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Shelly Mark, Senior Attorney

Video Blog – Workers Comp Offset Calculation

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Natalia Jofre:       Hi. Welcome to Hill and Ponton social security disability blog. I’m Natalia Jofre, our social security section director.

Shelly Mark:        I’m Shelly Mark. I’m the senior social security attorney.

Natalia Jofre:       We’ve been talking about worker’s compensation and how it correlates with social security, and how they can affect each other. In one of our prior videos, we had talked about how you can’t receive more than social security and worker’s comp combined more than 80% of what your prior wage was. What they’re gonna look at is how much were you making before. People say what is that based on? Is it going to be what I was making now? The truth is that for the most part they’re gonna look at what benefits you the most. What gives you the highest monthly working wage. They’re gonna look at the five years before you became injured and they’re gonna pick the year that you made the most money in order to make that 80% calculation. There’s a difference between calculating the worker’s comp and social security offset amount and what you’re currently getting from worker’s comp. I know that this gets very complicated, but I feel like I need to say this because worker’s comp is gonna initially pay you based on 80% of what you were currently making. What we’re talking about is what are you gonna get, how are they gonna calculate your offset when it’s worker’s comp and social security combined? That’s all I’m referring to.

Natalia Jofre:       They’re gonna look at the five years before you stopped working and they’re gonna look at which was the highest year. That, right off the bat, can really benefit you. Because, if you had five years where you were working and for four of those you were making $25,000 a year, but then you had a really good year and you made $60,000 that year, they’re gonna use that $60,000 year. We see this a lot with construction workers, independent contractors, things like that, where they just had a really good year, so that favors you. Another test that social security can use is a combination of your five years of work. You might be thinking why would they do that? You may have had a lump of five years where you were making a whole lot more money than you are currently. We see this all the time. People get older, they take on easier jobs, jobs that make less money. People that worked for maybe high-end corporations and they were maybe making three figures, and then they decided I’m gonna go out and go into business for myself. Now, instead of making $100,000 a year, they’re maybe making $20,000 a year. In that case, it may benefit you more to have social security do the five year total rule and pull the average out of that.

Shelly Mark:        Natalia, when you say the five year, you mean throughout their earnings?

Natalia Jofre:       Yes. It can be any sum of five years, but they have to be five years in a row. There’s always a kicker. You can’t say I made $100,000 in 2000, then I made $100,000 in 2005. No, no, no. It has to be 2001, 2002, 2003, so on and so forth. Has to be five years grouped together. That test doesn’t usually get applied because normally, as your life progresses, the more you make. Normally, they’re gonna use the highest year in the last five years. But, if you think that that exception could apply to you, you wanna make sure that you have someone that knows what they’re doing, is making sure that social security’s applying the test that best favors you. We’ve done a lot of worker’s compensation. We don’t do worker’s compensation law, we only do social security disability, but we do review your benefits once they’ve been awarded and if there’s a work comp offset we make sure that the offset that they’re applying-

Shelly Mark:        Is correct.

Natalia Jofre:       … is correct and that they’re using the test that best favors you. I will tell you that we have filed a lot of appeals because many times the best test that applies to you isn’t used. That’s a lot of information to digest. Just know that there’s more ways than one for your offset calculation to be made. I think that’s what we wanna impart today.

Shelly Mark:        Yes.

Natalia Jofre:       If you have any questions or concerns, feel free to call us or visit our website. Otherwise, thank you for joining us.

Shelly Mark:        Thank you.

Shelly Mark, Senior Attorney

Video Blog – Workers Comp Settlement

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Natalia Jofre:     Hello and welcome to Hill and Ponton Social Security Disability blog. I’m Natalia Jofre, the Social Security section director-

Shelly Mark:      And I’m Shelly Mark, I’m the senior Social Security attorney.

Natalia Jofre:     So we’re continuing our series on workers’ compensation and Social Security disability benefits. We’ve had a lot of cases over the years where the claimant either received workers’ comp while they were trying to apply for benefits, or they settled a case, and I know that you have come across a specific situation many times when they’ve settled and what has resulted from that.

Shelly Mark:      That’s right, Natalia. I have had a number of clients who have settled their workers’ comp claim. They were injured on the job and then maybe they were getting benefits, but at some point, they employed an attorney and they decided to ask for a settlement of benefits rather than ongoing benefits. What I see in the settlement contracts that I read is, the claimant or the client is asking to be found unable to perform their work any more for a lump sum of workers’ comp benefits. If that settlement is reached and agreed upon and everything becomes final, the cases that I’ve seen, that person does lose their job. So they’re not then allowed to continue that employment.

