Friday, July 17, 2015

Social Security Offers Vital Protection To Nearly All American Workers and Their Families

Social Security will celebrate it's 80th Anniversary in August.  Few Americans working today can remember a time when Social Security wasn’t part of the social fabric of America.

Since the Social Security retirement program was enacted under Franklin Delano Roosevelt in 1935, it has expanded in important ways. In 1939, benefits for dependent survivors of wage earners were added. And in 1956, disability insurance benefits were added. Today, as in the past, millions of Americans rely on these Social Security programs for income in the event of their own retirement, disability or death of a family wage-earner.

While Social Security is a part of our social fabric, that doesn’t mean that we can take its future for granted. As we celebrate the 80th anniversary of Social Security on August 14, this is the time to ensure that the Social Security programs remain strong for the next generation. Now more than ever, as an increasing number of workers approach retirement, we cannot afford to jeopardize the stability it provides millions of families.  Social Security offers vital protection to nearly all American workers and their families, so that if they face serious disability, illness, or injury before reaching retirement age, they will receive a monthly benefit. And, in the event of death, it provides some financial protection to the surviving family members. It is funded by your payroll taxes – as you work, you buy premiums for this important insurance.

In addition to providing a foundation of economic security to millions of Americans, Social Security also boosts the economy, because when people receive this compensation, they spend it in their communities. In 2012, Social Security supported more than $1 trillion in economic output.
It is important to keep in mind that many of the people who rely on this program – seniors and people with disabilities – are barely scraping by. Social Security benefits make up at least 90 percent of income for half of all disabled beneficiaries, and it averages just around $1,130 per month ($35 per day). This doesn’t leave any room for cuts.

As part of the Social Security system, Disability Insurance is an important public structure, like our highways or water system that needs to be maintained. There are a few easy ways that Congress can make the program more efficient – including fully funding the Social Security Administration so they can hire more staff to process claims, and rebalancing the trust funds again to ensure there is adequate funding for years to come.

In the lead up to the 2016 election, we should all ask candidates where they stand on this critical program. Social Security belongs to the American workers who paid into it. Any of us could find ourselves disabled. That’s why it is so critical that our politicians work together to keep Social Security strong for generations to come.

