Winning Isn't Easy: Long-Term Disability ERISA Claims

WIE Season 2: The Interaction Of Social Security & Long-Term Disability Insurance Claims

December 06, 2022 Nancy L. Cavey Season 2 Episode 69
Winning Isn't Easy: Long-Term Disability ERISA Claims
WIE Season 2: The Interaction Of Social Security & Long-Term Disability Insurance Claims
Show Notes Transcript

Welcome to another episode of Winning Isn't Easy with your host Nationwide ERISA Disability Attorney Nancy L. Cavey! On this weeks episode we will be talking about all things about the interaction of Social Security and Long Term Disability claims.

Featured Segments Include:
1 - What You Need to Know about Social Security Disability Listings

2 - Why You Shouldn’t Speak with the Social Security Administration Claim Adjudicator Assigned to Your Claim

3 - Three Ways Your Social Security Disability Attorney Can Destroy Your ERISA Disability Claim

Resources Mentioned In This Episode:

LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO PROFESSIONAL BOOK: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/

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Nationwide ERISA Attorney Nancy L. Cavey:

Hey, I'm Nancy Cavey. I'm a National ERISA individual disability attorney, and I wanna welcome you to Winning Isn't Easy. In this episode, I'm gonna talk about social security disability claims and your long term disability claim, what you need to know in the interaction between these claims. But before I get started, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida Bar Association tells me, I've gotta say that. So I've done that, but nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. Now, I will tell you that Social Security disability claims and long-term disability claims are often intertwined. And I'm going to discuss, uh, this interaction. First thing I wanna talk about is what you need to know about Social Security disability listings, why you shouldn't speak with a Social Security administrator or assigned to your claim, and the three ways that your Social Security disability attorney can destroy your risk of disability claim. Okay, now, before we get started, let's take a quick break.

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Nationwide ERISA Attorney Nancy L. Cavey:

