Sunday, February 12, 2012

Social Security's New Rule on Identity of your Judge.

I posted quite some time ago about Social Security's customer service policy.  It had its good and bad points.  However, as is the way with some agencies, when we take a step forward we often take two steps back.

The Office of Disability Adjudication and Review has instituted a new policy that the identity of a person's judge will be a secret until the hearing actually takes place.  While many reasons have been given as to the reasoning behind this move, the main reasoning is that some disability attorneys were withdrawing applications and request for hearings based on who the assigned ALJ happened to be.  While I have never subscribed to this practice, I can see why some would.  When there are ALJs with 2% approval ratings it would be almost unethical to not entertain the notion of withdrawing an application.  Here are the problems I see in the new rule.

It is in violation of the current regulations. 
20 C.F.R. 404.940 and 416.1440 allows a claimant to object to the qualifications of the ALJ.  If the claimant has no chance to make such an objection then it renders the regulations moot.  Arguably, the claimant could raise the objection at the hearing, but then is the ALJ scheduled to hear the case able to make a ruling on the very same objection?  This is problematic.

It does not allow counsel to prepare effectively.
In a perfect world every case should be prepared the same and should be decided on its merits.  However, each ALJ has different tastes, they look at the cases differently.  Some prefer opening statements some do not.  Some like briefs some do not.  Arguably in a perfect world I could prepare as if my judge would be "all of the above" but the added time could detract from preparation in one aspect of the case over another.  I could spend extra time developing an opening statement when I should have spent more time on a brief.  When evidence on a case can sometimes be updated just weeks before the hearing, time is of the essence and knowing how to prepare effectively can make or break the case.

The "solution" fixes a symptom not the problem
Why do reps withdraw claims?  Because there is such a disparity sometimes in winning percentages.  Ultimately there should not be.  Statistically each ALJ should have roughly the same award rate.  So rather than fixing the symptom lets fix the problem.

I am not advocating an oversight in the judicial process other than the mechanisms that are already in place.  If the percentages are out of wack there should be more meaningful review of cases at the Appeals Level.  If an ALJ has an influx of more remanded cases, this should fill his or her docket fixing the problem.  Of course the claimant loses out as this delays his or her case longer.  But eventually if an ALJ's remand rate is higher, he or she might rethink his or her lopsided approach to applying the law.

The solution is a little overboard
Finally, the solution is out of proportion to the problem.  I would like to see the statistics on how many cases were withdrawn once the ALJ on the case was announced.  It was likely small.  It has been my experience that most Administrative Law Judges, even the tough ones, really do want to make a fair ruling on a person's case.  So throwing the baby out with the bath water is really a disservice to the people who have paid into Social Security and who really do need a fair hearing with a well prepared attorney.

Monday, November 14, 2011

Five Estate Documents Every Parent Should Have

Another Reprint of my column that Appears in the Grizzly Detail

Before you read this article, it is important to note that when I plan an estate it is considering the worst case scenario that a parent can go through. In most cases the surviving spouse will be the one who is set to receive the estate and the Will will be the only document needed to transfer title to any property.  What if both parents are in an accident together? What if one parent is killed and the other is incapacitated?  These of course are awful thoughts, but such a thing is not unheard of.  A good friend of mine recently went to Mexico with his wife. They left their two children at home.  If they both died during their trip who would take care of his children?  He visited with me and we drafted some of the documents I talk about below.


A Will

Everyone should have a will.  When you die, this is the best way for your survivors to handle your estate.  Yes there are ways to go about passing your estate without a will including POD bank accounts and trusts, but in case there is any property that is not disposed of by these means, a Will is always a good idea. Without a will, your estate will be handled with the intestate laws codified in the probate code, but your family will have to get letters of administration or apply for a small estate order.  This can be harder and depending on how your family is made up can cause some problems.  A will can provide that the person you choose be in charge of your estate and can do so without posting a bond and can do so independently without a lot of court intervention.  A will is your best bet to save your loved ones time and money.

An attorney is probably the best person to draft a will for you.  I would stay away from Wills you find in an office store or on-line.  If it is not done right according to Texas law it can make the process when you pass away a lot more daunting for your survivors.

