26T00:00:00ZSSI Title XVI Benefits and Your Work Attempt: Still Eligible? 5 Important Points A disabled or blind individual whose eligibility for SSI payments ended because of earnings can request expedited reinstatement of his/her SSI benefits without filing a new application. To qualify for expedited reinstatement, the individual must make the request within 60 months after his/her eligibility ended and must have a disabling medical condition that: (1) is the same as (or related to) the disabling medical condition that led to the previous period of eligibility and (2) prevents him/her from performing substantial gainful activity. In determining whether the individual is disabled or blind, the medical improvement review standard is applied. Normal nonmedical requirements for SSI eligibility still apply.
An individual requesting expedited reinstatement may receive up to 6 months of provisional benefits while his/her request is pending. These benefits generally are not considered an overpayment if the request is denied. Provisional benefits may include Medicaid but do not include any State supplementary payments. Provisional benefits also may be received by the individual's spouse at a couple's rate if the spouse was previously eligible for SSI as a spouse.
2. Application or Re-Application Process
Individuals can apply or reapply for SSI benefits at any one of the approximately 1,300 SSA field offices around the country or through SSA teleservice centers. The claims process includes the application interview, the obtaining of necessary evidence and documentation, and the adjudication of the claim. Although many of the eligibility requirements for the Social Security program and the SSI program are different, the application process is very similar. Many times, individuals file for benefits under both programs at the same time.
SSA corroborates information provided by applicants for SSI through independent or collateral sources. Generally, the basic responsibility for obtaining evidence lies with the claimant, although SSA often gives advice and assistance on ways to obtain the needed information. Because of the special circumstances of the SSI population (for example, financial need, old age, or illness), SSA makes special efforts to assist claimants in obtaining the necessary proofs.
With regard to disability and blindness claims, SSA makes determinations of all of the nonmedical eligibility factors whereas each State's Disability Determination Services (DDS) makes determinations of the medical eligibility factors.
3. Determination of Eligibility for Benefits
SSI applications have no retroactivity and become effective in the month after the month of filing or the month after all eligibility requirements are met, whichever is later. Eligibility for benefits is determined on a current monthly basis. The amount of the monthly benefit generally is determined using income in the second month preceding the month for and in which the benefit is paid (a method called retrospective monthly accounting). However, at the start of a period of eligibility or re-eligibility, the benefits for the first and second months are both determined using the income received in the first month. (One-time, nonrecurring income would only be counted in the month received.)
4. Payment of Benefits
SSI benefits generally are paid on the first day of each month. If the first of the month falls on a weekend or legal public holiday, benefit payments are delivered on the first working day preceding such Saturday, Sunday, or holiday. While SSA strongly encourages all SSI beneficiaries to receive their monthly benefits by direct deposit, benefit payments are also made by check if individuals do not wish to have their benefits sent directly to a financial institution. Monthly benefit payments include both the Federal SSI and State amounts if the recipient lives in a State in which SSA administers the State supplementary payment. (See section III.G.)
5. Ensuring Continued Eligibility for Benefits
SSI recipients are required to have their nonmedical eligibility factors redetermined periodically, generally every 1 to 6 years depending on their specific situation.
In addition to these nonmedical reviews, medical reviews are conducted on disabled or blind recipients in order to determine if they continue to be disabled or blind. For administrative efficiency the medical reviews are done most often on those disabled or blind recipients whose medical conditions are considered likely to improve. Medical reviews are required for disabled or blind recipients, for example, under the following circumstances:
When earnings of recipients exceed the substantial gainful activity (SGA) level which changes yearly, $940.00 in the year 2008.
At least once every 3 years for recipients under age 18 whose medical conditions are considered likely to improve;
Within 1 year after attainment of age 18 and using the adult eligibility criteria, for recipients whose eligibility for SSI benefits was established under the disabled child eligibility criteria.
Applicants and recipients are required to report events and changes of circumstances that may affect their SSI eligibility and benefit amounts. Such reports are required, for example, when an individual has a change in the amount of his/her income or resources, changes living arrangements, or leaves the United States. Failure or delay in submitting a required report can result in monetary penalties or ineligibility for SSI benefits.
The basic "failure to report" penalty is $25 for the first such failure or delay, $50 for the second such failure or delay, and $100 for each subsequent failure or delay. However, in cases of fraud or false representation of material facts, SSA's Inspector General can assess civil monetary penalties in amounts as large as $5,000. SSA also has the authority to suspend eligibility to SSI benefits for periods of 6, 12, or 24 months.
