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TDIU

Claims for “total disability on the basis of individual unemployability” or TDIU continue to be on the rise as more and more veterans are being diagnosed with a number of diseases and conditions that result in their being unable to hold down a job. This viscous cycle can spiral out of control resulting in an inability to support their families, or simply themselves.

What constitutes eligibility for TDIU? In layman’s terms it basically means being unable to engage in substantially gainful employment as a result of service connected conditions where “gainful employment” is defined as the ability to hold a job paying an amount greater than or equal to the poverty level set by the federal government.

When people talk about the “poverty level” they are usually referring to the Federal poverty guidelines. This definition is issued annually by the Department of Health and Human Services and is used to determine who does or does not receive federal subsidies. In other words, who is poor and eligible for assistance from the Federal Government versus who is not eligible. For 2014, the poverty level for which a veteran must be working under is $11,670.

In order to qualify for TDIU benefits, certain conditions must be met; however, that doesn’t mean that all veterans meeting the requirements will receive instant results. In fact, and from personal experience, this process can be daunting due to the many hoops that one must jump through. Add to that the math (a topic for another day) used to determine his or her disability rating.

In looking at the criteria used to determine IU, the following must be determined for the veteran:

  1. Veterans with only 1 service connected condition must be rated >/= 60%;
  2. Veterans with 2 or more service connected conditions – at least 1 condition must be rated >/= 40% with a combined rating >/= 70%;
  3. For both scenarios, veterans must be unemployable due to service connected conditions.

To establish entitlement for TDIU benefits, both evidence of unemployment due to a service connected condition AND support documentation from a medical professional must be obtained. This, however, is only the beginning of what could be a long and arduous journey to attaining 100% disability compensation from the VA.

It should also be noted that Veterans with paying jobs are not necessarily disqualified for an IU rating. The key, however, is that all income earned from employment must be at or below the poverty level as stated above, or from a job that is considered to be “protected”. This marginal and sheltered employment is the exception to the rules for IU qualification.

Finally, once deemed TDIU not always TDIU. What does this mean? Simply put, the benefit is not always permanent, and the veteran may have to undergo periodic medical exams to substantiate the continuation of the award.

It doesn’t seem fair that those who served our country, many of whom now suffer from a variety of physical or mental disabilities, have to undergo such a grueling process to receive benefits. Add to that the time constraints for receiving such benefits that could ultimately be lost should their condition improve. An old comic strip from the 50’s sums it up perfectly…”There Oughta Be a Law”!

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by Ellen Watson, Claims Advocate
October 31, 2014

Is the Continuing Disability Review (CDR) Process Different for Children Receiving SSI Benefits?

Yes, in several ways. First, the Social Security Administration does not assess Residual Functional Capacity Assessments for Children. Additionally, the sequential evaluation process for a Child’s CDR is different than in an Adult CDR for SSDI/SSI. Also notable is that the Administration does not consider the conditions in relation to a Child’s “ability to work.”

The Child CDR process has 3-main steps in the sequential evaluation: The SSA evaluator first determines whether the Child has experienced a significant medical improvement. The determination is made since the comparison point decision (CPD). The CPD is the last time a CDR was conducted. The CPD can also be when the initial disability determination was made if the claim has never undergone a CDR. If it is determined that the Child has not experienced a significant medical improvement, the benefits continue. If a significant medical improvement has occurred, the Administrative consultant moves on to Step 2.

Next, the Administration determines whether the Child’s disability still meets or equals a Medical Listing that was met or equaled at the last CPD. Medical evidence from treating, examining and reviewing sources are analyzed to consider this Step. If the Listing is still met or equaled, and no exceptions apply, the benefits will continue. Exceptions are several, but a common exception applied may include that an improvement in medical diagnostic testing related to the Child’s disability now is generally available and pursuant to that new testing procedure, the condition is no longer considered “as disabling” as it was during the last CPD.

Assuming no exceptions apply and the Child’s impairments still meet or equal the medical Listing as defined at the last CPD, Step 3 is analyzed. At Step 3, the Administration considers the “original” impairments and any new impairments diagnosed since the last CPD. The decision-maker then considers the Listings as written at the time of the present CDR. If the Child’s impairments (new and existing) meet or equal the Listings as written during the current CDR, the benefits will continue. If the impairments do not meet or equal the new or re-defined Listings, the benefits will end.