Shelly Mark:      I would just advise individuals to really talk to their attorneys, really understand what that settlement contract and paperwork says, because if there is a small settlement amount, you need to weigh that against your annual salary and whether or not you could ask for some accommodations by that employer to some lighter type work. Because in the cases that I have worked with, they did lose their jobs.

Natalia Jofre:     Yeah. And we’ve both seen cases where the employer maybe made accommodations for many years, to where they gave them treatment, they gave them weekly work comp benefits, and then once they got better, they were able to return to work, and then sometimes maybe reinjury occurs, so they go back off, they pay them some more, they get the rehabilitated, then they go back to work.

Natalia Jofre:     But what Shelly’s talking about is at the end of the case, or if the doctor basically says, “You’ve reached maximum medical improvement,” or something to that effect, and now there’s nothing more we can do for you, so the client is saying, “Well, now I’m just going to settle my case.” But you’ve seen some pretty drastic results. I mean, you can have a settlement that’s significantly high, but then you can have a case where you’re settling for $7,000 and you’re losing a $30,000 job. So you have to weigh all of that and talk to your attorney about what’s best for you and whether you are, in fact, going to lose your job.

Natalia Jofre:     What is this going to mean? What’s the ramifications of this settlement after you’ve filed it?

Shelly Mark:      Right.

Natalia Jofre:     And the other thing is, I’ve seen settlements left open to where we’re going to pay your future medical, and then I’ve seen settlements where they say, “We’re giving you this money, we’re done. You’re not getting any more medical treatment from us, you’re not getting any more money from us.” So you need to understand, and all of the settlements are really different.

Shelly Mark:      They’re all very different, and from clients that I’ve had and talked to, there are many, I wouldn’t say most, but many clients don’t understand what they’re signing. It’s very important, because like you said, as far as, are you going to have any medical care moving forward, are you not? Are you losing your employment? What is your attorney’s fee?

Shelly Mark:      If it’s a $7,000 settlement and you have to pay an attorney’s fee out of that as well, so just try to be informed when you reach the settlement and definitely ask your attorney all of those questions.

Natalia Jofre:     The medical treatment’s a big thing. It just came to mind, because if you are not going to have continued medical treatment through workers’ comp, and now you’re applying for Social Security, and it’s going to take three years for you to be approved, or even if you are approved, there’s a two year waiting period for Medicare, what are you going to do for medical treatment during that period of time? So if your injury’s significant enough to where you can’t work any more, it would seem that you need to have that ongoing medical treatment. So ask those questions.

Shelly Mark:      Definitely.

Natalia Jofre:     Yeah.

Natalia Jofre:     Thank you for joining us. If you have any questions, feel free to call our office or visit our website. We’ll continue this series on workers’ comp and Social Security. Until that next time, thanks for joining us.

Shelly Mark:      Thank you.

 

Shelly Mark, Senior Attorney

Video Blog – Workers Compensation and Social Security Offset

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Natalia Jofre:   Hello, and welcome to Hill and Ponton Social Security Disability Blog. I am the Social Security Section Director here, Natalia Jofre.

Shelly Mark:     And, I am Shelly Mark. I’m the Senior Social Security Attorney.

Natalia Jofre:   So, we’ve been talking about Workers Compensation in conjunction with Social Security Disability benefits and how they work together. One of the things we wanna tell you is that you cannot receive more than 80% of your prior earning of your monthly benefit can’t be more than 80% of what your wages used to be from Social Security and Workers Comp combined.

Shelly Mark:     Mm-hmm (affirmative).

Natalia Jofre:   Okay. So, you can’t get a full Workers Comp benefit in addition to your full Social Security Disability benefit. So, clients always ask us, why? Why? You know, and we were just talking about this earlier.

Shelly Mark:     Right. Yeah, what’s the reasoning there?

Natalia Jofre:   And, clients will tell us, but ones from the state. One’s from the federal government.

Shelly Mark:     Right. So, your Workers Compensation Benefits come from the state, and then obviously, Social Security Disability is a federal program. I think the rationale or reasoning for it is to really give people more incentive to go back into employment or to stay employed if at all possible. Because as we know, Natalia, Social Security benefits, you were gonna earn more if you’re able to work.

Natalia Jofre:   Yeah. A lot more.

Shelly Mark:     Because your Social Security Disability amount is a product of your earnings and your taxes, but it is a lower amount than what you would earn if you could work at some substantial level.

Natalia Jofre:   Right. And, with Workers Comp, it’s a little bit more favorable to the claimant and to the injured worker, because it is a direct percentage of what you were making before your injury occurred. But, so what they’re gonna do is they’re gonna do is they’re gonna look at your prior earnings. And, they’re either gonna take the highest year of earnings in one of the five years that you last worked or a combination of the five years. So, we’ll get more into that at some other time, because it does get pretty complicated.

