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Knoxville Personal Injury Law Blog

Social Security Disability Insurance (SSDI) - Waiting for a Hearing?

I used to write on and update about the average wait times for hearings in Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claims on a quarterly basis.  However, because the trend has continued to be on increasing processing times and decreasing approval rates, I have chosen to update more frequently.  Below you will find information on the processing times and approval rates for Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claims for East Tennessee and Eastern Kentucky. Please remember that these statistics are only for claims pending at the hearing level or Office of Disability Adjudication and Review. The claims at a hearing office have already been through the Application and Reconsideration steps (typically 6-12 months of waiting already).

Nationally:

•· Average processing time: 502 days (up 53 days since July!)

•· 43% cases approved (down from 44% in July)

Knoxville, Tennessee:

•· Average processing time: 555 days (up from 540 in April)

•· 46% cases approved

Chattanooga, Tennessee:

•· Average processing time: 533 (up from 521 days in May)

•· 56% cases approved (down from 57% in July)

Kingsport, Tennessee:

•· Average processing time: 360 days (up from 339 in April)

•· 55% cases approved (down from 55% in July)

Nashville, Tennessee

•· Average processing time: 502 days

•· 46% cases approved

Franklin, Tennessee

•· Average processing time: 478 days (up from 467 days in May)

•· 51% cases approved (down from 52% in July)

Middlesboro, Kentucky

•· Average processing time: 464 days (up 39 from July!)

•· 44% cases approved

The hearing office staff work hard and understand the frustrations of the claimants and representatives, but they are hamstrung by the workload and budgetary restraints.

If you want to increase your liklihood of success at the hearing, make sure you know your attorney.

8 fatal car accidents -- why have traffic authorities not acted?

A fatal accident on Interstate 440 on Aug. 19 has some asking questions about the lack of action by Tennessee traffic authorities because this incident is apparently one of many over the past four years. According to a recent report, the individual who recently lost his life is said to be the eighth victim killed on this stretch of road. The family members of at least one of the eight victims wants to know why the relevant authorities have not placed barriers on this dangerous section of the interstate to help prevent further car accidents.

The most recent incident occurred when the driver of an SUV collided head-on with the victim's van. It is believed that the victim -- a 49-year-old man -- died at the scene, and his six passengers -- all children -- suffered unspecified injuries. As of the latest report, the driver deemed responsible for the wreck has not been charged for the incident.

Social Security Disability Insurance (SSDI) - Funding Solution?

A worry for those qualified to receive Social Security Disability Insurance (SSDI) is whether the necessary funds will be available to pay their benefits?  After waiting for years to go through the process, the thought must turn to whether the program will be solvent despite the worker paying into the system for years.  Representative Xavier Bacerra of California recently introduced a bill in Congress that would combine the Social Security Administration's Old Age and Survivors Insurance Trust Fund with Disability Insurance Trust Fund, which pays benefits for those receiving Social Security Disability Insurance (SSDI). 

The bill would prevent Social Security Disability Insurance (SSDI) recipients from facing a 19% benefit cut in late 2016.  Current estimates predict that if combined full benefits could be paid through 2034.  Merging the trust funds would eliminate the need for Congress to determine how to allocate tax revenues between the two funds.

This is a feasible and common sense "first step" approach to working on the sustainability for these very important benefits that many workers rely upon and have paid for during their working lives.  I would urge anyone and everyone to contact their representative and senators to voice support for this bill.

Car accidents due to dangerous roadways: a possible claim?

While driver error or negligence is often thought to be the cause of vehicle accidents, people seldom consider that the accident may have been caused by a dangerous roadway. Roadways can be dangerous because of a flaw in the design or they can become dangerous when the responsible agencies in Tennessee do not perform the required maintenance. Sometimes car accidents can be a result of both driver negligence and dangerous road conditions.

Roadways can be dangerous when the correct warning signs are not in place or when the design of an intersection is flawed. Proving liability may be tricky as three aspects must be proven: First, the agency that designed the roadway was made aware of the flaw in the design. Second, the agency was made aware of any dangerous conditions, and third, the agency did not act to rectify the problems.

Social Security Disability Insurance (SSDI) - Appeals Council

The statistics bear out that someone trying to get Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits are most likely to be successful at a hearing before an administrative law judge (ALJ). Check out my recent post regarding the hearing office wait times and approval percentages. However, as noted over 50% of Social Security Disability Insurance (SSDI) or SSI claimants lose at a hearing. The claimant must choose whether to appeal to the Appeals Council.

A claimant has sixty days to appeal an unfavorable ruling to the Appeals Council. It typically takes 12-24 months to get a decision form the Appeals Council. The Appeals Council first decides whether it will even hear an appeal. If it grants a review, it has the power to affirm, reverse in whole or part, and it can remand for a new hearing.

The claimant may submit new evidence that relates to the period of disability prior to the ALJ's decision. The scope of review at the Appeals Council is limited. The Appeals Council will review a case if:

  1. there is an abuse of discretion by the ALJ;
  2. there is error of law;
  3. the action finding or conclusions of the ALJ are not supported by the substantial weight of the evidence; or
  4. there is a broad policy or procedural issue that may affect the general public interest.

