have started application, hired a lawyer, concerned
 

hi, would greatly appreciate any opinions about the law firm i hired to do my application.

i'm a 59 year old male, had a 1 person company for 20years where i installed pharmacy computer systems into retail pharmacies, did everything from installing, maintaining computers and writing the software.
was diagnosed in 2001 with parkinson's. stopped working in 2011 and applied for SSDI Nov1, 2013 and got a rejection on DEC 4th.
SS stated "The objective medical evidence prior to the date you were last insured for SS disability benefits on DEC 31,2012 is not sufficient to fully assess your potential work related limitations and abilitites. Therefore, a period of disability cannot be determined.

I can understand why SS determined this based on my application. I rarely see my neuro, exams are just a short visit and no formal testing, just a formality to get my RX refills authorized. When medicated, to the untrained eye I don't appear to have pd, medication works well. Unmedicated I have major pd symptoms, freezing so I take baby steps and halt, fatique, stuttering, disabled to the point that I just lay or sit down.

Anyway, I thought I might have a difficult time proving disability because I didn't have a clear record of progression on my medical records because my neuro always saw me medicated, my customers rarely saw me, I didn't allow friends to see me unmedicated and I live alone. Thus I hired a law firm to do the application and brought these issues up and they really didn't give me any odds on whether I'd get SSDI but I hired them anyway because they were recommended and I knew I couldn't do this application on my own. I went to their offices, brought them a detailed writeup of my history and concerns, medical records proving I was diagnosed 12 years ago. I had also visited my neuro and GP just prior to hiring the law firm to let them know i was filing for SSDI and they both said they would try to help the best they could. At the visit the paralegal asked me if i wanted to file right now and we did over the internet. She didn't care to see what my full medical records looked like or talk to my doctors to see what they had written, I assume she expected my initial application to be rejected so why work that hard?

So anyway, the law firm is filing an appeal. They sent me a list of questions to answer which I had already answered. It seems obvious to me I need to be examined more fully and unmedicated and have brought this up with the paralegal, will SSDI have me independently examined and she says she can't guarantee this. I'm getting a little worried here about how blase this legal firm is, maybe they don't get serious until there is a trial? Maybe they want to drag this out and get a bigger fee? I'm afraid to start complaining but I'm feeling like a number with these guys, any advice? I would think it would be hard to fire them but something seems weird here, so far they've filed the initial application, took about an hour in their officer to file on line while i was there and they emailed me a list of questions to answer after the rejection. i have sent them 2 emails subsequently asking questions about their questions and no response days later.

I'm thinking they just don't think I'll get approved until I go to trial so why put in that much effort until then or maybe they are just increasing their fee, i can understand that. But I also can't believe SSDI wouldn't approve someone who is clearly unable to work when unmedicated and 12 years after a pd diagnosis, who in the world would hire me at almost 60?

Any advice on dealing with this large local firm, dont want to alienate them and whether I should take the bull by the horns and schedule my own evaluation with another neurological organization that would do a more comprehensive evaluation?

Dear Soccortese,

I understand your concerns. As far as your representation,....... I too, thought there would be more involvement and interaction between atty and client. I have since learned that the common practice is to just gather info and then about a week or two before an ALJ hearing, the atty will review your file, maybe meet with you to discuss the soon to be held hearing, and the rest of the time, they just wait. This is common practice, not just YOUR representative. Most work exactly the same way. Wish I had known that up front as I would have had different expectations and less disappointment.

Another common practice is not to second guess SS and offer an opinion. If they do and things don't work out as projected, we would be on their case. Most attys will not take a case they feel has NO chance of winning as they are not going to devote any time to something that will not generate any income for them. They are paid out of your award benefits up to a maximum of $6000. The only items you will have to pay "out of pocket" will be for fees for obtaining medical records, postage, etc. Some attys charge the client for travel expenses to a hearing (gas), parking, etc. You were probably given a fee agreement to sign which is submitted to SS for their approval. It usually indicates the percentage of award benefits that will be paid to your atty and stipulates the max of $6000 from your benefits.