Natalia Jofre:   But, for now, what you really need to know is that it’s never going to be more than 80% of your combined … Your benefit can’t be more than 80% of what your wages used to be when you were actually working. Okay. And, Social Security basically wants to incentivize you in going back to work.

Shelly Mark:     Right. Yeah.

Natalia Jofre:   Okay. If you have any other questions or concerns about this, feel free to call us or visit our website. Otherwise, we’ll see you next time.

Shelly Mark:     Thank you.

 

Shelly Mark, Senior Attorney

Video Blog – Providing Workers’ Comp Documentation to SS

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Natalia Jofre:   Hello, and welcome to Hill & Ponton Social Security Disability blog. I’m Natalia Jofre, Social Security Section Director here at our firm.

Shelly Mark:     And I am Shelly Mark, I am the Senior Social Security Attorney here.

Natalia Jofre:   So, we’re talking about workers’ comp and how that affects or not Social Security Disability benefits and what it requires. And one of the things that Social Security requires when you apply for their benefits, first of all they’re going to ask you are you receiving any workers’ comp benefits, have you received any workers’ comp benefits, do you expect to apply for benefits?

Natalia Jofre:   You need to obviously answer those questions truthfully, and then if you are or if you have, and normally they look at a period of 10 years, then they’re going to ask you for that actual information, and that can be workers’ comp settlement papers. Yeah, if you’re currently getting benefits, your pay stubs, your weekly payout sheets they call them. They can get those from like your insurance company or your attorney, what not. But they’re going to ask you for your information regarding your workers’ comp benefits.

Natalia Jofre:   And what we have seen is that many times people are reluctant to do that.

Shelly Mark:     That’s correct. For some reason, people are very reluctant to provide us or Social Security with their settlement paperwork for their workers’ comp claim, but the reality is if Social Security doesn’t have that paperwork to see what the settlement or the benefit amount was, even if the client is approved for benefits, they’re not going to get any type of payment.

Natalia Jofre:   Whatsoever, so there’s a two-fold problem with that, okay? Sometimes the claimants feel like, oh, if I don’t provide it, then they don’t have any ammunition to use against me, and that’s not true because they’re not going to pay you unless they get that information. Other times they’ll say, well, they can get that from my attorney or they can get that from the insurance company, and the problem with that is that none of those people are in a hurry to-

Shelly Mark:     Right.

Natalia Jofre:   Give Social Security the information that they need, and Social Security’s not going to give them anything without your consent.

Shelly Mark:     Right.

Natalia Jofre:   And so what will end up happening is that if you’re at the initial level and you’re applying for benefits, it’s going to greatly delay the application of your claim or the processing of the application, and if that happens, guess who is bum out of luck?

Shelly Mark:     Right.

Natalia Jofre:   It’s the client.

Shelly Mark:     Yeah.

Natalia Jofre:   I mean, the only that’s going to be hurt by any kind of delay in the processing of your claim is you. The other side of that is people will say, well, if I delay or whatever, you know, then maybe they won’t find out what I’m actually getting.

Shelly Mark:     Right.

Natalia Jofre:   If they don’t and it’s at the end of the case, they’re not going to pay you a single dollar in benefits until they get that information. So once again, the only one being hurt by that and the only one being hurt by the delays is you. So the best thing to do is actually get the information yourself and submit it as quickly as possible. Once your application can be processed-

Shelly Mark:     Right.

Natalia Jofre:   Right at the claim for you to be able to get paid quickly and accurately.

Shelly Mark:     Right. The last thing that you want is a delay due to not having the appropriate paperwork that you could easily obtain. Really it’s easier, and like Natalia said, just to do it yourself. You’ll save a lot of time and a lot of unreasonable delay, you know, on Social Security’s part.

Natalia Jofre:   And if the information is incomplete, that can hurt you too. We’ve seen incorrect offsets applied and so you want to make sure that you’re giving them all of the information that they require.

Shelly Mark:     And Natalia just mentioned the offset, and so maybe that would be a good topic for us to talk about in the future.

Natalia Jofre:   Yeah, we’ll definitely be talking about that. We’re going to get into a lot more of the technicalities, so be sure to stay in tune for those.

Shelly Mark:     Thank you.

Natalia Jofre:   Thanks.

Shelly Mark, Senior Attorney

Video Blog – Workers Comp and 12 Months Rule

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Natalia Jofre:     Welcome to Hill & Ponton’s social security Disability blog. I’m Natalia Jofre, the director for our social security section.

Shelly Mark:      I am Shelly Mark. I’m the senior social security attorney with the firm.

