Social Security Disability Advice CONNECT

Off-topic :: RE: Slaughter Rule

David Traver — Thu, 18 Mar 2010 02:20:32 GMT

Author: David Traver
Posted: Thu Mar 18, 2010 02:20 am (GMT 0)

So, you remain stuck on process and you won't say how you feel about the substance of the reforms?

That's exactly why the Democrats will win, and the Fox/Republicans will lose. Nobody cares about procedure, and the 31,000,000 people that get health care, the tens of thosands who wont' get screwed on pre-existing conditions, the millions who will save money, sure won't think about it again.

Let me demonstrate that nobody cares about procedure. Without looking it up, how did Medicare pass Congress? How about the Civil Rights Act? How about the Social Security Act? Veterans' Bill of Rights? The Voter's Rights Act?

People remember the laws and the way society changed. They don't give a damn how the changes made it into law. Each of these were highly contented issues at the time. Which one would you eliminate now because of process?
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: RE: Slaughter Rule

Olan Barnes — Thu, 18 Mar 2010 01:01:22 GMT

Author: Olan Barnes
Posted: Thu Mar 18, 2010 01:01 am (GMT 0)

http://www.cnsnews.com/news/article/62939

Disability Law :: RE: A new way forward - replacing the adjudication model

David Traver — Thu, 18 Mar 2010 00:51:48 GMT

Author: David Traver
Posted: Thu Mar 18, 2010 12:51 am (GMT 0)

It is not possible to "fix" the current adjudication system. Very bright, informed, and very dedicated people have been trying since the 1970s and they all have failed. Millions have been spent, The clear answer is there no "fix" to be had. The insurance/adjudication model is fundamentally flawed. It's not broken, its the wrong tool for the job.

My plan is fiscally conservative, it reduces the federal bureaucracy, it is states-rights oriented, it increases payments to States, it reduces the federal deficit, it provides better services to the disabled, and it pays for itself. It is pro-veteran, pro-handicapped, pro-small business, and pro-family.

It would increase trade school and university funding via DVR training placement. Working disable people pay taxes and vote.

The question should be, who would not support it? The answer to that is the AALJ union, NOSSCR, NADR, claimants attorneys and non-attorney reps. Also State AFCME unions would freak out. These are the people that SSA calls "stakeholders." They are nothing of the sort. The "stakeholders" are the disabled we serve. SSA has stood this on its head for years.

It seems to me that this is something that would have broad bipartisan support.
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: RE: A new way forward - replacing the adjudication model

kirakira — Thu, 18 Mar 2010 00:42:03 GMT

Author: kirakira
Posted: Thu Mar 18, 2010 12:42 am (GMT 0)

David Traver wrote:

Questions?

My question is how would you get either major political party to consider something rational like this?

I can't see the Republicans supporting it because they tend to be committed to eliminating Social Security, not making it work better for the people who actually need it.

The Democrats won't support it because it would obviously have an adverse impact on AFGE and other unions.

Is it any wonder that nearly three quarters of Americans disapprove of the job Congress is doing?
http://www.rasmussenreports.com/public_content/politics/mood_of_america/congressional_performance

What will it take before SSA, Congress and other government bodies admit that there are major problems with the way the system currently works and will actually commit to fixing it?

Disability Law :: RE: Workers Comp Offset - Procedure Question

EdJohnson — Thu, 18 Mar 2010 00:40:50 GMT

Author: EdJohnson
Subject: Re: Workers Comp Offset - Procedure Question
Posted: Thu Mar 18, 2010 12:40 am (GMT 0)

Guest888 wrote:

Claimant referred to me by a friend. I did not represent him in his claim for benefits which were awarded but subject to a large Workers Comp offset. Based on the facts he gave me, there is a good chance that the offset should have been eliminated two years ago. He thinks his prior attorney communicated with Social Security and he was told by that attorney that the offset would be eliminated. That never happened and the prior attorney is now out of the picture. I am unable to speak to him or get his file. Claimant is still looking for Notices etc from Social Security but has not provided me with anything so far.

Claimant signed appointment of representative form. My plan is to send this to the District Office and request to see his file. With no disrespect to the folks at the district office, the issue involved here is a little complex and not something they deal with on a daily basis. Once my 1696 is entered and I am able to review/copy the record, is there some special unit that deals with Workers Comp issues that I can contact?

Any help would be appreciated.

8

No special unit exists for WC issues - if the claimant's appeal period is over, the local office is now the primary contact point.

If this is a complex issue, your point of contact in the local office should be the office Title II technical expert. When you contact him/her, I'd suggest having available the beginning/ending dates of all periods of recurring WC payments as well as the amounts of the payments. If there was a joint petition settlement with a lump sum proration, I'd also suggest having a copy of that available so you know the exact terms of the settlement and any lifetime proration language. The local office can pull a query that contains the WC payment information used to compute the actual offset which can be compared to the data you have. If it is incorrect and you can provide proof of the correct rates, they can initiate a correction of the problem.

