Information for injured persons and Social Security disability claimants in Texas and throughout the United States. By Robert A. Kraft
About My Blog
The purpose of this blog is to provide information to people who have been injured due to negligence, and to those who have filed for Social Security disability benefits, or who are considering filing for Social Security disability benefits.
Our Dallas, Texas personal injury and Social Security disability lawyers want to help. To find answers to your questions, please use the Google search box or the Categories list below. If you still don't find what you need, just send an e-mail to me at firstname.lastname@example.org and I'll get right back to you.
Hot Coffee — I can't recommend this movie highly enough. It's the real story of the infamous McDonald's hot coffee law suit, and of other matters related to the misleading phrase "tort reform." If you have any interest at all in this subject please buy or rent the movie. You won't be disappointed. Here is a description from the official Hot Coffee site:
Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts?Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this film, you will decide who really profited from spilling hot coffee.
Despite the fact that Governor Perry vetoed a law that would make texting while driving illegal in Texas, such texting is terribly distracting and dangerous. It's at least as bad as driviing while intoxicated.
Now there's a partial solution to this problem, and it may be of interest to you if you have a teenager who texts while driving, or even if you have a hard time breaking that habit. A phone app from a company named MobileLutions will prevent you from texting if you are in a vehicle traveling more than seven miles per hour. There are more details of course, and you can read about them at the company's Web site.
I wrote a few days ago about an investigation into shady auto insurance companies such as Fred Loya Insurance and Old American County Mutual Insurance. The investigation was done by the Dallas Morning News, and the newspaper has now followed up with an editorial about reporting sleazy insurance company tactics to the State of Texas. Here are excerpts:
Every time you pull out of your driveway, it’s a roll of the dice. You could be the most careful and reasonable driver in Texas and still find yourself calling a body shop or, worse, in physical pain because some less careful, less reasonable goof ran into you.
You take this chance because you have places to go, people to see. Almost always, fortune smiles and you arrive safe and sound.
When you don’t, you begin a new gamble. Does the other driver have insurance? The state requires it, but as you’ve read here and elsewhere, it’s about 1-in-4 that the other guy doesn’t. Even if he does — or appears to be covered — your long road has only begun.
If you’re lucky and not at fault for the wreck, the other guy calls his insurance company, which deals with you in good faith. You are made whole for damages to your car and person.
If you’re not lucky, that insurance company stalls. Or tries to low-ball your claim. Or disputes all evidence, including your witnesses, and refuses to pay, perhaps hoping you’ll take less or maybe even go away.
This may not be the rule in Texas, but it happens more than anyone should tolerate. A recent Dallas Morning News report highlighted the cases of a Mesquite woman denied her claim because the other driver was on his mother’s policy and a Rockwall man shorted $1,000 on a promised rental-car reimbursement.
Consumers filed more than 6,600 complaints last year against auto insurers in Texas, more than half by drivers who contended they were not at fault in an accident but had trouble getting an insurer to pay. Another 4,200 claims were filed in the first three quarters of this year, according to Texas Department of Insurance statistics.
Two companies, Fred Loya Insurance Co. and Old American County Mutual Insurance, have complaint rates far higher than the state average and are under department investigation. Potential penalties range from fines to the so-called death penalty — revoking a company’s license to write policies in Texas.
What can the rest of us do? Add this to your post-accident to-do list: File a complaint with the state insurance department. It may seem like one more waste of time, but your voice has value. Don’t let anyone tell you that you have no recourse, because you do.
The state needs your data on slow-paying or no-paying insurers, who build such cheating into their business model to undercut better insurers on cost. Reputable companies — they do exist — have little fear of state investigation because they tend to operate in good faith and pay what they owe.
The state needs your complaints on the other guys to build a pattern of unethical business practices against them that could chase them out of Texas for good. More complaints, clearer pattern. The sooner that happens, the better for everyone.
The wonderful columnist Tom Margenau, a longtime veteran of the Social Security Administration, responded recently to a question about an e-mail that has been circulating on the Internet. The gist of the e-mail is that illegal immigrants are filing for Social Security disability and thereby draining resources from the system. Of course this is not true. Here are excerpts from the article by Mr. Margenau:
Q: I would like you to comment on the attached email. In it, you'll see a photo that shows a waiting room in a typical Social Security office. I've seen similar scenes in my own local office. No wonder Social Security is in trouble if these kinds of people are ripping off the system!
A: Who are "these kinds of people"? To answer the question, let me describe the photo for the rest of my readers. Labeled "Our tax dollars at work: Social Security office waiting room — Austin, Texas," the image shows a room full of chairs. Sitting in those chairs is a collection of mostly young to middle-aged people. Almost everyone in the picture is African-American or Hispanic. Above the picture is this question: "Do you see any gray or white haired retired folks?"
