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

The Gold in Your Social Security File: How Disability Carriers Use It Against You

Nancy L. Cavey Season 6 Episode 1

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Welcome to Season 6, Episode 1 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of The Gold in Your Social Security File: How Disability Carriers Use It Against You.

Most people assume Social Security Disability and ERISA Long-Term Disability benefits operate independently. While they are separate systems, what happens in one can significantly affect the other. Insurers don’t focus solely on diagnosis - they closely examine medical records, treatment history, daily activities, and statements made to Social Security to decide whether a claim meets the policy’s definition of disability. In this episode, we examine how Social Security intersects with ERISA disability claims. We explain why carriers seek access to your Social Security file, what key evidence it contains, and how inconsistencies, consultative exams, or vocational opinions can be used to reduce, deny, or terminate benefits. We also discuss why timing matters, from SSDI approval to ongoing reviews and appeals. By the end of the episode, you’ll understand that protecting your disability benefits isn’t just about your medical condition - it’s about strategy, documentation, and timing.

In this episode, we'll cover the following topics:

One - Setting the Stage: Why Your Disability Carrier Wants Your Social Security File

Two - Inside the File: What Medical Material Can Lead to an ERISA Denial

Three - Timing Is Everything: The Four Times Your Carrier Wants Your Social Security File

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Navigating Your Social Security Disability Claim. Give it a listen: https://wiessdpodcast.buzzsprout.com/


Resources Mentioned in This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

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


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Nancy Cavey [00:00:17]:
 Hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer. This podcast is not legal advice. The Florida Bar association says I have to tell you this, but now that I have said that, 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. So off we go. Now, I think you need to understand the rules about Social Security disability and the risk of disability benefits, because I think knowing those differences and the interaction can help you keep your long term disability benefits or lose them entirely. Insurance carriers and plans don't necessarily care just about the diagnosis.
 
 Nancy Cavey [00:01:08]:
 They're going to be looking at your medical records, your treatment history, your daily activity forms and statements that you have made on your Social Security forms. They are going to take that information and look at their own disability policy or plan. They want to understand whether you meet the burden of proof. Do you meet the policy's definition of disability? And by the way, have you followed the contract requirements for cooperation and documentation? Many ERISA disability carriers or plans are going to rely heavily on what's in your Social Security file to determine whether they're going to pay benefits and or keep paying benefits. And of course they're going to be looking at that to determine how much money they'll be able to reduce your ERISA disability benefits by if you get a favorable decision. But often they will exploit the inconsistencies, consultative exams or vocational opinions to argue that you're capable of doing your own occupation or any occupation. Now, timing is everything in these cases. There are times when the disability carrier plan wants to see the file at the time your claim has been denied at the initial stage, or the request for reconsideration stage.
 
 Nancy Cavey [00:02:24]:
 But often they'll also want it. They haven't gotten it then at the time that a decision is made, either a favorable decision by DDS Disability Determination Services, who handles the first two stages of the claims process, or when a Social Security judge enters a favorable or even unfavorable decision. They want access for lots of reasons, which we'll talk about. So I want to talk about three things. Number one, why the disability carrier wants your file and what gold it contains. Number two, we're going to actually look in a file to see what medical material can trigger a denial. And then lastly, I'm going to go through the four times in the life of an Arista disability claim when I think carriers are most eager to get their hands on your Social Security file and why I think that timing matters. By the end of this episode, I want you to understand that protecting your ERISA disability benefits isn't just about your medical condition.
 
 Nancy Cavey [00:03:23]:
 It's about strategy, documentation and timing. So let's dive in. I'm going to be talking about first, Setting the stage. Why does your disability carrier plan want your file number two, let's go inside that file. What medical material can lead to an ERISA denial or termination? And three, let's talk about timing the four times that your carrier wants your Social Security disability file. Got it. We're going to take a break, but while you're taking a break, go get some paper. Go get a pencil because I think you should be taking notes.
 
 Nancy Cavey [00:03:57]:
 Let's come back in a minute.
 