Friday, June 26, 2015

Affordable Healthcare Upheld By Supreme Court - by Ezra Klein on June 25, 2015

1) This wasn't a "win for Obamacare." Obamacare is words written on paper. This was a win for the more than 6 million people who will keep their health insurance. It's a win for parents who can be sure their children can go to the doctor, and for minimum-wage workers who can call an ambulance without worrying about debt. Basic health security for millions of people was on the line in this decision. Everything else was secondary to that.
2) This was also a win for common sense, and for judicial restraint. On some level, what's most surprising about this case isn't that the Supreme Court upheld the subsidies, but that they ever took the case at all. This was a ridiculous case, based on a ridiculous argument, where the only hope of victory was that the Supreme Court had become an irreversibly partisan institution.
3) In the majority opinion, Chief Justice John Roberts put the fundamental absurdity of King v. Burwell's argument clearly: "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them." Indeed.
4) Something to note: The Supreme Court didn't take an easy out — they didn't use something like Chevron deference to split the difference or say it's simply not their role to second-guess the IRS. They didn't write an opinion that gave any shelter to the plaintiffs' argument. Instead, Roberts says that the Court's role in a case like this is to "determine the correct reading of the law." And that's what they did.
5) The correct reading of the law, Roberts writes, is the government's reading. The plaintiffs in King v. Burwell claimed that the law came down to five words: "an Exchange established by the State." Read on their own, those words suggested that only state-based exchanges could use subsidies. But the government argued that those words weren't on their own. The law also said, in the absence of a state-based exchange, the law tells the government to establish "such Exchange."
6) In the Court's opinion, the word "such" made all the difference. It makes clear that "the Act indicates that State and Federal Exchanges should be the same." If state exchanges got subsidies and federal exchanges didn't, then they wouldn't be the same.
7) But the Court goes further than that. They do not rest their decision on semantics. They rest it on clear legislative intent.
8) The decision begins with a lengthy description of Obamacare's "three-legged stool" — the way the law's subsidies, individual mandate, and regulations work together to create stable insurance markets. It then segues into the history of insurance death spirals in states that have tried to reform their health systems without building all three legs of the stool.
9) Roberts gives a very crisp definition of how these death spirals worked: "As premiums rose higher and higher, and the number of people buying insurance sank lower and lower, insurers began to leave the market entirely. As a result, the number of people without insurance increased dramatically."
10) In the Court's opinion, the plaintiffs' idea of how the law was meant to work is ridiculous. If they were right, then "the combination of no tax credits and an ineffective coverage requirement could well push a State's individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner."
11) In the end, the basic finding here isn't very complicated: Obamacare was designed to work the way everyone understood Obamacare was designed to work — which is also the way Obamacare has been working, and is also the only way Obamacare actually will work.
12) The plaintiffs argued that Obamacare was designed to work in a way contrary to its fundamental goals — that it was, in essence, built to fail, at least in states that didn't establish their own exchanges. The plaintiffs argued this even though no member of Congress ever mentioned this insane plan, no state was ever told about it, and the Obama administration expressly denied it. The majority rightfully saw this as what it is: less a serious argument about the law than an effort to wound Obamacare by successfully pulling a Jedi mind trick on the Supreme Court.
13) As the Court says, quoting New York State Dept. of Social Servs. v. Dublino, "We cannot interpret federal statutes to negate their own stated purposes."
14) The majority's opinion ends on a philosophical note — not about health care, but about the role of the judiciary, and the role that the plaintiffs were trying to push the judiciary into playing. It's worth quoting at length:
In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—"to say what the law is." That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.
The plaintiffs, and many Republicans, were asking the Court to engage in judicial activism of breathtaking scale — using an unclearly worded sentence to upend the clear intent of one of the most significant laws passed in the last generation. In the end, the Court's four Democratic appointees, and two of its Republicans, refused. We should all be glad they did.

Monday, April 20, 2015

Protect Social Security Disability Benefits When Accepting Other Settlements

Workers' Compensation and other 
public disability benefits may reduce your 
Social Security Benefits

"Some attorneys and advocates of  
Social Security Disability clients are not aware that 
they can put your social security disability benefits 
in jeopardy by accepting public benefits or benefits
for Workers' Compensation."  
Gerald M. Welt, Esq.  (April 2015)

If you are receiving Social Security Disability benefits and benefits through the Medicare program you may be unaware that Workers' Compensation and other public disability benefits may reduce your Social Security Disability benefits so it is important that you consult a Social Security Disability attorney before you accept any other disability settlements.  If you are using another attorney for something other than Social Security Disability please let your attorney know that I will be happy to offer free consultation so that you receive the benefits you deserve for your disability, illness or injury.  

Much like the process for obtaining Social Security Disability benefits, the process for filing a Workers' Compensation claim involves many strict deadlines that can affect whether you obtain benefits and how much you receive. You also need information from your employer and a physician about your injury.  Our law office is familiar with the laws, the dates, the regulations and the policies that you need to know to receive your benefits.

You Must Meet Three 
Basic Requirements to be Eligible for 
Workers' Compensation 
 For a Job Related Injury or Illness
  1. Your employer must provide Workers' Compensation insurance.
  2. Your occupation must have played a role in your injury or illness.
  3. You must be an official employee.
In most cases, Workers' Compensation only applies to employees. Freelancers, volunteers and some independent contractors cannot receive Workers' Compensation, though there are sometimes exceptions for volunteer firefighters. 

Even if your employer has designated you as an independent contractor, you may still be eligible for Workers' Comp benefits. If you filled out a W-4 instead of a 1099, there is a good chance that you qualify for Workers' Compensation. 

