Disability Denial Attorneys Blog

Long-Term Disability - Social Security Disability - Veterans' Disability

Social Security Disability Attorney: Attacking VE Testimony

Published on April 16, 2014 by

A lot of claimants and even representatives going through Social Security Disability appeals are slightly terrified of vocational experts. There’s good reason to feel this way. After all, their testimony can torpedo a claim by making it seem like there are plenty of jobs available and no reason why work can’t be found.

Experienced disability lawyers, though, know that there are a number of ways to poke holes in VE testimony and make sure that they are the ones being put on the defensive.

Ways to Poke Holes in VE Testimony

Even if testimony from a vocational expert makes it seem like a claimant could easily do a number of readily available jobs, don’t lose hope. There are several ways to attack this testimony – and always remember, at step five of the decision process, the Commissioner still has to show evidence of reliable job information.

  • Use Null HypothesisClaimant reps should always use this method to cross-examine VEs. It asks them to assume that no jobs or occupations exist and provide evidence to the contrary. Basically, they’re saying a claimant can do plenty of jobs, so you’re asking them to detail which jobs and prove that they’re available.
  • Know Pertinent SSRs – Vocational experts might say that there are plenty of jobs available, but are they applying the appropriate rulings to that determination? Various SSRs detail things like the transferability of work skills (SSR 82-41), how a claimant’s ability to do other work should be determined (SSRs 83-10, 83-14, 85-15, and 96-9p), and how VE evidence can be used in disability decisions (SSR 00-4p).
  • Speak the Same Language – Often, unspecific terms such as “limited” will be used in reference to a claimant’s ability to do certain kinds of tasks. How limited? Ask  for “frequency descriptors” such as:
    • None
    • Occasional (up to a third)
    • Frequent (one-third to two-thirds)
    • No limitation

The goal is to get the vocational expert to be as specific as possible and show that their opinion isn’t consistent with the amount and type of work a claimant’s disability actually allows them to perform.

If your Social Security Disability attorney isn’t using these types of tactics to help your case, it might be time to find a better one. The only way to ensure that you’re getting the best representation is to understand as much as you can about Social Security Disability by downloading our free eBook and regularly checking in with the latest news on this blog.

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Don’t Be Fooled by Veterans Disability Scammers

Published on April 14, 2014 by

It’d be nice if there was honor amongst thieves and certain portions of our population were exempt from attempts to scam them out of their money and personal information, but sadly many of those groups are often the hardest hit. You probably already know that many scam artists target the elderly, but now there are people out there specifically going after Veterans as well.

How are scammers trying to harm Veterans? By creating a website that purports to help them recover “unclaimed and accumulated benefits.” Naturally, this promise is completely fabricated and the people who run it are only out to get passwords, email accounts, and other information from those who are currently or were formerly part of the US military.

How Does the Scam Site Work?

One of the smartest things that USMilitaryBenifit.org does is call itself “My Military Benefits” in all of their web copy. Why is this important? Because there is a real, government-run site called MyArmyBenefits.us.army.mil. Veterans and even current military personnel who go to the scam site or receive email from it are led to believe that they are giving their information to the legitimate one.

This is especially important for Veterans to know because there have been quite a few problems with family members who are trying to apply for Veterans disability benefits giving their information to the site.

How Can You Avoid Scams Like This?

Because the disability claims process is so complicated and confusing, it’s understandable that some people might be fooled by a site that seems to answer questions and offer quick solutions to problems. Unfortunately, that’s exactly what the scammers are banking on.

If you ever receive an unsolicited email from any site, delete it immediately and don’t log in to the site in question. Those who aren’t sure about the legitimacy of resources like this should directly contact their local Veterans Affairs office or work with a Veterans Disability expert who understands the real process. And if you really want to know how things are supposed to work, read our free eBook that lays it out in easy-to-understand language.

