Home > Blog > Balin Law on Legal Lines Radio Discussing Social Security Disability Changes

Balin Law on Legal Lines Radio Discussing Social Security Disability Changes

May 1, 2018

Balin Law joins Robert Fertel on Legal Lines Radio discussing Social Security disability changes. The interview is with Principal attorney, Paulette Balin and disability lawyer, Matthew Shupe.

Some highlights of topics discussed during the interview are:

  • Social Security disability standards (general requirements)
  • Appealing Social Security disability cases
  • Change of Mental Impairment listings for children and adults (effective January 17, 2017)
  • Change of the Treating Physician Rule (effective March 27, 2017)
  • Social Security disability asset limitations
  • Supplemental Security Income (SSI)
  • Attorney fees
  • What to do if you’ve been denied Social Security disability benefits

A full transcript of the interview discussing Social Security disability changes can be read below:

Robert Fertel: Our topic today is Social Security disability and our guests are Paulette Balin and Matt Shupe. Give them your phone number and the website so people can get ahold of you.

Paulette Balin: The name of our firm is Balin Law, our website is www.BalinLaw.com, Balin is B-A-L-I-N, and our telephone number is 866-492-2546. 866-492-2546, Balin Law.

Matthew Shupe: We’ve also been dragged into the 21st century. We’re on Twitter, we’re on Facebook, I don’t know if we’re on Snapchat yet but we’re getting there.

Robert Fertel: There are many changes brewing at the SSA, which is Social Security Administration and ODAR, which is the Office of…

Paulette Balin: Disability Adjudication & Review.

Robert Fertel: OK. What is the ODAR?

Paulette Balin: That’s the court where all the Social Security judges are located, and that’s the entity within the Social Security Administration that adjudicates cases.

Robert Fertel: The administrative law judges?

Paulette Balin: That’s all they are. That with their staff, and their senior attorneys.

Robert Fertel: Okay. Well, first of all, what is the standard, at least right now for Social Security disability?

Paulette Balin: What are the standards? You have to have a physical or mental impairment or combination of those impairments that keep you from being able to be substantially gainfully employed. And those are all terms of ours. Substantial gainful activity.

Paulette Balin: Basically, there are, without getting into the weeds, there are different standards where the court will take judicial notice that as you get older you’re physically not able to do certain jobs, or it would be too much to transfer skills into a different job. And those benchmark ages are 50 and 55 and 60.

Paulette Balin: If you’re under 50, suffice it to say, that if you have the physical and mental capability of flipping hamburgers for eight hours a day at McDonald’s, you’re not going to be found disabled. But, if you are not able to do sustained, substantial, gainful activity eight hours a day, five days a week, that’s when you’ll win. And it’s getting harder and harder. So, if people have nothing else, no other takeaway from this session than that- it’s to persevere. Because if you’ve got a meritorious case and you persevere, you can and will win.

Robert Fertel: Will a person, before you file an application, contact you or contact somebody before they venture into the process?

Paulette Balin: I would recommend that. Only because it’s getting so hard to win. So, if you’ve got competent representation at the get-go, you will have a much greater likelihood of winning. Because you apply, you get turned down, you’ve got 60 days to do an appeal at the reconsideration level, only 10 percent of cases are won at that level. And then, if you lose there, than you have 60 days to pursue an appeal again, then you wait a year, year and a half to get a hearing before a judge. So, you’re much better off at the very beginning, getting a lawyer and trying to marshal the medical evidence and medical source statements to try to win at the get-go.

Matthew Shupe: Oh, certainly. And the way… That first opportunity to build the record, and that initial application, some points that the average disability claimant wouldn’t focus on as much, they’d be thinking of properly listing their doctors that they’re treating with, and what their diagnoses are. But, equally as important is accurately characterizing and getting into as much detail as possible as to what the duties are of the work you’ve done in the past. Because one of the steps of disability is to show that you can’t do your past, relevant work. Social Security looks back 15 years of all those jobs. And it’s important. That’s one shift we’ve made the last three years. We’re one of the few firms that will get involved and we will assist with filing the application with the individual to make sure that the record is as accurate from the get-go as possible.

Robert Fertel: Yeah. I know, like when doing appellate work, it’s the first thing you look at.  Like a brochure for a seminar or something, the first thing they say is, make the record in the trial court. That’s the first thing they put down. Make sure, because we don’t raise it there… I don’t know if it’s the same thing in Social Security, but if you don’t raise it in the trial court, tough luck.