Natalia Jofre:     As you know, we’re doing a series on workers’ compensation and social security disability benefits. We want to clarify, first of all, I’m not an attorney. I am the director for our social security section. I’ve been here over 20 years. We won’t say specifically how many. Shelly practices social security disability law.

Natalia Jofre:     But the information we’re going to give you is all in correlation with workers’ compensation situations and how they could or could not affect your social security Disability benefits. I think that’s important to say.

Shelly Mark:      Definitely.

Natalia Jofre:     We wanted to talk to you about not working, and when you stop working. When an injury occurs, then what do you do next, because we get a lot of questions. People get hurt at work. At first, it’s like deer in headlights. What do I do now? What do I qualify for? What do I apply for?

Natalia Jofre:     Most people will file obviously a claim through workers’ comp with their job. Many times they’ll be able to get benefits through workers’ comp. But we’re going to look at it from the perspective of social security. What social security is going to look at is, are you working right now? If the answer is no, then they can take your application.

Natalia Jofre:     What a lot of people will talk to us about is the length of their disability. In order for you to qualify for social security disability benefits, you need to be out of work or expect to be out of work at least 12 months or more. It’s going to depend on your disability and on the severity of it whether you should or could ultimately get disability benefits or not.

Natalia Jofre:     If you think that your disability is probably only going to last three months, six months, I broke my leg, I’m going to be out of work for a couple of months, people will ask us, “Can I qualify for temporary benefits?” Right?

Shelly Mark:      Right.

Natalia Jofre:     And the answer is …

Shelly Mark:      No.

Natalia Jofre:     Do temporary benefits exist under social security?

Shelly Mark:      No, they do not. They would be a workers’ comp claim that someone could file and receive the benefits until they were able to return to their employment, but it definitely would not be a social security claim. As Natalia stated, you have to be out of work for 12 consecutive months to be eligible for social security, or expected to be out of work for 12 months. A lot of times, if it’s expected to be, then we need to be able to prove through the severity of the condition that it’s expected to be or have a doctor that is stating that the person’s expected to be out of work 12 months.

Natalia Jofre:     Yeah, so if you’ve been out of work, now what I would say is if you don’t know how long you’re going to be out of work … For example, we had a client who did break his leg. He probably should’ve been able to go back to work after six weeks. He ended up needed surgery. He got infected after the surgery. That ended up complicating it. He ended up needing more than one surgery. It just kept going on, and on, and on, to where he was out of work for well over a year. I think he was out of work for about two years or so.

Natalia Jofre:     If you’re unsure how long you’re going to be out of work as a result of a disability, you should still apply right away. You’ve got absolutely nothing to lose. If you’re certain that you’re going to be out for a short period of time, and you really are inquiring about temporary benefits, then you know that that’s really not an option. But when in doubt, always apply.

Shelly Mark:      Definitely.

Natalia Jofre:     Yeah. If you have any questions, feel free to call our office or visit our website. Otherwise, we will continue our series on workers’ compensation and social security benefits.

Shelly Mark:      Thank you.

Shelly Mark, Senior Attorney

Video Blog – SS Disability and Workers Compensation

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Natalia Jofre: Hello, and welcome to Hill & Ponton’s social security disability blog. I’m Natalia Jofre, I’m the social security section director here at our office.

Shelly Mark:   I am Shelly Mark. I am the senior social security attorney.

Natalia Jofre: Today, we wanted to talk to you about social security disability and workers compensation. A lot of people get hurt on the job, can’t continue working. It’s not always a life-changing event, but many times it is to where you can no longer do the type of work you used to do or you can no longer work completely. There’s differences there. We’ve seen the gamut. Just because you have a work comp injury doesn’t necessarily mean that you’re going to qualify for social security.

Shelly Mark:   Correct.

Natalia Jofre: I think that what we first need to discuss is that sometimes whether you can still qualify for social security is going to depend on your age. Right?

Shelly Mark:   That’s true.

Natalia Jofre: If you’re a younger individual that can’t do your type of work anymore, the same rules aren’t going to apply than if you’re 55 and that’s the situation, and maybe you’re released to light duty. Can you speak a little bit to that?

Shelly Mark:   Sure. That’s correct. Usually, in a workers comp claim, you’re going to be going to a workers comp doctor, and they’re going to be putting limitations on you as far as whether you can perform light work or sedentary work or the amount of weight you can lift, or whatever it is. Those limitations, like you said, they’re going to come into play with social security determining whether you’re disabled, and the biggest factor there will probably be the age.

Shelly Mark:   If you have a 55-year-old construction worker who’s placed on a restriction of sedentary work, then that would be a claim with social security that would be granted, very likely. If you have a 35-year-old construction worker who was placed on light or sedentary work, that would be a situation where social security would come back and say, “Okay, let’s do some vocational rehabilitation or some retraining to find some type of work that would fit those limitations.”

