Chat Transcript from FAME 2001 Conference: Attorneys Scott Davis and Mark Debofsky

Today’s chat at FAME 2001, is with two lawyers with different specialties. Both lawyers have extensive experience with CFS and FM cases.

Scott E. Davis is a Social Security Disability and Long-Term Disability Benefits attorney. Mr. Davis specializes in and has extensive experience in representing individuals unable to work due to FMS and/or CFS. Mr. Davis is well known to regular visitors of as a frequent contributor on disability issues.

Mark D. DeBofsky is a Civil and Appellate Litigation attorney who specializes in Employment and Employee Benefits Litigation, Insurance Claims and Coverage, and Social Security Law and Practice.

As a reminder, all discussion that occurs here today is for informational purposes only. No statement made before, during or after this chat shall be construed as legal establishment of a professional/client relationship. No prescriptions, diagnoses, nor prognoses shall be presented here today, merely advice. If you have further questions about any of the topics discussed here today, please consult your doctor/lawyer/therapist. Pro Health Inc., including all of its clients, speakers, professionals and employees, shall not be held liable for the misuse of the information presented here today.

Please welcome Scott and Mark to the chat room. Their chat room name is MarkScott:

Question directed to Mark and Scott:

reddragonlady: I have a lawyer and she has not scheduled me a hearing. It has been months. Can I dismiss her, get the records, and get a new lawyer? My LTD (long term disability) is on hold and now I have no income, and all she says is, “oh it has been a long time for you”.

MarkDScottD: RedDragonLady, the delay is a result of a Social Security effort to review all of its procedures. Delays such as what you are describing are nationwide. Regardless, you should check with your attorney and see whether the attorney has had any recent contact with the local office of hearings and appeals.

Question directed to Mark and Scott:

otto: What would you recommend to do if LTD is trying to use depressants as your first diagnosis, than the pain and fatigue?

MarkDScottD: Otto, the problem you raise is due to a limitation in most group long term disability insurance policies that limit the duration of payment of benefits for mental disabilities to a maximum of two years. The way to get around the limitation is to introduce as much evidence as possible and establish the physical origin of your condition. In addition, neuropsychological testing may be helpful in identifying an organic cognitive impairment.

Question directed to Mark and Scott:

dee2: What are the usual fees to hire an attorney to fight for SSI?

MarkDScottD: Dee2, almost every lawyer uses a fee agreement providing for a contingency fee of 25% of the past-due benefits awarded up to a maximum fee of $4,000.

Question directed to Mark and Scott:

reddragonlady: Is your SS put on hold when you file a claim so that it doesn’t affect your quarters of earning?

MarkDScottD: RedDragonLady, absolutely, an award of disability also freezes your earnings. Be aware though, that to establish sufficient quarters of coverage for Social Security, you generally have to work for five years, or 20 quarters of coverage.

Question directed to Mark and Scott:

Sanzi: On average, how long might it take from the day one files the forms?

MarkDScottD: Sanzi, minimum of 90 days from initial Social Security filing to initial decision. Usually (in Illinois) 60-90 days for a reconsideration determination, and as much as appxoimately one year thereafter to get a hearing date.

Question directed to Mark and Scott:

otto: How can you get a copy of the report of IME (insurance medical examiner) that Long Term Disability insurance company sends you to?

MarkDScottD: Otto, there are two ways to obtain the insurance company examiner’s report. Usually, the report will be provided upon request to your treating doctor. If the long term disability insurance is group coverage provided through your employer, if benefits are denied, you are entitled to a copy of the report as part of the appeal you will go through to challenge the denial.

Question directed to Mark and Scott:

tweety: How soon after discontinuing work should I apply for Social Security?

MarkDScottD: Tweety, we concur in our advice that you wait for six months before applying; however, keep in mind that Social Security disability benefits are not payable for the first five months of disability. Also, you need to have a condition that will disable you for a minimum of 12 months to qualify for benefits (or have a terminal condition). In addition, benefits may be paid retroactively for one year, so there is no penalty in delaying your application.

Question directed to Mark and Scott:

Sanzi: To what extent are earnings frozen?

MarkDScottD: Sanzi, although you do not receive additional earnings that are posted to your earnings record, Social Security pays disability benefits as if you are already age 65; thus, you receive your full benefit while on disability, and when you turn 65, you will receive your full retirement benefit at the same rate.

Question directed to Mark and Scott:

Freda: After you receive SSD can you ever go back to work?

MarkDScottD: Freda, yes you can return to work; and both Social Security and private disability insurers encourage a return to work.