Matthew Shupe: That’s my gig at the firm. I do the appellate work and the district court and the circuit court. And that administrative record seals once the decision is made, but for very few exceptions. And although you’re technically not barred from bringing an issue in district court that you did not raise in front of the administration, the federal judges and magistrate judges are more likely to give you the benefit of the doubt if counsel has been arguing the same thing before the agency, and not bringing it up for the first time on appeal.

Robert Fertel: Yeah.

Matthew Shupe: No doubt about that.

Paulette Balin: I have to give a shout-out to Matt. He does on awesome job on those federal court cases. We’re one of the few firms that will litigate cases in federal court. Most offices will just go through the ALJ level, and arrivederci. But we will take cases to federal court and to the sixth circuit court of appeals. And actually, Matt has carved out a niche where he does that for other lawyers who have lost cases, and then he’ll take on those cases. And he’s just done an awesome job.

Robert Fertel: Travel a lot to Cincinnati?

Matthew Shupe: You know, not too much. Not too much.

Robert Fertel: Because that’s where the sixth circuit is, in Cincinnati.

Matthew Shupe: You know, not to blow too much smoke, but we win so often at the district court level, we don’t have to do much traveling. So, we spend a lot of time in the Northern District of Ohio.

Paulette Balin: It’s true. He’s done an awesome job. And the sixth circuit court of appeals is very conservative, I want you to know.

Robert Fertel: Well, if you win a lot, doesn’t the government… or do they just say to heck with it? If you’re prevailed at the district court, they usually just say, okay, we’ll pay, or…?

Matthew Shupe: Well that’s a heck of a good question. 95 percent of the time, a win in federal court means that- Social Security’s attorneys agree – okay, we’ll vacate the administrative law judges’ decision, throw that out, but we’re not going to award benefits right away. But for extraordinary circumstances, we are going to send the case back for a new hearing before an administrative law judge and put you in a fast track lane to get that hearing scheduled, because your case is considered aged, because it’s had to go to the district courts.

Matthew Shupe: So, they have to go back in front of, sometimes, the same administrative law judge, who’s had a slap on the knuckles from a district judge much higher up the totem pole.

Robert Fertel: So I guess that the government doesn’t appeal that many cases to the court of appeals.

Matthew Shupe: So the data I have on that, the most recent, is 2015. The government appealed exactly zero cases to the court of appeals. All court of appeals filings were plaintiff side.

Robert Fertel: I think there are about, either 11 or 12 circuits. Once in a while it goes up to the Supreme Court. It has been a while… I haven’t seen that…

Paulette Balin: Not many.

Robert Fertel: Not many to the… In fact, when I argued a case, that was a Social Security case argued that same day, I think, or that same week or something. But, you mentioned about changes.

Paulette Balin: So many. It’s dizzying. It’s amazing to keep up with all the changes. And what’s interesting is these changes were implemented still in the Obama administration and now it’s just being enforced. But the magical dates are January the 17th and coming up, March the 27th. January the 17th, Social Security changed all the mental impairment listings for both adults and children. So the standard is different. And the beauty of it is, that if you’ve been adjudicated under the old mental impairment listings, that’s not going to debar against you filing now, under the new mental impairment listings, because it’s a different standard.

Paulette Balin: So, I guess that’s the one silver lining.

Robert Fertel: What is that standard though?

Paulette Balin: On the new mental impairment?

Robert Fertel: Yeah.

Paulette Balin: Well, they changed 12 of them. So, I don’t want to get into all the weeds, but suffice it to say that the listings have changed. The listings… it’s a five step sequential evaluation, where at the third step is really where the biggest change was implemented. Where, on depressive disorders or anxiety disorders, you have what are called the B criteria. And historically you’d have to have at least two marked in the B criteria. And now, those categories have changed somewhat. It used to be activities of daily living. Now it’s understanding, remembering, and applying information. The other one is your social functioning, which is the same. The third one-

Matthew Shupe: Concentration, persistence, and pace.

Paulette Balin: Is concentration, persistence, and pace. And the fourth one used to be decompensation over extended periods. And now it’s the ability to manage oneself, whatever that means.

Matthew Shupe: The January 17th, they’re so recent, it’s hard to say whether or not their changes are ultimately going to be claimant-friendly or claimant-unfriendly.