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 Nancy Cavey [00:04:36]:
 Foreign welcome back to Winning isn't easy Setting the stage why your ERISA disability carrier plan wants your Social Security disability file now under the terms of most ERISA disability policies or plans, you have to apply for Social Security disability benefits because the disability policy or plan gives them the right to reduce the amount of your gross long term disability benefits by the receipt of your Social Security disability benefits and those of your dependents. When you're applying for Social Security disability benefits, you're going to be completing a lot of forms like you did in your ERISA file. Rarely, by the way, does Social Security ever want to see your ERISA file, but they do want material information such as IME's consultative peer review reports that they may have secured and sometimes vocational opinions. But that's a different topic for a different day. When you apply for Social Security disability benefits, you're completing an application that requests information about your treating physicians, your past employment, the physical, cognitive and psychological problems that you think are preventing you from working. They'll be asking information about your dependence, and you're going to be asked to fill out what's called an adult function report form and questionnaires. Questionnaires can include pain questionnaires, migraine questionnaires, all sorts of questionnaires as supplements to your application, and you'll fill them out at different stages of the case. The Social Security Administration is going to Send your file to a state agency called Disability Determination Services dds and they are charged with looking at the file at the initial and recon stage, getting the applicable medical records, having their Social Security doctors look at the file, have their vocational evaluators look at the file and render a decision as to whether or not you meet the five step sequential evaluation test, the initial request for reconsideration stage.
 
 Nancy Cavey [00:06:44]:
 By the way, that five step sequential evaluation test is generally not the same test as seen in in an ERISA disability policy or plan. Now you can hear in my voice, if you will, that there is Social Security disability gold that's going to be used by ERISA disability carriers or plans in making the decision to pay or deny your claim. You may be wondering why you have to give these creeps access to your Social Security file. And the answer is because the policy requires you to cooperate. And that means you should be signing a release allowing them to get your Social Security file. And if you don't, the carrier plan is going to say, too bad, so sad. We aren't even going to get to the question of whether or not you're disabled. You violated the contractual terms and failed to cooperate.
 
 Nancy Cavey [00:07:32]:
 And I will tell you that federal judges will uphold your obligation and duty to cooperate and to sign medical releases. So don't go there. Just give them the file. Because not only is the federal court going to be unhappy with you, but they'll generally uphold a denial or termination based on the failure to cooperate. So what's the gold in the pre decision Social Security file? Well, it's your application for benefits. It's going to be the adult function report you completed. It's going to be those pain questionnaires. But guess what? It's not uncommon for Social Security to get third party statements from friends or families.
 
 Nancy Cavey [00:08:16]:
 And I will tell you, I absolutely hate these forms because if a judge wants to deny the claim, they're going to seize on inconsistencies about what your family or friends had to say. Many times Social Security judges will start out a hearing by saying, you know those forms that you filled out two years ago, Were they accurate and complete? And of course you're going to say yes, when in fact they may not be. And in fact the judge rarely says, well, has anything changed? Have you filled out those forms today? Would the answer be the same? But the disability carrier is going to seize on those third party statements by friends or family as being inconsistent with what you may have said in your own activity of daily living forms in your ERISA disability or Policy application. And they're also going to be looking, unfortunately, at social media accounts to see whether what you've had to say about on your adult function report, what you've told your doctors, what those third party statements by friends or families have to say as compared to what's going on in your curated media, social media world. Okay. The other goal is going to be reports prepared by Social Security physicians commenting on your medical condition, determinable medical impairments, restrictions and limitations in response to treatment. They're also going to be looking for residual functional capacity forms that you have hopefully submitted in the context of your Social Security claim. And of course, they're going to look at the reports of consultant examiners who have seen you at the request of Social Security.
 
 Nancy Cavey [00:09:46]:
 Any of these documents can and will be used by disability carriers to determine whether you're disabled as that term is defined by your policy or plan. So again, they're going to do a comparison. What did you put on your Social Security disability application about your disabling medical conditions, symptoms and functionality? What did you put on your or a risk of disability activity of daily living forms? Do they match? And by the way, what is it that you said to your doctor? Does that match with it? And by the way, we've been looking at your Facebook account and we see that you've been doing X, Y or Z. Is that consistent with what you told us? You told Social Security? You told your doctors, so they're going to seize on all these documents to do an analysis of any inconsistencies. So it is crucial that there be consistency between your Social Security claims file, your medical reports and your activity of daily living forms that you're submitting. We do Social Security disability work. I'm one of the few ERISA disability attorneys who do both ERISA and Social Security. I insist that I represent the client on both claims.
 