In the event this truly isn't something the local office can handle, they have access to one or more regional office program specialists to assist local offices with unusual or complex computational or policy issues. If the RO specialist can't resolve the issue, they'll refer it to a WC specialist in Central Office who definitely will be able to resolve it.

Disability Law :: RE: A new way forward - replacing the adjudication model

David Traver — Wed, 17 Mar 2010 23:59:51 GMT

Author: David Traver
Posted: Wed Mar 17, 2010 11:59 pm (GMT 0)

The CFR already has a mediation model built in for disputed VR services. Appeals would be handled the way any State VR appeal is now handled by staff and offices that are already in place. As it is, District Court and State Court litigation is exceedingly rare.

It is especially hard for people who have "grown up" in the adjudication model to see things differently. But consider this. When you have a broken arm, you do not go to a lawyer, you go to a doctor. You do not want litigation, you want medical services. Similarly, when your car is broken, you don't go through an extended litigation process, you go to a car repair shop and get your car fixed.

Similarly, when people are disabled and out of work, they usually don't want a handout, they want to go back to work and health care. I had the pleasure of running an evaluation department that performed vocational evaluations leading to job placement for thousands of people at Goodwill for DVR (a DVR contract with Goodwill) when I worked as a vocational evaluator. Not one case ever went to litigation. Zero.

Consider this: DVR services are designed to be customer oriented and outcome driven. The process includes communication and detailed planning. When the DVR client is a full partner in the process, rather than an adversary, litigation is not the goal for anybody. What would cause a DVR client to not be placed, but not be certified for payment by SSA? Failure to cooperate, unable to be found, turning down jobs, no shows, failure to qualify due to illegal alien status, unavailable for work due to non-disability reasons (such as job training, imprisonment), and dropping out of the system. These are not nuanced concepts. When disputes arise, they are handled by mediation. A remedy of mediation can be to restore the client to DVR services for more training, more placement services, etc.

Contrast that to the goofy adjudication framework at SSA, where what constitutes a "significant number" of jobs is undefined after decades, the DOT is a generation out of date, no data source exists to answer simple hypothetical questions, and DDS office largely fail to follow the most basic of Rulings. SSA is custom-crafted to generate complex and endless litigation of the kind that leaves the Supreme Court wondering whether elevator operator jobs need to really exist and ALJs to pretend there are such things as dowel inspectors. DVR is custom crafted for customer service, rehabilitation, and job placement. The differences could not be more stark.

Here is the DVR review rule at 34 C.F.R. § 361.57. It is the model of clarity and simplicity in comparison to the convoluted and impossibly complex processes and standards of SSA. The plan I propose creates no new bureaucracies. It shifts the focus to the States, and drastically reduces the federal bureaucracy. It's fiscally and politically conservative. (Strange that, coming from me.)

Quote:

§ 361.57 Review of determinations made by designated State unit personnel.

(a) Procedures. The designated State unit must develop and implement procedures to ensure that an applicant or eligible individual who is dissatisfied with any determination made by personnel of the designated State unit that affects the provision of vocational rehabilitation services may request, or, if appropriate, may request through the individual's representative, a timely review of that determination. The procedures must be in accordance with paragraphs (b) through (k) of this section:

(b) General requirements.

(1) Notification. Procedures established by the State unit under this section must provide an applicant or eligible individual or, as appropriate, the individual's representative notice of --

(i) The right to obtain review of State unit determinations that affect the provision of vocational rehabilitation services through an impartial due process hearing under paragraph (e) of this section;

(ii) The right to pursue mediation under paragraph (d) of this section with respect to determinations made by designated State unit personnel that affect the provision of vocational rehabilitation services to an applicant or eligible individual;

(iii) The names and addresses of individuals with whom requests for mediation or due process hearings may be filed;

(iv) The manner in which a mediator or impartial hearing officer may be selected consistent with the requirements of paragraphs (d) and (f) of this section; and

(v) The availability of the client assistance program, established under 34 CFR part 370, to assist the applicant or eligible individual during mediation sessions or impartial due process hearings.

(2) Timing. Notice described in paragraph (b)(1) of this section must be provided in writing --

(i) At the time the individual applies for vocational rehabilitation services under this part;

(ii) At the time the individual is assigned to a category in the State's order of selection, if the State has established an order of selection under § 361.36;

(iii) At the time the IPE is developed; and

(iv) Whenever vocational rehabilitation services for an individual are reduced, suspended, or terminated.