Paulette Balin: And why doesn’t Matt discuss with you all the changes in effect on March the 27th?

Matthew Shupe: So, on Monday, any case that is filed on March 27th or later, no longer has the protections of one of our favorite as practitioners, provisions of the law, the treating physician role. All cases filed before March 27th 2017, the treating rule still applies. All cases filed thereafter, it no longer applies. Which means there are going to be days in court 18 months down the road when an administrative law judge is going to have jump back and forth in one day. Because he’s going to have some cases where a pillar of the law is applicable, and some cases where it is not applicable, back-to-back. And they do up to six hearings a day. So it’s going to breed confusion.

Matthew Shupe: But, the treating physician rule was a presumption that, if you established a relationship with your doctor and they had the ability to observe you and treat you longitudinally, that any opinion issued from that doctor is to be given controlling weight, if it’s supported by the record and objective evidence. And if it’s not to be given controlling weight, it was still to be given great deference. And if it wasn’t to be given great deference, Social Security was required to provide some pretty good reasons, and that’s the legal standard “good reasons”.

Robert Fertel: It was a like a rebuttable presumption, sort of.

Matthew Shupe: A rebuttable presumption. Now, cases filed from March 27th this Monday onward, essentially, your doctor’s opinions are on the same legal footing of doctors that don’t know you. Either state agency physicians employed by Social Security who you never even see once, who review your paper records and make a determination about your functioning.

Robert Fertel: Without even physically examining?

Matthew Shupe: No, not in the same room. They’ve got a stack of records. They look through them, they offer an opinion.

Robert Fertel: When I used to get, like, if you handled, trying to get medical records, trying to decipher them. Are they more clear now? Like, I’d go to a doctor, I’d go to my cardiologist or to the general doctor and I’d take out this little portable tape recorder. Because you know, trying to read their writing, it’s…

Matthew Shupe: I know plenty of physicians of a certain age. They hate the idea of electronic medial records and find it to be a nuisance. But, UH Cleveland Clinic and all the practices that they continue to buy up, all over the metropolitan area, have switched electronic medical records, so, for the most part, it’s a little more legible. I could actually understand what I’m arguing and can point to something in the record.

Robert Fertel: I wanted to have, got a about like a minute for the break… With the Trump administration, they’re trying to get these regulatory changes. Are there any changes that you know of that the new administration is going to try to push through?

Matthew Shupe: Well, this week, the director of the Office of Budget Management, Mick Mulvaney, in defending some of the campaign promises made by President Trump had said, “Oh yeah, we’re not going to touch Social Security. But when we say that, no one thought we meant Social Security Disability, surely. That is a program that is fraught with waste and abuse and it’s grown tremendously under the Obama administration.” Yeah, it has grown, due to change in demographics with the Baby Boomers who worked hard all their life. Some of them, getting sick before they reach full retirement age. And the number of the claims leveled off in 2013. So, I don’t know. Nothing concrete.

Robert Fertel: I was just curious. Because the new budget and all that…

Matthew Shupe: There’s also… This is a little bit of rumor mongering, but there’s also allegedly talk of furloughs for some federal employees at Social Security.

Robert Fertel: Right. Any more changes that you want to discuss?

Paulette Balin: Well those are the biggies. But, unless somebody has the facility is thinking about filing for disability, I would encourage them to muddle through it and try to file online by midnight of March 26th and seize the benefit of the treating physician rule. Because that’s always been one of the greatest tools in our toolbox, and it’s just a shame that were going to have to work without that rule.

Matthew Shupe: And Paulette had mentioned earlier that it’s a five step process. They look at… The very first step that Social Security reviews with a disability application is, is this person earning too much money to qualify for disability? And the black letter…

Robert Fertel: Isn’t that sort of like an oxymoron? I mean, if he’s making money, then he can be capable of employment or something?

Matthew Shupe: Yeah… they have to draw a line as to how much is too much to still be considered disabled. And that amount usually increases slightly every year. It’s called substantial gainful activity. And that amount for a month in 2017, is any month in which you’re earning more than 1,170 dollars- that’s gross, before taxes are taken out- you are ineligible for disability. So that had a slight increase from 2016. I think it was 1,140 a month. Not very much.

Robert Fertel: No. First of all, is there like an asset limitation? Maybe you only make 500 dollars in wages, but you have like a couple billion in the bank or something.