Common ALJ errors often sighted on appeals to the Appeals Council are:

  • ALJ misconduct or bias;
  • unfair hearing including failure to ask essential questions or refusal to give claimant time or opportunity to respond;
  • failure to grant adjournment of a hearing date when there was good cause to do so;
  • failure to grant additional time to submit new evidence where the request was appropriate and the amount of time requested was reasonable;
  • ALJ committed an error of law or a procedural error;
  • erroneous dismissal;
  • rejecting medical evidence in favor of the ALJ's own observation of the claimant;
  • failure to inform claimant of his right to obtain counsel;
  • failure to give proper weight to unrebutted medical evidence;
  • failure to give proper weight to claimant's subjective complaints or pain or other symptoms;
  • failure to consider findings of disability by other government agencies;
  • failure to properly apply Circuit Court law and properly evaluate evidence;
  • relying on opinions of non-examining physicians to the exclusion of opinions by treating or examining physicians;
  • improperly applying the grids;
  • failure to consider all relevant evidence; or
  • failure to follow proper procedure such as not proffering evidence subsequently obtained after the hearing to the claimant or claimant's representative.

Another area to look for in supporting errors by the ALJ is the use of boilerplate language. For instance, opinions commonly hold that "after considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments would reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effect of these symptoms are not entirely credible." As the Seventh Circuit found in Parker v. Astrue, "this is a piece of boilerplate that appears in virtually identical language in cases and it is not only boilerplate, but it's meaningless boilerplate." The statement by trier of fact that a witness' testimony is not "entirely credible" yields no clue to what weight the trier of fact gave the testimony.

If the AC affirms the unfavorable ruling of the ALJ, then all administrative remedies have been exhausted and the only remedy is to file a claim in Federal District Court or start over.

Fatal Tennessee car wreck kills 2, injures 4

An early morning accident in Tennessee led to the death of two people. Tennessee Highway Patrol responded to a car wreck just after 12:00 a.m. on a recent Saturday night. Apart from the 2 deceased victims, four other people suffered injuries when an SUV hit a pick-up truck from behind.

It was reported that the pick-up truck carried six people, while there were five occupants in the SUV. The impact caused the SUV to roll. Fortunately, the driver of the pickup truck was able to pull over onto the side of the road.

Social Security Disability Insurance (SSDI) - Know Your Attorney

One of my biggest pet peeves in practicing Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claims is attorneys and representatives that do not personally know or meet with their clients before the hearing. This is probably second only to non-attorney representatives handling Social Security Disability Insurance (SSDI) and SSI cases. See "Dangers of Non-Attorney Reps in Social Security Disability." Very often the claimant who meets his representative thirty minutes before his hearing is dealing with a non-attorney representative from some out-of-town advocacy group, but I also see it occurring with local and regional attorneys and that is even worse because attorneys should be held and should hold themselves to a higher standard based on the Tennessee Rules of Professional Conduct.

I believe the standard of care in representing SSDI and SSI claimants requires that you meet with the claimant at some point in time prior to the hearing. Meeting with the claimant prior to his or her hearing allows for the attorney to discuss the hearing, including the judge, questions to be asked, witnesses to testify, hearing procedures, and the ALJ's decision-making process. This meeting should calm and inform the client. This is also an opportunity for the attorney to review the file for any red flags, including missing evidence (medical or lay testimony), work during the period of disability, drug, alcohol, or criminal issues. Often issues discovered in the pre-hearing meeting can be remedied quickly and can often bolster a claim, but without the pre-hearing meeting a case can easily be lost because the issues are not discovered and remedied in time.

Trucker receives good news about workers' compensation claim

A trucker, whose workers' compensation claim was denied by his former employer, received good news from the Tennessee Supreme Court recently. During the last week of July, the Supreme Court affirmed an earlier decision made by a circuit court concerning a workers' compensation claim made by the trucker. The circuit court found that the heart attack suffered by the trucker is considered a work-related injury, and he should be compensated.

The trucker reportedly started experiencing chest pains while securing a load onto his flatbed. Despite the chest pains, he continued on his journey in an attempt to make his delivery. The pains intensified to such an extent that he was forced to pull over at a truck stop. Emergency service workers were called and transported him to a medical center in the area.

Social Security Disability Insurance (SSDI) - New Program Aimed at Reducing Backlog

When it comes to Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claims, there is nothing more frustrating than the length of time claims are at the hearing office before hearings are held. Just last week, I posted an update on the average processing times and approval rates for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) cases at the hearing level. Recently, the Social Security Administration (SSA) announced the creation of a "National Adjudication Tean" (NAT) as a tactic to reduce the hearing level backlog. In the past, hearing offices have utilized senior attorneys to review claims likely to be found favorable at a hearing and then process on-the-record (OTR) decisions. These were usually claims with older claimants (55 and over) who's claim could be granted based on an application of a grid rule.

The new NAT program looks to be much more limited. This team of senior attorneys will handle cases on a national basis as selected by the national ODAR office. These attorneys are the only attorneys who may be designated as Decision Makers for signing fully favorable decisions. NAT attorneys will select and assign cases for screening by other NAT attorneys. Cases will be assigned for screening only if one of the following criteria are met:

•· New and material evidence is submitted;

•· There is an indication that additional evidence is available;

•· There is a change in the law and regulations; or

•· There is an error in the file or some other indication that a wholly favorable decision could be issued.

I am glad to hear that the backlogs are starting to come to the attention of the SSA and Congress, but I am skeptical that this limited program will make much of dent in the wait times.

2 high school football players critically injured in car wreck

The Tennessee Highway Patrol reported that three high school football players were traveling in a car that was involved in a horrific accident on a recent Wednesday. The boys were reportedly on their way to join their team for practice when the single-vehicle car wreck occurred. Authorities did not state which of the three boys drove the car, but it was mentioned that criminal charges may be filed.

According to the preliminary accident report, the car was traveling north when the driver veered across the turn lane in the center of the road and then crossed the two southbound lanes and the shoulder before striking a curb. The vehicle then hit an elevated area after traveling through a grassy field. This caused it to go airborne and smash into a utility pole. None of the occupants of the car, ages 15, 16 and 17, were reportedly restrained by seat belts.

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