Again, a CDR determination that a Child is no longer eligible for benefits is an appealable decision. There are, of course, deadlines for appeal and additional legal considerations to be aware of. Be sure to proceed carefully and cautiously so as not to miss out on the opportunity to submit new evidence or rebut the findings by SSA that resulted in the Cessation.

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by Attorney Randi Johnson
October 30, 2014

Veterans Statistics Regarding PTSD

I first want to briefly explain what PTSD is and the effects it can have on one’s daily quality of life. Many people experience this very debilitating condition and suffer in varying degrees. The onset of PTSD usually coincides with having witnessed a very traumatic event or having a life threatening event happen to them. These stressful events can take on many different facets including; witnessing people being killed or injured, being physically harmed yourself, childhood trauma, and many other possible incidents.

The symptoms related to PTSD can vary from person to person and can also take many years to manifest. Symptoms that generally occur involve flashbacks, night terrors, frightening thoughts, sleeplessness, feeling numb, anger, irritability, anxiety, and many others. These symptoms can be very debilitating and cause one to have a feeling of not being in control. People will also often try and medicate themselves by drinking too much, doing drugs, and engaging in other addictive and unhealthy behaviors.

A recent study done by RAND cites these startling facts about PTSD:

  • there are over 2.3 million American veterans of the Iraq and Afghanistan wars (compared to 2.6 million Vietnam veterans who fought in Vietnam; there are 8.2 million “Vietnam Era Veterans” (personnel who served anywhere during any time of the Vietnam War)
  • At least 20% of Iraq and Afghanistan veterans have PTSD and/or Depression. Other accepted studies have found a PTSD prevalence of 14%
  • 50% of those with PTSD do not seek treatment
  • out of the half that seek treatment, only half of them get “minimally adequate” treatment

It is important to note the figure that states that 50% of people with PTSD do not seek treatment. I believe that one of the reasons this number is so high is because PTSD is not a physical ailment and it is something that people can suffer with silently. I also think people especially those who have been in the military can see it as a weakness to suffer from such a disease and may be embarrassed about their struggle with PTSD.

The goal of every person suffering from PTSD should be to seek treatment options and realize that they do not need to suffer alone and that they are not alone in their suffering. Here is a link for a test that can be used to see if you are suffering from PTSD. https://www.myhealth.va.gov/mhv-portal-web/anonymous.portal?_nfpb=true&_pageLabel=mentalHealth&contentPage=mh_screening_tools/PTSD_SCREENING.HTML

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by Gregory Prox, Claims Advocate
October 29, 2014

Regional Office Adjudication Division: Authorization Unit and Rating Activity

A VA regional office’s (RO) adjudication division handles claims for compensation, pension, and education benefits. The adjudication division is divided into two units, the authorization unit and the rating activity, and is headed by the Veterans Service Center Manager.

The authorization unit handles a claim at its earliest stages. When a veteran first submits a claim to the RO, it is the authorization unit that examines basic eligibility issues, such as verifying the veteran’s period of military service and his or her type of discharge. Once basic eligibility is established, the authorization unit is responsible for gathering evidence to prove the claim, which includes finding missing records or asking the veteran for more information or evidence. This evidence is added to the veteran’s claim file, or C-file, and that file will travel with the veteran’s claim throughout the claim process. It is important to remember that while the VA has a duty to assist veterans in benefit claims, it is always a good idea for a veteran to supply the RO with any medical records or information he or she has in order to ensure that his or her C-file is as complete as possible.

A claim is transferred to the rating activity once basic eligibility requirements are met and evidence has been gathered. The rating activity is responsible for reviewing all of the evidence related to the claim. If necessary, the rating activity may then send the claim back to the authorization unit to gather additional evidence. Once the rating activity is satisfied with the evidence in the file, it will apply the relevant law and decide whether to grant or deny the claim. This involves determining whether a particular disability is linked to a period of military service, the level of that disability, and whether the disability is permanent and total. To determine the level of disability, the rating activity relies on the Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The rating activity cannot consider factors outside of the rating schedule, but must use all of the evidence in the C-file in order to determine the correct rating for each disability that is part of the claim. Once these determinations are made by the rating activity, the veteran will be notified of the decision and will then need to decide what steps he or she wants to take next.