 Nancy Cavey [00:10:54]:
 Why? Consistency. And of course identify the applicable residual functional capacity form in the Social Security claim that we want the doctor to fill out, which we use in both the Social Security file and also we use in the ERISA file. And lastly, we do social media checks of our client. You agree to let us do that because we want to know if we're going to have an issue with the curated reality in quotes of your social media posts and what's on those Social Security forms, the activity of daily living forms, what you told the doctor. Now, by the way, Social Security isn't going to do that social media search, but I promise you that is one of the first things that a disability carrier Will do. You can see consistency is key and the carrier is looking for that gold in your Social Security file. Let's take a break. Foreign.
 
 Nancy Cavey [00:12:04]:
 Welcome back to Winning Isn't Easy. Inside your Social Security disability file, what medical material can lead to a denial or termination of your ERISA disability benefits? Now, there is medical material in your Social Security disability file that will be used by the ERISA disability carrier plan in making the determination to pay, to continue to pay, to deny or to terminate benefits. And I'm going to cover that. So what medical material exists in your initial application stage of the case and in the recon stage of the case that's really so important for the disability carrier plan? Number one is your medical records. When you apply for Social Security disability benefits, you give Social Security a list of the medical providers you've seen. Now, Social Security is opposed to suppose to contact your doctors and get the records. That doesn't always happen. Your doctor may not cooperate.
 
 Nancy Cavey [00:12:56]:
 They may not have got the entire chart. But what will happen is that you may not have disclosed all those same doctors or providers to the ERISA disability carriers. They're not going to be happy with that. So the ERISA disability carrier plan will be able to get, if you will, at those medical records based on the records that Social Security was able to obtain. So we don't want to misrepresent anything on either your Social Security disability claim or your ERISA application. Now let's talk about the medical records. When you apply for Social Security benefits, you normally give Social Security a list of medical providers that you've seen and identify the medical conditions that are the basis of the denial basis of the claim. And many times what I find is that claimants don't disclose all of the material conditions because they don't think they're disabling, when in fact we're looking at individual medical conditions and combinations of impairments that could ultimately result in a favorable Social Security decision.
 
 Nancy Cavey [00:14:07]:
 And you may have done the same thing on your ERISA disability application. So you've limited the field, if you will, of the basis of the review of your disabling medical condition and how those conditions can impact your ability to do your own or any occupation. Now, when you're applying for benefits, Social Security is going to determine whether you have what's called a medically determinable impairment. And Social Security rules require that you have a medically determinable impairment that has lasted or will be expected to last at least one year. Often Social Security will take the position that a soft tissue injury or even a stroke, or even the residuals of a heart attack are going to heal within a year and say, hey, you don't meet step one of the five step sequential evaluation. So that will result in a denial. But you and I know that soft tissue injuries, damages to muscles, ligaments, tendons, can result in a problem that lasts more than a year. We know that people may partially recover from a stroke and continue to have residuals.
 
 Nancy Cavey [00:15:18]:
 We know that someone can recover in quotes from a heart attack, but still have cognitive issues, fatigue issues, shortness of breath. And so the Social Security Administration's determination of a medically determinable impairment can potentially be used against you by the disability care saying, hey, you know, this isn't really an impairment, by the way, it's not going to result in the symptoms that you complain of or the severity of the symptoms that you complain of. Or by the way, we've got these disability determination guidelines and according to this book, on this page, your back condition should have only lasted three months. Too bad, so sad you haven't satisfied the elimination period. Or too bad, so sad we're not going to pay benefits beyond that date. The other thing that's important that they're looking for, the carrier is looking for, are consultative exams. Now, many times Social Security doesn't think there's strong support for the claimant. They will send the claimant out for a consultative exam.
 