Declaration of Guardian in Case of Later Incapacitation


Like I mentioned before I always plan for the worst case scenario.  One example of worst case it that a couple is an an accident together leaving one dead and one incapacitated. Texas law allows you to state who you want taking care of you in case that happens.  Ordinarily you would want your spouse, but what if they are unable?  This document is your way to let the court know your wishes in case the court has to appoint a guardian over you.  While the court, does not have to necessarily go with who you suggest, it will give your wishes great deference.  You can also spell out who you do not want taking care of you.  You can even state who will be your guardian of your person (the person taking care of your physical needs) and your guardian of your estate (who will take care of your estate).  Sometimes while a person may be good at one, that person may not be good at the other.  So something to consider.

Declaration of Guardian for Your Child or Children

This is important if you have minor children.  Such form would only operate if the children were left with no surviving parents. Consider if my friend and his wife who went to Mexico both died. Without such a document the Court will pick from each spouse's parents first.  Which would you want them to pick?  This is a good way to let the Court know.  Again the court does not have to go with who you pick but again your wishes will be given great deference.  Perhaps you would rather it be a trusted family friend who is around the same age as yourself.  When I counsel couples on this choice, I often recommend that they consider not only the physical and monetary needs of their child but also spiritual aspects of their children's upbringing.  Again you can designate different people to manage the money.  You can also declare who you do not want as guardian of your children.

Durable General Power of Attorney

This allows your designated person to manage your finances and other business even if you no longer have the capacity to do so.  It is important that this document is made prior to something happening to you.  While it is different than guardianship, it allows a loved one immediate access to your money and other business before and after you become incapacitated.  This can be helpful if immediate things need to be done with your finances.

Medical Power of Attorney

While Texas law designates an order of who gets to make your health care decisions if you no longer can,  I highly suggest spelling out your wishes of who may do so.  This makes it easier on your loved ones.  Perhaps you would like a different person because he or she is more decisive and better knows your health care wishes.  Perhaps you do not want your adult children to argue over who should be the one making the decisions.  These are good reasons to designate this person ahead of time.

Other Documents

There are some other documents that allow you to skip probate and guardianship type proceedings.  Of course we have all heard of trusts.  This is a good way to plan for yourself and your children monetarily.  Trusts are good options if you have the forethought to transfer property to a trust ahead of time.   However, if you have any property that you neglect to transfer, Wills and Declaration of Guardianships are still an absolute necessity.  However, trusts will not let you declare who will be the guardian of your person or your children's person.  They don't let you declare a guardianship of your estate either, but a Trust would allow you to set up  something in lieu of your estate being used to take care of your needs.

These are some of the highlights and decisions you must make when considering formulating an estate plan.  As you can see, estate planning is for people of all ages, and the repercussions for not having an estate plan in place when you have minor children can be quite profound.  Don't put off what you have been meaning to do.  When you finally need these documents it will be too late.

Tuesday, November 1, 2011

What is Social Security Disability?

This is a reprint from my column "Legal Ease" which is published bi-weekly in the the Grizzly Detail Newspaper.

This week, again without a question from a reader, I will answer the above question coming directly from an area of law I practice in everyday--Social Security Disability.  So...what is Social Security Disability?

Most American's notice that out of every paycheck, an amount is taken for Social Security Taxes.  Most people understand that this amount is applied to a future retirement.  However at the same time you are also "insuring" yourself for disability.  Not only does the Social Security Act give you a retirement one day, it will also be there for you if you are disabled to a point where you can no longer worker providing a monthly benefit and in some cases Medicare.

The requirements for Social Security disability are very different than the requirements of private short or long term disability carriers however. They are also very different from the requirements of Veteran's disability and Workman's Compensation.   First, and foremost, to qualify for Social Security Disability your physical or mental impairment has to keep you from working for at least a year or result in death.  So while some traumatic injuries may be very severe and keep you from working, it will not qualify under this program if it will get better within a year. 

Secondly, it takes more than a doctor's note to qualify for this program.  The Social Security Administration will actually need to see diagnostic proof of your illness to make its determination.  While an opinion of your treating doctor is a big factor in making that determination, it is not the only factor.  Your medical records are actually sent to an independent doctor in order for a decision to be made.  You don't have to agree with this decision however, and there are many avenues of appeal.

Next, you have to be precluded from doing any kind of work.  Now, depending on your age, education, and past work, "any kind of work" may be different from one person to the next. It is important to realize however that just because you cannot do what you use to do, it does not mean you will qualify for benefits under this program.  For instance an attorney, who suffers a traumatic brain injury making his or her cognitive functioning impaired will not be disabled if he still has the ability to be a cashier or a landscaper.  However, age can make a big difference as well.  If a person who is over 55 suffers a back injury and can only be on his feet for a couple hours a day, and the only thing he use to do was frame houses, he will be found disabled by the Administration.  Every case is different. That's why a lot of Social Security Claimant's consult with an attorney.