If the RO denies the claim, it is required to explain what evidence was considered and the reasons for the decision for each issue that was part of the claim. The RO must also give the veteran information on how to appeal the decision.

 

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by Heather Staskiel, Attorney
October 28, 2014

What factors can VA consider in your unemployability (IU) claim?

 

Matthew:  Hello, and welcome to the Hill and Ponton video blog. I’m Matthew Hill along with Carol Ponton. Today we want to talk to you about how the VA must determine your case if you’re applying for total disability due to individual unemployability.

Carol:  “Unemployability” meaning you can’t work.

Matthew:  Unemployability is another way to get 100%. Essentially, if you cannot work due to service-connected disabilities, the VA must pay you at 100%. As we’ve spoken to here before, it’s very difficult to get a 100% or for your ratings to combine for 100% in and of themselves. Unemployability is kind of the side door – or backdoor, if you will – to get the 100%.

What we want to discuss today is one of the errors we commonly see with VA making the decisions. There are things that the VA must consider and things that the VA is prohibited from considering.

We’ll start with the first one as far as what they cannot consider. One thing we see a lot is the VA denying a veteran total disability due to individual unemployability because the VA finds their non-service-connected disabilities are responsible for them not working.

A lot of times what we’ll see is they’ll point to proof from the Social Security disability decision. For example, if the veteran has a non-service-connected back injury that Social Security said, “Because of this you cannot work,” and then the veteran is applying for, say, PTSD at a 70% rating and the VA says, “No. This isn’t what keeps you from work. It’s that back injury.” Do you see those at all, Carol?

Carol:  I see those all the time. A lot of times you’ll hear from the VA and you’ll see it on the decision they make that “Absolutely we cannot give you this because you’re disabled due to something else.” But that’s not true.

Matthew:  It’s not a zero-sum game. The back kept the guy from working. That’s fine, but I’ve had vets where this has actually happened. They’re on Social Security disability for their back and they have a 70% PTSD rating.

I talked to one veteran and said, “How did that affect you?”

He said, “Well, I had over 150 jobs in my life because I really didn’t like it when my boss told me something I didn’t want to hear and I typically told the boss that.”

Even though the vet was service-connected for his PTSD and it wasn’t used in his decision for Social Security, it was very apparent that the vet could not work because of the Social Security, as well.

That’s a red flag for us. When we see a decision where the VA says, “Social Security found you disabled for other disabilities. Therefore, we aren’t service connecting you.” That’s a red flag because the VA is prohibited from doing that.

Carol:  You need to remember, when you’re doing your claim, you file a claim to the Regional Office. If you’re denied, you appeal to the Regional Office. And then if you’re denied, you go to the Board of Veterans’ Appeals. One of the big problems I see is so many veterans don’t go there. A lot of times the Regional Office may not be approving the 70%. They’re going to stick with the issue of, “Your back keeps you from working.” We find the Board of Veterans’ Appeals will read your case. They will look at the law. We find we’re getting very favorable decisions from them. So please don’t stop at the Regional Office.

Matthew:  Along those lines, unfortunately, we see some service officers telling their veterans not to appeal because it will be faster if they go back. The problem with that logic is that they’re going to go back to the same adjudicators who denied them in the first place. So, I agree with Carol.

Carol:  Exactly. Not only are they going to lose all their past benefits, they’re going to have the same people deciding the same issues. You’re not going to get anywhere with that.

Matthew:  One of the other things speaking to what the VA must consider is they must make this determination unique to the veteran, meaning they don’t apply a general objective standard to all veterans when it comes to unemployability. The VA has to look at what the person did for their lives and also what kind of educational history they have.

I have a veteran who did construction all his life and had a bad back disability from service, and then tries to go for unemployability. The VA said, “Sure, you can’t do your old job. You can’t do construction, but you could do a sedentary job.” The catch there is that might work for the average veteran, but this person did not have the educational history or the job history to be able to do a sedentary job.