Additionally, SSA may use an accelerated rate of overpayment recovery to encourage accurate reporting. Overpayments to SSI recipients are generally recovered by withholding from the monthly benefit an amount equal to 10 percent of the individual's countable monthly income. For many recipients whose only income is SSI, this amounts to 10 percent of their monthly SSI payment. However, if SSA determines that misrepresentation or concealment of material information has occurred, 100 percent of the monthly SSI benefit may be subject to recovery.
In consideration that the maximum monthly SSI benefit is about $637.00 in 2008 and may be reduced on your economic need it is important to consider any work attempt and/or other income producing endeavor or claim on a cost benefit analysis and "know the math" or your monthly budget if your SSI benefits are terminated due to the above or change in financial circumstances. Notably, any claim recovery, personal injury, auto collision claim, etc. may stop your SSI benefits indefinitely. Consult with a Social Security attorney first, before any claim settlement!
]]>http://www.brandonssa.com/blog/index.php?entry=entry080804-1455302008-08-04T00:00:00Z2008-08-04T00:00:00ZShort or Long Term Disability Benefits: Beware of Representatives Recommended By Your Insurance Co. The answer is, you let them by signing documents with a representative the insurance company recommended and that "recommended" representative had you sign documents allowing him/her to take your back benefit monies to pay your insurance company.
How is that possible? Because there are so many documents in the application process you may not be fully aware of this "loop hole" that allows insurance company to have their cake (your disability premiums) and eat it too (your Social Security back benefits for the amount paid to you). In other words the insurance company not only received those premiums you paid but now they get all the money back for the money paid on your claim. Wouldn't you like to have the option of holding on to your back benefit monies? If yes, obtain an attorney not recommended by any insurance company. See below how the insurance company and their "recommended" representative uses the rules below to take your money.
Social Security has a general rule under GN 02410.001 Assignment of Benefits, and Section 207 of the Social Security Act (42 U.S.C 407) states: “The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the monies paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”
HOWEVER,
No Assignment is found when an insurance company that is paying long-term disability (LTD) benefits to a claimant requires the claimant to file for Social Security benefits. If the claim is allowed, the LTD benefit amount is offset by the amount of Social Security benefits received. As an incentive to induce the LTD insurer to refer claimants, a claimant’s representative offers to assist the insurer with recovering the overpayment made by the insurer to the claimant. The representative does not charge the claimant a fee for this service. The representative also makes it clear to the claimant that the claimant may pay the LTD directly and does not have to pay the LTD through the representative.
At the representative’s request, the claimant grants the representative pre-authorization to withdraw funds from the claimant’s bank account if SSA allows the claim and awards the claimant past-due benefits. AFTER the past-due benefits are deposited into the claimant’s (now an SSA beneficiary) account, the representative gets oral authorization (in addition to the pre-authorization) to transfer those funds to the LTD insurer to satisfy the LTD overpayment. The representative also documents the oral authorization.
This arrangement is not contrary to Section 207’s prohibition against assignment. The beneficiary is exercising control over the past-due benefits deposited into his account before the funds are transferred, and the beneficiary understands that he could have elected to pay the LTD directly. The representative is not getting a fee from the beneficiary and only gets a pre-authorization to transfer funds from the beneficiary’s account in order to satisfy an obligation to a third party (i.e., the overpayment of LTD benefits). The representative also gets an oral authorization AFTER the social security money is deposited into the beneficiary’s account.
The exception above is shocking to may claimants we come into contact with but many do not even know that the "recommended" representative is not on their side when it comes to an absolute right of "negotiating" with the insurance company as to how, when and how much in back benefits will be paid to the private insurer. Yes, you do have the right to negotiate with your insurance company and attempt to reduce any reimbursement! Please don't make the same mistake as many claimants who think reimbursement to a private insurer is somehow "automatic". From the start do not sign any authorization to allow anyone, especially your Social Security representation, access to your personal bank account. No representative with your interest will ask you to sign an authorization or "pre-authorization". For more information call us at 813-657-9175.
]]>http://www.brandonssa.com/blog/index.php?entry=entry080730-1802392008-07-30T00:00:00Z2008-07-30T00:00:00ZSSI (Supplemental [Social] Security Income): A Welfare Program Under Title XVI "Earned Income": is wages, earnings from self–employment, certain royalties and honoraria, and sheltered workshop payments.