(3) Evidence and representation. Procedures established under this section must --

(i) Provide an applicant or eligible individual or, as appropriate, the individual's representative with an opportunity to submit during mediation sessions or due process hearings evidence and other information that supports the applicant's or eligible individual's position; and

(ii) Allow an applicant or eligible individual to be represented during mediation sessions or due process hearings by counsel or other advocate selected by the applicant or eligible individual.

(4) Impact on provision of services. The State unit may not institute a suspension, reduction, or termination of vocational rehabilitation services being provided to an applicant or eligible individual, including evaluation and assessment services and IPE development, pending a resolution through mediation, pending a decision by a hearing officer or reviewing official, or pending informal resolution under this section unless --

(i) The individual or, in appropriate cases, the individual's representative requests a suspension, reduction, or termination of services; or

(ii) The State agency has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual or the individual's representative.

(5) Ineligibility. Applicants who are found ineligible for vocational rehabilitation services and previously eligible individuals who are determined to be no longer eligible for vocational rehabilitation services pursuant to § 361.43 are permitted to challenge the determinations of ineligibility under the procedures described in this section.

(c) Informal dispute resolution. The State unit may develop an informal process for resolving a request for review without conducting mediation or a formal hearing. A State's informal process must not be used to deny the right of an applicant or eligible individual to a hearing under paragraph (e) of this section or any other right provided under this part, including the right to pursue mediation under paragraph (d) of this section. If informal resolution under this paragraph or mediation under paragraph (d) of this section is not successful in resolving the dispute within the time period established under paragraph (e)(1) of this section, a formal hearing must be conducted within that same time period, unless the parties agree to a specific extension of time.

(d) Mediation.

(1) The State must establish and implement procedures, as required under paragraph (b)(1)(ii) of this section, to allow an applicant or eligible individual and the State unit to resolve disputes involving State unit determinations that affect the provision of vocational rehabilitation services through a mediation process that must be made available, at a minimum, whenever an applicant or eligible individual or, as appropriate, the individual's representative requests an impartial due process hearing under this section.

(2) Mediation procedures established by the State unit under paragraph (d) must ensure that --

(i) Participation in the mediation process is voluntary on the part of the applicant or eligible individual, as appropriate, and on the part of the State unit;

(ii) Use of the mediation process is not used to deny or delay the applicant's or eligible individual's right to pursue resolution of the dispute through an impartial hearing held within the time period specified in paragraph (e)(1) of this section or any other rights provided under this part. At any point during the mediation process, either party or the mediator may elect to terminate the mediation. In the event mediation is terminated, either party may pursue resolution through an impartial hearing;

(iii) The mediation process is conducted by a qualified and impartial mediator, as defined in § 361.5(b)(43), who must be selected from a list of qualified and impartial mediators maintained by the State --

(A) On a random basis;

(B) By agreement between the director of the designated State unit and the applicant or eligible individual or, as appropriate, the individual's representative; or

(C) In accordance with a procedure established in the State for assigning mediators, provided this procedure ensures the neutrality of the mediator assigned; and

(iv) Mediation sessions are scheduled and conducted in a timely manner and are held in a location and manner that is convenient to the parties to the dispute.

(3) Discussions that occur during the mediation process must be kept confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process.

(4) An agreement reached by the parties to the dispute in the mediation process must be described in a written mediation agreement that is developed by the parties with the assistance of the qualified and impartial mediator and signed by both parties. Copies of the agreement must be sent to both parties.

(5) The costs of the mediation process must be paid by the State. The State is not required to pay for any costs related to the representation of an applicant or eligible individual authorized under paragraph (b)(3)(ii) of this section.

(e) Impartial due process hearings. The State unit must establish and implement formal review procedures, as required under paragraph (b)(1)(i) of this section, that provide that-

(1) A hearing conducted by an impartial hearing officer, selected in accordance with paragraph (f) of this section, must be held within 60 days of an applicant's or eligible individual's request for review of a determination made by personnel of the State unit that affects the provision of vocational rehabilitation services to the individual, unless informal resolution or a mediation agreement is achieved prior to the 60th day or the parties agree to a specific extension of time;

(2) In addition to the rights described in paragraph (b)(3) of this section, the applicant or eligible individual or, if appropriate, the individual's representative must be given the opportunity to present witnesses during the hearing and to examine all witnesses and other relevant sources of information and evidence;

(3) The impartial hearing officer must --

(i) Make a decision based on the provisions of the approved State plan, the Act, Federal vocational rehabilitation regulations, and State regulations and policies that are consistent with Federal requirements; and

(ii) Provide to the individual or, if appropriate, the individual's representative and to the State unit a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing; and

(4) The hearing officer's decision is final, except that a party may request an impartial review under paragraph (g)(1) of this section if the State has established procedures for that review, and a party involved in a hearing may bring a civil action under paragraph (i) of this section.