It’s something we see way too often where they write a veteran off and don’t look at the particular circumstances of that veteran’s background.

Carol:  The bottom line is if you think you can’t work and it’s related to your service-connected disabilities or disabilities that should be service-connected, keep pursuing your claim. Don’t give up.

Matthew:  One other thing that I should have said earlier as far as things that are prohibited is age. We see a lot with our Vietnam era veterans where they are denied because of their age. They’ll say, “You can’t work because of your age, not because of your service-connected disabilities.”

The VAs on regulations state that this is not a consideration they can make. They have to look at the veteran. They don’t look at the age. If you are an older veteran and the VA said, “It’s because of your age and not your disabilities you’re not working,” that’s nonsense. And frankly, that’s prohibited under the law.

Carol:  If you’re a younger veteran, we’ve got many veterans in their 20s and 30s 100% permanent in total. Age is not a criteria they’re supposed to look at.

Matthew:  We hope that this was useful. We’ll see you next time on the Veteran Disability blog.

Carol:  Bye.

 

 

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by Matthew Hill
October 26, 2014

Hill & Ponton welcomes Vietnam Combat Veteran

Jim Furman joins Hill & Ponton as an attorney of counsel, heading the Texas office of the Hill & Ponton.  Prior to his legal career, Jim enlisted in the Army and worked his way up to a warrant officer, serving his country as a Master Army Aviator in Vietnam.  He flew numerous missions over South and North Vietnam and Laos accumulating over 780 combat hours.  He received a Bronze Star, Purple Heart, 22 Air Medals, and the Army Commendation Medal.  He was shot down on two occasions and was wounded.  After five years of active duty, he continued as a full-time Reserve and Guardsman for another six years, completing thirty years in the active and inactive reserve, retiring as a major.

In his role representing veterans, he has been successful in obtaining increased compensation for many of his clients, in the areas of orthopedic, emotional and psychological and claims relating to Agent Orange.  A big reason why Jim has been so successful in advocating for veterans is because Jim had to fight VA to get his service connected benefits and he knows firsthand what veterans go through.

His law experience includes more than 30 years of complex litigation in the areas of veterans’ law, aviation law, maritime law, products liability and personal injury.  In recognition of his excellence in representing clients, he has been named by his peers as “Super Lawyer” by Texas Monthly, magazine, since 2005, as well as being named in the publication, “Best Lawyers in American” for over 10 consecutive years.  He a member of the National Organization of Veteran Advocates (NOVA)and represents veterans before the Veterans Administration and the U. S. Court of Appeals for Veterans Claims. He is also a member of the Viet Nam Helicopter Pilots Association.

Jim received his law degree from the University of Texas at Austin and is admitted to the State Bar of Texas.  After law school, he was a law clerk to the Supreme Court of Texas.  Jim is an instrument rated pilot in both airplanes and helicopters having accumulated over 9,000 hours as pilot in command and as a flight instructor.   Since 1978, Jim has resided in Austin with his wife of 45 years, Susan.  His two sons are presently serving on active duty as Naval and Marine officers overseas.

Active in the community, Jim is a member of Rotary International and has served at the troop, district and council levels of the Boy Scouts of America. He is an elder in the Presbyterian Church and spends his leisure time enjoying camping, hunting, sailing and flying his own airplane.

 

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by Matthew Hill
October 24, 2014

How does the VA service connected claims system work?

Filing a claim and taking the necessary steps to appeal a decision can be a daunting task. It all begins with a claim by the veteran to the VA stating that a condition they suffer from is the result of or occurred during their time of service in the military. This first step by the veteran begins a very arduous process in which the VA bureaucracy and massive backlog may have this initial claim falling on deaf ears.

