GoDirect, DirectExpress, and Countdown Clocks

Question: What happens on March 1, 2013?

Answer: “Paper or plastic?” stops being a valid question for payment of federal benefits.

What’s that you say? By March 1, 2013, anyone receiving federal benefits (Social Security, VA, etc.) must switch over from paper checks to direct deposit or a DirectExpress debit card. Anyone receiving paper checks who fails to make the election between direct deposit to a designated account or the DirectExpress debit card will automatically receive the DirectExpress debit card.

There is a waiver process, in which one can apply to continue to receive paper checks, but it is likely to be a difficult process to obtain such a waiver, it seems, as the government is trying to save money and intends to discourage waivers except in the most compelling circumstances.

The Department of the Treasury has a fairly slick website and a countdown clock (counting down to March 1, 2013), explaining the brave new world and linking to the DirectExpress site, as well. In case you are as fond of countdown clocks as I am, you can march yourself right over to this place: Tick Tock. 131:19:13:9… 131:19:13:5. You just can never get too much of those suckers.

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COLA (Cost of Living Adjustment) and Social Security 2013

Social Security benefits and SSI (Supplement Security Income) benefits will increase 1.7 percent starting January, 2013 [SSI payments will increase starting December 31, 2012].

This affects about 64 million people nationwide.

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This is what I know: no mother whispers into her child’s cradle to her sleeping infant, or to her cooing baby, in her arms, “When you grow up, you’re going to be disabled and go on Social Security.” This is also what I know: no child, when a teacher or another adult asks, “What do you want to be when you grow up?” EVER responds, “When I grow up, I’m going to be disabled and collect Social Security Disability” or, even more absurdly, “When I grow up, I’m going to fake being disabled and collect Social Security Disability.” No mother wishes such a fate for her child. No child dreams of a future other than becoming a fireman, doctor, teacher, nurse, policeman, lawyer, astronaut, or President. Those are the shared dreams of all mothers and children. There is nothing less than those dreams.

But, sometimes something happens along the way. Sometimes it happens early in the form of childhood illnesses, or severe learning disorders. Sometimes it is a product of mental illness, made worse by poverty or neglect or abuse. Sometimes it happens very late in life, after years of working and working through multiple illnesses or injuries and then the final blow–the injury or illness from which the worker cannot recover.

I am always struck, when I meet potential Social Security Disability clients for the first time, that despite what the plutocrats may think, how sad, scared and profoundly hopeless these people are. The last place they want to be is sitting in a lawyer’s office, talking about the most private aspects of their lives. They are terrified of their futures. They are embarrassed to be speaking of their past and present. They are humiliated by their poverty. They are intimidated by a system that they do not understand, that is so complex that they can never understand, and they are intimidated by a lawyer whom they think is “judging them.”

This is also what I know: but for some unpleasant and unfortunate exceptions, the Administrative Law Judges in front of whom it has been my privilege to appear for over 32 years, are thoughtful, smart, decent jurists. They crave understanding the case and understanding the medical aspect of a claimant’s case and how those medical conditions affect the claimant’s ability to function both in the workplace and outside the workplace. They are not “soft touches”; they demand the highest level of practice from attorneys and demand the evidence supporting the claim. But, they are also (again but for those outliers–those characters out of Dickens, and I do not mean Little Dorrit) not the enemy.

As I listened to the “testimony” at the Congressional Hearing on September 13, 2012, it was very clear that Congress was not declaring war just on the disabled, but also on the Judges who hear the cases of the disabled. The very premise of the inquiry, made the result inevitable. The committee examined 300 favorable decisions. They did not look at one unfavorable decision. The Committee simply didn’t care if people were mistakenly denied benefits. The Committee’s purpose was to “prove” its premise that the undeserving poor are getting a free ride.