Natalia Jofre: Right. I would say that if you’re out of work and don’t expect to return to work for at least a year or more, this isn’t something you should think about. You should file your application for benefits immediately. The longer you wait, the more benefits you will lose or you’ll be penalized. I have had cases where people stopped working, workers comp was paying them, and so they figured, “I don’t really need the social security,” they let all these years go by, and then they either lost a significant amount of benefits or then they looked at having a date last insured issue, which we’ve talked about, we did a whole series on that, and then that further complicates the case.

Shelly Mark:   Definitely.

Natalia Jofre: If you have questions regarding whether you think you can qualify, should apply, or how you should proceed regarding your specific situation, then I would tell you to go ahead and call our office or someone else if you feel like you should. I do want to also clarify, we’re going to do an entire series on workers compensation. We’re going to get into a lot of the technicalities. If you’re interested in knowing about workers compensation and how it works with social security, please stay tuned for more videos on that.

Shelly Mark:   That sounds great.

Natalia Jofre: If you have any questions in the meantime, feel free to call our office or visit our website. Thank you.

Shelly Mark:   Thank you.

 

Shelly Mark, Senior Attorney

Video Blog – Date Last Insured – Earnings Quarters

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Natalia Jofre: Hi, I’m Natalia Jofre, the Social Security Section Director here at Hill & Ponton.

Shelly Mark:   I’m Shelly Mark. I’m the Senior Social Security Attorney.

Natalia Jofre: So, we’ve been talking about date last insured in our last few segments, and we explained that this is basically like social security’s expiration date, and that you need to prove that you’re disabled prior to that date in order to qualify for regular social security disability benefits. We told you that if you can’t do that then you can always try and apply for income-based SSI, which is also a disability benefit. So we were talking about those differences.

Natalia Jofre: We now want to tell you, basically, how do you earn earnings quarters. Okay because your earnings quarters are what’s going to determine your date last insured and what it is. The more you earn, the more quarters you get. The more recently you earn, or have those earnings, the longer your date last insured will be extended.

Shelly Mark:   Right.

Natalia Jofre: So, right. Every year that you work basically puts off your date last insured. Date last insured really doesn’t come into play until you stop working.

Shelly Mark:   Right.

Natalia Jofre: Because that’s when then, it’s like Shelly said before-

Shelly Mark:   It becomes kind of like a … it’s like catching you.

Natalia Jofre: Yeah, yeah.

Shelly Mark:   It’s coming. So, almost, if you’re working at a pretty normal level, almost every year that you don’t work you’re reducing that five years by a year.

Natalia Jofre: Exactly. Yeah. It’s like Shelly said before, it’s like the clock starts ticking the minute you stop working. It’s not just that you stop working, it’s that you stop paying into social security tax.

Shelly Mark:   True.

Natalia Jofre: So to earn quarters, you have to pay into social security tax. So why do I say that so emphatically? People will sometimes talk about working off the books, or work for a relative, or they owe three years worth of taxes. That’s not gonna count, okay? It has to be that you’ve actually paid into social security tax and not just … because there’s some differentiation. I think sometimes you can just pay your Medicare tax or something. We see that a lot with self-business owners. So we wanted to throw a couple of numbers at you. Last year in order to earn one-quarter of coverage you had to earn $1,260. Then this year it’s $1,300.

Shelly Mark:   Okay. That’s per quarter, correct?

Natalia Jofre: That’s per quarter. The maximum amount of quarters you can earn per year are four. Okay? So, I wanna give you that information and explain to you that that doesn’t mean that you have to work in all four quarters. Okay?

Shelly Mark:   Right.

Natalia Jofre: If this year’s amount is $1,300 that means that you have to earn $5,200 this year to get four quarters.

Shelly Mark:   Right.

Natalia Jofre: Well, what if you earned $5,200, which is very doable, just in this first quarter?

Shelly Mark:   Sure.

Natalia Jofre: Okay. Just in the first three months of the year. You now have enough quarters you’d get your four quarters for the whole year.

Shelly Mark:   Yeah. That’s great.

Natalia Jofre: So it doesn’t mean you have to work every month. We tell people that because sometimes people that have worked, and paid into social security tax part-time for years-

Shelly Mark:   Right, right.

Natalia Jofre: -they’ll still be fully insured for a regular disability benefit. Now, the higher your earnings, the higher your benefit will be.

Shelly Mark:   True.

Natalia Jofre: Okay. So, that is true, but if you’re just looking at being able to qualify technically for benefits for this year, 2017, if you’ve made $5,200 in the whole year you’re gonna get four quarters of coverage.