Welcome back to Winning Isn't Easy, what you Need to Know about Social Security Disability Listings. Now, getting your long term disability benefits can be tough, but social security can be even tougher. And it can be hard if you don't understand what it is you have to prove. Because what you have to prove is different than what you have to prove in your long term disability case. It's sort of like getting in a car and deciding you're gonna drive to New York City with no map or gps. You might end up in New York City if you're lucky, but you probably are gonna end up somewhere else. Now, let's trade luck for knowledge. I wanna talk to you first about the five steps sequential evaluation that's used in every Social Security disability case. Um, the first thing they ask is, have you been able to work for at least a year? Secondly, do you have a severe impairment? And then thirdly, at step three, they use a book called the Listing of Impairments or the Blue Book. And what they do is a look at your medical records to determine whether or not you have a medical condition or physical impairment, mental impairment that qualifies you for Social Security disability benefits. Now the Blue Book has two sections. There's the adult listing part A, there's the children's section, part B. If you have a medically determinable impairment that matches the list of impairments, you can be found disabled at step, step three. Otherwise, you have to prove at step four that you can't go back to the lightest physically demanding or simplest job you held in the 15 years before you became disabled. And a step five that you're unable to do other work in the mythical not real world national economy view of your age, education, skills, restrictions, and limitations. So that's four and five. And quite frankly, that's where most of these cases are, um, decided. But there are occasions in which we can meet the listing of impairments, and I think that helps in an erisa, uh, long-term disability claim. So what's a listing of impairments? Do you remember your biology class A million years ago when you studied biology, you studied in in the form of body system. So you learned about the cardiovascular system, the digestive system, the pulmonary system, et cetera, et cetera. The Social Security Administration takes a similar approach and classifies medical conditions under the body systems we learned in biology. So to qualify for a listing, you have to meet the symptoms in the laboratory findings for each of the listing conditions. If you do that, social security will find that your medical condition is severe enough to meet a listing. That can be difficult as I tell my social security clients, cuz doctors didn't take a class in medical school to learn how to write a report for Social security disability purposes to establish that you meet the listing. Now let's talk about the listings because I think it's important that you understand this. I always try to to shoehorn my clients into listings. Um, but if not, um, I use the listing criteria at step four and five. What are the types of conditions that might qualify you for a listing? Well, cancers, cardiovascular disorders, digestive disorders, endocrine disorders, uh, genitive urinary disorders, hematological disorders, immune system disorders, mental disorders, musculoskeletal disorders, neurological disorders, respiratory disorders, skin disorders and special sense disorders. When you open up the, the the blue Book, you'll see that each listing has, uh, for each impairment has different criteria. And what's important is that if you're gonna meet the listing, you're gonna see what the overview of the impairment is. You're gonna see whether or not your symptoms or your diagnosis qualifies and you're gonna see what evidence including test results and documentation is required. That's important cuz again, I think there that information is also relevant in your long term disability claim. There are some conditions that have no listings. For example, fibromyalgia has no listing. Social security recognizes it as a significant impairment and medical condition, but there's no listing. So let's take a walk if you will, through the Blue Book. Let's walk to Social security listing 1.00 Musculo skeleton Disorders. Now that section of the the Blue Book covers skeletal spine and upper and lower extremities that are affected by the musculoskeletal system, uh, and radiculopathies caused by disc injuries. Um, I want you if you have time to google this and look at the listing 1.0 and look for spine disorders at 1.15. You can see that this is not easy. You know, it's pretty complex to, um, both medically and factually establish that you meet a listing, which is why you want the help of an experienced ERISA a disability attorney. Now I will tell you, uh, as an ERISA disability attorney, I also do Social security disability attorney and there are some ERISA attorneys who point blank say they don't do it and the disability carrier might be suggesting that you use some sort of an advocate. I strongly suggest that you do not use an advocate because they're not advocating for you. If you can't find an ERISA disability attorney like myself who does social security also, you wanna have two separate lawyers. But I'm digressing because if you don't meet a listing, you are going to have to qualify for benefits at steps four and five. And you have to prove that you can't do the lightest job you held in the 15 years before you became disabled. There were other work in the hypothetical mythical not real world national economy. You give your education experience, uh, physical or psychiatric limitations that requires teamwork. Uh, and again, uh, I will do things such