And this bit of vitriolic text accompanies the picture:
My friend went to his Social Security office to get a Medicare card. He took a picture of the waiting room. Please tell me if you can find a retired person in the place!!!! It's called "disability" insurance!!!! You no longer have to wonder why Social Security is broke!!! These people do not pay into the system, nor are they disabled!!! Please spread this picture to everyone you know. Our country is going broke on this fraud!!! Please also go down to your Social Security office and take a picture and post it on the Internet. It just might wake up the country as to what is going on!!!
Gosh. Where and how do I begin to deal with this pile of Internet excrement? There's so much I could point out that is absolutely idiotic.
Let's start with one obvious point: I hope you realize how racist and xenophobic it is. The uninformed fool who posted this picture and text on the web never came out and said it, but instead of wondering where the gray-haired people were, he might as well have asked, "Do you see any white folks?"
And how about this whopper: "These people do not pay into the system, nor are they disabled!" How in the world can you tell all of that from looking at the picture? How can you tell that they haven't worked and paid Social Security taxes? I guess it's because they are "those people" — black and Hispanic. What other reason would the email sender have for saying that?
And how do we know they aren't disabled? What do disabled people look like? Do they have to be wrapped head-to-toe in a body cast? Should they be lying on a hospital gurney? Or, once again, I have to wonder if maybe — just maybe — the email sender thinks they have to be white (and possibly using canes)!
And then there's the implication that people get disability benefits without paying into the system.
That's simply not true. To qualify for Social Security disability benefits, you must work and pay Social Security taxes, usually for a minimum of 10 years. Also, people who really know how the system works understand that it's very difficult to qualify for Social Security disability benefits. In other words, you must be severely disabled before you receive monthly Social Security disability payments.
As I point out so often in this column, the Social Security Administration does manage a federal welfare program called Supplemental Security Income, or SSI. SSI is not a Social Security benefit and is not paid for out of Social Security taxes. To qualify for SSI, you must be over 65 or severely disabled, and you must be poor. So I guess there's a chance that some of the folks in the picture are there to file for SSI benefits.
But I can tell you that most of the young and middle-aged people you see sitting in that waiting room in the picture are not there to file for Social Security or SSI disability benefits. They are there to replace a lost or missing Social Security card. How do I know? Because internal SSA studies show that about 80 percent of the people who come into a Social Security office are there to do just that. That's the primary reason why you don't see any "white-haired folks" in a Social Security waiting room.
So where are the old folks who need to do business with Social Security? They are sitting at home on the phone or at their computer. Most people who file for Social Security retirement benefits do so either online or by making an appointment for a phone interview. They rarely, if ever, have a need to visit a Social Security office.
Shame on the people who are spreading this vicious email!
The prescription drug Avastin, produced by Genentech, has been pulled from the market by the Food and Drug Administration. But only for treatment of breast cancer. the drug will still be available for treatment of other medical problems. the FDA has essentially said the drug's side effects, including death, outweigh any potential benefits. This story was reported in detail in the New York Times. Here are excerpts:
The commissioner of the Food and Drug Administration on Friday revoked the approval of the drug Avastin as a treatment for breast cancer, ruling on an emotional issue that pitted the hopes of some desperate patients against the statistics of clinical trials.
The commissioner, Dr. Margaret A. Hamburg, said that clinical trials had shown that the drug was not helping breast cancer patients to live longer or to meaningfully control their tumors, but did expose them to potentially serious side effects like severe high blood pressure and hemorrhaging.
“Sometimes, despite the hopes of investigators, patients, industry and even the F.D.A. itself, the results of rigorous testing can be disappointing,” Dr. Hamburg told reporters Friday. “This is the case with Avastin when used for the treatment of metastatic breast cancer.”
Avastin will remain on the market as a treatment for other types of cancers, so doctors can use it off-label for breast cancer. But insurers might no longer pay for the drug, which would put it out of reach of many women because it costs about $88,000 a year.
Federal officials said on Friday that Medicare would still provide coverage for the drug’s use in breast cancer, though the government plans to “monitor the issue and evaluate coverage options.”
Medicare is obligated to pay for off-label use of cancer drugs that are listed in certain references, like the one published by the National Comprehensive Cancer Network, an organization of major cancer hospitals. In July a committee of breast cancer specialists from those centers reaffirmed that Avastin should remain listed as “an appropriate therapeutic option for metastatic breast cancer.” A third of the committee members had financial ties to Genentech, according to Dr. Hamburg’s memorandum.
Many breast cancer specialists say that Avastin does appear to work very well for some patients, and some advocates have said the drug should be left on the market for the sake of those patients. But Dr. Hamburg said there was no way to determine in advance who those patients were, so many women would use the drug. “The evidence does not justify broad exposure to the risks of this drug,” she wrote.
