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Ask "Bernie the Attorney"

By Bernard A. Kansky, Esq.
2005, All Rights Reserved
The questions and answers set forth in this column are an expression and exchange of ideas of a general nature.  The interpretation of laws, rules and regulations vary from time to time and are based on the particular facts of a specific set of cirucumstances at any given time.  The law is fluid and can and often does change from day to day.  If you have specific questions, it is essential that you consult with your own attorney or leave a message for me along with telephone number at my office at 617-227-2020.
Q. When I first became disabled from CFIDS, 9 years ago, I was so sick that I was pretty much confined to bed. By mail and by telephone and with the help of a family member, I applied for my insured Title II, Social Security Disability Benefits and was denied on my initial application and then again denied on reconsideration. After being denied on reconsideration, I had the right to file an appeal within 60 days for an in-person hearing before an Administrative Law Judge , but I knew I was too sick and as a result, I was unable to follow up with that appeal.

      Five years later, I filed for benefits again and was again denied on my new application and on reconsideration. I did not file for an appeal to an Administrative Law Judge because I was still not well enough to attend and participate in such a hearing.

      Three years later, I again filed a new application and was again denied. Again I filed for reconsideration and likewise was denied. This time I hired an attorney to file the appeal for a hearing before an Administrative Law Judge. Finally, I was approved for disability benefits and the approval was 'on the record,' which means I did not have to go to the office of Hearings and Appeals in person to appear and testify. Unfortunately, the approval was for benefits retroactive to only one year before the date of this latest filing, and not retroactive to the actual onset date of my total and permanent disability.

     Is there anything I can try to do now to obtain disability benefits retroactive to the onset date of my total and permanent disability, some 9 years ago?
A. Yes!
     First and foremost is to have your attorney and/or other representative file a limited appeal to the Appeals Council to request that inasmuch as the medical evidence and other evidence proves your total and permanent disability began 9 years ago, the matter should be remanded to the Administrative Law Judge on the issue of retroactivity only. Also, in that appeal, your attorney might indicate that you had twice previously filed for Title II, insured status disability benefits while you still had insured status but on each of the 2 prior occasions were wrongfully denied those benefits. Your attorney might also indicate in this appeal that you were unable to file and take advantage of any prior opportunity for an appeal and for an in-person hearing before an Administrative Law Judge not only because of your physical condition but also because of your cognitive dysfunction, short-term memory lapses and losses, and if truthful, the side effects of the medications you were required to take.

     For more of the specific critical elements necessary to present in an attempt to overcome the usual time limitations for obtaining retroactive benefits for more than one year prior to your last successful application, ask your attorney or representative to print out for you a hard copy of one of the leading decisions on point, i.e. UDD v. MASSANARI 245 F.3d 1096 (9th Cir. 2001).

     Second: Should you attempt to file a new application for insured disability benefits after being denied previously at the initial level and at the reconsideration level, always file a subsequent application within 4 years of your last denial. Anything filed after that 4 year period makes it much more difficult to recover benefits retroactive to your initial onset date of total and permanent disability, if you are finally approved for disability benefits.

     Third: Claimants who are too ill to attend an in-person hearing before an Administrative Law Judge should still timely file their appeal for such a hearing rather than allow the denial on the second level of reconsideration to remain on their record and go unchallenged.

     There are many reasons for taking this step. The best reason is that if your medical and vocational expert narrative reports are comprehensive and legible i.e. word processed or typed as opposed to hand written office notes, and if those reports render a truthful opinion well supported by medical evidence, observations, history, test results, etc. that you meet certain criteria along with a concluding opinion that you have been totally and permanently unable to engage in and maintain substantial gainful employment activity since (the onset date of your disability) to the present and for the foreseeable future but not less than 12 consecutive months or more, you as have others, may be awarded Title II, SSDI benefits on the record, with a decision rendered well in advance of the hearing date so that you will not have to appear in person. The other reason is that in this day of electronic wizardry, and in the event you are unable to obtain a fully favorable finding on the record, video conferencing is becoming more readily available at the many Social Security Offices of Hearing and Appeals. In the very near future, you may be able to participate in your hearing before an Administrative Law Judge from the comfort, convenience and the chemically-free or chemically-correct safety of your home. In the Boston, MA office of Hearings and Appeals, they are implementing the Polycom Video Conferencing System.

     Fourth: As an added incentive for your attorney or representative to pursue your claim for additional retroactive disability benefits, there is a POM provision which appears to provide your attorney and/or representative with a fee of a full 25% of the total recovery for recovering previously unawarded, past due, retroactive Title II, SSDI Benefits---retroactive for many years, which could amount to a very sizeable recovery for both you and your attorney and/or representative. Usually, fees are limited to 25% of past due benefits or $5,300,  the general 'glass ceiling,' whichever is less. The POM citation to be reviewed for this potential, albeit still uncertain fee recovery is SSA Policy Site: POMS Section GN 03940.005 Entitled Two-Tiered Fee Agreements, issued TN 15 (09/04). Get a hard copy of this POMS section and be sure to read it and also provide a copy of it to your attorney and/or representative.
Modifying a quote from a recent Newsweek article, it seems apt to say that, "... CFIDS/ME is like an elephant in the middle of your room. No matter how hard you try to ignore it, it's still the biggest thing in your life..."  As sick as you are, try not to let anyone deprive you of the benefits to which you are entitled and for which you have paid into the system for many years.

The National CFIDS Foundation * 103 Aletha Rd, Needham Ma 02492 * (781) 449-3535 Fax (781) 449-8606