During your wait in the appeal process, your atty may obtain medical source statements from your treating physicians. Having your docs know that you have applied and that they are in agreement to assist you is extremely helpful.

One word of caution is terminology. Be sure you understand the terminology that is being used as there is much confusion over it.

There are many here with extensive info on disability that will be coming to your aid.

Good luck to you. I will be keeping an eye on your thread to see if there is anything I can offer in way of assistance.

Your biggest problem is your date last insured for SSDI. Since it is 12/31/12, that means that between 1/1/03 and 12/31/12, you only have 20 credits out of a possible 40 which means you have years of no work or years of work with no profit. So the first question is how did you work for 20 years in your own business and not have significant profit in at more than 5 years of the last 10? Did you not filing tax returns when you should have? Did your condition reduce your hours? I am also curious about why you waited two years before filing your claim?

Getting a thorough examination in 2014 will not help prove that you were disabled enough by 12/31/12. It is the medical evidence from 2012 or earlier (which you say is minimal) that is important. If your attorney is not addressing this issue (whether now or at the hearing level), then you have no chance of qualifying for SSDI and the only disability program is available would be SSI, the low income program. SSI would use current medical evidence but you don't mention filing an SSI claim or what your current income is.

In my opinion, your attorney's office should be discussing your medical evidence from 2012 and earlier and asking the questions about why your date last insured (12/31/12) is in the past.

If SSA decides that you are disabled but not before 12/31/12, it is like having a car accident after your insurance lapsed - nothing will be paid from SSDI. This should all be addressed NOW and if your attorney won't do it, you need another.

Dear Soccertese,

Two other things I forgot to mention. I have learned that with some of the big firms, they do not even see or meet the client until they come face to face at the hearing. All communication is done by phone or written. You are ahead in that respect since you have at least met face to face with a paralegal.

The other forgotten matter in my prior post. Even though you have representation, the more proactive you are, the more you assist yourself, the better. It is YOUR claim and YOU are the one that will be impacted the most by the outcome, not the atty. They will have other clients upon which to earn their money. This is coming from my personal opinion only. It is based upon my own perspective and personal history with the legal system and attys. I also have "control" issues so I am not one to sit back and just let others "handle" things. Ask questions of your representative along the way, get advice from them, but do not just sit back and "hope" they are on top of things. You ARE not their only client and therefore correct in your feeling that you are a number to them. In many ways, you are just that. But, keep in mind, if you don't win benefits, they don't get paid so they do have some stake in the matter. Also, do some of your own research. The more YOU know, the better.

Dear Soccertese,

Janke is a fantastic source of information. He knows this stuff.

Hopeless

Janke covered the most important aspects of your case.

I find it odd your attorney office didn't determine your eligibility before having you apply.

If you are well enough to work while medicated, than it is unlikely that you'd be approved for SSDI. The "grid rules" go into effect at your age, but beyond those concessions for age, whether or not you'll be hired is not considered. But, these are non-issues until you prove eligibility.

Please read my post #45 in this link. http://neurotalk.psychcentral.com/thread148967-5.html

I think it will help.

[When medicated, to the untrained eye I don't appear to have pd, medication works well. Unmedicated I have major pd symptoms, freezing so I take baby steps and halt, fatique, stuttering, disabled to the point that I just lay or sit down. ]

This part wasn't touched on and I am curious about it, medicated vs unmedicated and gainful employment - does it matter for SSDI?

Would it be similar to those in pain & on pain meds, if the pain meds work for them and if they are able to do gainful work or not?


If this is a sticking point the attys should have brought it up I would think anyway?

Is it one of the companies that only get paid if you succeed?
Or one that gets paid by the hour?