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Long Term Disability and the Two Prongs of the Miller Test

Published on April 11, 2014 by

Last time, I talked a lot about discretionary clauses and how they can hurt your ability to effectively challenge your insurance company on a denied claim and win. These clauses basically allow insurers to “construe” the language of your policy however they see fit when deciding whether or not to award your claim, which gives them quite a bit of wiggle room to deny benefits unless they are very clearly and expressly offered in your specific situation – and sometimes even when they are!

I mentioned how states are trying to fight back against these clauses, but also how – in legal battles with insurance companies –they’re currently losing. The courts are siding with insurance companies because the Employee Retirement Income Security Act has a “saving clause” that it’s hard to get around. Rules were laid down in the 2003 Supreme Court Case Kentucky Association of Health Plans v. Miller, and courts have continued to abide by the “Miller Test.”

What Exactly Is the “Miller Test”?

In deciding the outcome in Miller, the Supreme Court created a two-pronged test that defendants had to meet in order to remove discretionary clauses and have a better chance at getting benefits from their disability claim. It’s a test that’s so far proven difficult to beat. What are the two prongs?

  1. The state law being violated by the discretionary clause needs to be “specifically directed” towards insurance companies and self-insured plans.
  2. The state law has to greatly impact the “risk pooling arrangement” that exists between the insurance company and those they insure.

By far, the second part of the law is the one that’s causing the most hang-ups. In order for the state law to affect the “risk pooling arrangement,” the argument seems to be, it would need to be addressed when the contract’s created and not after someone makes a claim. At that point, it comes down to “administrative factors” and doesn’t affect risk pooling at all.

What this means for you is that it’s pretty useless for claimants to fight against discretionary clauses. However unfair they might be, that was a battle that needed to be undertaken when the plan was being drawn up. Essentially, you’re too late to do anything about it.

Luckily, there are other ways to get the benefits you need from your ERISA plan, and if you’re unsure how to go about it, you should contact a firm experienced in these kinds of cases.

Check out our free e-book for more details about ERISA disability and be sure to stay up to date on new long term disability information through our weekly blogs!

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CE Report Disparities Impact a Social Security Disability Appeal

Published on April 10, 2014 by

When you go through the disability appeals process and prepare for your hearing in front of a judge, you’re going to need lots of evidence proving your impairment and have to go through a wide variety of tests and evaluations. You’ll deal with doctors, vocational experts, and more, all looking at you and poring over the evidence to decide if you’re really disabled enough to get benefits.

Not surprisingly, a lot of weight is given to the evaluations of physicians who perform what are called consultative examinations, or CEs. The reports from these examinations are used by ALJs to determine the extent of a person’s disability and whether or not they’re able to work and make a living, so you would think they’d be pretty thorough and exhaustive.

Unfortunately, that’s not always the case, and disparities between CE reports can mean that two claimants in extremely similar situations have entirely different outcomes, with one getting maximum benefits and the other one being denied.

Not All CE Reports are Created Equal

Why are there such disparities amongst CE reports? Some of the problems are individual, with certain doctors just not being as thorough in their reports as others. The only real way to deal with this problem is to evaluate individual reports with a specific set of standards and weed out those physicians whose evaluations are lacking. But there’s a more systematic issue as well: different regions follow different standards.

How does this impact claimants? Let’s say two people file a claim. One of them gets a CE report where the doctor offers his or her opinion about what kinds of day-to-day activities they can and can’t do at work, while the other excludes that information because the local DDS asked them to do so. Isn’t the question of whether or not a claimant can do their job pretty central to deciding if they should receive disability?

Some Local Disparities in CE Reports Violate SSA Rules

It’s not just the lack of equality that’s an issue. In some cases, like the one described above about including work-related limitations, there are specific national guidelines saying that CE reports need to include the information. When the DDS specifically tells doctors not to include it, are they acting illegally? Should they face consequences?

Questions like these are why you need to make sure you have someone on your side who has handled a number of Social Security Disability appeals and is well-versed in the complexities of the law. You can help your own understanding by continuing to read our blog and downloading our free Social Security Disability eBook.

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