(f) Selection of impartial hearing officers. The impartial hearing officer for a particular case must be selected --

(1) From a list of qualified impartial hearing officers maintained by the State unit. Impartial hearing officers included on the list must be --

(i) Identified by the State unit if the State unit is an independent commission; or

(ii) Jointly identified by the State unit and the State Rehabilitation Council if the State has a Council; and

(2)(i) On a random basis; or

(ii) By agreement between the director of the designated State unit and the applicant or eligible individual or, as appropriate, the individual's representative.

(g) Administrative review of hearing officer's decision. The State may establish procedures to enable a party who is dissatisfied with the decision of the impartial hearing officer to seek an impartial administrative review of the decision under paragraph (e)(3) of this section in accordance with the following requirements:

(1) A request for administrative review under paragraph (g) of this section must be made within 20 days of the mailing of the impartial hearing officer's decision.

(2) Administrative review of the hearing officer's decision must be conducted by --

(i) The chief official of the designated State agency if the State has established both a designated State agency and a designated State unit under § 361.13(b); or

(ii) An official from the office of the Governor.

(3) The reviewing official described in paragraph (g)(2)(i) of this section --

(i) Provides both parties with an opportunity to submit additional evidence and information relevant to a final decision concerning the matter under review;

(ii) May not overturn or modify the hearing officer's decision, or any part of that decision, that supports the position of the applicant or eligible individual unless the reviewing official concludes, based on clear and convincing evidence, that the decision of the impartial hearing officer is clearly erroneous on the basis of being contrary to the approved State plan, the Act, Federal vocational rehabilitation regulations, or State regulations and policies that are consistent with Federal requirements;

(iii) Makes an independent, final decision following a review of the entire hearing record and provides the decision in writing, including a full report of the findings and the statutory, regulatory, or policy grounds for the decision, to the applicant or eligible individual or, as appropriate, the individual's representative and to the State unit within 30 days of the request for administrative review under paragraph (g)(1) of this section; and

(iv) May not delegate the responsibility for making the final decision under paragraph (g) of this section to any officer or employee of the designated State unit.

(4) The reviewing official's decision under paragraph (g) of this section is final unless either party brings a civil action under paragraph (i) of this section.

(h) Implementation of final decisions. If a party brings a civil action under paragraph (h) of this section to challenge the final decision of a hearing officer under paragraph (e) of this section or to challenge the final decision of a State reviewing official under paragraph (g) of this section, the final decision of the hearing officer or State reviewing official must be implemented pending review by the court.

(i) Civil action.

(1) Any party who disagrees with the findings and decision of an impartial hearing officer under paragraph (e) of this section in a State that has not established administrative review procedures under paragraph (g) of this section and any party who disagrees with the findings and decision under paragraph (g)(3)(iii) of this section have a right to bring a civil action with respect to the matter in dispute. The action may be brought in any State court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy.

(2) In any action brought under paragraph (i) of this section, the court --

(i) Receives the records related to the impartial due process hearing and the records related to the administrative review process, if applicable;

(ii) Hears additional evidence at the request of a party; and

(iii) Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.

(j) State fair hearing board. A fair hearing board as defined in § 361.5(b)(22) is authorized to carry out the responsibilities of the impartial hearing officer under paragraph (e) of this section in accordance with the following criteria:

(1) The fair hearing board may conduct due process hearings either collectively or by assigning responsibility for conducting the hearing to one or more members of the fair hearing board.

(2) The final decision issued by the fair hearing board following a hearing under paragraph (j)(1) of this section must be made collectively by, or by a majority vote of, the fair hearing board.

(3) The provisions of paragraphs (b)(1), (2), and (3) of this section that relate to due process hearings and of paragraphs (e), (f), (g), and (h) of this section do not apply to fair hearing boards under this paragraph (j).

(k) Data collection.

(1) The director of the designated State unit must collect and submit, at a minimum, the following data to the Commissioner of the Rehabilitation Services Administration (RSA) for inclusion each year in the annual report to Congress under section 13 of the Act:

(i) A copy of the standards used by State reviewing officials for reviewing decisions made by impartial hearing officers under this section.

(ii) The number of mediations held, including the number of mediation agreements reached.

(iii) The number of hearings and reviews sought from impartial hearing officers and State reviewing officials, including the type of complaints and the issues involved.

(iv) The number of hearing officer decisions that were not reviewed by administrative reviewing officials.

(v) The number of hearing decisions that were reviewed by State reviewing officials and, based on these reviews, the number of hearing decisions that were --

(A) Sustained in favor of an applicant or eligible individual;

(B) Sustained in favor of the designated State unit;

(C) Reversed in whole or in part in favor of the applicant or eligible individual; and

(D) Reversed in whole or in part in favor of the State unit.