This article was written for the American Bar Association to serve as a brief guide when a lawyer who does not practice Social Security disability law receives an inquiry in that field. I hope you find it helpful.
Learn how to collect the proper data to give an informed referral
Learn how to distinguish among types of claims
Become familiar with the Five-Step Disability Determination Process
Just as medical specialists should know at least the basics of other areas of medicine, so should lawyers know the basics of other areas of law. You may be a tax lawyer, but chances are you will get questions from clients or friends regarding everything from divorce to drunk driving laws. You may not want to give legal advice in these other practice areas, but you probably don’t want to appear totally ignorant of them.
So it helps if every lawyer can know at least enough to recognize a potential Social Security disability claim when talking with a client, potential client, or friend. For information beyond the basics included in this short article please visit the Social Security Administration website at http://www.ssa.gov.
Two Types of Social Security Disability Claims
Let’s start with some terminology. It seems almost every lawyer who contacts our firm with a possible referral says the case is a claim for SSI benefits. I don’t know why people seem to think all Social Security disability claims are called SSI, but this is an important misunderstanding. There are two basic types of Social Security disability benefits. They have many similarities, but several distinctions. One is an insurance claim and the other is a welfare program.
The insurance claim is called Disability Insurance Benefits, commonly shortened to DIB. The welfare program is Supplemental Security Income, or SSI. The medical and vocational qualifications are the same for each, but the financial qualifications are completely different.
To qualify for DIB, a person must have worked and paid in, through payroll deductions, to the Social Security system for at least five of the past ten years. To qualify for SSI, the person must have extremely low household income and assets, but does not have to show any record of paying into the system.
Another major difference between the two types is that people who qualify for DIB benefits receive Medicare coverage. People who qualify for SSI benefits receive Medicaid coverage.
Due to the space limitations of this article I will not attempt to discuss widow’s benefits, child’s benefits, or other types of disability claims.
Medical and Vocational Qualification
Once the financial determination is made, and the claimant meets the test for either DIB or SSI, the claimant must then qualify medically and vocationally for a finding of disability. In Social Security disability cases, the claimant must be determined to be totally disabled and unable to be gainfully employed. There is no percentage finding, as in veterans service-connected compensation claims. Social Security is an all-or-nothing system. Benefits do not require a finding of permanent disability however. A person can receive benefits if he or she is disabled for a minimum of 12 months.
These medical and vocational determinations are made in a series of decisions referred to as the Five-Step Disability Determination Process. A claimant must pass each stage in order, move on to the next stage, and finish out the process. If the claimant fails any stage, the process stops and the claimant will be denied benefits. Each step is in the form of a question.
The Five-Step Disability Determination Process
Step 1: Is the person engaging in substantial gainful activity?
If the answer to this question is yes, the person is not disabled. Substantial gainful activity means physical or mental activity performed full-time or part-time for an amount of money in excess of the amount defined as acceptable by the Social Security Administration. That amount for nonblind persons in 2011 is $1,000 per month. A person who is working and earning more than $1,000 per month is not disabled by law.
Step 2: Does the claimant have a severe impairment?
A severe impairment is defined by the Social Security Administration as an impairment or a combination of impairments expected to last more than 12 months and/or result in death, and that significantly limits the claimant’s physical or mental ability to perform work activities
Step 3: Does the claimant have an impairment or combination of impairments that meets or medically equals a listed impairment?
The Social Security Administration listings are a complex compilation of age-factored medical conditions and symptoms. The listings can be found online. The listings include both exertional and nonexertional matters.
This step is the one that allows the most flexibility for zealous advocacy on behalf of the claimant. Reading the listings and grid, and fitting your client into the proper slot, is similar to working a complicated puzzle. Many cases require a certain creativity to use your client’s physical, mental, psychological, educational, and vocational limitations in exactly the right combination in order to convince the administrative law judge (ALJ) to find disability. Lengthy articles and even books can and have been written about this step alone.
Step 4: Can the claimant perform his or her past relevant work?
This question is normally answered by using a medical finding referred to as residual functional capacity. Evidence may come from the claimant’s treating doctors and from a medical expert hired by the Social Security Administration. The claimant can also offer testimony on this point.
Step 5: Is there any other work in the national economy, given the claimant’s age, education, past relevant work, and residual functional capacity that the claimant could perform?
Vocational testimony is used to make this determination based upon information in the Dictionary of Occupational Titles. At the ALJ hearing there will frequently be a vocational expert who will present evidence regarding jobs available that fit the claimant’s residual functional capacity. It is the duty of the claimant’s lawyer to rebut this vocational evidence.
If a claimant makes it through these five steps, he or she should be declared disabled. Of course, as with any bureaucracy, this does not always happen. In those cases, an appeal may be in order.