as using a appropriate residual functional capacity form in a social security case, uh, and uh, uh, amending or caching it to an attending physician statement form that's used in a disability claim. APS forms and disability claims. Don't ask the right questions while RFC forms ask the right questions. And so because there's this overlap, I think that the evidence that can be developed in both cases are applicable to both cases and can be used in conjunction. There is, however, a caveat here, the caveat is that you heard me use the word age at step five, age is a factor. And in most disability, uh, policies or plans, age is not a factor, which is one of the reasons why disability carriers can thumb their nose at a social security dis uh, decision. Let's take a break and we're gonna come back and talk about why you shouldn't be talking not only to the claims adjuster in your long-term disciplinary case, but why you shouldn't be speaking with a Social Security administration claims people assigned to your case. Let's take a break. Break. Welcome back to Winning Isn't Easy. Why you Shouldn't Speak with a Social Security Administration Claims Adjudicator assigned to your claim. Now when you file a claim for Social Security Disability benefits, you're gonna be assigned a claims adjudicator with a state agency called Disability Determination Services dds. It's a state agency. They've contracted with a Social security administrator to handle initial Social Security disability applications and appeals of denied applications known as Request for Reconsiderations. Now I'm often asked is that claims adjudicator my friend or foe? Um, I have found that speaking with a claims adjudicator can destroy your claim before it gets outta the gate. Many Social Security disability attorneys such as myself will tell you, don't speak with a claims adjudicator. But many times clients don't listen to that advice and suffer the consequences. Now there are times where the claims adjuster is actively your fault and they will often misconstrue the conversation that you have with them or written documents you submit. And sometimes it seems to me that they do it on purpose. Over 66% of initial applications are denied. Now, as part of your application, you're going to be filling out forms, including forms about your work history and your activities of the other living. You shouldn't be sending in any of these forms unless your attorney reviews in approves them. Better yet, you should let them send the forms to the Salt Street administration. Now why would an attorney wanna review these? Well, obviously they're looking for mistakes, but if you have an ERISA disability claim, I'm looking for inconsistencies because as part of the long term disability claims process, at some point the disability carrier's gonna want to get your social security claim and they're looking for inconsistencies and reasons to cherry pick your social security claim. And part of cherry picking involves your discussions with the claims adjudicator at dds. Now, the claims adjudicator may call and ask questions about your past work and the physical activity involved. They might question how much you lifted, how long you had to sit, how long you had to stand. And the reasons for these questions are they're trying to determine if your past work was was called light work or sedentary work. And based on your answers, that will help impact whether or not you can go back to your past work. And if they think you can go back to your past work based on your answers, that's gonna result in a claims denial. Now the claims adjudicator might also get into a discussion with you about what you do in the course of your daily activities. So you might tell them, Hey, I cook my own meals, I'm babysitting my grandkids. And a claims adjudicator might leap to the conclusion that you could work as a companion. Nevermind that you might watch your grandchildren several times a week for a couple of hours in a controlled environment in your home where you might be able to get into the recliner or rest your back or you might spend the next couple days recovering. That can come back to bite you both in your social security claim and bite you in your ERISA disability claim. Now similarly, the claims adjuster adjudicator might include that you could work in a fast food restaurant because you're doing meal preparation at your home. Small meal preparation microwaving a meal. In my views, not the equivalent to being able to work in a fast food environment, but I've seen claims adjusters literally make that leap. What should you do? If you get a call from a Social Security claims adjudicator? I think you should tell them I'm represented and ask them to contact your attorney. If I think it's appropriate for you to speak to the claims adjudicator, I'm gonna let you know. And if you are not represented, you should be hiring a Social Security attorney because you need an advocate and you need a person who understands the social security claims process and will protect you not only from yourself, but from the social security, uh, administration and the adjudicator. Better yet, if you can find a lawyer who handles both Social Security Disability and erisa, you've got your ERISA claim, that's the best thing you can do cuz you've got one person coordinating all of these claims. And please, if you hire an attorney, follow their advice. They aren't there to give you advice for you to ignore or for you to um, disagree with. They're giving you advice based on their experience, their knowledge, uh, and they have your best interest in heart. So if you hire somebody, please listen to them and don't speak to that claims adjudicator. Got it? Time for a break.