"Unearned Income": is all income that is not earned, such as Social Security benefits, pensions, State disability payments, unemployment benefits, interest income, and cash from friends and relatives.
"In–Kind Income": is food or shelter that you get for free or less than its fair market value.
"Deemed Income": is the part of the income of your spouse with whom you live, your parent(s) with whom you live, or your sponsor (if you are an alien), which we use to compute your SSI benefit amount.
Income is anything you receive during a calendar month and use to meet your needs for food, clothing, or shelter. It may be in cash or in kind. In-kind income is not cash; it is food, clothing, shelter, or something you can use to get food, clothing, or shelter.
"Countable Income" definition: Countable income is the amount left over after:
1. Eliminating from consideration all items that are not income; and 2. Applying all appropriate exclusions to the items that are income.
For example, things that will effect your benefit amount or the qualification for SSI benefits are any and all bank accounts, retirement accounts, IRA's, CD's, etc., any payments from workers' compensation, personal injury settlements and any other cash payments will be considered for benefit reduction and/or exclusion form the SSI Program.
Unlike Social Security Disability Title II Insurance Benefits, SSI Title XVI benefits are not based on your prior work or a family member's prior work.
SSI is financed by general funds of the U.S. Treasury--personal income taxes, corporation taxes and other taxes. Social Security taxes withheld under the Federal Insurance Contributions Act (FICA) do not fund the SSI program.
In Florida, SSI beneficiaries with minor uninsured children can also get Medicaid (medical assistance) to pay for hospital stays, doctor bills, prescription drugs, and other health costs.
SSI beneficiaries may also be eligible for food stamps in every State except California. In some States, an application for SSI benefits also serves as an application for food assistance.
To get SSI benefits, you must be disabled, blind, or at least 65 years old and have "limited" income and resources as mentioned above.
In addition, to get SSI benefits, you must:
––be a resident of the United States, and ––not be absent from the country for more than 30 days; and ––be either a U.S. citizen or national, or in one of certain categories of eligible non–citizens.
SSI benefits are paid on the first of the month for the entire month.
The medical standards for disability are the same in both Title II and Title XVI programs for individuals age 18 or older. For more information and to review the exceptions to the aforesaid income rules please call us at 813-657-9175 and visit http://www.socialsecurity.gov/ssi/text- ... ng-ssi.htm and www.ssa.gov.
]]>http://www.brandonssa.com/blog/index.php?entry=entry080506-1706012008-05-06T00:00:00Z2008-05-06T00:00:00ZSocial Security "Life Insurance" or Survivor's Benefits and You, Eligible? When you die, certain members of your family may be eligible for survivors benefits. These include widows,widowers (and divorced widows and widowers), children and dependent parents.
• Your widow or widower may be able to receive full benefits at age 65 if born on or before January 1, 1940. (The age to receive full benefits is gradually increasing to age 67 for widows and widowers born January 2, 1940, or later.) Reduced widow or widower benefits can be received as early as age 60. If your surviving spouse is disabled, benefits can begin as early as age 50.
• Your widow or widower can receive benefits at any age if she or he takes care of your child who is entitled to a child’s benefit and is younger than age 16 or who is disabled.
• Your unmarried children who are younger than age 18 (or up to age 19 if they are attending elementary or secondary school full time) also can receive benefits.
• Your children can get benefits at any age if they were disabled before age 22 and remain disabled. Under certain circumstances, benefits also can be paid to your stepchildren, grandchildren or adopted children.
• Your dependent parents can receive benefits if they are age 62 or older. (For your parents to qualify as dependents, you would have had to provide at least one-half of their support.)
• Benefits for surviving divorced spouses: If you have been divorced, your former wife or husband who is age 60 or older (50-60 if disabled) can get benefits if your marriage lasted at least 10 years. Your former spouse, however, does not have to meet the age or length-of-marriage rule if he or she is caring for his/her child who is under age 16 or who is disabled and also entitled based on your work. The child must be your former spouse’s natural or legally adopted child. Benefits paid to you as a surviving divorced spouse who meets the age or disability requirement as a widow or widower won’t affect the benefit rates for other survivors getting benefits on the worker’s record. However, if you are the surviving divorced mother or father who has the worker’s child under age 16 or disabled in your care, your benefit will affect the amount of the benefits of others on the worker’s record.