The way my lawyer explained it to me was that medical evidence is what counts and until you produce the medical evidence your personal testimony doesn't mean too much. When you go before the ALJ he will weigh your medical evidence against what ever medical evidence the State has, if the State sends you to a Doctor for a medical examination. If the State does not send you to a doctor and your medical evidence is compelling then you win. If the state sends you to a doctor and the states doctor agrees with your doctor then you win. If the state sends you to a doctor and that doctor disagrees with your doctor then the judge will have to decide which version is more believable. That is when your personal testimony will make a difference, in that case your testimony can act as the tie breaker, If you personal testimony (and/or that of friends and family) is compelling, you win because your testimony breaks the tie, so to speak.

you hit the nail on the head and this is an issue i have been trying to discuss with the attorney. i filed my 2008-2011 IRS returns in early 2013, actually got a small refund. unfortunately, the IRS was way behind in reporting my numbers to SS, didn't realize this and didn't notice until october 2013. at that point, brought IRS transcripts of my returns to the local SS office and asked them to record them. a week later i got my returns back in the mail from SS and on them was a handwritten note saying "you are disability insured with your alleged onset onset as 10/011/2011".

This was very puzzling and am waiting to talk to paralegal to find out if that's the date on my application. Anyway, SS rejected my 2008-2010 IRS returns as being filed too late. I had enough income in 2001 thru 2009 in each year to get credits but obviously not enough in last 5 years. So may be even more hopeless.
No excuse for not filing except had very complicated schedule-D's, i'll blame it on my parkinson's. I didn't file for SSDI in 2012 out of ignorance. I brought up the late tax filings at the first meeting with the attorneys, actually gave them copies of my returns thinking they wouldn't take the case without evidence that i had filed them. paralegal didn't say this would be a problem.

I called the the SS office that handled my SSDI application and discussed if there was anyway to get the 2008-2010 wages accepted by SS, they actually connected me to the examiner that handled my SSDI app and she said no but did give me a $$ amount that I was eligible for if I can prove that 10/01/2011 disable date. She asked me about the 2008-2010 wages but then kept correcting herself, saying they can't accept them.

Thanks for your reply, I need all the help I can get, thought hiring a lawyer on contingency would make things clear cut.

this company only gets paid if I get SSDI.

Dear Soccertese,

About your TAX returns. There is a statute of limitations on getting any refunds due you and it is 3 years. However, if you OWE, there is no limit of time. You would be required to pay any and all taxes for any and all years late. Even if you did not owe FEDERAL INCOME TAX, if you earned a net of over $400 in self-employment, you would still owe Social Security and Medicare tax on it.

Are you saying that you had less than $400 net income from your self-employment during the years that you were late filing your returns?

It is very surprising for a disability law firm to accept any claimant that did not meet the eligibility requirements of being insured under the Social Security system.

It is situations where DLI (Date last insured) and Date of Onset create problems with qualifying for eligibility and some decisions must be made as to which dates to use as the date of onset.

As far as "accepting" your tax return information. If you PAID Social Security taxes, it is my belief that the returns MUST be accepted if filed. Your payments may not simply be ignored. As far as the IRS, they do not have to provide any "refunds" on returns filed beyond 3 years after they are due. Any refunds due you are forfeited.

Hopeless

Dear Soccertese,

I am always forgetting to write something and have to make additional post. Sorry.

How the SSA gets earning information........ If you are employed and receive a W-2, the employer files that information directly with the Social Security Administration each year. This does not go through the IRS but directly to the SSA. If you are self-employed, there is NO W-2 and the only place your earnings show up is on Schedule C of your 1040 form. This is when you have to rely upon the IRS to furnish the information to SSA.

If you have incorporated as a sub-chapter S corporation, you would be paying yourself a salary from the corporation and preparing a W-2 so I am assuming from your post that you are NOT and that your information is being reported on Schedule C of your 1040.

The IRS accepts your returns when filed late, they just will not provide any refunds beyond the 3 year limitation as I stated previously. I will do some research to see if there is any regulation in SSA rules that prohibit you from using any payments made for FICA and Medicare when reported late.

Did you pay any self employment taxes (social security and medicare) on the income you earned during the years that you were late filing your returns? If you forfeited refunds, I can only assume that you made estimated tax payments for unearned income that was mentioned regarding your Schedule D.