After filing your claim, there is another set of rules to follow if your employer refuses to comply. We can help you decide which forms you need.  

Contact my office at 702.382.2030 for more information. 

Thursday, February 5, 2015

Your Disability Clients May Be Eligible For Additional Health Care Benefits

If you are an attorney with clients receiving disability benefits through the Medicare program, or are a recepient of disability benefits through the Medicare program, you may be unaware there are many free and low cost Medicare opportunities available. My office now has a dedicated health insurance professional who will assist you in helping your clients maximize their health coverage. Call 702.382.2030 and ask for our insurance professional who can help you navigate the health insurance maze free of charge. There is no cost to you and you are under no obligation to find out how to access these free and low cost benefits.

Monday, October 7, 2013

National Organization of Social Security Claimants’ Representatives (NOSSCR) Issues Statement Regarding 60 Minutes' Report On Social Security Disability Programs

60 Minutes Perpetuates Harmful Myths About Social Security Disability Programs In Misleading, Inaccurate Report

Englewood Cliffs, NJ -- A 60 Minutes broadcast aired last night about the Social Security disability programs was an egregious piece of biased, anecdote-based reporting that lacked critical facts and context for viewers. This is the latest in an array of sensationalized and misleading media coverage that has perpetuated myths and stereotypes about the Social Security disability programs and the people they help. These media reports have done a tremendous disservice to viewers, as well as to people with disabilities. The National Organization of Social Security Claimants’ Representatives (NOSSCR) feels compelled to respond and set the record straight about the Social Security disability programs, which serve as a vital resource for millions of Americans with significant disabilities and severe illnesses.

Despite criticizing the Social Security Administration’s (SSA) programs, 60 Minutes did not offer SSA a chance to respond or be included in the piece. Moreover, the report was entirely one-sided, as the producers did not speak with anyone who receives benefits, or any disability advocates. NOSSCR joined nearly two-dozen national disability advocacy organizations in writing to 60 Minutes’ producers before the piece aired, calling for balance and accuracy in their reporting on the disability programs. 60 Minutes did not respond. Millions of American workers depend on the modest but vital benefits they receive, and it would have been essential, and good journalism practice, to hear their side of the story.

The fact is that Social Security’s disability programs are a core component of our nation’s Social Security system. The Social Security disability standard is the most restrictive in the developed world.  Extremely strict eligibility requirements mean that no more than four in ten applicants are approved for benefits. Demonstrating eligibility requires extensive medical evidence, and many individuals are denied despite significant disabilities and chronic illnesses. Benefits are modest but vital – averaging just over $500 per month for Supplemental Security Income beneficiaries and approximately $1,130 per month for Social Security Disability Insurance beneficiaries. For many, disability benefits make it possible to secure stable housing and purchase food, life-sustaining medications, and other basic necessities.

Moreover, the increase in the number of people receiving Disability Insurance comes as no surprise and was projected by Social Security’s actuaries as far back as 1994. Social Security’s Chief Actuary notes that the growth is primarily due to demographic factors: the aging of the baby boomers into their high disability years, women entering the workforce in greater numbers in the 1970s and 1980s so that they now qualify for Disability Insurance based on their own contributions, and the increase in the retirement age.

NOSSCR condemns any misuse of the Social Security disability programs. We hold our members to high ethical standards and enforce an annual ethics education requirement. Any individual who seeks to abuse vital programs like the Social Security disability programs does so at the expense of the millions of vulnerable beneficiaries for whom benefits are a vital lifeline, and should be brought to justice. We encourage anyone who suspects abuse of the Social Security disability programs to report it via Social Security’s hotline 1-800-269-0271 or online at

However, it is extremely unfortunate and disappointing that 60 Minutes misled their viewers by painting the entire program with the brush of one bad apple, without putting it in the context of the millions of individuals who receive benefits appropriately and for whom they are a vital lifeline – as well as the many disability advocates around the country who work hard to protect the rights of individuals with significant disabilities and serious illnesses who have been wrongly denied Social Security disability benefits.