 Nancy Cavey [00:16:19]:
 Unfortunately, Social Security doesn't always pick the right specialist to perform the examinations. I've seen consultative exams by pediatricians in cases involving heart conditions or the residuals of strokes. I don't think a pediatrician is rendered to, is competent, if you will, or qualified to render an opinion outside of their area of expertise. Now, I will tell you that many times this consultative exam is cursory at best, may only last five to ten minutes, and rarely does the consultative examiner have your complete medical chart because Social Security doesn't have it, or Social Security DDS will cherry pick what it is they're sending to the doctor. And of course, that's one of the complaints that we make in the course of a Social Security claim. But what will happen is that the disability carrier plan is going to seize on the results of this consultative exam, including conclusions about your restrictions and limitations, and use that as a basis of denial. In fact, they'll say this is consistent with what our lawyer for hire peer review doctor has to say. So two doctors are right and we pick the doctors that will support the claims denial.
 
 Nancy Cavey [00:17:28]:
 The other thing that they are looking for here in the file is a step four analysis and a step five analysis. Social Security Administration has to determine at step four what in fact your residual functional capacity is in terms of your physical, psychiatric and cognitive conditions. And they apply the test at step four of whether you can go back to your past relevant work by looking at the work you did in the five years before the claim would be denied. They look at the Dictionary of Occupational Titles and they say, well, here are these job duties. Here are what we think the restrictions limitations are. Voila. We think that you can do your past work. Claim denied where it's step five.
 
 Nancy Cavey [00:18:14]:
 They're going to determine whether you can do other work and of the work of the national economy in view of your age, education, skills and whatever those restrictions are. Again, the folks at Social Security will deny claims at step five based on an incomplete understanding of the person's restrictions and limitations. And what will happen is that the disability carrier plan will seize on this cursory conclusion about a person's restrictions and limitations based on what's in the medical file and say, hey, that's consistent with what our liar for hire doctors had to say. And guess what? The Social Security opinions from a vocational standpoint about your ability to do your past work or other work is just in line with our liar for hire vocational evaluators. So this is all copacetic. This Social Security claim file gives us all sorts of gold and by goodness, it gives us a reason to deny or terminate benefits. Now you understand the game. Let's take a break.
 
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 Nancy Cavey [00:20:12]:
 Welcome back to Winning Isn't Easy. Timing is everything. The four times that a disability carrier may want your Social Security disability file. Now I think of the life of a Social Security disability file and the life of a ERISA disability carrier file, perhaps differently than some lawyers do. In my view, there are natural times in ERISA disability claim when a claim is going to be denied or benefits are going to be terminated. That's short term disability. The transition from short term disability to long term disability after two years when the definition of disability changes from an inability to do your own occupation or any occupation or, or two years when they might apply a mental nervous policy limitation or a subjective medical condition limitation to argue the benefits are only limited to just two years or when you have been on claim for a while or you have a high dollar claim. Those are the times that I will normally see.
 
 Nancy Cavey [00:21:21]:
 But a disability carrier or plan is going to look at denying or terminating benefits. And one of the tools that they use, of course, is that Social Security disability claim. Once your Social Security disability claim is approved, you know they're going to find out about it and you really quite frankly can't lie about it. And you can't hide the fact that you got benefits. You most likely are going to have to make payment of the overpayment. But they may say, hey, under the terms of the disability policy or plan, you have a duty, you sign a release so we can get your file. And so once your Social Security claim has been approved, they're most likely going to be asking for that. Now, you may be at a different stage over here in your recent disability claim, but more often than I find, unfortunately, based on the timing of a Social Security claim, that that can happen when the definition of disability changes from own occupation to any occupation, about two years.
 
 Nancy Cavey [00:22:20]:
 That's generally where it has been happening, though I will tell you that's changing because of the huge delay in getting Social Security to make a decision. And that involves assigning a claims examiner, having them get the records, having them make a decision. Now once that happens and they know that you're on claim, they're going to want their money back. I'm going to take a look at that file and they're going to determine whether benefits should be denied or benefits continued based on potentially what's in part in that Social Security file. Now, the second period of time might be you're on claim and they're going to be asking you whether you had what's called a continuing disability review. When you are awarded Social Security disability benefits, it's not necessarily for life. They are going to look at the medical condition you have, look at the medical records and determine if there is reason for improvement. And if there is reason for improvement, one year, two years, five years, seven years, they will be scheduling what's called a continuing disability review.
 