(2) The State unit director also must collect and submit to the Commissioner of RSA copies of all final decisions issued by impartial hearing officers under paragraph (e) of this section and by State review officials under paragraph (g) of this section.

(3) The confidentiality of records of applicants and eligible individuals maintained by the State unit may not preclude the access of the RSA Commissioner to those records for the purposes described in this section.

(Approved by the Office of Management and Budget under control number 1820-0500)

34 CFR 361.57
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: RE: A new way forward - replacing the adjudication model

Wed, 17 Mar 2010 23:31:18 GMT

Author: Guest888
Subject: Any appeal rights?
Posted: Wed Mar 17, 2010 11:31 pm (GMT 0)

Quote:

Individual DVR Counselors would certify cleints who were unplaceable due to disability. It would be cosigned by the DVR Office manager and referred for payment. They know who can and cannot work, they have been assiging case codes and handling caseloads for decades.

Suppose someone who is deemed placeable believes they are unplaceable? Is there any appeal under your scheme or is the DVR Office Manager the final word?

Would there be a right to a hearing before a DVR ALJ, then a right to appeal to the DVR Appeals Council and then finally to federal court?

Does your scheme simply replace lawyers and lawyer-ALJ's in the administrative system with DVR employees?

8

Disability Law :: RE: Significant # of jobs

David Traver — Wed, 17 Mar 2010 22:52:19 GMT

Author: David Traver
Posted: Wed Mar 17, 2010 10:52 pm (GMT 0)

I split this topic to give it a new title, since the focus has changed a little. The posts moved to:

http://ssaconnect.com/component/option,com_forum/Itemid,0/page,viewtopic/t,8064/#27314
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: RE: A new way forward - replacing the adjudication model

David Traver — Wed, 17 Mar 2010 22:01:32 GMT

Author: David Traver
Posted: Wed Mar 17, 2010 10:01 pm (GMT 0)

Individual DVR Counselors would certify clients who were unplaceable due to disability. It would be cosigned by the DVR Office supervisor and referred for payment. They know who can and cannot work, they have been assigning case codes and handling caseloads for decades.

Here is the definition of a case closing based upon successful return to work from the Code of Federal Regulations:

Quote:

§ 361.56 Requirements for closing the record of services of an individual who has achieved an employment outcome.

The record of services of an individual who has achieved an employment outcome may be closed only if all of the following requirements are met:

(a) Employment outcome achieved. The individual has achieved the employment outcome that is described in the individual's IPE in accordance with § 361.46(a)(1) and is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

(b) Employment outcome maintained. The individual has maintained the employment outcome for an appropriate period of time, but not less than 90 days, necessary to ensure the stability of the employment outcome, and the individual no longer needs vocational rehabilitation services.

(c) Satisfactory outcome. At the end of the appropriate period under paragraph (b) of this section, the individual and the qualified rehabilitation counselor employed by the designated State unit consider the employment outcome to be satisfactory and agree that the individual is performing well in the employment.

(d) Post-employment services. The individual is informed through appropriate modes of communication of the availability of post-employment services.

34 C.F.R. § 361.56

It's easy to see that a short section of code defining a person with a disability could be added to 34 C.F.R. It would address those who, considering age, education, and work experience, could not work as defined by 34 C.F.R. § 361.56 (which defines a successful job placement. If a person cannot get a successful job placement and case closure due to disability, certification for disability payments would follow.)

I could write the required proposed code changes in an hour. It would take about another hour to rewrite proposed changes to the Social Security Act. I'll do it for free. If you want a full bill for introduction to Congress amending the Act, I'll have to charge for a day or so of research and writing time. I don't think it would cost the government more than $5,000 for my time to get it set up.

I suppose the changes would make me a darling in the VR circles since it would flood that sector with professional jobs, and revitalize the graduate programs for vocational counselors. Attorneys would not like it too much. But no worries, there are always jobs someplace for good attorneys. We are all good attorneys, right?

By the way, it would also eliminate thousands (tens of thousands?) of other SSA and State jobs. Consider the folks at local SSA offices all around the USA who would never have to consider another disability application or appeal. Consider too the simplification of the payment process, the elimination of training, no more attorney fees to withhold, federal court practice would evaporate, no need for regional counsel offices to handle civil actions regarding disability, Buildings would be sold, leases would end. The Congressional Budget Office would have a great time calculating the savings. All of this would help reduce the budged deficit. That's a good thing.

The best part is what happens to the disabled. No more would they wait years as their claims meandered through an arbitrary disability adjudication process. Many would return to work and start paying taxes again.