An important fact left out of 60 Minutes’ report is that disability advocates are paid by the individual claimants they represent, out of the claimants’ past-due benefits – not out of taxpayer dollars. Many individuals applying for disability benefits seek help from disability advocates to help them navigate the complex, often daunting process and advocate on their behalf – which can be of real help during what is already an incredibly stressful time for individuals dealing with serious medical problems.

The Social Security Administration works hard to ensure program integrity, but it requires adequate resources to do so. It has been deprived of the administrative resources it requires to conduct necessary program integrity work for several years – and the ongoing government shutdown has only stymied the agency further. Congress must provide SSA with sufficient administrative resources to ensure that benefits are paid to the right person, in the right amount, and at the right time.

For more information, read a Just the Facts sheet, or a NOSSCR fact sheet on SSDI and SSI. To speak with a representative or member of NOSSCR or to read true client testimonials, please contact Lauren Weybrew at or 646-214-0514.

NOSSCR, a specialized bar association for attorneys and other advocates who represent people with disabilities, has been a pioneer in legal continuing education and public policy advocacy since 1979. We represent Social Security Disability and Supplemental Security Insurance claimants through the adjudication process, advocating for the income rights of people with disabilities. Learn more at

60 Minutes Report Denounced For Disability Misinformation

60 Minutes Report Denounced For Disability Misinformation

National Disability Organizations Criticize Media Coverage That Echoes Misleading NPR Report

This link is a post by Media Matters which denounces the 60 minutes report. Highlights are below:

Lisa Ekman, Director of Federal Policy at Health & Disability Advocates, said the organization was "extremely disappointed that 60 Minutes chose to air such a one-sided story based on anecdote and supposition ... Misleading media reports like the one on 60 Minutes distract from focusing on the real issue of helping American workers with and without disabilities achieve economic security."


The blog goes on to say that "The recent 60 Minutes broadcast is just the latest in an array of sensational and misleading media reports that have perpetuated myths and stereotypes about the Social Security disability programs and the people they help. These media reports do a tremendous disservice to viewers as well as to people with disabilities. Any misuse of these vital programs is unacceptable; however it is unfortunate and disappointing when media reports mislead their viewers by painting entire programs with the brush of one or a few bad apples, without putting them in the context of the millions of individuals who receive benefits appropriately, and for whom they are a vital lifeline -- as well as the many disability advocates around the country who work hard to protect the rights of individuals with significant disabilities and serious illnesses who have been wrongly denied Social Security disability benefits."

Friday, September 20, 2013

Las Vegas SUN Covers Story of Memory Loss Patient Seeking Disability

Tina Kitchel at home with her son Christian, 3, on Thursday, June 20, 2013, in Pahrump. Kitchel went into cardiac arrest three years ago during the birth of her son Christian. Her heart stopped for 27 minutes and she was in a coma for 13 days. Today, her brain no longer has the function to store short term memory.

Tina Kitchel stirred awake in Spring Valley Hospital with a tube in her mouth and her arms riddled with needle marks from an IV.
Her husband stood at her bedside, relieved to see her awaken. She stared back at him like he was a stranger in a crowd. There was so much she didn’t know. Nearly two weeks prior, she was in the third trimester of pregnancy — their second child. A complication stopped her heart for 27 minutes. Doctors performed an emergency cesarean section in the hallway of the hospital to rescue her child — and bring her back to life. She had been in a coma for the past 13 days.

She was unaware of these events. And that man at her bedside telling her all this? She didn’t recognize him as her husband, Jason.

She later learned that while her heart was stopped, her hippocampus — the portion of her brain that stores short-term memory — atrophied. She was told she would never be able to recall a memory again; not her wedding day, the births of her children, their school graduations, their wedding days. Her life would never be the same.