Keep in mind that SSA only cares about EARNED income, not UNEARNED income. It is only what is reported on Schedule C and Schedule SE that concern SSA. They do not care what your AGI was on your 1040 form. I should qualify that with "when looking at disability requirements". Your AGI may be considered for benefits that are means tested like supplemental income.

all my income was via a sole proprietor business and on a SE form. btw, thanks for your responses, always amazed at the kindness of strangers on these boards!
i didn't file 2008,2009,2010,2011 returns until 2013 but actually overpaid my estimated taxes in each year they were due which was all 4 years so there was no penalty, SOCIAL SECURITY still wouldn't accept the wages i earned in any of those years except 2011. I had filed late returns before, always paid enough taxes but they were all within 3 years so i guess having filed late returns before made me think it was no big deal since i had paid the taxes on time.
as an aside, i found out from IRS that it takes 12 months now to get their numbers over to SS if you file a late return. dealing with the IRS over these late returns was a nightmare, admittedly my fault for filing so late. they sent me a letter stating i owed quite a bit of money based on stock sales from my 1099'S. Since i hadn't filed a SCHEDULE-D stating the cost basis of my stocks, they assumed 100% profit on each trade. This got my attention to say the least. To make a long story short, i had a deadline to get my returns to them which turned out to be 30 days. I sent my returns to them certified mail and go proof of receipt. called them a week later, they had no record of receiving the returns. called 2 weeks, no returns, was told it could take 6 weeks to register them, past the 30days. i was told not to worry, as long as they received them on time i had nothing to worry about. talk about something to worry about. i actually took copies down to the local IRS office and asked them to stamp one to send to their FRESNO office and stamp one for me to keep so i could prove they got them within 30 days. so they got them in time. you never talk to the same person twice and get different answers. lesson here is get your returns in on time.

Medicated vs not medicated isn't an issue regarding SSDI/SSI.

If only non medicated was acceptable for a worker, no one with diabetes, high blood pressure, or any other condition that required medication to control symptoms could ever work.

The use of pain meds for those of us with pain issues can be a bit trickier, in terms of some specific jobs, say a bus driver, might preclude you from being able to take certain medications while doing THAT job, but even that wouldn't preclude one from being able to do ANY job.

A factor in working while on pain meds, or ANY meds, is that the side effects might then limit the ability to do the needed work. Many on adequate doses of pain meds might then be able to manage their pain, but might have such issues with dizziness, nausea, or fatigue that they would be unable to work because of those symptoms.

*****************************


Soccertese,

I'm sorry to hear of your health issues and inability to work.

I'm glad that Janke saw your post and addressed the obvious concerns about your date last insured. If the medical evidence that is documented doesn't support total disability before 12/31/12, it sounds like it's SSI or getting the IRS to communicate that you did work more to convince the SSA to adjust your last date of insurability.

Best wishes getting through this difficult process.

Many like you
 

Do not beat yourself up on being late. Believe me, you are not the first person to be late filing returns. I had someone come to me with 10 years to file. It is sad when the tax client losses their rightful refunds when late and the usual reason is because the tax laws are so complicated that it becomes too overwhelming for the taxpayer and the returns get put on hold. I have found that the self-employed are usually the ones that are late more often than others. For one reason, they are so busy trying to earn a living that often the bookkeeping is postponed, then trying to put it all together combined with complicated tax laws is so time consuming that they postpone it while they attempt to earn a living. Next thing, a year has passed, then you have to file the OLD year before you can file the new one due and the cycle begins. It is when they, like you, get those IRS notices, that they knock on my door begging for assistance.

If you PAID self-employment taxes and have your SE schedules to prove it, I really believe that SSA will have to accept your earnings and give you the credits you earned. It may take some time for the record to be updated.

I am much more versed in tax laws and regulations than SS, so I will look into it, but I really do not think your earnings can be ignored if you paid self-employment taxes on them. It may just be a matter of getting it into the record.

One other concern is the "amount" of your earnings. Were they enough to earn the full 4 credits each year? Even if they were low earnings, you may have earned 3 credits for a particular year. Every credit earned toward the requirements counts. I am not asking for your earnings. I would not want you to disclose that kind of information on an open forum.

And yes, I have often seen IRS use 100% basis since they do not have a return to indicate otherwise, all they know is what is on 1099 B.