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Nationwide ERISA Attorney Nancy L. Cavey:

Welcome back to Winning Isn't Easy. Three ways your Social Security Disability Attorney can destroy Your Is a disability claim. Winning your Social Security disability claim can hurt and even destroy your long term disability claim. What are you saying that doesn't make any sense? Well, let me give you three examples of how a Social Security lawyer can screw up your long-term disability claim. Now why do I know that? Well, I'm a social security disability lawyer and a ERISA disability lawyer and oftentimes I am asked by the Social security attorney to try to fix the mess that they made in the long-term disability case because they didn't know what they were doing. So let's talk about the first screw up. Let's say you claim you're disabled as of January 1st in both your social security and long-term disability claim. However, at the hearing, the judge, the Social Security judge says, I want you to move that date of onset to a date later. Then you claim or finds that you were disabled on a different date than what you claimed the result can be that the disability carrier can seize on that amended date of onset and argue that you weren't disabled as of the date you claimed you were and therefore you aren't disabled for long-term disability purposes. So the Social Security attorney in this situation doesn't understand what the impact of an amended onset has on the long term disability claim and screws up your claim. The second thing that they can do is, let's say as is generally common, your long term disability policy or plan has a limited pay provision for mental nervous conditions. They'll only pay you for two years, but you've got multiple medical conditions including depression. And the Social Security Attorney argues you're disabled in part because of depression. You get your social security benefits. The Social Security judge writes an opinion and says you're disabled in part or in hold by your depression. The long term disability carrier is gonna seize on that and invoke the mental nervous policy limitation and say your benefits were limited to just two years. A judge found that you were disabled as a result of your psychiatric condition. So we certainly can't be wrong. We're gonna defer to the judge in this case. Now the third screw up is depending on your age, you can win your social security claim if you're limited to working in a light capacity. Now, many Social Security attorneys will get your doctor to agree that you can do light work or the social security judge will find that you can do light work and award your benefits. Now that might be okay if you're at the own, I'm sorry, your own occupation stage of your long-term disability claim. And your occupation wasn't one where you were said theory and sitting all day, but it is bad news at the any occupation stage because if you can do light work, if you can do sedentary work, the long term disability carrier is guaranteed gonna deny your claim on the basis then you can do any occupation. And they are going to point to that social security decision. These mistakes can be hard to fix. Now you also don't wanna have a Social security lawyer who masquerades as an ERISA disability attorney that says, I can handle your long-term disability claim. I hope that your Social security attorney is smart enough to know that they can't and they shouldn't be handling an ERISA disability claim. Um, the National Organization of Social Security claims reps NOSSCR, which I'm a member of, has launched an online form devoted to long-term disability issues, which on its face sounds like a good idea, but I think it's an absolute horrible idea. According to NOSSCR, the LTD Forum is a place to ask questions, give advice, share resources in case development related to both ERISA and private long-term disability claims. Now, I'm one of the few members of NOSSCR who does both Social Security Disability and ERISA and Private LTD work. And I've done that for over 30 years. It's not uncommon, as I've said, for me to be asked to step in and clean up a mess if possible, that a social security lawyer has made while masquerading as an ERISA or private LTD attorney. You know, sometimes a social security lawyer thinks that it's just enough on appeal to send in a copy of the Social Security decision and that's a winner. Hey, that's not even close. Um, and there are times as a result, I can't fix the mistakes. I've gotta tell the client, look, here's the bad news. Your social Security attorney screwed up your ERISA claim. Uh, and this is how they screwed it up. And your options include suing your Social Security lawyer because you've gotten screwed in your disability claim. Now, you might argue that this NOSSCR LTD forum is gonna help cure those problems, but I doubt it for several reasons why? Well, I think first it gives Social Security lawyers the feeling that they can handle these cases when they can't. It's a false sense of knowledge and it's also a false sense of courage. They think that they can take on a case when they shouldn't and it gives them false hope that they can bluff you and bluff a disability carrier through an ERISA disability claim. The only p persons that they're bluffing, quite frankly, are themselves. ERISA and private insurance. Disability insurance claims are much more complex than the social security case. They involve ultimately federal law, federal rules of procedure, federal rules of evidence, a working knowledge of defense law, a working knowledge of defense firms and the federal judges and crucially understanding something called a standard of review. Most lawyers do not understand the standard of review in an ERISA disability case and not understanding that and your appeal rights and what should be submitted in an appeal. And the fact that there is no trial, like a social security case are all of the things that Social Security disability lawyers screw up and think, um, that just because they handle a social security case, they know how to handle an ERISA disability case. That kind of knowledge is not gonna come from being a member of an online forum. So you should be very, very, very careful if your social security lawyer wants to handle your ERISA or private individual disability claim, they will be learning on the job and you will be their Guinea pig. So what you really want is a long-term disability lawyer who's also a Social security lawyer. Now, I handle cases across the United States, both social security and long-term disability. And you wanna be represented by lawyers who do both. And I admit that it can be hard to find someone, but that's what you want. Short of that, you want a Social security lawyer, you want an ERISA disability lawyer and you want them to be talking with each other. You want them to be sharing information. You want the ERISA lawyer to be talking to the social security lawyer about what's the standard of review, what's the definition of occupation, what's the definition of disability? Are there policy limitations for mental nervous conditions? Are there policy limitations on subjective medical conditions like back conditions or fibromyalgia? What's the impact of o of amending the date of disability? Um, and you need to understand, and they need to coordinate what medical proof and vocational proof that they can develop and share that will maximize your entitlement to both Social Security Disability and ERISA disability benefits. Maximizing your benefits requires communication and collaboration, not only with you, but with your Social Security disability attorney and your RISA attorney. Or if you're fortunate to find someone like me, between you and a lawyer like myself who does both Social Security and RISA disability work. Got it. I hope that you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, please like our page. Please leave a review and share it with your friends or family. Better yet, consider subscribing to this podcast. That way you're gonna get notification every time a new episode comes out. I hope you tune in to next week's insightful episode of Winning Isn't Easy.