The veteran will, in most cases, after some time has passed, receive a ratings decision. This ratings decision will either deny (if denied, decide if you are going to appeal that decision) or award the veteran a percentage of disability regarding each condition that was stated in their initial claim. In many instances, the veteran will receive a decision that is not favorable to them or conducive to their claim and condition. This is a crucial time for the veteran, as this decision begins a “countdown” of one year in which the veteran has to appeal this decision. Veteran’s, during this stage, will sometimes hire an attorney and file a NOD or notice of disagreement. This is also important, as this is the time frame that allows an attorney to “get involved” and help represent the veteran involving their claim.

At this stage, the veteran or attorney has two options. The first being the DRO or Decision Review Officer, and the second being a traditional appeals process. The decision review officer is an experienced member of the regional office and has the power to make a new decision regardless of the previous one. The DRO may not address all issues the veteran has brought before him, and those not addressed go to the traditional appeals process. The traditional appeals process allows the VA to provide a SOC, or statement of case, which lies out in length the evidence and particulars used to come to the ratings decision that was previously yielded. These SOC’s should be carefully scrutinized; as they can often times contain errors, even pertaining to the interpretation of laws. The DRO and traditional way of appeal have both disadvantages and advantages, so this decision should be carefully weighed.

The SOC can then be appealed to the BVA, or Board of Veteran Appeals, if an undesirable decision is reached. It is important to note that the there is a deadline to appeal to the BVA of 60 days. The BVA will deny, allow, or remand a claim. When the BVA allows or denies a claim, this decision is final (unless appealed to the CAVC) and thus would end that claim. Often the BVA will remand the claim back to the Regional Office for further review. If the claim is denied, a new claim must be brought to the Regional Office, essentially starting the process over again.

The CAVC, or the Court of Appeals for Veteran Claims, is the last rung on the ladder when trying to acquire a positive decision on a claim. The CAVC, like the BVA, can deny, allow, or remand the decision. Again, if a claim is denied, you must begin the process again by filing a new claim.

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by Gregory Prox, Claims Advocate
October 23, 2014

What is service connected disability?

The VA defines a veteran as a person who served in the active military, naval, or air service, and includes full-time service in the Army, Navy, Air Force, Marines, or Coast Guard. Active service also includes merchant marines during WWII, and cadets at a military academy. Many veterans are unaware of service connected disability benefits, and that they can get service connection for a disability that was present prior to their service, but aggravated while in service. In layman’s terms, a service connected disability is a physical or mental injury or illness a veteran incurred or aggravated during active military service. One common mental illness is PTSD, Post Traumatic Stress Disorder, which is a medical condition that can develop after experiencing a terrifying and traumatic event. Many Vietnam War veterans suffer from this condition, as well as ill effects from exposure to Agent Orange during their service. It is interesting to note that the name Agent Orange came from the orange striped barrels the toxic herbicide was shipped in. Veterans exposed to this have increased rates of cancer, digestive problems, leukemia, nerve and respiratory disorders.   These are just two (Agent Orange exposure and PTSD) of the many service connected disabilities for which a veteran can be compensated for.

A service connected disability is not necessarily related to combat, which is an assumption many veterans make. There is also special combat rule that states a veteran in possession of particular awards and decorations, such as the Purple Heart, Medal of Honor, or Silver Star, can rely on buddy and lay statements, and can be offered as evidence that a disability was incurred in combat, even though there is no evidence in service records. These statements must be consistent with the circumstances of the veteran’s service, and must deal with what happened during combat. This rule exists because it is impossible to keep accurate records in combat situations.

To receive service connected disability benefits, a veteran must prove that he or she actually is a veteran, and was discharged from service under conditions other than dishonorable. A dishonorable discharge will always disqualify a veteran from receiving VA benefits, except in rare occasions. He or she should always submit a DD 214, which is a copy of their discharge document. The DD 214 provides information on the veteran’s dates of service.

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by Cindy Schoppert, Claims Advocate
October 22, 2014

TDIU – Back to the Basics (Pt. 2): Proof of Inability to Work

In Part I of TDIU – Back to the Basics, we discussed how the VA determines Individual Unemployability (IU) based on a 2-step analysis: 1) Ratings; and 2) proof of inability to work. In Part I, we looked at the VA’s rating requirements for TDIU. Now we will look at Step 2 – Proof of Inability to Work.