I know that State VR programs are hurting now due to lack of funding. But with the massive infusion of money that this would create, the VR offices around the USA would be doing what they should, rather than languishing as they are now.
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: RE: Workers Comp Offset - Procedure Question

Wed, 17 Mar 2010 21:25:46 GMT

Author:
Posted: Wed Mar 17, 2010 09:25 pm (GMT 0)

I believe worker's comp offsets are calculated in the Baltimore office. Its the place that sends out the award notices. Give them a call.

Disability Law :: Workers Comp Offset - Procedure Question

Wed, 17 Mar 2010 21:11:31 GMT

Author: Guest888
Subject: Workers Comp Offset - Procedure Question
Posted: Wed Mar 17, 2010 09:11 pm (GMT 0)

Claimant referred to me by a friend. I did not represent him in his claim for benefits which were awarded but subject to a large Workers Comp offset. Based on the facts he gave me, there is a good chance that the offset should have been eliminated two years ago. He thinks his prior attorney communicated with Social Security and he was told by that attorney that the offset would be eliminated. That never happened and the prior attorney is now out of the picture. I am unable to speak to him or get his file. Claimant is still looking for Notices etc from Social Security but has not provided me with anything so far.

Claimant signed appointment of representative form. My plan is to send this to the District Office and request to see his file. With no disrespect to the folks at the district office, the issue involved here is a little complex and not something they deal with on a daily basis. Once my 1696 is entered and I am able to review/copy the record, is there some special unit that deals with Workers Comp issues that I can contact?

Any help would be appreciated.

8

Disability Law :: RE: A new way forward - replacing the adjudication model

Wed, 17 Mar 2010 20:59:42 GMT

Author: Question
Posted: Wed Mar 17, 2010 08:59 pm (GMT 0)

I like your proposal especially the focus on rehab and reasonable acomodation. Additionally, many of our clients, with basic health care, could continue to work at least at the SGA level.

Quote:

Pay disability benefits to those who are certified by the States as unable to work.

My question is: Who will do this certification and what standard will they use, keeping in mind that you are eliminating the adjudicatory model?

Quote:

Pay for all of this by completely eliminating ODAR and the entire State DDS system.

Disability Law :: RE: A new way forward - replacing the adjudication model

David Traver — Wed, 17 Mar 2010 20:46:33 GMT

Author: David Traver
Posted: Wed Mar 17, 2010 08:46 pm (GMT 0)

Eliminate the focus on adjudication, remove the insurance model, and replace it with a rehabilitation and job placement model. Fully fund State VR offices, have all claims referred to actual rehabilitation counselors at State VR offices. Place in jobs (with reasonable accommodations) those who can work. Pay disability benefits to those who are certified by the States as unable to work due to disability.

Have universal health care (or at least cover 31,000,000 uninsured) and disconnect the payment of health care from the disability system.

Pay for all of this by completely eliminating ODAR and the entire State DDS system.

Run a pilot program in six States in 2012 to start the change over. Change over the entire system by 2016.

That should pretty well do it.

Questions?
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: A new way forward - replacing the adjudication model

Wed, 17 Mar 2010 19:28:24 GMT

Author: Guest888
Subject: A new way forward - replacing the adjudication model
Posted: Wed Mar 17, 2010 07:28 pm (GMT 0)

Quote:

The medical-vocational process at SSA has never been valid or reliable. Ever.

How would you change the process to make it valid and reliable?

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Administrator's note. This topic has been split from
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Disability Law :: Havill case - VE testimony - helpful case

David Traver — Wed, 17 Mar 2010 18:39:35 GMT

Author: David Traver
Subject: Havill case - VE testimony - helpful case
Posted: Wed Mar 17, 2010 06:39 pm (GMT 0)

Attorney Thomas Krause had a nice win recently in the Northern District of Iowa.

You may wish to read it with care if you have ever wondered how to deal with the usual nonsensical and unsupported VE testimony that is the mainstay of the Commissioner's medical-vocational framework.

I have posted it here: http://ssaconnect.com/tfiles/Havill.pdf It is also available on Lexis at:
Havill v. Astrue, 2010 U.S. Dist. LEXIS 18939 (N.D. Iowa Mar. 3, 2010)

Here are some of the issues addressed. You may wish to read the case to see how they were resolved and why the District Court paid the case.

Quote:

"Havill continues to argue that the ALJ erred in relying on the VE’s testimony. He
argues that “[w]hen there is an apparent unresolved conflict between vocational expert
testimony and the [Dictionary of Occupational Titles], the ALJ must elicit a reasonable
explanation for the conflict before relying on the vocational expert testimony to support
a determination or decision that the individual is or is not disabled[, and] [t]he ALJ must
explain in his decision how he resolved the conflict.” Doc. No. 7, p. 8 (citing SSR 00-4p;
Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 979 (8th Cir4. 2003); Closson v. Astrue,
No. C06-4095-MWB, 2008 WL 504013 (N.D. Iowa Feb. 21, 2008); SSR 96-8p).