Matthew Shupe: So, if you’re applying for Social Security disability insurance, you can be a millionaire and because if you’ve worked and paid in to the system, you could still quality for disability. So there’s no real asset limitation.

Robert Fertel: Oh.

Matthew Shupe: But…

Robert Fertel: They can’t look…

Matthew Shupe: If you’re applying for Supplemental Security Income, which is more…

Robert Fertel: Like a federal welfare program, I think?

Matthew Shupe: Yeah, that’s a good way to look at it. It’s the welfare component. There are very strict asset requirements where if… And, SSI is for adults who never had the opportunity to work because they’ve been sick all their lives. Or, children who are disabled. And the asset limit for an adult unmarried individual is 2,000 dollars. For a married couple it is only 3,000 dollars. And two of the biggest exclusions when counting assets is one, your primary residence is excluded, and one motor vehicle is excluded.

Robert Fertel: You still have… It’s like Social Security, you have to have a sufficient quarter of it’s coverage.

Matthew Shupe: Yeah. Which is roughly to qualify for Social Security Disability. It’s quarters, broken down by year. You have to work 20 of the last 40 quarters to remain covered. Typically, we see cases of Social Security Disability. People lose coverage about five years after they stop work working. So, you have that time period you need to have the agency prove you and find you’re disabled before then. So you stopped working in 2015, Bob, you had until probably 2020 given the fact you have a good work history to qualify.

Paulette Balin: Yeah. It’s five out of ten years.

Robert Fertel: You know, you mentioned, there was a case… you mentioned about children getting Social Security benefits. And there was a case, I think, in domestic court, I think Ohio Supreme Court. I think it was the Williams case. But, Ohio Supreme Court said that if the mother or the custodial parents are receiving Social Security benefits, that counts against the child support obligation. So, just interesting.

Paulette Balin: Yeah. They can modify the child support.

Robert Fertel: Yeah. But they say, they go through the guideline and say, “This is what the father or the non-custodial parent owes, and the child’s receiving Social Security benefits. Those benefits are considered, are like a set off or considered as part of that payment. So if he has to pay 100 dollars a month, but the child gets 80 dollars Social Security, then he only has to pay 20.

Paulette Balin: But is the child getting that Social Security because of a disability of that child?

Robert Fertel: Yeah.

Paulette Balin: Okay. But, by definition, if that child is getting disability, they’re very poor people to start with, because that wouldn’t be [crosstalk 00:18:56].

Robert Fertel: Yeah, I just thought it was an interesting anecdote.

Paulette Balin: Yeah, it is.

Matthew Shupe: Another wrinkle, when it comes to benefits being attached for unpaid child support. An individual, typically we’ll say “deadbeat dad”, an individual who is receiving Social Security Disability, his benefits can be attached to pay back due child support. Not the case with someone receiving supplemental security income, or SSI. Those benefits cannot be attached to repay back due child support.

Robert Fertel: If somebody’s found disabled against Social Security benefits, then reaches the age of retirement, does it automatically go to retirement benefits?

Paulette Balin: It does. But I want to throw in one very important thing here. That, let’s say you’ve got a father who’s not able to work and finally wins disability benefits. There’s what’s called the family max. And if he’s got minor children, those minor children can get disability benefits piggy backing on the father’s, the wage-earner’s Social Security account. So, let’s say a dad is making a thousand dollars a month in disability benefits. His minor child will get 500 dollars a month- 50 percent of whatever the father is getting, subject to the family max. So that’s another wonderful thing about pursuing disability benefits. The kids get benefits. The father is encouraged to go ahead and try to modify his child support obligation, because unless you do that, you’re going to get stuck with both. And the other thing is, you get Medicare coverage after 24 months, which is another wonderful benefit of getting disability benefits.

Robert Fertel: I have a question. Do they do reviews or updates, like if somebody’s found disabled, does the government say… After so many years or whatever, say… Do they like reapply or revisit or whatever?

Paulette Balin: Yeah. They do. They do what’s called a continuing disability review. They diary your case. In a typical case, a claimant is supposed to have his case reviewed after three years. Unless it want to a judge, and the judge puts in his decision, “I think this case should be reviewed for medical improvement in a year”, for example. But unless there is an affirmative instruction to the contrary, they’re supposed to be reviewed after three years. And if it’s a permanent disability such as blindness or amputation, it’s supposed to be reviewed after seven years.