If I can be of any help, just let me know. Best of luck to you. You may not get your refunds but I do think you should be entitled to an updated SSA record of earnings. It may just be a matter of time getting them into your record. You may meet the eligibility requirements once that is done. You can look at your returns and calculate it for yourself and see if you will be eligible to continue with your disability claim.

Are you still attempting any work with a reduction of hours due to your impairment? Other posters are correct that you are not considered disabled if you are capable of "gainful" work when medicated. If medication precludes your ability to work, and your work can not be accomplished if not on the medication, then you may be considered a candidate for disability.

I have known SSA to go back 30 years for missing income when computing disability benefits if they think the earnings record is missing any earned income. Many women in the workforce may have no earnings for one year on their SSA earnings record when they took off for having a child. SSA will ask them if NO earnings for a long ago year is accurate in order to properly calculate their disability benefits.

I also think you need to check with your attorney to see if he/she can find any obscure legal provision that would allow you to correct your earnings record with these tax returns (because you did pay estimated taxes) and if the lawyers' office doesn't understand your question, it is time to find a new lawyer. If you can succeed at that, it will push your date last insured to a more recent or future date so your current medical condition and current medical evidence will then be material. Right now, all SSA can use is the medical evidence before your date last insured, 12/31/12.

About your question about medicated or not. Many people have conditions that are kept under control with medication. If the condition can be controlled with medication without side effects that are severely limiting, then SSA will probably not find you disabled.

Again, your attorney should be answering these questions now rather than waiting until the hours before a hearing. You might decide that you will continue to take the medication that allows you to work and keep working (and filing timely tax returns) and wait until your condition becomes worse before filing.

Also, since you mentioned your 1099's from stock sales, I will make the assumption that you would not qualify for the low income SSI program because of the value of your assets. So with DLI in the past and excess resources for SSI, you won't qualify for anything, regardless of how ill or disabled you are.

removed my reply, shouldn't have posted income amounts

Just to clarify, attorneys as well as non-attorney reps are regulated by law on SSDI/SSI claims payment and are limited to a percentage of backpay and a max dollar amount.

You have 4 credits for each year of 2008 2009. Even if the more recent years from 2010 through 2013 are "negligible", if about $1000, in any one year, you could have earned at least one credit. I would have to check the exact amounts to earn a credit for those particular years but I think it is around $1000 per credit.

You only have 60 days to appeal so I would ask your representative to calculate your credits based on your tax returns and determine if you will qualify by having sufficient credits. That is the FIRST hurdle to conquer. Everything else is a mute point if you are not insured under SSA.

Trying to look at the bright side, you are nearing early retirement age, so that might be something to consider if disability benefits are not an option. Medicare coverage is not far off in your future either because of your age. Trying to make ends meet from now until you are 62 if disability benefits are not in your future may mean that you will need to continue to earn whatever you can under your circumstances and at your own pace. If you could earn about $4000 per year over the next few years, you would meet the credits needed, maybe have more medical documentation, and be able to file a new claim. Disability benefits revert to retirement upon reaching full retirement age but you could still file for disability until then. Based on your current age, I am guessing full retirement for you would be between 66 and 67. I don't have the chart in front of me.

Do you have enough credits (40) for "retirement" at 62? That may be your best option if you do not have the needed credits for disability and are unable to earn more credits between now and age 62.

Good luck to you.

One other comment about disability...... just because you may not be able to do your former work, or same type of work without additional training, you could be found to be able to do "other" work that does not require training and is something you would be capable of with your condition. If you can type at a computer, have worked from home, they may find that you are still capable of gainful work. I am not saying that you are, I am saying that is a possible outcome on your disability claim. If you find that you can continue to pursue your disability claim having earned the appropriate amount of credits, be sure to check out some of the disability info on the stickies here and info on the internet under disability secrets.

Earn anything you can and are capable of if possible to get the credits you will need if you want to apply for disability later under a new claim in future year. Just my opinion. If you can not earn anything any longer, consider taking early retirement at 62.

First check out your true credits based on your tax returns. Talk with your attorney.

soccertese,

SS determines disability based upon a person's ability to work at or above (or even near in reality) the SGA level. What is this? Significant Gainful Activity is a dollar amount set by SS. In 2013 it was $1040. If your hourly rate is high enough, you don't have to work many hours to be disqualified.