It is more than just discouraging that pressure is being placed on these Judges to decide cases by statistics. It is clear that the politicians are insisting that the measure of these Judges be the number of people to whom they deny benefits. The core of due process is an independent fact-finder. A judiciary that is told that they must deny at least 50% of the applicants, regardless of the merits of the cases, is not an independent judiciary. But, that is clearly the intent of Congress. The How MI Doing initiative, is an ongoing “report card” system that does nothing more than show the percentage of grants and denials, in comparison with other judges. There is nothing subtle about the intent of that initiative.

The Congressional “inquiry” recommended several measures, but the first two are the most telling. The first requires that a government representative be present at all hearings “to reduce instances in which SSA ALJs overlook evidence indicating a claimant is not disabled”. That is a verbatim quotation. Quite clearly, congress wants a policeman to patrol the Judges. The second is an ALJ “review process”. Presumably, the new policemen will also act as a government plant to critique the Judges.

Put all three mechanisms together: an on-going report card, a police man and a “review” process, and what is clear is that Congress’ sole purpose is to ensure that ALJ’s hearing a case can no longer judge the case without interference, and they judge favorably at their peril.

Congress has, apparently, decided that it does not have the power to stop people from becoming disabled, or stop them from applying for the benefits guaranteed the disabled under law, but it sure as heck can intimidate the Judges whose job it is to apply the law.

Posted in Social Security Disability Musings | Tagged , , , | 2 Comments


One of the issues that comes up quite frequently in Social Security Disability, and is probably the most confusing for clients, is the “Date Last Insured”; in Social Security-speak, the DLI.

Clients come in with a letter from Social Security saying that they are being denied because they had to prove they were disabled before some date in the past and there is not sufficient proof from the past. Sometimes the date is two years ago; sometimes it is decades in the past. So,what is past date issue? It is the date that client was last insured (yes, Social Security is NOT a welfare or entitlement program; it is an insurance program) for disability benefits– or, Date Last Insured.

Social Security Disability Insurance is very much like a private insurance disability policy or even an automobile or homeowners insurance policy.

Let’s use the example of an automobile insurance policy. If you want auto insurance, you have to pay a large up-front premium to the insurance company. If you pay that premium, you have insurance. But, if you stop paying your premiums, after a while–not right away, the insurance company will cancel your policy. If you have an accident after the policy has been canceled, you are not covered. However, if you have the accident before the policy is canceled, even if you make a claim against your insurance, say a year later, so long as the accident happened before you insurance was canceled, you are covered.

Social Security Disability works very much the same way. Each week, when you work, and your employer takes out for Social Security and medicare, or if you’re self-employed and you pay Social Security, you are paying the premium for the insurance. When you work for a period of time long enough to pay that large, up-front premium, you become covered for Social Security Disability. As long as you work, you are continuing to pay into the system and paying your insurance premiums, you are covered. When you stop working, and therefore stop paying into Social Security, you are effectively not paying your premiums and eventually you are no longer covered. But, just like the auto policy, if you become disabled while you are still insured, even if you wait a long time to make the claim, you are still covered.

It is a bit more complicated, because there are some rules about how long you have to pay in to become covered initially, and there are minimum amounts you have to earn each quarter for those earnings to be counted as a premium payment. Currently in 2012, you have to earn $1,130.00 for one credit or $4,520 for the full four annual credits.

Like the auto insurance, your coverage is not canceled for a while. Sometimes it takes as long as five years to lose the coverage. That’s the Date Last Insured or DLI. That’s what started this discussion. So, even if you stop working while you are still healthy and become disabled later, you may still be covered when you become disabled.

There are times when people stop working due to their disability but do not apply for a very long time for Social Security. Sometimes they don’t realize they can apply. Sometimes they keep thinking they will get better and delay applying. At the time they do apply, their DLI was sometime in the past. That person can still apply and still qualify for Social Security Disability benefits, if that person can provide the proof that he/she was disabled going back to the DLI and had remained disabled since then.

In my practice, many years ago, I had a client who waited 10+ years before she applied for disability. Her disability coverage had ended 5+ years before. This woman had, however, been seeing the same orthopedic doctor for all 10 years. The records were there and we were able to prove that she had been disabled for all 10 years. She was able to get her full disability monthly rate.