Paulette Balin: But actually, we’ve been getting a lot of calls from people that are being reviewed by Social Security. And I would encourage people to tread very carefully, because they work long and hard to get those disability benefits, and the government just has to show medical improvement.

Robert Fertel: Are you allowed to… Is there like a hearing or something?

Paulette Balin: On a cessation case?

Robert Fertel: Yeah.

Paulette Balin: Yeah, there are actually two hearings. Initially, you’re just cut off. And then you have the same 60 day window to file an appeal. And if you file an appeal within 10 days, you can continue to get benefits while your appeal is pending. But you will have a hearing before an adjudicative officer, if Social Security, a non examining adjudicator in Columbus decides that you’re medically improved, you’re cut off. Your case is pending. You get a hearing before this adjudicative officer, which is usually by video these days with an adjudicator in Columbus and you’re at a Social Security office or a BBR.

Paulette Balin: And, we’ve been actually very successful in prevailing on those cases and having the officer overturn the prior officer’s decision. But, if we’re not successful, then you have again, a 60 day window in which to appeal. And then you have a hearing before a regular administrative law judge. And we’ve got these… these are the ODARs that you were talking about. We have one in downtown Cleveland…

Paulette Balin: Actually, Cleveland now has 18 judges and it has more judges than any other ODAR in the country, if you can believe that. And we are doing… they’re doing hearings for claimants in other states. We’ve got a horrible backlog here ourselves. But, the powers that be have decided that our judges should also review cases from other jurisdictions that have fewer judges. So, I don’t understand it, but I just have to help our clients navigate the process.

Robert Fertel: Let’s say that somebody who goes through the process gets denied. Can they file again? What is the procedure on that?

Paulette Balin: Well, I was saying earlier, you file, you get denied, you file for reconsideration, you get denied, you get a hearing before an administrative law judge- that is the point that we usually win our cases at. Although, we’ve been trying to get involved earlier at the initial recon levels, and we’ve had a very good track record of winning earlier. It’s always better for the client to win earlier, of course.

Paulette Balin: But, if we don’t win before the administrative law judge, we then to to the appeals council, a very small percentage of cases are overturned at the appeals council. And then we typically go to federal court. If it’s a meritorious case, we are all in, and Matt is really spearheading our appellate division, and he’s done an amazing job of in federal court.

Robert Fertel: My mother was talking on the phone with my aunt, and she got a big check. They got retroactive benefits, because when they filed, it goes, I think, from the date of filing the application. And they finally determined that she was entitled to benefits. And my mother said, “We’ll eat Chinese.”

Robert Fertel: So, is that still the fact now?

Paulette Balin: Yeah. You get the past due benefits. Under the SSD program, you do not get anything for the first five calendar months. Nothing, under the SSDI program, which is the acronym for Social Security Disability Insurance, which is for people that have paid into Social Security who have an earnings record.

Paulette Balin: And actually, that’s how we end up getting paid, from the pool of back money. Our fees are typically the lesser of 25 percent, or 6,000 dollars. Now, we’ve gotten involved in cases before the person’s even filed. And we’ve been able to win within the first five months, and so our fee would be a quarter of zero, as I just indicated, again, nothing for the first five months. And we were wondering what kind of business model that was, to get a quarter of zero. And after scratching our head for a little bit, we decided we have put out such goodwill in the universe, that people refer their friends and relatives and, it’s come back to us in buckets. So, we encourage people to contact us earlier so we can win for them earlier.

Robert Fertel: I know you say that your fees are determined after the determination is made. If you don’t get benefits, you don’t get fees, is that…?

Paulette Balin: That’s correct.

Matthew Shupe: Yeah. It’s entirely contingency-based.

Robert Fertel: But what about… Do you do a lot of discovery, like depositions, things like that? The reason I ask is because it costs money to hire a court reporter. Or, do you have like a physician, somebody comes in and says refer them to a certain physician to handle it? All this costs money, so how do you handle that?

Matthew Shupe: If it’s a case where we have to have an independent medical examiner come in to look over something. It’s not just your typical bad back case, like you need a neuro-psychologist. We would pay that fee, and the client would be expected to repay those expenses. Now, you mentioned depositions. That’s funny, because we don’t have, in front of the hearings with administrative law judges, we don’t have the opportunity to depose. We go in extemporaneously, having no idea what a vocation or a medical expert’s going to say…

Robert Fertel: You don’t get copy of a report prior?