Today, three years later, “It’s like I woke up in a dystopian society,” Tina says. Tina, now 41, and her family are still adjusting to this new reality. Her neurologist, Dr. Mouchir Harb, told Tina she is disabled and would never be able to work again. This news crushed her; she had worked since she was 17. She would need to apply for Social Security disability payments. In her case, that would amount to $2,000 a month, a stipend for her children and medical insurance. The checks would give the family some stability in case Jason were ever to lose his job.

But the Social Security Administration has rejected her application for disability payments. Despite her medical issues, she can watch surveillance monitors, the government says. Or she can peel potatoes.
Tina is appealing, but she won’t get a chance to make her case to an administrative law judge until April. The process could leave her without disability insurance benefits for up to a year and a half — if she wins.

But it’s not just about money. At issue is why the government considers some people disabled, but not others.

Tina is one of 3,616 people in Clark County seeking Social Security disability payments. They’re competing for the attention of six administrative judges and they’re looking at 11 months of waiting.

• • •

Tina Kitchel thought she had her life mapped out perfectly. There was no allowance for becoming disabled. She had worked in hospitals since she was 17, most recently as a monitor technician.
She had plans to return to school to become a physician’s assistant. She and her husband had one child and wanted a second, and Tina was making enough money to allow Jason to return to school to better his career.

She worked five 12-hour shifts each week at three different hospitals. From 7 a.m. to 7 p.m., she tracked the heart beats of nearly 20 patients, waiting to catch an irregularity. Patient’s lives depended on her vigilance.  It was a stressful job, but she loved it. It gave her purpose. She was the breadwinner. She was independent.

“I used to know where I’m supposed to go, or who I’m supposed to be,” Kitchel said. The brain damage has robbed Tina of that identity. She can’t leave the house alone because she gets disoriented simply walking around the block. She can’t use the oven to cook family meals because she might forget to turn the burners off. Her damaged depth perception and memory prevent her from driving.

“She has a severe brain injury that affects her ability to cognitively function with any kind of work,” Harb said. “She is very forgetful. ... She can do simple things, but she cannot take care of her bank account. She needs help with her basic needs.”

Tina compares her memory to a cracked water bottle. Memories go in, but facts and details constantly leak out, leaving her with with nothing at all. She can remember major life events up until 14 years old, fragmented memories up until 28 years old, and nothing today.

“It’s either right now or the future,” Jason said. “There is no past. That took a lot of adjustment.”
Memories like Jonathan — her oldest son — graduating from kindergarten or that he loves her pancakes, or Christian’s first birthday. They are just pictures and notes, devoid of nostalgia, in the journal she keeps on her pink iPad. She knows she was there, but she can’t recall the details of that moment to make it real.

As for being married to Jason, it’s a fact she’s come to lovingly accept. To make it easier, Jason has made a photo video of their wedding which she watches frequently. She may not be able to remember the details, but she can see the joy they both shared that day.

Despite Harb’s diagnosis, Tina has been denied disability insurance benefits three times — once by Prudential’s long-term disability insurance program and twice by the Social Security Administration.
Her second examination with a Disability Determination Service’s appointed doctor took place in a Las Vegas Best Western conference room. Jason dropped Tina off at the hotel because she had to be examined alone and that would last several hours.
But the doctor ended the exam early and left Tina wandering the street confused and searching for Jason until he tracked her down at a nearby bus stop.

Both examinations with the Social Security Administration ended with a form letter of rejection that read in part:  “While we realize that you are somewhat limited in your physical activity, your condition does not meet the severity requirements for total disability,” the letter stated. “Based on evidence, you should be capable of some type of work activity.”

While all three doctors told her she could work, only her neurologist is allowed to medically approve her. He is the one legally responsible for any accident she may cause at work. And without his approval, she would have to lie on her job application — making her liable for anything that would happen to her at work. It’s a risk she and Jason aren’t willing to take.