 Nancy Cavey [00:23:25]:
 You need to continue to get your medical treatment, continue to tell the doctors about your symptoms and functionality because Social Security will get those records. And ultimately there may be an analysis where they say, oh, you're still disabled, we'll pay. Where they may deny benefits and say, you're entitled to a cdr. Lots of rights and responsibilities. If you want your benefits to continue, you've got to notify them in a certain period of time. There's going to be a hearing, and you darn well better have a Social Security attorney. The disability carrier is going to be interested in that continuing disability review, particularly if the Social Security Administration finds that you are no longer disabled. Now, sometimes they will ask for the file while they are doing a file review to determine if they're going to continue to deny or continue to pay benefits or terminate benefits.
 
 Nancy Cavey [00:24:21]:
 And the fourth time I see them doing this is when you're appealing the denial or termination of your benefits. One of the many reasons we contest an improper denial or termination is that the disability carrier did not obtain and consider what's in the Social Security disability file. There is a United States Supreme Court decision that says they have to consider the Social Security file and explain why they rejected it all or rejected it in part. And if they don't, that can subject them to a reversal by a federal court. So they want to create the appearance that they've got in your file and that they've looked at it. So they're going to send you a release. And if you say, heck no, I'm not giving you that information, then you've really screwed yourself because you have a duty to cooperate. And the federal federal court will not be happy and will say, well, that's a legitimate reason for denying the claim.
 
 Nancy Cavey [00:25:15]:
 Under the terms of the policy, they had to cooperate and they didn't. So too bad. So sad. The disability carrier, when you sign the release, should get a copy of the file. What they get is not always the whole file. They may ask your former Social Security attorney to send them the file. And if that happens, we send selected portions of the file. We don't send them the whole file.
 
 Nancy Cavey [00:25:41]:
 We send them the decision. We send them the medical records. We send them the RFC forms that we have gotten. We send them any documentation that we have submitted in support of the claim. Now they're going to get a copy of that Social Security award by a judge, and there is a laundry list of what they've gotten and considered. And so I will generally give the disability carrier the laundry list of the things that the judge had reviewed, the Social Security judge had reviewed. So there's kind of a level playing field, if you will. But I don't necessarily stop there.
 
 Nancy Cavey [00:26:20]:
 I want to make sure that I'm also sending my client's current medical records and any RFC forms that we've got. So that the carrier has sort of got the records, if you will, that existed at the time of the Social Security decision. And what's happening now, I will tell you many times, the carrier will say, well, you know, that Social Security decision was two years ago and the judge didn't have this or that, and this has changed. And we've got, you know, surveillance, or they're on social media doing X and Z. So, you know, we've considered this decision, but it's so remote in time that it doesn't make a difference. Expect that argument, which is why I like to also send the current medical records. If we've had a cdr, I'm going to send that CDR material, obviously favorable CDR material, preferably, and say, look, there was a review and they continue to find the client disabled. Now, under the rules of ethics, I can't hide evidence to either the Social Security Administration or to the disability carrier, but I, at least in the context of a disability case, I'm going to provide relevant information that will help them address the information that they need to determine if you're entitled to your continued benefits.
 
 Nancy Cavey [00:27:36]:
 So I will apply my legal reasoning and the rules of ethics in determining what I'm going to be sending and what I'm sending that is consistent with my client's contractual obligations to provide records. So it's a balancing act, if you will, in deciding what I'm going to be sending if I'm asked now if the Social Security disability claim has been approved, they obviously are going to monitor. And if they've suggested that you use a company like the Advocator Group or Advantage 2000 or any other disability service company, they are certainly going to know what's going on because you have signed a release allowing the disability carrier to share information with the advocator group. And it goes back and forth. So this is sort of a we're going to give you this, you're going to give us that type thing. However, I will tell you that I don't always see this communication channel working well. It really works well when you get benefits. Now, you may have also signed a release that allows them to withdraw from your bank account the back payment so that the disability carrier or plan can get their fingers on your money.
 