So, what’s the hurry to apply now, instead of waiting? Because Social Security Disability can pay you only for 12 months before the date of your application. The woman who had waited 10 years was able to get her full monthly rate, but she received only 1 year in back benefits. She lost 9 years in benefits for which she was qualified, by waiting for 10 years before she applied.

What if you became disabled long after you stopped working or can’t prove you were disabled before your DLI, what can be done? If you meet the other income and asset guidelines, you may still qualify for SSI benefits.

Posted in Social Security Disability ABC's | Tagged , , , | 4 Comments


Social Security has published a new ruling on how Fibromyalgia will be evaluated. The new rule is found here: New Rule

The new rule does not seem to change all that much the evaluation of the impairment, at first blush. It offers two methods by which the Fibromyalgia should be evaluated. However, there is a durational threshold of symptoms for fibromyalgia that has to be met. Clinic notes and treatment notes that do not document the symptoms over time (“longitudinally”) are going to be problematic. The patient needs to be very specific about the symptoms and hope that the physician continuously documents the complaints, in detail. Doctors maintain clinic notes for treatment of the patient, which is a very different purpose than documenting symptoms for a Social Security Disability case. Social Security has been, always, pretty stubborn about recognizing the distinct purposes, which sometimes, thankfully, overlap, but sometimes do not.

This is a good thing for the people who suffer with Fibromyalgia. There are still, apparently, Judges who–let’s couch it in the most charitable light–“struggle” with the notion that a medical condition must be demonstrated by diagnostic testing, such as MRI’s and blood tests. This SSR should end the “struggles” of the Judges who resist acknowledging something that can’t be cut out by a surgeon.


Posted in Social Security Disability Medical Issues, Uncategorized | Tagged , , , , | 1 Comment


The Judges in Hartford statistics: http://www.disabilityjudges.com/state/connecticut/hartford

The Judges in New Haven statistics:    http://www.disabilityjudges.com/state/connecticut/new-haven

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Visit Us

You can always visit us at: www.buckleyandbuckley.info.

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Alice in Wonderland Meets Social Security

At the trial to determine who stole the tarts in Alice’s Adventures in Wonderland, the following dialogue takes place:

`Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

`No, no!’ said the Queen. `Sentence first–verdict afterwards.’

`Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’

A number of years ago, the following canned language started to appear in decisions denying  disabled people their benefits: “After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment”.

Let’s put that into non-canned language. What the Judge who includes that sentence in a decision is really saying: “I’ve decided what I think you can do and anything you say that does not match what I think, is untrue.”

The first time I read that language, I had to read it over several times–I thought someone had just misspoken. Then, after I saw it a few more times, I realized that someone drafted it for the Judges, telling them it was a great idea how to deny someone their benefits.

I am delighted to say that the 7th Circuit is also a fan of Alice’s Adventures in Wonderland, but, as a work of fiction and and not as part of  anything that approaches due process standards.  In two recent decisions, the Court of Appeals recognized this babble for what it is. The first is Bjornson v. Astrue, No. 11-2422, ___ F.3d ___ (7th Cir. Jan. 31, 2012). The second, decided a few months later, Smith v. Astrue, No. 11-2838 (7th Cir. Mar. 12, 2012). In Smith, the Court said it the canned language “implies that the ability to work is determined first and is then used to determine the claimant’s credibility. That gets things backwards.” Yes, it does. The idea of having the sentence first!

I hope to see other jurisdictions following, so I never have to look at such stuff and nonsense in a decision again.

Posted in Social Security Disability and the Law | Tagged , , , , , , , | 2 Comments

What Exactly Does the Lawyer Do?

This is what the lawyer should do:

(1) Obtain ALL your medical records. With careful reading of medical records,  it becomes apparent, more often than not, that there are missing hospital visits, missing MRI’s, missing lab tests, missing Operative Reports, etc., etc. Unless you know what to look for, you’ll never know what is missing. You have to know what to look for, read those records, page by page and know how to ask, and ask until you get them.