• How much are benefits? How much your family can get from Social Security depends on your average lifetime earnings. A Social Security Statement, which is sent each year to every worker age 25 or older, gives an estimate of survivors benefits that could be paid.
• One-time death payment: There is a one-time payment of $255 that can be made when you die if you have worked long enough. This payment can be made only to your spouse or child if they meet certain requirements.
For more information please call us at 813-657-9175 and you may go to www.SSA.gov ]]>http://www.brandonssa.com/blog/index.php?entry=entry080305-1430542008-03-05T00:00:00Z2008-03-05T00:00:00ZSocial Security Benefits: A Brief Look – Franklin D. Roosevelt’s Statement on Signing the Social Security Act (Aug. 14, 1935).
The federal government provides benefits under two separate programs administered by SSA. The older program, known as the Old-Age, Survivors, and Disability Insurance program (OASDI), was originally proposed by Franklin D. Roosevelt and passed by Congress in 1935. At first, benefits were available only for retired workers. Through amendments made in 1956 and 1960, Congress expanded the program to provide benefits to workers who become disabled before retirement and to their dependents, called Social Security Disability Insurance (SSD). OASDI is for individuals who have worked or for their family members. The benefit amount depends on how much a wage earner paid into the Social Security system.
Congress created the Supplemental Security Income (SSI) program in 1972 (The program came into effect in October, 1974)to provide benefits to a separate and more vulnerable group—needy individuals unable to work as a result of disability or advanced age. SSI is for individuals who are disabled or elderly, have little or no work experience, and who are very poor. Their benefit amount is fixed. To qualify for SSI, an individual cannot have more than $2,000 in resources and a married couple must have less than $3,000.
As of December 2005, there were 48.4 million OASDI recipients,10 and, as of March 2007, there were 7 million SSI recipients. Access to benefits is especially important to SSI recipients because more than half of them have no other income.
Sources: (1)See Social Security Online: The Official Website of the U.S. Social Security Administration, Historical Background and Development of Social Security, March 2003, http://www.ssa.gov/history/briefhistory3.html (2) Office of Policy, U.S. Social Security Administration, Annual Statistical Supplement, 2006, available at http://www.ssa.gov/policy/docs/statcomp ... asdi.html. (3) Office of Policy, U.S. Social Security Administration, SSI Monthly Statistics, March 2007, available at http://www.ssa.gov/policy/docs/statcomp ... le02.html. (4) Office of Policy, U.S. Social Security Administration, SSI Annual Statistical Report, 2004, available at http://www.ssa.gov/policy/docs/statcomp ... ndex.html.]]>http://www.brandonssa.com/blog/index.php?entry=entry080128-1353102008-01-28T00:00:00Z2008-01-28T00:00:00ZUpdate on How to Get the Best Representation... Beware!and Why You Need A Florida Bar Licensed Attorney
Is your representative an attorney? This seems to be a silly question but often those who we meet with either do not know or mistakenly think their representative is an attorney when the representative actually is NOT! Also many individuals we see with Social Security claims may mistakenly have a representative not licensed in the State of Florida.
Beware that some Florida law firms are sending paralegals, NOT an attorney, to Hearings before the SSA. We believe for a Florida law firm to advertise that they do Social Security claims and then send a file clerk or paralegal with you to a hearing is unethical and misleading. We reiterate if you do not initially meet with the attorney who will be representing you then you should seek other representation!
Because the Social Security claim is a Federal/ “administrative claim” the law allows for less stringent guidelines, then the State of Florida for example, for those to represent you in your legal proceedings up to the “Hearing” level. Unfortunately the less stringent Federal/administrative standards often mislead claimant’s in regards to representative qualifications. The Social Security Protection Act of 2004 has attempted to partially regulate those non-attorney representatives however, implementation will be a long process and is less than remedial at best.
The Three Step common sense approach to choosing a representative is an easy checklist: (1) You should meet with the attorney who will be representing you! If you do not meet with the actual attorney and have not discussed the “strategy” of winning your claim then you may want to seek other counsel; (2) Review the representative’s qualifications, is he or she licensed in the State of Florida? How many Social Security cases has the representative personally handled?; (3) Does your representative have offices where you can see him/her when there are issues about the claim, such as for a pre-hearing interview and for the “legal brief” that should be submitted to the Judge prior to your hearing. Often claimant’s may not speak to and/or see their representative until the hearing which can cause serious ramifications in regards to the decision. Also a legal brief should be submitted to the Judge prior to the hearing. Ask your representative if he/she will be submitting a “legal brief” to the Judge!