 Nancy Cavey [00:28:56]:
 But I don't really like my clients either to use a group like that, much less sign this release that allows them to withdraw the money from your account, because I often find that the disability carrier or plan has incorrectly calculated the offset and have taken too much out of your bank account. You can imagine it's hard to get the disability carrier to pay you back money that they have improperly taken. But one of the things that we do ask for, by the way, is that the disability carrier gives us the information about their calculations. We in turn are going to give them a copy of the Social Security disability decision and the award letter which will document in fact how much your benefits are for you and for your dependents. And many times the disability carrier is using an estimate which is wrong and that offset is miscalculated. So when we get into the situation where the claim has been approved, there is an overpayment, we owe it. We want to see those calculations so we can check the math. But remember, this is a two way street here.
 
 Nancy Cavey [00:30:05]:
 Now, if you're on claim, you need to understand this, that the ERISA disability carrier plan is going to keep on asking you for information about the status of your debt, daily activities, your medical condition, and the receipt of any income that could be used as an offset to reduce the gross amount of your long term disability benefits. You're going to be asked on the activity of daily living forms when the adjuster calls to have that oh, I'm your friend conversation, let's talk about your life. They're going to be asking you questions about other income and activities of daily living. Oh, by the way, are you getting any employment, retirement benefits, Social Security benefits? Please don't lie. It's the worst thing you can do. The truth will come out and it's only going to hurt you, particularly if you have not cooperated and you've lied. And the disability carrier in part says we're denying this claim because of your lack of cooperation. Do you think a federal judge, when you file a lawsuit, is going to be impressed with the fact that you didn't tell the truth and hid the ball, hid the money? No.
 
 Nancy Cavey [00:31:10]:
 Now, how about the disability carrier plan doing the file review? I want you to understand that just because the carrier plan has accepted your claim doesn't mean the battle is over. They are going to, as I said, in my experience, generally deny or look at denying or terminating benefits when the definition changes from, or, sorry, when the benefits change from short term to long term, the definition changes from inability to do own occupation to any occupation. And in situations where you have a chronic condition or a high amount of benefits, if you will, those are the typical places that I will see a review being done. And again, in that timeframe, they may ask you to sign a release to let them get the file or sign another release because they want to check again. You've got to cooperate when you appeal the denial termination of benefits. As I've said, the disability carrier plan has to take into consideration the Social Security award and many times they won't obtain the file and simply say that the standard of disability is different and so therefore we don't really have to consider that decision. One of the many arguments I make in the appeal is that they failed to follow that case law and I will point out that they never got the file. They never asked us to sign a release.
 
 Nancy Cavey [00:32:32]:
 Now why is that important? Well, because the disability carrier plan has two 45 day periods in which to decide the appeal and sometimes they blow that deadline by failing to make a decision and in that 45 day period they fail to ask for the file. If they haven't asked for an extension appropriately for another 45 day period. We want to file a lawsuit immediately to change the standard of review from normally what's called arbitrary and capricious to de novo. Standard de novo gives the judge the ability to substitute their judgment for that of the disability carrier. And so if the carrier or plan waited to the last moment to ask and you know, the 45 day runs and we haven't gotten or they haven't gotten the file, that's a too bad, so sad argument that I like to make to the federal court now covered a lot of information today. I hope you have found this episode helpful. I want you to understand that Social Security file, your file, is not just paperwork. It can be a roadmap that disability carriers use to make decisions about your benefits.
 
 Nancy Cavey [00:33:36]:
 So understanding what's in that Social Security file when it matters, and how it can impact your ERISA disability claim makes all the difference. So stay informed, stay consistent, and keep on protecting the benefits that you're entitled to by being consistent. Thanks for tuning in to this week's episode of Winning Isn't Easy. If you found this episode helpful, please take a moment to like our page, leave a review, share it with your family or friends, and subscribe to this podcast. Thanks for listening and we look forward to talking with you in our next episode of Winning Isn't Easy.