Step 2 – Proof of Inability to Work

Step 2 of the 2-step analysis dictates that the veteran has to prove that he is unable to secure a substantially gainful occupation due to his service-connected disabilities. This by itself is a 2-part problem. In order to fully understand the VA stipulations of Step 2, we have to look at: A) the veteran’s inability to work due to service-connected disabilities; and B) what constitutes “substantially gainful occupation”.

Let’s start with A.

When making a determination on IU, the VA can only consider disabilities that have already been service-connected. If a veteran is service-connected for his knees and his back, but in reality could not work due to his anger/PTSD outbursts (which has not been service-connected), the VA will only consider the knees and the back when deciding if the veteran can work or not. Until service-connection for PTSD is granted (if at all), the veteran should try to prove that he could not work due to his knees and back condition, as opposed to the PTSD.

Moving on to B.

The VA currently does not have a definition for “substantially gainful occupation”. The VA’s Adjudication Procedures Manual defines it as “that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides”. While this definition seems to be vague and largely unhelpful, it is worth noting that the VA has to look at:

  1. Marginal employment
  2. Educational and occupational history

Marginal employment is not considered as substantially gainful occupation. Marginal employment is considered as “earned annual income that does not exceed the poverty threshold for one person as established by the US Department of Commerce, Bureau of the Census”. Moreover, a job in a “sheltered environment” (such as a family business, sheltered workshop, or a position tailored to the specific needs of the veteran) is considered to be marginal employment, even if that job earns an income over the current poverty threshold. Therefore, the VA cannot base their decision to grant or deny IU based on the veteran’s job that falls under the criteria for marginal employment.

For example: A veteran with PTSD works for a family friend’s business. The family friend provides the veteran with an office and duties that afford limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. Because the veteran job has been tailored to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment”. The VA cannot consider this job as being substantially gainful employment, and must not use it against him in determining IU.

The VA also has to consider the veteran’s educational and work history when determining if the veteran is entitled to IU. The VA must look at the veteran’s prior education and training, and how his current disabilities prevent him from working in the field in which he has been trained. If, on the other hand, the veteran has participated in a VA vocational rehabilitation program, and still cannot work due to the service-connected disabilities, the VA must also consider this as positive evidence that the veteran cannot maintain substantially gainful employment.

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by Mary Klements, Veterans Advocate
October 21, 2014

Social Security says I’m no longer disabled. What do I do?

I have been receiving Social Security disability benefits for some time now but was recently told the benefits will be cut off because I am no longer disabled under their Rules. I disagree with this decision; is there anything I can do?

As a matter of course, the SSA periodically “checks” on every beneficiary’s case to ensure benefits are only being disbursed to eligible individuals. This check, called a Continuing Disability Review, serves as a “Quality Control” on the system. Sometimes, however, the CDR consultant gets it wrong.

You can appeal the CDR determination that you are no longer disabled. If you want your benefits to continue pending the appeal, you must act quickly! You must tell Social Security that you want the benefits to continue while the appeal is pending within 10 days of receipt of your CDR denial.

Be advised that if you lose your Cessation of Benefits appeal, you may have to repay these benefits to SSA. An attorney can advise whether you should also consider filing an additional request for a Waiver of Overpayment should you ultimately lose the Cessation appeal.

If you do not act within those 10 days to continue your benefits pending the appeal, or if you choose to allow the benefits to stop while the appeal is pending, you may be eligible to collect back benefits if you win the Cessation appeal.

If SSA seeks to terminate your benefits because the Agency determined you were no longer medically disabled, the legal standards are a bit different than when you were initially found eligible for SS disability benefits. With a Cessation case, the burden is on the Agency to show 1) you experienced a significant medical improvement related to your ability to work and 2) you can perform Substantial Gainful Activity (Social Security’s way of describing an ability to return to the competitive work environment on a regular and continuous basis).

Your Cessation appeal could potentially make its way, yet again, all the way through the Agency, including another Administrative hearing, to the Appeals Council and then into the Federal Court system. Considering the different legal standards and the benefits at stake, it is important to consult with an attorney to obtain some guidance on your rights, liabilities and options.

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by Attorney Randi Johnson
October 20, 2014

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