Shelly Mark:   That’s great.

Natalia Jofre: Okay.

Shelly Mark:   I think that this is an area that’s confusing for a lot of people, so I think that that’s a really good explanation. Then also everyone asks me, what is my disability amount gonna be? It’s like the magic question. Then it’s always the same, as Natalia said, it’s going to depend on what your earnings were. Everyone’s different. It’s not like SSI where there’s just one amount and everybody gets the same thing. It depends on your earnings, and the taxes that you paid in, and then it’s a computation that I’m not aware of exactly.

Natalia Jofre: It’s mysterious. It’s very mysterious.

Shelly Mark:   Social security figures that part out.

Natalia Jofre: Highly guarded security. I mean, I’m sure there’s some brainiac mathematicians out there that know, but what I will tell you, is that there’s no percentage or correlation in terms of, people think unemployment, oh, they have to give me 80% or long-term disability. They pay me 60% of what my earnings used to be. Social security is not that way. Yes, we know that the higher your earnings were, the higher your benefit will be. If you pay the maximum amount a year then you can get the maximum social security benefit, which is in the ballpark of $3,000. I have seen that happen once, and I’ve been doing this 26 years.

Shelly Mark:   Yeah. That’s…

Natalia Jofre: I just aged myself.

Shelly Mark:   That’s…

Natalia Jofre: I was a toddler when I started here.

Shelly Mark:   That is a very good point because people assume that they’re going to receive more of a benefit. I’ve had many, many clients that were making over $100,000 a year leading up to when they became disabled. And again, I’ve seen into the mid 2,000’s, maybe 2,800 max, as a benefit.

Natalia Jofre: Yeah, yeah. Anyone in the ballpark of 2,000 we consider to be a high benefit. It’s really, really not the norm. If you wanna find out what your benefit would be, request an earnings record from social security.

Shelly Mark:   Exactly.

Natalia Jofre: Okay. Everyone can get that for free, and it will tell you what your benefit would be if you became disabled, what your benefit would be if you retired at age 62, what it would be at your normal retirement age. It will also tell you what your date last insured is as of right now, whether you qualify for benefits, whether you have enough earnings quarters, and all that good stuff.

Shelly Mark:   I think, Natalia, I think you can do that online now. Right?

Natalia Jofre: Yes.

Shelly Mark:   You can make your account online and then get a PDF of that.

Natalia Jofre: Yes. That’s what preferred.

Shelly Mark:   Yes. Definitely.

Natalia Jofre: Okay. Great. Well, thanks for joining us. If you have any questions or concerns feel free to visit our website or call our office.

Shelly Mark:   Thank you.

 

Shelly Mark, Senior Attorney

Video Blog – Date Last Insured (DLI) Alternative Benefits

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Natalia Jofre: Hi, I’m Natalia Jofre. I’m the Social Security section direction here at Hill and Ponton.

Shelly Mark:   I’m Shelly Mark. I’m the senior Social Security attorney.

Natalia Jofre: So, we’ve been talking about date last insured, what it is, and the last one we talked about how it affects veteran’s sometimes specifically, but we want to keep talking about general topics because obviously many people that are disabled can still qualify for benefits even though they have a date last insured or it’s expired. One of the things we wanted to talk about is what do you do if your date last insured is expired and we’ll just do a quick recap that is basically like an expiration date. You have to prove that you’re disabled prior to your date last insured in order to qualify for regular social security disability benefits. But we also talked about you need to have sufficient evidence to prove prior to that date. So, what happens if you don’t have sufficient evidence and you can’t qualify for regular disability benefits?

Shelly Mark:   I know we see this and it does happen to a lot of people where they just may stop working for different reasons that’s not their medical conditions and during that time period that they’ve stopped working they become very sick or they’re in an accident or they’re in this situation. What they can do is they can file a claim for SSI, supplemental security income. That is kind of the sister program to disability. It has the same requirements that a person has to be unable to work due to their medical conditions, but it is not tied to their earnings record.

Natalia Jofre: So, it’s income based.

Shelly Mark:   That’s exactly right.

Natalia Jofre: One example I’d like to give because I used to see this apply a lot would be someone that regularly worked, paid into social security and then, for example, became a stay at home mom. So, had two or three kids, stayed home, took care of the kids. By the time the littlest one was old enough to go into kindergarten, they’ve been out of the workforce 10 years. Now, they haven’t worked and paid enough into social security tax recently and now something tragic happens where they get cancer or they have a car accident or something like that. So, people sometimes think, “Oh, well to get SSI, you’ve never worked, you’ve never paid. You’ve been lazy. You didn’t do this. You didn’t do that.” There are some negative connotations people like to attach to it. The truth of the matter is a lot of people that have had very decent lives, that have actually worked and paid into social security tax, but maybe just didn’t so recently will have date last insured problems.