Matthew Shupe: Nope.

Paulette Balin: There is no report prior.

Matthew Shupe: Yeah, you have to cross-examine on the spot. You have to think on your feet and be very engaged. So it’s not a traditional trial practice. It’s only an administrative court. But, not having the benefit of being able to depose or find out what’s going to be said from your experts in advance makes every day an adventure.

Robert Fertel: You don’t have like interrogatories or request for production?

Paulette Balin: No. Well…

Matthew Shupe: We… usually after the fact. Usually after the fact, when necessary, we’ll request interrogatories and at that point…

Robert Fertel: Interrogatories are questions that you send out to the other party to…

Paulette Balin: See, there is no other party. This is not supposed to be an adversarial procedure. There is no face to face opponent. The judge wears several hats. He’s the trier of fact, the arbiter of the law as to how it’s going to applied in that situation. But, he’s also preserving the Social Security disability trust fund. So, the general consensus is, they don’t want to pay a case if they don’t find you meet certain strict criteria. And some are much more conservative than others.

Robert Fertel: And since you have that experience, you know what they’re looking for, or what the…

Paulette Balin: Well, yeah. Each judge is different and has different things that he or she is looking for. So, it’s really important to get an experienced Social Security practitioner that knows the audience. Like anything else, you have to know your audience.

Robert Fertel: Are the rules of evidence applicable?

Matthew Shupe: Inapplicable.

Paulette Balin: No. There are no rules of evidence, but if you lead your client in front of certain judges, they will jump on you and say “Do not lead your client.” But, if you’ve got a very mentally impaired client, it’s really difficult to draw the requisite information. You can prepare the client in advance, you don’t want it to be too rehearsed, mind you.

Robert Fertel: That might the benefit. They can’t articulate, it supports the view that they can’t work.

Matthew Shupe: Yeah. Sometimes when you feel like things are going off the rail in there… I’m a lot younger than Paulette, but you’ve got to let them go off the rails, let them do their thing in front of the judge.

Robert Fertel: Okay.

Robert Fertel: You mentioned, sometimes that people are still working, but if they want to check their options, you’re available for consultations.

Matthew Shupe: Yeah. If you’re still gainfully employed, you can come to us and we can do a free consultation and walk through what the process entails, what you would stand to gain if your condition gets to the point that you can no longer work. Because it helps to budget in advance, if you can. I mean, if the stars align and we get every scrap of evidence we need, and Social Security awards a claim right at the initial level… With the wait times we’re looking at right now, that still takes three to five months to get that initial determination. That’s a long time to not have income coming in. So yeah, I had a gentleman earlier this week. Him and his wife came in, working as a C and C operator. He’s now the supervisor. Been at the company twenty years. Been dealing with Crohn’s disease since I think, 1974, he was diagnosed. And he’s been working through it, working through it. He’s gotten to the point where none of his medications are working, and he’s taking intermittent FMLA, but he has a great salary…

Robert Fertel: That’s Federal Medical Leave Act?

Matthew Shupe: Yeah. Got to get those acronyms, yeah. So yeah, he’s taking days off under the…

Robert Fertel: That was Howard… former Senator Metzenbaum I think was the big…

Paulette Balin: Yeah. But that only attaches if the company has more than fifty employees.

Robert Fertel: Yeah.

Matthew Shupe: He lives, you know, just doing the prudent thing. Coming in, exploring his options, because he sees the writing on the wall. In a few months he’s probably not going to be able to go on any longer. And you know, we’ll do a full consultation. We’ll vet the case. We’ll talk about the strengths and weaknesses. If he wants, we can keep his information on record. When he’s ready, he can come back in a few months, and we’ll help him out.

Robert Fertel: Now you said something about trying to file by midnight tomorrow to get this physician rule. Normally, before you want to file, you want to have people consult with you before actually they file. But yet… And also, what is the process? Is it a big process or…? Do you need medical records prior to do online?

Matthew Shupe: This is not a normal circumstance. This is a watershed moment. March 27th in the eyes of most disability practitioners, and the loss of the treating physician rule, that’s one of the strongest arrows in our quiver, when we go to litigate a case. And losing that is going to be an adjustment for how to best represent our clients.

Matthew Shupe: You’ve got to be prepared to know the name, address, and wages of anywhere you worked in the past 15 years. You got to know the names of all your doctors and where their addresses are. You got to know what your diagnoses are. You got to know what your medications are. You got to know information about… You have to very closely document any marriage, if you are currently married or were married in the past for at least 10 years. And if that’s the case, you need to know your exes’ Social Security Number. So there’s a little footwork to do.

Paulette Balin: But as long as you file it…

Robert Fertel: They can always amend it.

Paulette Balin: You can always come back and fix it. But it’s just the act of filing has to be done before March 27th.

Robert Fertel: Of course I just did regular disability- not disability. Regular Social Security, so it wasn’t really that…

Paulette Balin: Oh, that doesn’t matter. This is just a little…

Robert Fertel: No, but I’m saying, it wasn’t that complicated, just filing for… And also for Medicare when I filed for Medicare.

Paulette Balin: Oh.

Matthew Shupe: Yeah, when you reach your retirement age, all you have to prove you are as old as you… You are who you say you are.

Robert Fertel: You have to prove you’re [crosstalk 00:33:26].

Matthew Shupe: Yeah, that’s exactly right.

Robert Fertel: So the first step is you just prepare the application… Who do you file the application with?

Paulette Balin: Well, it depends. If you’re doing an online application, which is what they try to encourage these days, to file an application online. Even if you go to a local Social Security office, they will send you over to a computer terminal and say “Go file your application online.” Which sort of boggles the mind, because so many of our clients are mentally impaired, it’s a daunting task to do this. How are you expected, if you’ve got reading impairments, or learning impairments… It can be very confusing. So, you know.

Matthew Shupe: Ah, but we’re so much more efficient, it seems.

Paulette Balin: What, to do it online?

Matthew Shupe: Oh, I feel like I get so much done. Every day, thanks to technology.

Robert Fertel: Oh yeah.

Matthew Shupe: But the main audience for this initial application is your local Social Security office. They’re the one taking the information, and once they’ve got it loaded into the system, they’re charged with physically sending the file down to Columbus to an organization called Opportunities for Ohioans With Disabilities. Which is the state agency charged with implementing the federal disability programs.

Robert Fertel: They usually get a denial on that first step? Or is it…

Matthew Shupe: Well, if it’s an individual under the age of 50, there’s a 90 percent chance it’s going to be a denial.

Paulette Balin: A denial. It depends on the medical facts. If you’ve got… They’ve got what are called compassionate allowances. So, if you have one of several diseases…

Matthew Shupe: Like Lou Gehrig’s disease, for instance.

Paulette Balin: Yeah. Where something that is in that stable of impairments, you’re going to get approved very quickly. But, barring that, if you’re under the age of 50, if you don’t have a life-threatening illness, it’s very challenging to prove that you’re disabled prior to the age of 50. We usually win cases that are a combination of physical and mental impairments.

Robert Fertel: If you get original approval, will the government pursue it or just say “Okay, we’ll pay benefits.”? Or do they try to go up, or…?

Matthew Shupe: Typically, at that point, they will have said, okay you meet the medical requirements. You have the government’s seal of approval. There is some additional vetting and an exit interview that happens after that to make sure you meet the non-medical requirements.

Robert Fertel: What are the non medical requirements?

Matthew Shupe: So, with Supplemental Security Income, those asset limits we were talking about? That’s a big non-medical requirement. Someone could be medically found qualified for supplemental security income, and they go to this exit interview and surprise, surprise. You’re actually not going to receive anything because you exceeded one of these asset limits. And there’s many red flags… that’s another reason to have good counsel. Make sure there are no surprises and let you know “Hey, you might be spinning your wheels here, because of your finances.” So, might not want to get your hopes up and even apply in the first place.

Paulette Balin: Yeah. So, you want to be very careful. When he was talking about the exit interview. Even those cases where social security approves initially, lately, all those cases are going to what’s called a “quality reviewer”. And then we wait because they don’t want to pay these cases. They want to make darn sure that this person is completely disabled. So then you wait for this so-called quality review to do it’s vetting to make sure that the person is disabled.

Paulette Balin: But, we generally see those… We see very few of those cases that are approved right out the door. I mean, we’re seeing more than in the general population where we’re handling the initial application. But, it’s still, we keep very busy because Social Security keeps denying people. And then, as I told you, you’ve got the 60 day window to pursue a reconsideration. And then, if you don’t win at that level, you have 60 days to pursue a hearing before an administrative law judge. So that’s the process.

Robert Fertel: So, somebody comes to you, and has the evidence, has their ducks in a row, I guess. How long would it be before they probably see any benefits?

Paulette Balin: Well, it depends if it’s a winning case or not.

Robert Fertel: I’m assuming it’s a winning case. What are the…

Paulette Balin: Well, it takes three to six months for them to marshal the medical evidence and review it and have the adjudicator in Columbus assess it.

Robert Fertel: Oh. We’ve got a caller here.

Robert Fertel: Okay. Good morning!

Caller 1: Morning.

Robert Fertel: Yeah, I missed you last week. You didn’t call last week.

Caller 1: I was trying to get out of jail.

Matthew Shupe: Did you succeed?

Caller 1: I was an illegal alien, so they put me in so they could verify…

Robert Fertel: Okay, go ahead.

Caller 1: No, it’s amazing how we look at our country now. How this is going to effect, not just certain parts of life, but our every day life. The country can not… We take a cue from our leaders that honesty doesn’t matter. Truthfulness doesn’t matter. They’re literal liars. Doesn’t matter. It effects every aspect of our life, when we try to discipline our society as a whole, the dishonesty does effect us.

Robert Fertel: Yes. I guess now the question… Like, when they had Obamacare, like I said, illegal aliens aren’t going to get… And Joe Wilson said, “You lyin’.” Do they have to like, prove citizenship?

Matthew Shupe: Oh. When it comes to the receipt of these [crosstalk 00:39:27]?

Robert Fertel: Yeah.

Matthew Shupe: So, you can be a non citizen but here legally on a visa, paying into Social Security. And if you are doing so, and you’ve paid enough in, you could qualify for Social Security Disability Insurance. But the welfare component, SSI, you are ineligible for.

Matthew Shupe: But Anthony, I know what you mean. I mentioned it earlier, I don’t know if you were listening at that point. But, the director of the office of management budget, Nick Mulvaney, he went on Face the Nation last week, and he came up with these… He regurgitated facts that have been disputed… alternative facts that have been disputed by actuaries in his own office.

Caller 1: It’s amazing how, it’s like they have these people who are just… Why is the BCIS in my street, why are they kicking a man out of his house? He’s been there for 15 years! He pays his taxes! They [inaudible 00:40:36] going to deport him, and he’s raising hell. [inaudible 00:40:39 commit crimes].

Matthew Shupe: Yeah. And it’s awfully hard to determine what they mean by that. They draw those lines and try to parse things, three months after the election already occurred, it might be a little too late for that.

Matthew Shupe: What part of town are you in, Anthony?

Caller 1: I’m just kidding. No, I don’t let them pick me up. You know what that is? You know, looking at what those taxes really do on the country. You know it’s just like when he talked about in California and you got all border states, how this policy is going to effect not only what they think, about keeping people out, but it’s going to drag the prices of our goods sky high. Who’s been fooling, that the migrant workers aren’t going to get into the country with this law passed.

Robert Fertel: Instead, people who are not undocumented but yet they’re not paying into Social Security, it would be easier than trying to deport them and have them come back and all that. Might as well have them pay Social Security and income taxes and all that.

Caller 1: [inaudible 00:41:51]  Big farms out there that are giving those migrant workers to a third party, breaking the law. But something that they say, “We’re going to punish the people that’s breaking the law.” They only selectively punish selective people.

Robert Fertel: Yeah.

Caller 1: [inaudible 00:42:10] The fight isn’t over, Bob. Crafting a workable bill. We’re going to do what we want to do, since we’ve got the power. We’re going to do it and control what happens. Contentiously, and raise enough hell that they can feel that. I might be effecting my job. [I can’t inaudible 00:42:30] I just wanted to thank y’all for keeping up the good fight, for honesty, for truthfulness.

Matthew Shupe: Thank you for calling in, Anthony.

Paulette Balin: Thank you.

Robert Fertel: We’ve only got like about a minute and a half, so I think, you know, your phone number and the website and…

Paulette Balin: Okay. 866-49-BALIN. 866-49-B-A-L-I-N. Which translates to 866-492-2546. And our website is www.BalinLaw.com