The Florida Bar exists to protect you from unethical, unqualified and improperly trained representation. It exists for your protection and can act as a mediator and yes, complaint department when attorney-client problems arise. Failing to have a Florida Bar Licensed Attorney will not allow you to utilize the “safety net” of the Florida Bar procedures for your protection.
If you are wondering whether your representative is a Florida Bar licensed attorney you can call us at 813-657-9175 or e-mail us from this site and/or go to www.FLABAR.org and look your representative up on that website. Do not assume that if your representative is with a law firm that he or she is an attorney, VERIFY IT, flabar.org.
By: David W. Magann, Esq. ]]>http://www.brandonssa.com/blog/index.php?entry=entry071108-1846402007-11-09T00:00:00Z2007-11-09T00:00:00ZSurvivor Benefits and Social Security Trivia When you die, your family may be eligible for benefits based on your work. Family members who can collect benefits include a widow or widower who is: 60 or older; or 50 or older and disabled; or Any age if he or she is caring for your child who is younger than 16 or disabled and receiving Social Security benefits. Your children can receive benefits, too, if they are unmarried and: Younger than 18 years old; or Between 18 and 19 years old, but in an elementary or secondary school as full-time students; or Age 18 or older and severely disabled (the disability must have started before age 22).
Additionally, your parents can receive benefits on your earnings if they were dependent on you for at least half of their support.
Payment after death:
If you had enough credits, a one-time payment of $255 also will be made after your death. This benefit may be paid to your spouse or minor children if they meet certain requirements.
Some facts about Social Security:
2006 Social Security taxes You and your employer each pay 6.2 percent If you are self-employed, you pay 12.4 percent You do not pay Social Security taxes on any earnings above. $94,200 2006 Medicare taxes You and your employer each pay 1.45 percent If you are self-employed, you pay 2.9 percent Medicare taxes are paid on all of your earnings; there is no limit.
Work credits in 2006: For each $970 you earn, you receive one Social Security ““credit,”” up to four per year.
Most people need 40 credits to be eligible for retirement benefits. Younger people need fewer credits to qualify for disability and survivors benefits.
Average 2006 monthly Social Security benefits Retired worker: $1,002 Retired couple: $1,648 Disabled worker: $939 Disabled worker with a spouse and child: $1,571 Widow or widower: $967 Young widow or widower with two children: $2,074
2006 monthly SSI (Social Secutiy Income,(Welfare)) payment rates (does not include state supplement, if any) $603 for an individual $904 for a couple ]]>http://www.brandonssa.com/blog/index.php?entry=entry071106-1714262007-11-06T00:00:00Z2007-11-06T00:00:00ZThe Evaluation of Obesity under the Social Security Act The Social Security Administration removed obesity from the Listing of Impairments effective October 25, 1999. 64 Fed. Reg. 46,122 (1999). Currently, Social Security Ruling (SSR) 02-1p, outlines the evaluation of disability in regards to obesity. SSR 02-1p acknowledges that obesity can play a role in equaling a “Listing” or “Listed Impairment” under the Social Security Act. Adjudicators and judges should consider the cumulative effects not only when considering whether a claimant’s impairments meet or medically equal the Listings but also when assessing residual functional capacity. See, 20 C.F.R. Pt. 404 Subpt. P, App. 1 foll § 404.1599. (West 2002) of the Listing of Impairments. Obesity at any level in the disability application process, because it is a medically determinable impairment, must be considered in assessing a residual functional capacity (RFC) of the claimant. See, SSR 02-1p, 20 C.F.R. §404.1523.
Obesity is generally evaluated using the body mass index (BMI). For example, under the BMI chart the criteria for "obese" could be a person who is 64 inches tall and weighed at least 181 pounds. A person who is 64 inches tall and 230 pounds could meet the BMI criteria for "extreme obesity". Often the claimant may be questioned via the adjudicator or judge about following the treating physician’s weight loss prescription. Usually, the questioning centers on the failure of the weight loss regime.