Regardless of how you feel about entitlement programs, if you have worked, money was taken from your check.  The government did this with a promise that you would get a benefit when you retire, or you would get a benefit if you could no longer work.  If you can honestly no longer work, this program should be there for you.  Do not hesitate to apply for that benefit and seek help fighting to get what you deserve.

Friday, October 28, 2011

Social Security's Newest Customer Service Plan...The Good and the Bad

In response to a Presidential order Social Security recently released their customer service plan.

For people applying for disability the main initiative is video hearings. I have mixed feelings about this.  It use to be that the Administration would send its ALJ's out to remote parts of the country and they would hold hearings at a hotel meeting room or similar facility.  Yes this increased cost to the administration, but it allowed for the face to face interaction that some clients need to present their case.

Earlier this year, the administration stopped doing this altogether.  Some clients had to drive hundreds of miles to get to the hearing site.  This was not good.  Luckily some clients were close enough to a permanent hearing site attached to a local office.  This allowed for the ALJ to come closer to claimant.  But in places like Nacogdoches and Lubbock, Texas, clients still had to drive quite a ways to get to a permanent hearing site.

So this customer service plan is starting more video hearings.  That's great.  I am glad clients can now get hearings more quickly without having to drive as far.  However part of me does not like video hearings.  I just don't think there is any technological way to account for being in front of a living breathing person.  I would love for every client of mine to be seen and heard in three dimensions by an ALJ.  That way every bit of his or  her demeanor can be examined by the one who will make a decision.

Is it a good trade off? We will see

You've been denied disability...Now what?

In 2010 nearly 3 million people applied for disability benefits.  That's nearly three million people claiming that they cannot work.  Only roughly a third of those were approved.  Those approvals came at all different levels of the application process.  So if you received a denial where does that leave you?  This article goes over the steps of the application process and describes what to expect next if you were denied.

If you have applied for benefits you can hire an experienced attorney at anytime to deal with the administration.

Initial


When you first apply for benefits, your application paper work is sent to a state agency who gathers some of your medical records and conducts a paper review of your application.   A doctor looks over you medical records and decides if you are disabled under social security's rules.  Sometimes applicants are successful at this step.

If have been denied at this step though, take heart, and make sure to appeal that decision within 60 days of the denial or you risk losing benefits.  An appeal at this stage, in most states, moves your application to the reconsideration stage.  In some states like Louisiana you move on to the hearing stage.

Reconsideration

At this stage, the state examiner gathers some more medical records.  You file some paper work describing any changes in your condition.  A different doctor looks over your medical records and again determines if you meet the Administration's definition of disabled.  A denial at this stage is very common.  So if you lose at this stage, again take heart, most people lose at recon.  Remember to appeal your case or request a hearing within sixty days to preserve your rights.

Administrative Law Judge (ALJ) hearing


This stage is where you finally get to talk with someone directly who can make a decision in your case--the ALJ.  You will be allowed a time to present your case.  There will also be others at your hearing, a hearing reporter and usually a vocational expert.  Sometimes there may even be a medical expert.  If you have not hired an experienced attorney yet, you should really consider doing so.  Your attorney would know how best to present your case, what evidence to highlight.  An experienced attorney knows how to cross-examine experts. Prior to the hearing the attorney can also gather your most up-to-date medical evidence saving you a lot of trouble and expense.

This step of the process is very important.  In the lawyer world, we say that this is where findings of fact are made.  Findings of fact are very hard to appeal.  The judge is acting as both judge and jury at this point so you want to absolutely put on your best case. I highly suggest hiring an attorney.

However, sometimes the most deserving people are denied at this point for various reasons.  Sometimes the judge did not see what he or she needed to see in a case.  The judge might not have found you credible.  For whatever reason though, all is not lost there are still more avenues of appeal.

Appeals Council or Refile


Just recently the Administration came down with a decision that a person either had to refile or appeal once a decision is made at the ALJ level.  It used to be that you could do both.  There are a lot of considerations in deciding which way to go.  Appeals can take a long time and can be harder to win than a new application, but at the same time by filing a new application you would be giving up any back benefits on your original application. So this decision is a big one.  Once again an experienced attorney can be a lot of help in advising you in what direction to go.