Havill argues further that although the Eighth Circuit Court of Appeals has provided
little guidance on what evidence is required to support a vocational expert’s testimony, the
Seventh Circuit Court of Appeals has. He relies on Donahue v. Barnhart, 279 F.3d 441,
446-47 (7th Cir. 2002), to support his argument that in the present case, the ALJ failed to
make the proper inquiry to determine whether the VE’s conclusions were reliable. Doc.
No. 7. In Donahue, the court held that when the basis of a VE’s conclusions is questioned
at the hearing where the VE testifies, “then the ALJ should make an inquiry (similar
though not necessarily identical to that of Rule 702) to find out whether the purported
expert’s conclusions are reliable.” Donahue, 279 F.3d at 446. The court cited Social
Security Ruling 00-4p, which requires an ALJ to explain how any conflict between the
VE’s testimony and the Dictionary of Occupational Titles has been resolved. Id."

. . .

"In the present case, Havill does not expressly argue that the DOT is controlling.
Instead, he argues the ALJ erred in failing to reconcile the fact that the VE’s departure
from the DOT was largely unsupported. The VE testified that her estimated numbers of
jobs available to someone with Havill’s specific limitations were based on her experience
in placing individuals in jobs, job openings she sees in the newspaper, and two or three
phone calls with potential employers over a period of five years. The court finds the VE
failed to support her opinions with adequate data or reasoning. See McKinnie v. Barnhart,
368 F.3d 907, 910-11 (7th Cir. 2004) (“We have held that any data or reasoning
underlying the VE’s bottom line must be ‘available on demand’ so that the claimant may
test the reliability of the VE’s testimony.”) (quoting Donahue, 279 F.3d at 446)."

Attorney Krause can be contacted at:

Thomas A. Krause
Attorney at Law
Thomas A. Krause, P.C.
4211 Grand Avenue, Suite 1
Des Moines, Iowa 50312
Phone: (515) 897-4117
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: RE: Significant # of jobs

David Traver — Wed, 17 Mar 2010 18:24:00 GMT

Author: David Traver
Posted: Wed Mar 17, 2010 06:24 pm (GMT 0)

There is absolutely no way whatsoever to justify it. It's a legal fiction which makes the process nothing more than a coin flip.

See also: http://ssaconnect.com/content/view/7/175/

The medical-vocational process at SSA has never been valid or reliable. Ever.
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: Significant # of jobs

Wed, 17 Mar 2010 18:19:56 GMT

Author:
Subject: Significant # of jobs
Posted: Wed Mar 17, 2010 06:19 pm (GMT 0)

Received ALJ decision in which 500 jobs locally was found to be a significant number and claim was denied. Our case law is such that such a decision is justified as there are no bright lines for what is and what is not a significant number of jobs.

Received another decision from a different ALJ is which 1000 jobs locally was found to NOT be a significant number and claim was approved.

From a pure fairness standpoint, how do we explain these outcomes?

Disability Law :: RE: Deceased Claimant

Wed, 17 Mar 2010 16:29:21 GMT

Author:
Posted: Wed Mar 17, 2010 04:29 pm (GMT 0)

Combo claim
45 yrs old
Recon adjudication pending
no spouse, no minor child

Off-topic :: Duct tape, it can fix anything?

David Traver — Wed, 17 Mar 2010 15:39:35 GMT

Author: David Traver
Subject: Duct tape, it can fix anything?
Posted: Wed Mar 17, 2010 03:39 pm (GMT 0)

http://www.fearoflanding.com/accidents/faa-approved/
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: The health care vote, who's in and who's out

David Traver — Wed, 17 Mar 2010 15:03:02 GMT

Author: David Traver
Subject: The health care vote, who's in and who's out
Posted: Wed Mar 17, 2010 03:03 pm (GMT 0)

Dennis Kucinich announced this morning that he will vote for health care reform. That's great news.

What's the status of the bill and what's happening with the other 37 remaining House Dems who voted against it last time? This chart will help sort it out. (It was 39. Remember, Rep. Eric Massa voted no, but he crashed and burned and is no longer in Congress. With Kucinich's switch that leaves 37)

Quote:

With four vacancies, Nancy Pelosi needs to round up 216 votes for a majority instead of 218. If the remaining Dems voted the same as they did Nov. 7, the vote would be 216-215.