Natalia Jofre: That’s why SSI is there so that they can still have an income despite not being able to qualify for regular disability.

Shelly Mark:   There’s a medical insurance definitely plays in as well. Because you can have medical conditions prior to your DLI, but if you don’t have an insurance or any treatment records or there’s not any of that evidence that we talked about to prove it prior to then, then you had no choice but to file an SSI claim if that’s when you are able to obtain those records.

Natalia Jofre: Right. Right. So, there is an alternative if you don’t qualify for regular disability benefits either currently or because of an expired DLI. I just want to say speaking to that same example in terms of household income. So, the higher the income is, the less likely it is that you’ll either qualify for SSI or you’ll get a lesser amount. However, what increases the household income allowed is dependents.

Shelly Mark:   Right.

Natalia Jofre: The larger the family, the larger the allowance. So, never sell yourself short. If you’re not sure whether you could qualify for benefits, we always encourage you to file.

Shelly Mark:   Right.

Natalia Jofre: Okay. Worse case scenario is that they’re going to deny you. If they deny you, technically then you know I do have too much income to qualify for benefits. If they deny you medically, then all that means is they don’t believe that you’re disabled. You can appeal that. Along those same lines, I want to just say that if you qualify for even $1 for SSI, you qualify for Medicaid. That is an invaluable benefit because then that gives you health insurance. That means that then you can afford medical treatment. So it can be a very life-changing benefit.

Shelly Mark:   Definitely.

Natalia Jofre: Yeah. All right. Well, next segment, we’ll talk a little bit more about DLI and how it affects other things. If you have any questions in the meantime, please feel free to visit our website or call our office.

Shelly Mark:   Thank you.

Shelly Mark, Senior Attorney

Video Blog – Date Last Insured and Veterans Benefits

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Natalia Jofre: Hi I’m Natalia Jofre, I’m the director for the Social Security section here at Hill & Ponton.

Shelly Mark:   And I’m Shelly Mark. I’m the senior Social Security attorney.

Natalia Jofre: So, last few segments we’ve been talking about date last insured, that it’s basically like an expiration date to qualify for Social Security disability benefits. We’re going to talk a little bit more in our next segment probably about what the different benefits are and when you can’t qualify for regular disability, but because we have been talking so much about veterans. We have a lot of veterans who have cases with date last insured issues, because either they’re not able to go right back to work after they leave their military service or they’re ill and they decide to live off of their veteran’s benefits or they’re just not well enough, many times mentally. I’ve had a lot of clients tell me that, that they don’t want to deal with the government. They don’t want to deal with the paperwork and we totally get that. But you’ve come across some really interesting stuff in terms of what they tell you.

Shelly Mark:   Yeah. I think it’s the repetition. Like I have veterans tell me the same things, the same advice that they’ve been given and there’s a lot of misinformation out there having to do with the interaction of VA benefits and Social Security benefits. The client that we’ve been discussing with the DLI issue, he told me that when was awarded his benefits back in 2007 he was advised by his service rep or worker that he should not file for Social Security disability because there would be an offset of benefits between his VA and his Social Security. So for years, he thought that it would negatively affect him which is why he waited so long to actually file the claim. I’ve heard that numerous, numerous times and I think that’s why we find so many veterans with the expired DLI is because someone comes along later and says, hey, why didn’t you file for Social Security and then they end up filing later. So just to say if you have been awarded VA benefits even at 100% or no matter what your percent is, you can still and should still file for Social Security disability. There is no offset.

Natalia Jofre: Yeah.

Shelly Mark:   As long as the benefits are service connected and the Social Security benefits are from the disability program, there will not be any offset.

Natalia Jofre: Right. So I think that sometimes people get confused and I always tell people, always err on the side of caution. File an application. What people will sometimes hear is from a person receiving non-service connected benefits, that they didn’t apply because there would be an offset. Well, that is true for non-service connected benefits because it’s an income-based benefit. So just like with Social Security and SSI which is also an income-based benefit, yes there is the potential because any household income would affect that benefit. So it’s not that specifically, Social Security would affect it, though I would also venture to say that it would be worth finding out if you were to qualify for Social Security, because what if you can get a higher benefit through Social Security?

Shelly Mark:   True.

Natalia Jofre: I have had that happen.

Shelly Mark:   That’s true.

Natalia Jofre: Like I had one client, he was like I don’t want to mess with my non-service connected benefits and then he called Social Security to find out how much he could get and his benefit from Social Security was much, much higher and he could still have his VA healthcare, but get the higher monetary benefit.