Question directed to Mark and Scott:

benjismom: What is the best way to start a claim for disability? Should you try first on your own or go with an attorney for the first time?

MarkDScottD: Benjismom, to begin a Social Security application you should call your local Social Security office or 800-772-1213. We previously suggested getting an attorney involved in the process early.

Question directed to Mark and Scott:

Freda: I just received a message from SSD asking who my shrink would be for the depression. I don’t have one. The Rhemy (Rheumatologist) is prescribing for depression -is that a bad thing?

MarkDScottD: Freda, if your rheumatologist is diagnosing depression, you should ask that physician for a referral to a mental health care professional.

Question directed to Mark and Scott:

deb: Is there anyway to speed up the application process when waiting to be approved for SSDI?

MarkDScottD: Deb, there is no effective way of speeding up the application process.

Question directed to Mark and Scott:

Shells: Scott, so does that mean if there is a proposed minimum wage increase, that will highly affect our SSD pay?

MarkDScottD: Shells, there is no relation between minimum wage and SSD. SSD considers your earnings.

Question directed to Mark and Scott:

tweety: Can you tell me if fibro., diabetes, and sarcoidoisis would be classified as disabling 12 month conditions?

MarkDScottD: Tweety, keep in mind that what is important both to Social Security and private disability insurers is not the diagnosis, but how the condition affects your ability to function. All of the conditions you named can be disabling if severe enough.

Question directed to Mark and Scott:

benjismom: I have a phone interview next week. Should I get an attorney and have him/her handle it from there?

MarkDScottD: Benjismom, there is nothing significant about the phone interview that you need an attorney to handle. The purpose is merely to gather information. You may wish to contact the attorney soon thereafter, however.

Question directed to Mark and Scott:

Freda: Will Medicaid pay for a physician for mental health care?

MarkDScottD: Freda, Medicaid is very state specific as far as benefits provided. You need to check with your local government officials.

Question directed to Mark and Scott:

deb: Does it help to get a congressman to look in on your case? I’ve heard you should contact them, but really, what can they do?

MarkDScottD: Deb, having a Congressman involved can be beneficial in speeding things up and dealing with issues like a delayed payment of a misplaced check. A Congressman cannot tell Social Security how to decide a case, however.

Question directed to Mark and Scott:

benjismom: I have no insurance and mounting medical bills over $50K right now and no end in sight. I have been denied medical coverage from the state of AZ because I own a home. Is there anything I can do?

MarkDScottD: Benjismom, check with the AZ Dept. of Economic Security and AHCCCS to see what you may be able to do to qualify for benefits.

Question directed to Mark and Scott:

otto: If on LTD insurance can you make any earnings?

MarkDScottD: Otto, the question about earnings while on LTD is very policy-specific. If you have partial disability or residual disability coverage, you may be able to have earnings (from working) and still draw reduced benefits. Earnings that are not from working, however, are irrelevant; i.e., stock dividends, interest, etc. You need to check your policy and also consult with an attorney if you do not understand the policy provisions.

Question directed to Mark and Scott:

deb: What is the max I would have to pay an attorney to represent me?

MarkDScottD: Deb, if your question relates to Social Security, most attorneys will agree to place a $4,000 ceiling on fees. For long term disability insurance, there is no way to answer the question without having specifics.

Question directed to Mark and Scott:

sunny: I need an attorney to help me with both SS and LTD. Can you recommend someone with experience getting claims from UNUM in the St. Cloud, MN area?

MarkDScottD: Sunny, yes. Matthew Newman–612-339-4295. Feel free to mention Mark DeBofsky as the referring source.

Question directed to Mark and Scott:

sunny: Is he in St. Cloud?

MarkDScottD: Sunny, he’s in MSP area.

Question directed to Mark and Scott:

Sanzi: Referral for Baltimore, MD?

MarkDScottD: Sorry, I don’t have any names in mind right now.

Question directed to Mark and Scott:

deb: If we seek an attorney, do we need to get one that concentrates only on disability?

MarkDScottD: Deb, it is a good idea to hire an attorney who has experience in disability issues. If you are looking for an attorney for an LTD claim, make sure the attorney has experience with ERISA law.

Question directed to Pro Health:

Sanzi: Pro Health, when will the transcript be posted?

prohealth911: The chat transcripts will be posted on in approximately 7 business days.

Question directed to Mark and Scott:

Shells: Scott, can’t people pretty much use a Soc. Sec. Dis. attorney in any state, no matter where they live?

MarkDScottD: Social Security is federal law, not state specific; however, you should look for an experienced Social Security practitioner.

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