• • •

Three years. That’s how long it takes a person applying for disability benefits to start receiving their insurance checks, Las Vegas disability insurance attorney Gerald Welt estimates.
A lot can happen in three years. Tina was making $60,000 three years ago. Welt has seen clients use up their life savings and lose their homes to foreclosure because they have no income. He’s watched people with bad backs deteriorate waiting for medical insurance to pay for surgery. Some clients died waiting for their disability insurance benefits.

People who require disability insurance payments aren’t able to receive them in a timely manner, said Welt, who has been working disability insurance law for more than 30 years. The process is broken.
“This is not a healthy existence they want to be in,” Welt said. “Frankly I think a lot of my clients, if they could’ve gotten the appropriate medical care within a year or two, they could’ve gone back to work.”

Every disability insurance case in Nevada starts with a Nevada Disability Determination staff caseworker. To qualify, applicants must prove they’ve worked a predetermined number of years based on their age. In Tina’s case, she must have worked five out of the last 10 years. Then the caseworker and a consulting doctor examine the applicant and talk to his or her doctor to determine the severity of the disability.
If the caseworker and consulting doctor decide that person can work any job that exists in the U.S. economy — and that can include peeling potatoes — the person is disqualified from receiving disability benefits. There are no benefits for a partial disability.
The process takes between four and six months, Welt said. Two-thirds of the applicants are denied on their initial application, Welt said based on statistics from the National Organization for Social Security Claimant Representatives. If an application is denied, the person must file an appeal for the case to be considered by a new caseworker and doctor.
Only 18 percent of the appeals are approved, according to NOSSCR. Yet the process can take up to a year, Welt said.

Most applicants end up in court with a lawyer to present their case to an administrative judge. Once there, Welt said a person has about 50 percent of a chance to be approved. Even if approved, the checks don't arrive for at least five months.  “Basically everybody is treating them like they’re liars,” Welt said. “It’s embarrassing. People don’t want to do this, some people are sick of waiting too long.”

The Social Security Administration declined to comment for this story.

Welt said part of the problem is that caseworkers and doctors are understaffed, but they also face no repercussions for denying a person their disability. Sometimes it is easier for them to reject someone than approve them, Welt said.

“What’s the penalty for turning down the people? Except for compassion, they don’t pay interest, they don’t pay attorneys fees — nothing happens to them,” Welt said. “They just turn down the applicants and it goes on to the next level of government.”

Yet Nevada isn’t even the worst state, Welt said. The broken process spans the entire country.

• • •

Tina is awaiting her first visit in a year with her neurologist. Christian, now 3 and healthy, sits on Tina’s leg in the patient’s room, playing with a Hulk action figure; Jason and 6-year-old Jonathan are sitting next to Tina.  Tina's memory has been improving. Routine helps, and her iPhone acts as a second brain, compensating for lapses in memory. She sets alarms with notes attached to remind her what task needs to be done. She is able to take care of the kids, feed the dogs and complete household chores. Last time, Harb left Tina a twinge of hope that she’d be able to work or drive again.“We can talk about it next year,” Harb told Tina.

Now, when Harb walked in, he greeted Tina with a smile. “How have you been since the last time I saw you,” Harb said. Tina looked perplexed. “I was picturing a different doctor,” she said. “You forget me already,” Harb said. “But we had such a good relationship. I did not forget you. That means one of us has something wrong.”

Nothing had changed since the last time the two met, Harb said later. It didn’t shock him; he knows the brain does not regenerate. He was shocked to hear Tina hadn’t received disability benefits yet. After Harb completed routine reflex tests and questions about Tina's memory. Jason tells Harb that Tina still can’t go grocery shopping alone because she becomes disoriented, that she can’t operate their bank account or cook.

Still, Tina feels she is getting better. She asks the question she had been waiting about a year to ask.
“Of course you cannot work, there is no way you can work,” Harb said. “... You are never going to get better.”

Tina cast eyes downward.

“You should be grateful and accept what you have because you could be in a nursing home,” Harb said. “At least your kid has a lap to sit on.”

“It’s just hard to accept,” Tina said.