Research the "grid rules" though. There are concessions made for workers ages 50 and 55, so if you can prove you were eligible this may help.

I'm not trying to discourage you, btw. You just DON"T want to focus on proving something that is irrelevant to SS.

Hi Janke,

When I referred to the common practice of attys not reviewing the case file until shortly before a hearing, I did not mean to imply that nothing gets reviewed before then. They commonly wait until then to develop their strategy of how to present the case before an ALJ and also have it fresh in their mind. Items should be reviewed as they are received and placed into the file. The things being discussed in this tread regarding credits should have been reviewed at the initial visit by the paralegal in my opinion. The initial interview process should have been thorough enough to make proper determinations about eligibility and the viability of pursuing a claim for benefits in my opinion.

You spotted the problem immediately. I would expect that an atty should have done the same. That is why I respect your comments so very much.

Hopeless

thanks,
according to my dec 2013 ss statement, i have enough credits for retirement at 62, full retirement at 66, but not enough for disability. qualifying for medicare obviously is important.

thanks for everyone's help.

SS Disability
 

Most lawyers who take workman's comp cases are qualified. From my experience, unless you are in a select box, you will be denied. Just keep fighting.

so you think i might win? i'm confused.

The $1040 is a MONTHLY amount for SGA.

It takes about $1000 per year to earn one credit.

Just looked it up and the amount to earn ONE credit for 2014 is $1200. For the full 4 credits, your earnings would need to be $4800.

Looked it up
 

As promised I looked it up and there IS a similar stipulation in SSA regs. In order to have your earned credits applied, they must be reported within 3 years, 3 months, and 15 days. This was news to me and I am sorry if my prior post misled you. I knew about the tax law but not about the SSA reg.

Hopeless

Erroneous thinking
 

Just researched it and the SSA does have regs that preclude the use of earned credits if not reported timely. You have 3 years, 3 months, and 15 days for your credits earned to be applied.

thanks,
that reg came to my attention after i brought my 2008,2009,2010,2011,2012 returns to my local SS office and asked them to post my SSA wages. they mailed them back a week later, i logged into my SS account and saw only my 2011 earnings had been recorded, called the local office and the explained the rule to me, no exceptions.

thanks for your help, ball is in my lawyers court.

Much to my surprise, the SSA also has a reg that requires timely reporting of earnings in order to apply your credits. 3 years, 3 months, and 15 days.

I do not know how to post links but you can look up Social Security Credits article from About.com on Tax Planning: U.S. This information is not readily available at first glance on SSA website without doing some digging. I did find the regulation code number if you need it to substantiate the article but thought the article at About.com a good read.

Easy. Type the name of the article in question. Highlight the article name. Click on the link icon in the reply window --> http://neurotalk.psychcentral.com/im...createlink.gif & follow the online instructions. The end result---> Social Security Credits


HTH

Another way to copy/ add links..

You can copy the URL (highlight the full text & right click to select copy & then paste it in a post.
URL- the http://
& / or
www. (whatever site name is ) .com , .gov. or .org part -usually in the top section above the web page


http://www.ssa.gov/retire2/credits.htm

Some will just have only the www. & some will have https:// which is usually for secure log in pages

Jo*Mar,

Thanks. I am stuck in the days of DOS in my head. One day I will get used to the technology of this decade. I am very old school. Hope I catch up someday but as I age, the gap widens.

Thanks again.

lol Hope

Your "old school" still beats me. When DOS was in vogue, I was still swearing I'd never use a computer and thanking my lucky starts that I was in the last graduating class from my high school, then college, that didn't have to take required computer classes.

I had to be dragged kicking and screaming into the computer age.....

Yes if you have the medical evidence to support your case you should win. My lawyer and Doctors said unless you have the obvious disability and are under 60 you will automatically be denied the first time. They make it difficult on you but in the end the medical evidence supports your claim.

There is no policy that automatically denies EVERYONE under 60. It all depends upon how severe your illness/condition is even if there is medical evidence that your condition exists.

Not sure what an obvious disability even is. Different definitions to different people.