Who's in play: House health-care vote washingtonpost.com http://www.washingtonpost.com/wp-srv/special/politics/votes/house/finalhealthcare/?hpid=topnews (last visited Wed Mar 17 2010 10:01:10 GMT-0500 (CST))
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: RE: Slaughter Rule

David Traver — Wed, 17 Mar 2010 12:45:58 GMT

Author: David Traver
Posted: Wed Mar 17, 2010 12:45 pm (GMT 0)

That's a process issue, which is exactly the only focus the opponents of the bill want you to have. I'm amazed that you did not complain when Republican Speakers of the House Newt Gingrich. used this process over 100 times, and Dennis Hastert used it over 100 times. Perhaps the Republicans and Fox News did not bring it to America's attention then as a "Constitutional problem" that was "unfair" and "hiding votes." Thus, the 200 plus "stomach turning" Republican events escaped your notice.

Looking at substance, what do you think about bringing health care for 31,000,000 people who do not have it, eliminating the prior condition rule, preventing insurance industry gouging, etc. Those are the real issues that affect human lives, not procedure.

Regarding procedure, you have been duped. See:

Quote:

WASHINGTON — When Congress battles over thorny bills, parliamentarian Alan Frumin has been known to sleep in his office – on call 24/7 as the Senate's Solomon, divining the answers.

Frumin's ability to review long-standing rules and centuries of precedent to resolve Senate questions makes the mustachioed parliamentarian something of a Washington rock star these days. As much as any elected official, Frumin, 63, holds decisive power over whether the Democrats' rewrite of the health care system survives or sinks.

"You're our new celebrity," Sen. Bill Nelson, D-Fla., recently teased the bespectacled Frumin on the Senate floor.

It's fame in true Washington fashion as Frumin, an unelected Senate staffer who won't do interviews, wields outsized influence over the fate of President Barack Obama's signature domestic issue, the health care overhaul. That's every senator's dream, without the fundraising and vote-seeking chores that mark their daily elective lives.

But the parliamentarian's job can sound like a nightmare, too, especially with the stakes as high as they are on health care.

"I foresee a very miserable period for him," said Frumin's predecessor, Bob Dove, who was fired in 2001 when Republicans, then in the majority, disliked his recommendations on a budgetary matter.

Several Republicans launched a pre-emptive effort to discredit Frumin's objectivity, a charge that Senate officials said upset him. But Frumin maintained his public silence, and the criticism was short-lived. Now, Senate Republican leaders at worst say they will have to trust him to be fair; others are more complimentary.

"People know he's fair," said Sen. Judd Gregg of New Hampshire, the ranking Republican on the Budget Committee, who has known Frumin since being elected to the Senate in 1992.

Alan Frumin, Senate Parliamentarian, Is A Health Care Rock Star http://www.huffingtonpost.com/2010/03/17/alan-frumin-senate-parliamentarian_n_502036.html (last visited Wed Mar 17 2010 07:54:35 GMT-0500 (CST))
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: RE: Slaughter Rule

Olan Barnes — Wed, 17 Mar 2010 02:31:35 GMT

Author: Olan Barnes
Posted: Wed Mar 17, 2010 02:31 am (GMT 0)

I will bow out for now and let the echo effect continue.

I will admit that passing landmark legislation without a vote turns my stomach and makes me red in the face regardless of how I feel about the merits of the bill and I do bet this will linger in the minds of Americans and and create a bad taste and in the courts for a long time.

Off-topic :: RE: Slaughter Rule

David Traver — Wed, 17 Mar 2010 01:26:00 GMT

Author: David Traver
Subject: Re: Stand up and be counted
Posted: Wed Mar 17, 2010 01:26 am (GMT 0)

Guest888 wrote:

I just think we need members of Congress to stand up and be counted on such an important issue.

We know exactly how they are voting. Nobody is hiding a vote. This is just a way to get a bill passed. It's been used in many similar situations.

If you don't like it, vote differently next time you cast your secret ballot at the polls.
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: RE: Slaughter Rule

deltajudge — Wed, 17 Mar 2010 00:52:11 GMT

Author: deltajudge
Posted: Wed Mar 17, 2010 12:52 am (GMT 0)

8) Keep wishing/

Off-topic :: Twilight, vampires, starting the last book tonight.

David Traver — Wed, 17 Mar 2010 00:25:05 GMT

Author: David Traver
Subject: Twilight, vampires, starting the last book tonight.
Posted: Wed Mar 17, 2010 12:25 am (GMT 0)

Today, my beloved Alice Baker Memorial library kindly produced a copy of Stephanie Meyer's book, Breaking Dawn. So, after I put the kids to bed I'll be finding out what happens to Bella and Edward.

Vampires. I've met a few of the emotional kind (now they call them borderline personalities and sociopaths.) I also knew several women who could turn on outrageous beauty as easy as turning on headlights. But I've never met the type that drank blood. If you like to follow the exploits of the imaginary blood suckers, this chart should be interesting. For the other kinds of vampires, I recommend bars in Chicago.

http://en.wikipedia.org/wiki/Comparison_of_vampire_traits

_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm