Kirsch & Clark, Attorneys at Law

Study Concludes Earlier Representation Helps Claimants and the Social Security Administration

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Authors and researchers, Hilary Hoynes, Nicole Maestas, and Alexander Strand, recently examined the value of legal representation for claimants and the Social Security Administration and found the following results:

  • When lawyers submit claimants’ initial application for disability benefits, they increased the probability of an award of disability at the initial level (without having to appeal) by 23%. 
  • When lawyers win benefits for claimants earlier, it saves money for the Social Security Administration who will otherwise pay staff, outside medical and vocational experts, and adjudicators as the case progresses through appeals and a hearing. 

At Kirsch & Clark, a growing number of our Social Security clients join us at the initial level.  In 2020, we helped 60% of our clients file an initial claim for benefits.  The other 40% were in various stages of appealing a denial.  We have had good success in resolving cases at the initial level, so that benefits can be received earlier.  We take pride in submitting detailed applications with the relevant information so that the Social Security Administration can make the right decision earlier. 

Kirsch & Clark completes a will and trust during a pandemic

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While we frequently do wills and trusts for people with small estates, doing them during a pandemic has been a little different. Paul completed a customized will and trust with input from the client, mostly by email and phone. Paul, wearing a face mask, hands a disinfected clip board with the final will and trust to a client in our office driveway. Client brings her own pen. Gretchen (generally working from home now) came to witness the signing of the will. Sue (taking picture), also witnesses. Will and trust accomplished! No virus spread!

Economic Impact Payments and SSI

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The Commissioner of the Social Security Administration posted this on 4/3/2020:

The Department of the Treasury (Treasury) announced on April 1 that Social Security beneficiaries who are not typically required to file tax returns will not need to file an abbreviated tax return to receive an economic impact payment. The Internal Revenue Service (IRS) will use the information on the Form SSA-1099 to generate $1,200 economic impact payments to Social Security beneficiaries who did not file tax returns in 2018 or 2019.

Treasury, not Social Security, will make automatic payments to Social Security beneficiaries. Beneficiaries will receive these payments by direct deposit or by paper check, just as they would normally receive their Social Security benefits.

Please note that we will not consider economic impact payments as income for SSI recipients, and the payments are excluded from resources for 12 months.

Kirsch & Clark also found this additional information:

Economic Impact Payments will not be taken away to reduce overpayments; however, they can be taken away to pay overdue child support.

Our office and COVID-19

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We are still here for you.  We know that many of you are at-risk and we want to keep you safe.  We want to keep doing our work to help you with as little interruption as possible.  At present, we are only meeting with clients over the phone, rather than in our office. We are capable of doing all of our regular work for you, despite this change. On days when we are working at home, we may not be able to answer your phone calls immediately. Please leave a message, and we will return your call within 1 business day. You may also contact us by email, and our response time will perhaps be faster. Thank you for your patience.

As of this date, all of our local Social Security offices are open but closed to the public. Online services and services over the phone are still available. Please rest assured that all of your business with Social Security can be accomplished by these means, and we are here to help. Social Security workers are still doing their work and we have not heard of any delays in the processing of cases, although this too may change in the days ahead.

Hearings are now being rescheduled to avoid in-person contact. Because of this, claimants will be given a choice of a) waiting for an in-person hearing (and it could be many months) or b) having a phone hearing at your scheduled time without delays. For years, we have had the philosophy that justice is best served in person and have traveled four hours round-trip to hearings in Spokane because we believed it was best for our clients. However, because the wait for an in-person hearing may be very long, we encourage clients to agree to phone hearings and we will do our very best to make these work. Video hearings may become an option in the near future (through a platform similar to Zoom). Nevertheless, we will support you in any decision you make.

Marijuana and Your Disability Case

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Marijuana and Your Disability Case

Marijuana use for medicinal purposes is becoming more common, and many people applying for disability use it regularly.  However, this may interfere with getting approved for disability, depending on each individual situation. 

Social Security Disability operates under federal law where marijuana is still considered an illegal substance.  Because of this, marijuana use is generally not viewed favorably.  Social Security experts and judges will evaluate each case to see whether marijuana (or any other illegal drugs and alcohol) are a contributing factor to disabling conditions.  Specifically, would the disabling conditions persist or be as severe if drugs or alcohol were not used?  If they suspect that marijuana is worsening a disabling condition, then benefits will usually be denied.

It is difficult to get benefits for someone who uses marijuana if some of their disabling conditions include the following symptoms, which the Mayo Clinic states can sometimes be caused by marijuana use: 

  • Nausea
  • Headache
  • Dizziness
  • Drowsiness
  • Fatigue
  • Paranoid thinking
  • A disconnected state (dissociation)
  • Worsened manic symptoms in someone with bipolar disorder
  • Worsened depression in someone who has depression
  • Psychosis in someone with schizophrenia
  • Cannabinoid hyperemesis syndrome (cyclical vomiting, delayed gastric emptying).  See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3576702/.

See:  https://www.mayoclinic.org/drugs-supplements-marijuana/art-20364974. 

Claimants who are using marijuana are less likely to negatively affect their chances for disability if:

  • Their marijuana use is known, approved of, and supervised by a doctor who also treats their disabling conditions. 
  • There was a documented extended period without marijuana use when symptoms were no better.
  • They have a physical condition that is known to not be worsened marijuana use.
  • They do not have mental health issues. 

As always, it is important to be up-front about marijuana use (or any other drug or alcohol use) with your doctor and your attorney so they can advise you. 

ABLE Accounts: A new way for disabled persons to save money

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The “Achieving a Better Life Experience (ABLE) Account” is now available nationwide.  This account allows people who are disabled to save money tax free, without losing SSI and Medicaid benefits.  The account is much like a checking account and comes with a debit card.

Individuals Who Qualify for an ABLE Account

  • Your disability must have had started before turning 26. This must be documented by medical records or a doctor’s certification that you meet the disability rules or by showing proof of SSI/SSDI eligibility when signing up for an account.  Rules on age of disability may be more generous in the future.

How Much You Can Save?

  • The disabled person and other people can contribute up to $15,000/ year tax-free. This amount may change from year to year.  The total account value cannot exceed $100,000 without affecting SSI eligibility.   These numbers might change in the future or be different for different plans in different states.

What Can the ABLE Account Pay For?

  • ABLE accounts can be used to pay for “Qualified Disability Expenses” (some examples are education, housing, basic living expenses, financial and legal fees, health and wellness). Beneficiaries must keep track of how the money was used and use the money for qualified expenses.  A full list of rules and obligations will be available when you set up an account.

ABLE account vs. a Special Needs Trust (SNT)

A special needs trust (SNT) is another way to save without negative impact on public benefits.  To decide what is best for you, learn all of the facts.  Here are a few ways that ABLE accounts and SNT’s differ:

ABLE Account Special Needs Trust
You can set it up yourself You need a lawyer with expertise in SNT’s
Is only for persons disabled before age 26 Is for disabled persons under age 65
Beneficiary has control Requires a trustee to distribute funds
Can be used for “qualified disability expenses,” including housing Can be used for anything the trustee thinks is acceptable, except housing and food
Can be used for inheritances less than $15,000 Can be used for inheritances more than $15,000
Contribution limits of $15,000/year, limit of $100,000 total in account No contribution limits or caps
Upon death of beneficiary, balance of funds go to pay back Medicaid Upon death of beneficiary, funds may be used to repay Medicaid, balance to  those designated by the trust

 

Financial planning for a disabled person is often complicated.  At Kirsch & Clark we can advise you about which account works best in your situation.  Mr. Clark is able to draft a special needs trust, if needed and advise on its administration.  It is also possible to have an ABLE account and a Special Needs Trust at the same time.

Learning More about ABLE Accounts

     Lots of information and examples about the use of ABLE accounts can be found here:      https://www.able-now.com/

  • In Idaho, eligible residents can set up an account with an out-of-state program (at the date of this post, Idaho does not offer an ABLE program). Ohio is a state that allows residents of other states to open an account.  For more information see:

Idaho State Independent Living Council web-site: https://silc.idaho.gov/able-accounts/

Ohio program:  https://www.stableaccount.com/benefits/

Work and Disability

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The Social Security Administration (SSA) administers two programs for disabled individuals.  Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI).  Both SSDI and SSI use the same medical standard to determine who is disabled.  They differ on non-medical parts of the program.

SSDI provides benefits to disabled individuals who have sufficient past work to be insured for disability.  While working, FICA taxes are withheld from wages.  Part of those taxes are a premium for disability insurance.  Generally, a person must have worked five of the last ten years before becoming disabled to be insured (a different rule applies to those under 30).  In some cases, disabled adult children and widows or widowers can receive disability benefits based on the work of a parent or their deceased spouse.

SSI makes cash payments to aged, blind, and disabled people (including children under 18) who have limited income and resources.  No prior work history or contributions to an insurance fund are necessary.

Both SSDI and SSI have built-in incentives for work.

SSDI Incentives

While your disability claim is pending, you can attempt to work.  During the first 12 months you are disabled, if you perform what Social Security calls “substantial gainful activity” (SGA), you will lose your claim unless the work lasted 6 months or less and ended because of your condition or because of the elimination of special services or assistance you received which you needed to work.  SGA is $1310 per month in gross wages in 2021.

After the first 12 months of disability, if you have applied for SSDI you may be eligible for a trial work period.  A trial work period is up to 9 months during which you can work and still receive a disability benefit regardless of how much you earn.  If you earn $940 or more in gross wages in a month in 2019, that will be a trial work month.  After 9 trial work months Social Security can use your earnings as evidence you are not disabled.  During a trial work month you can earn any amount (even over $1310) and your earnings will not be used as evidence your disability has ended.

SSI Incentives

For the year 2019, the SSA will pay up to $794 in SSI benefits minus countable income.  Your countable income is made up of the following:  wages you are paid from your job (minus $65), the value of free food and shelter provided for you, support money from family or friends (though not all of your spouse’s earnings are counted against you), and payments from other sources like Veteran benefits or unemployment.

If you have a pending SSI case and if you earn more than $1310 in gross wages in a month, SSA will determine that you are not disabled.  After SSA decides you are disabled you can earn more than that (talk with SSA about how much more) and still receive $1 of SSI and be eligible for Medicaid health coverage.  This is different if you also have unearned income like SSDI benefits.  For example, suppose Gladys, a single person, was found disabled and eligible for SSI starting January 2021; SSI is her only income.  In March 2021 she finds a part-time job which pays $1000 a month.  SSI ignores the first $65 and subtracts half of the remaining earnings from the monthly SSI benefit.  $1000 – $65 = $935; $935 ÷ 2 = $447; $771 – $447 = $324.  So, in March 2021, Gladys will earning $1065 and SSI will pay her $233.  She is much better off working this job than if she only had SSI.

Generally, at Kirsch and Clark, we encourage our clients to attempt to work.  In most cases you will be better off if you work rather than receive SSDI or SSI benefits.  If you attempt to work and it is unsuccessful, it is evidence to strengthen your disability claim.  However, we need to know about the work to be able to evaluate it in your individual situation.  Please call to discuss your work plans with Mr. Clark.

If you earn SGA during the first 12 months of your disability you may potentially jeopardize your SSDI or SSI claim.  If you are working you should send copies of your monthly wage stubs or other record of your work and earnings to Kirsch and Clark.

This is a complicated area of disability law.  This brief post does not cover all work incentives or rules regarding work and disability.  Please call Kirsch & Clark if you have questions.  You can also consult the Social Security web page for additional information.  https://www.ssa.gov/pubs/EN-05-10095.pdf  or https://www.ssa.gov/disabilityresearch/wi/generalinfo.htm

Documenting Symptoms that Come and Go

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Some people have health problems that result in “good days” and “bad days.”  Individuals with inflammatory arthritis, migraines, seizures, fibromyalgia, and some mental health difficulties, may feel relatively normal on some days, and completely incapacitated on others.

You may be found eligible for disability benefits at a hearing if bad days would cause you to miss 1 to 2 unscheduled days of work per month.  The difficulty, however, is to prove this.  Below are some ways we have used to document symptoms that come and go:

  1. If you worked for a time with your health problems and had many absences, get a report from your employer about the number of days over a year or so when you left work early, came in late, or took a sick day.
  2. Keep a diary of daily symptoms associated with your disabling condition. We can provide you with a specially tailored form to do this.  If you have a seizure disorder or another condition that makes you an inaccurate historian of your own symptoms, have a witness help you with your record.  Give your attorney a copy of your symptom diary.
  3. Share your symptom diary with your doctor, and get regular care. This will help you get the care that you need, and will also insure that your doctor understands your condition.  Hopefully, your doctor will record the number of symptom flares and severity of those flares in your treatment record and adjust treatment accordingly.  Medical evidence is always the most convincing evidence to a judge.