If you decide to appeal to the Appeals Council, your whole file is sent up to Virginia for review.  For my clients, I accompany the request for review with a brief detailing my theories as to why I believe the ALJ made the wrong decision.  I also send up any new evidence.  The Appeals Council examines the decision to see if the ALJ made any legal error.  You do not testify.  This is all done on paper. Then the Appeals Council can do one of three things, they can find you disabled, remand your case back to the Judge, or deny your request for review.  If you are denied at this point you have exhausted your administrative remedies, and you can now file in Federal Court.

Federal Court Appeals


Overturning an ALJ decision is even harder in Federal Court, but it can be done.  Here you would definitely need a lawyer to help you out.  Dealing with a Federal Court is even less forgiving than dealing with the Administration. In this step everything is on paper again.  You would not testify.  Some courts do allow for oral argument though.

So I hope this article has been helpful for anyone who is in the process of applying for benefits.  If you have any questions you may of course contact me.

Wednesday, October 26, 2011

5 Myths About Bankruptcy

1.  You lose all of your property.

This is definitely a myth.  The whole policy of bankruptcy is that we want to leave people with more than a barrel around them when they can't pay their debts.  Basically one who files bankruptcy is allowed to keep any property that is exempt and any property that is secured and he can still pay for.  I will say that the majority of my bankruptcy clients have not had to give up property.  Texas has a pretty liberal set of exemptions allowing them to keep all of it.

2.  It takes a long time.

Not really.  Chapter 7 cases can usually be concluded 3-4 months after filing barring any unforeseen hiccups.  Chapter 13 can take 3-5 years but that is because you are in a payment plan that takes that long.  So yeah, it takes a while but by the point you are making payments all of the bankruptcy matter is pretty much settled.  As long as you keep up your payments to the trustee and to other secured creditors it should be smooth sailing.

3.  It is expensive.

Well nothing with a lawyer is cheap...right?  There are legal fees and filing fees.  What I tell most of my clients though is, "Look what you are getting in return."   You are cancelling out a large sum of debt, or you are lowering your car payment, or you are getting to keep your house.  In the grand scheme of things the amount of attorney fees you are paying is well worth it.  I personally charge flat fees for my services so you know what you are getting into before you start.  No surprises.

4.  It ruins your credit.

It can.  But only for a short time.  Further, if you are to the point where you need to file Bankruptcy chances are your credit is not that great to begin with.  Most of my clients see a rise to their credit score within fifteen months of their discharge in Chapter 7.

5.  You'll never be able to buy a house.

Never say never.  A lot of factors go into what qualifies you for a home loan--down payment, past home loan history, etc.  So never count yourself out.  There is no law that says that a bank is not allowed to lend you money after bankruptcy.  It is only a matter of if they are willing.  So keep that in mind.

Sunday, October 23, 2011

What do I practice?--an entry for my facebook fans.

For those of you who know me, you probably think why the heck is he blogging?  Well all the "seo" authorities say that this is important to get web traffic up so on and so forth.

However, I though I'd take the opportunity to let all of you know what kind of law I practice so when someone you know says, "I wonder if someone can help me with__________."  You can say...wait I know someone who does that. So here it goes.

Social Security
I help people get their Social Security Disability benefits.  When someone can't work anymore and they've paid into the system, they are entitled to those benefits. The thing is that a lot of people who shouldn't get benefits apply and this gums up the system.  It makes it harder for people who really do deserve benefits to get them, so they hire me.  It really can be quite rewarding.  And to all of my Michigan followers up there, I can do this kind of work anywhere in the country.

Bankruptcy
Sometimes bad things happen to good people.  Sometimes it's unemployment sometimes it's medical bills from a time they didn't have insurance.  Whatever the reason, bankruptcy provides a safety net to help people get out of perpetual debt holes.  I can help people stop foreclosure on their homes.  I can do a lot of things with debt through bankruptcy. I also know the importance of paying for ones debts but some things happen that are just out of one's control sometimes.  The need for bankruptcy can be embarrassing to some.  That's why I try to make the process as non-obtrusive as possible. I have helped families in my community file and discharge debt with bankruptcy all the while keeping the whole process confidential.

Probate and Estate Planning
While I don't spend a lot of time talking about this, it is something I do.  Wills and declaration of guardianship are part of my repertoire.  I also help people out with probate if they are an executor of an estate.  Sometimes the process can be simple sometimes not so much. Most people who aren't approaching the estate tax threshold need only certain will and estate planning documents.  Some need trusts but I recommend at least a will for everyone and a declaration of guardianship especially if they have kids.

So there it all is.  That is pretty much what I do.  So if you hear of anyone needing any of the above feel free to share my information with him or her.