The Procedural Stages
There are five stages at which a person may be declared disabled. Without going into any detail, this is the list of stages:
1. Initial Application
3. ALJ Hearing
4. Appeals Council
5. Federal Court
In general there is a 60-day time limit in which to appeal a denial at any of these stages. One thing every lawyer must know is that time is of the essence in any Social Security disability claim. Never delay if you are asked questions about a claim. You do not want a deadline to pass because you postponed talking with someone about a claim.
Following this article is a very brief checklist of important things to do or to ask when first considering a Social Security disability claim. If you plan to refer the case to a Social Security disability lawyer, that lawyer would appreciate having this information when you make the referral call. This list (actually this entire article) barely begins to scratch the surface of this complex practice area. But the information here should allow you to discuss the basics of Social Security disability, and to recognize a potential case.
Lawyers who practice Social Security disability must learn huge amounts of arcane and sometimes contradictory federal rules and regulations, and must do battle daily with a gigantic obstructive bureaucratic government agency. The money is not great, because there is a $6,000 fee cap on most cases. But those practitioners have the enormous reward of helping clients who are in terrible physical and financial shape. Winning a Social Security disability claim is almost guaranteed to bring you a heartfelt hug from your client, and some of us think that’s worth much more than money.
New Cases: Questions to Ask and Actions to Take
Get the full name of the claimant as listed on the Social Security Administration paperwork.
Get the claimant’s marital status.
Does the claimant have any dependents under the age of 18?
What is the claimant’s level of education?
Has the claimant worked 5 of the last 10 years?
What is the claimant’s Date Last Insured under DIB claim?
Has the claimant applied for disability benefits before? Get copies of any prior applications.
When was the claimant last denied? Was an appeal done? When?
Get a copy of the claimant’s last letter or denial from Social Security—remember the 60-day deadline.
Has the claimant attempted to return to work since the disability began? Get dates worked and amounts earned.
Get all sources of income for the claimant’s household. Is the claimant receiving any form of government assistance such as food stamps or unemployment?
Who are the claimant’s treating doctors? Will their reports support a claim for disability?
Have the claimant’s doctors restricted work (for example a 10 pound maximum lift) in any way? Have the doctors put this in writing?
Is the claimant able to afford ongoing medical treatment?
Has the claimant filed any claims for workers’ compensation benefits? Is the claimant receiving long-term or short-term disability benefits from private insurance?
Are there any third parties such as friends or neighbors who can corroborate the claimant’s restrictions or needs for assistance with daily activities?
Is the claimant an honorably discharged veteran with a potential service-connected disability?
Is the Internet making us dumber? Or is it at least making us ill-informed when it comes to medical and health matters? In the old days, when you got sick you might look in the Readers Digest Medical Symptoms book and try to figure out what was wrong with you. But that usually wasn't too productive, so you just called your family doctor. Now though, with hundreds of legitimate medical sites on the Internet and probably thousands of blogs devoted to medical issues, there is a flood of information on every possible medical situation.
The problem is that much of that Internet information is either incomplete or just plain wrong. That's the conclusion of an article published on Medscape Today. Here are excerpts:
The Internet puts solid health information at a patient's fingertips, but 2 new studies suggest that too many of those fingertips stray into questionable territory.
In a survey from Wolters Kluwer Health, 78% of physicians said that lack of time is one of the most common challenges for physician-patient communication. The next biggest problem in this regard — cited by 53% of physicians — is misinformed patients.
The phone survey, conducted in August, included more than 300 US physicians, roughly split between primary care physicians and specialists.
The survey sheds more light on the increasingly larger role — for good and ill — that the Internet plays in healthcare. The Pew Research Center reports that 78% of adults use the Internet, and of these, 83% look up health information online.
However, the value of that information is debatable. While just over half (53%) of physicians in the Wolters Kluwer Health survey said that easier access by patients to medical knowledge has improved the exam-room experience, 1 in 5 said that this easier access "has been detrimental, leading to misinformation and incorrect self-diagnosis."
Similar misgivings emerged in a study presented by Cleveland Clinic Foundation researchers at the annual scientific meeting of the American College of Gastroenterology (ACG) that ended this week. The researchers analyzed the 100 most-viewed YouTube videos on inflammatory bowel disease (IBD) and rated their overall educational quality as poor.
"Clinicians and their patients need to be aware of misleading information posted by patients or particularly by pharmaceutical companies who often post videos to make it seem like they are coming from a patient when in actuality it is a company advertisement," said researcher Saurabh Mukewar, MD, in an ACG press release. "These sources are not transparent."
"The Internet and social media are not going away — YouTube is a powerful platform to deliver and receive healthcare information," said Dr. Mukewar, an internal medicine resident at the Cleveland Clinic. "But healthcare providers and professional societies need to provide more educational and efficient materials using this powerful tool to counteract misleading information."