(2) Evaluate the records. Social Security has some pretty complicated rules for evaluating some medical conditions. You have to know where the regulations are and then you have to sit and go through the records line by line. For instance, this is just one part of chronic liver disease:

B. Ascites or hydrothorax not attributable to other causes, despite continuing treatment as prescribed, present on at least 2 evaluations at least 60 days apart within a consecutive 6-month period. Each evaluation must be documented by:1. Paracentesis or thoracentesis; or 2. Appropriate medically acceptable imaging or physical examination and one of the following:a. Serum albumin of 3.0 g/dL or less; or b. International Normalized Ratio (INR) of at least 1.5.

This information is not contained in one place, in one page of the records. It’s a puzzle and you have to put together all the pieces of the puzzle. With cases like this (detailed lab test results over time, in several areas), Judges will ask me all the time, “Does this meet listing level?” Of course, I love to announce that it does. But, I sure as heck like to announce that it is so close, that it might as well, and give the Judge the data. The Judge knows you care and have thoroughly examined the record if you can talk intelligently about the detail and data.

(3) Obtain opinion letters or reports from your treating doctors. Doctors write reports for one purpose in their offices– to chronicle your condition and your progress. They do not write them to help a Social Security Judge understand your limitations. But, the second piece of information is as critical to your case as the first.

(4) Meet with the client in advance to prepare for the hearing– not an hour before the hearing–a week or two before the hearing. These are long appointments, and both client and attorney work hard in them. I never want my client to be asked a question that I did not also ask in advance, so I would know the answer.

(5) Write a prehearing memorandum. Not all Judges read these in advance. Some Judges never read them– before or after– but this is as important an opportunity to talk about your case as the first and last question asked in the hearing. You have to know for what the Judges are looking, and set it out in an order fashion, so it is right at their fingertips.

(6) Make sure that ALL the questions that should be asked at the hearing are asked at the hearing, and make sure the Judge gets the information he or she needs to fully understand your case and evaluate it properly.

This is what I do. I don’t like surprises and I like to win.

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To Work or Not To Work

One of the most asked questions by clients during representation is whether they can work: Can I apply even though I am still working? I was offered and job and I’m not sure if I can do it, should I try? I’ve been disabled for two years, but I think I am ready to go back to work; should I try?

The best answer is, very often, “yes”.

I say “very often” because each case is different and you must explore the facts of your case carefully with a person knowledgeable about the laws, presumably an attorney. But, the general concepts follow.

First, Social Security is a program for people who cannot work. If you can work, you should work. There are many reasons to work and almost always, if you are able to work, you will be happier, healthier, have more money, have more self-esteem, etc.; the list is endless as to the benefits of work.

Second, Judges (assuming you have to go to a hearing) appreciate people who try. They appreciate people who have worked hard, they appreciate people who try to keep working, they appreciate people who try to return to work. Anyone of these situations go a long way to convincing a Judge that when you say you can’t work, you are sincere.

Third, there are several concepts for people who are working still, try to work, or return to work. The first is Substantial Gainful Activity. If you work is not “substantial”– you are working very few hours, with little pay, or under special circumstances, such work may not even be included for the purposes of determining if you are disabled. The second concept is unsuccessful work attempts. If you attempt to work and must stop due to your condition within certain specified periods of time (there’s a 3 month rule and a 6 month rule), that work may not be counted. The third concept is closed-end period of disability. If your condition improves and you are able to work, so long as your condition lasted 12 months or more, you can be paid for the period of disability, even though you have returned to work. Fourth is Trial Work Periods. Social Security allows you to test your ability to return to work, after a period of disability, without instantly discontinuing your benefits or your disability determination.

So, the simple answer is work is a good thing in Social Security. And, if you cannot do substantial work, that is why there is a Social Security Disability program and a Supplemental Security Income program.

More questions? The answers are a call away.

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