Acceptable Reason for Failure to Follow Prescribed Treatment
Under 20 C.F.R. Pt. 404 §1530 the claimant must follow prescribed treatment by the treating physician if such treatment can restore the ability to work. There are several exceptions to the general guideline. For example, under Social Security Ruling (SSR) 82-59 a claimant’s limited resources may only avail her or him the opportunity to afford periodic palliative care and thus conclude in a failure of the weight loss regime. See also,Gamble v. Chater, 68 F.3d 319, 321 (9 th Cir. 1995); Dawkins v. Bowen, 848 F.2d 1211, 1213 (11 th Cir. 1988). Further, under 20 C.F.R. Pt. 404 §1530(4) such weight loss treatment may be alleged as inconsistent where a claimant did not fully understand the importance of weight loss care and the interconnection of other ailments, e.g, diabetes. Often, the claimant’s inability to understand the weight loss regime can be supported by a claimant’s impaired mental state, e.g., limited education, below average intelligence, severe depression, etc.
It is important that the allegation of obesity as a medically determinable impairment is interconnected with the medical criteria within the Listings under the Social Security Act. Often, the adjudicator or judge should be prompted or reminded to consider the claimant’s combined impairments, e.g., obesity and diabetes, which restrict her or him from engaging in any substantial gainful activity. See, 42 U.S.C. § 416(i); 20 C.F.R. §§ 404.1523, 404.1527; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.1996) (the ALJ should consider how the combination of the claimant's impairments affects the claimant's ability to do basic work activities).]]>http://www.brandonssa.com/blog/index.php?entry=entry071031-1540432007-10-31T00:00:00Z2007-10-31T00:00:00ZThe Mystery Disease: Fibromyalgia www.arthritis.org Unfortunately, the legal community is lacking in their awareness of the impairment. The few Social Security decisions that address fibromyalgia often reveal an Administrative Law Judge's (hereinafter "ALJ") unfamiliarity with the disease. This leads the ALJ to evaluate the claimant's credibility rather than the disease. Of course, the ALJ's unfamiliarity is also a direct reflection upon the advocate who's duty is to inform the Court.
In 1996, the Seventh Circuit held that, the ALJ misunderstood the disease of fibromyalgia and improperly found the claimant's credibility to be undermined. Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The Court observed that the principal symptoms of fibromyalgia are "pain all over," fatigue, disturbed sleep, stiffness, and the only symptom that discriminates between it and other diseases of a rheumatic character multiple aching spots. Id. at 307.
The Tenth Circuit stated that, "the mysterious nature of this disease and the ALJ's lack of familiarity with it....impacted his decisions concerning the assessment of [the claimant's] credibility." Stephens v. Chater, No. 954110RDR, 1996 WL 304527 (D. Kan. June 4, 1996). The Stephens case epitomizes the difficulty in the evaluation of the disability claim where fibromyaglia is at issue. Often, because of the "mystery" of the disease the claimant's credibility may wrongfully come into question.
As a result of ALJ decisions evaluating claimants' credibility rather than fibromyalgia, recent rulings are now requiring a comprehensive assessment of medically documented fibromyalgia symptomology. Owen v. Chater, 913 F. Supp. 1413, 1419 (D. Kan. 1995); Social Security Ruling 967p. To dispel the "mystery" of the disease two circuits have aligned fibromyalgia with the well recognized disease of chronic fatigue syndrome (hereinafter "CFS"). The Eleventh Circuit held that, fibromyalgia is "not inconsistent with a diagnosis of [CFS]." Sabo v. Chater, 955 F. Supp. 1456, 1462 (M.D. Fla. 1996), quoting Fragale v. Chater, 916 F. Supp. 249, 254 (W.D.N.Y. 1996). The Ninth Circuit held that, a diagnosis of CFS and fibromyalgia may exist simultaneously, especially since they both share a number of common features. Powell v. Chater, 959 F. Supp. 1238 (C.D. Cal. 1997).
The advocate should keep in mind that physical examinations will usually yield normal results a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. There are no objective tests which can conclusively confirm the disease. The medical literature indicates that fibromyaglia patient's may have psychological disorders, the disease commonly strikes between the ages of 35 and 60 and it affects women nine times more than men. See, Preston v. Secretary of Health and Human Services, 854 F.2d 815, 818 (6th Cir. 1988). ]]>http://www.brandonssa.com/blog/index.php?entry=entry071031-1300292007-10-31T00:00:00Z2007-10-31T00:00:00Z