Shelly Mark:   Sure.

Natalia Jofre: But we want to make it absolutely clear that service connected benefits are not affected by Social Security.

Shelly Mark:   Right-

Natalia Jofre: At least not for now.

Shelly Mark:   Right and there’s nothing negative about filing for Social Security to see if you’re eligible. There’s not like they’re going to somehow notify the VA and something bad is going to happen. Nothing like that’s going to happen. So I know a lot of times when veterans are filing for their service connected disabilities like you said, they’re already stressed, they’re already having to deal with a government agency and at that time they just don’t feel like they can handle … But as I would encourage anyone as soon as you can definitely go ahead and file it so you don’t end up in a situation where your DLI is so far removed from your current treatment.

Natalia Jofre: Okay, great. So the next segment we’ll be talking some more about date last insured and the different benefits that you can qualify for in relation to that, so stay tuned for that. In the meantime, if you have questions or concerns feel free to call our office or visit our website.

Shelly Mark:   Thank you.

Shelly Mark, Senior Attorney

Video Blog – Date Last Insured – Evidence

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Natalia Jofre: Hi, I’m Natalia Jofre. I’m the social security section director here at Hill & Ponton.

Shelly Mark: I’m Shelly Mark. I’m senior social security attorney.

Natalia Jofre: Welcome back to our disability blog. Our last segment, we were talking about date last insured, what it is, once it’s expired, and we promised that we would talk about what kind of evidence you need in order to prove your case and, most especially, prior to your date last insured. The difference is, in a nutshell, and then I’ll let Shelly expand, in general, in order to prove your case you need to present evidence, which basically shows why you’re disabled, and because you’re asking for ongoing benefits, why you’re disabled now. With date last insured cases, it’s a little bit more difficult and it’s a little bit trickier because you’re trying to prove that you were disabled prior to that expiration date, prior to that date last insured. Sometimes you’re dealing with evidence that’s much older. You gave the example of the veteran and you were trying to prove that he was disabled prior to 2009?

Shelly Mark: Mm-hmm (affirmative).

Natalia Jofre: Okay. What kind of evidence did you have to use?

Shelly Mark: Well, in that case, we definitely use the VA Rating Decision that found him to be unemployable and rated at 100 percent in 2007. Just so everyone knows, that’s a specific finding by the VA, you know, social security doesn’t have to accept that as their own finding, but it’s still definitely favorable evidence. One other thing we found in his case when we looked back and looked was a report from vocational rehabilitation and the counselor had done a very thorough evaluation and concluded that he would not be able to be retrained or employed at that time. We use that and then, of course, we use all of the medical records that we could find during that time period.

Natalia Jofre: Veteran’s specifically have very strong date last insured cases because, for the most part, they tend to have ongoing medical treatment and every time you go to the VA clinic or any kind of VA medical facility, they keep a record of that and so it shows that you had ongoing medical treatment, it shows what your diagnoses were at that time, whether you were compliant with your treatment. It’s very good, you know, as bureaucratic as some of these federal agencies sometimes are, it’s the one time that it’s in your favor because they tend to keep track of everything.

Shelly Mark: Everything.

Natalia Jofre: Everything you had done, every time you said, “Ah,” who checked your mouth, what day, and what time, and what they prescribed, and all of that.

Shelly Mark: Another piece that, especially that we’re kind of talking about veterans now is, if your discharge was around the same time period, anything related to your discharge, whether it’s a medical retirement or just in service records themselves that talk about the difficulties that you were having, that’s likely, well, that is going to be prior to your DLI because you were still working. You can use your active service records as well.

Natalia Jofre: That’s great. Not just for veterans because you know that date last insured can apply to disabled persons in general. One of the big differences and people will ask us about this, is current evidence.

Shelly Mark: Right.

Natalia Jofre: Let’s say you had no evidence prior to your date last insured, you’re probably not going to qualify because how do you prove your case, okay?

Shelly Mark: Yeah.

Natalia Jofre: But, what we do see is that a lot of judges will want current medical evidence, simply because they want you to show, even though they’re not supposed to technically consider it, they’re only supposed to consider the old stuff to make sure you should be approved prior to your expiration date, but they want the current evidence to make sure you’re ongoing.

Shelly Mark: To make sure that there’s been a lot of medical improvement or that the condition somehow improved to a point where you could go back to work. They do usually like for the file to be up to date regardless.

Natalia Jofre: Yeah. Okay, great. Well, next segment we’ll talk about, because have referenced veterans a lot, we have some veteran specific information we want to share so stay tuned for that. In the meantime, if you have questions or concerns, visit our website or call our office.

Shelly Mark: Thank you.