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How Does ERISA Affect the Discovery Process in Disability Litigation? 1 Apr 10:10 AM (16 days ago)

What is ERISA and How Does It Work

The Employment Retirement Income Security Act is a federal law that oversees the management and distribution of many types of employee benefits, including insurance provided by employers for short and long-term disability. If you work for a company, it’s crucial to determine if your disability policy is governed by ERISA, which could dramatically affect your claim.

Experienced disability lawyers in Florida explain that definite yet complex rules govern ERISA-based policies. The rules ensure that employees’ benefits are protected and that administrators act in the best interests of the insured workers. Navigating the system when pursuing a claim can be challenging, but legal experts can help.

What Are the Common Reasons Why ERISA Claims Are Sometimes Denied?

ERISA claims are often denied or terminated. Florida ERISA disability claim attorneys highlight the following as the most common reasons why your claim could be denied:

Incomplete or Inaccurate Information on Your Application for Disability Benefits

Your ERISA claim can be denied if you submit inaccurate or incomplete information. Florida ERISA disability attorneys can review your application for your benefits to ensure you provide all the required documents and forms. Your medical records should be accurate and provide proof of eligibility and other supporting evidence.

Not Meeting Eligibility Requirements

Each policy or plan under ERISA has specific eligibility criteria you must meet to qualify for the benefits. For example, a plan may stipulate the minimum hours you must work or the waiting period before benefits commence. Your claim may be denied if you don’t meet these criteria.

The issue is common with disability claims. You may assume you’re covered but don’t meet the requirements. Ensure you thoroughly evaluate your ERISA-based disability plan to determine your eligibility before you stop working. Skilled disability lawyers can help.

Lack of  Reasonable and Appropriate Medical Treatment

Another reason for denial would be if the insurer believes that you are not getting reasonable and appropriate medical care. They often require that you get medical care on a regular basis and from a specialist. If your claim was denied or benefits were terminated  on this basis, seek the intervention of skilled individual disability claims attorneys in Florida for legal guidance.

Pre-Existing Conditions

Some disability policies or plans can exclude coverage if you have a pre-existing condition for which you got treatment during the look-back period. That means that if you got treatment or treatment was recommended during the look-back period, the insurer or plan may not consider those medical conditions as the basis of your claim. For example, if you had treatment for a back condition during the look-back period and then claim you are disabled as a result of that back condition, your claim will be denied.

Not Following Proper Procedure

It’s common for ERISA policies or plans to have strict procedures and timelines for filing and appealing the denial of claims or the termination of benefits. Not meeting the deadlines or following the necessary steps for appeal can lead to the automatic denial of your claim and an inability to sue in federal court..

How Does the ERISA Claim Process Work?

ERISA is supposed to provide a fair process to resolve disputes over unpaid disability benefits, but that is not always the case. If your disability claim has been denied, skilled Florida individual disability claims lawyers can help you overturn the decision to refuse to give you the benefits.

They can help you file an ERISA claim to resolve the issue through the following steps:

• Review the denial letter to determine the reasons for the outcome, which will enable you to create a solid strategy. Then, check the letter for the appeal process, including deadlines and required documentation.
• You must file an appeal to the denial within 180 days of getting the denial letter. The deadline is strict, so it would help to hire skilled lawyers with experience in ERISA claims.
• The insurer will review your appeal in 45 days, but they can extend the period by another 45 days.
• If you lose the appeal, your lawyers can help you bring a lawsuit in federal district court. A judge, not a jury, will hear the case.
• Your case will be determined based on the legal briefs presented by both parties and the insurance company or plan’s claim file. You will not have a chance to testify or present witnesses. The judge will decide based on the record submitted during the appeal before filing the suit.
• The judge can give the insurer or plan deference when reviewing the denied claims. Based on the available information, the court can overturn the insurer’s decision if it is unreasonable or arbitrary.

ERISA rules and case law can significantly limit the scope of discovery during litigation. The parties involved can only request information from the other side to a specific extent. Consider getting the representation of experienced lawyers to enhance the appeal process and increase the likelihood of a favorable outcome.

A Skilled Disability Attorney Helping You Navigate ERISA Claims

Navigating the ERISA claims process can be lengthy and complex if your disability claims have been denied. Unlike other lawsuits, the discovery process is limited, reducing your chances of successful litigation. However, don’t give up the fight for your rights, as skilled Florida ERISA disability claims attorneys can walk the journey with you.

The Florida disability attorneys at The Law Office of Nancy L. Cavey are dedicated to seeing clients win. We can help you enter new evidence at the appeals stage to enhance your chances of a favorable outcome. Let us evaluate your case specifics and create a solid strategy to help you file a claim against the carrier or plan. Call us at 727-477-3263 for a FREE consultation.

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Navigating Social Security Disability Benefits for Multiple Sclerosis Patients 4 Mar 1:55 AM (last month)

Multiple sclerosis (MS) can be an unpredictable condition. One day, you may feel strong and able to go about your daily routine; the next day, it could be a challenge to walk. By its nature, MS can make working difficult, and for many, it becomes impossible to maintain steady employment. Social Security Disability Insurance (SSDI) benefits can provide critical financial relief. However, securing these benefits is not always straightforward.

How Is SSDI Eligibility Determined for Individuals with MS?

MS is a progressive disease. It affects the central nervous system, leading to symptoms ranging from mild to debilitating. While some individuals with MS experience periods of remission, others face relentless progression. Common symptoms include balance and coordination issues, muscle weakness, severe fatigue, vision problems, and cognitive impairment, all of which can interfere with the ability to work.

Although the Social Security Administration (SSA) acknowledges that MS is a potentially disabling condition, a diagnosis alone is not enough to qualify for benefits. To become eligible, you must prove that your disease symptoms prevent you from engaging in substantial gainful activity (SGA). For 2025, the SGA threshold for non-blind individuals is $1,620 per month, as stated by the Social Security Administration. If your earnings exceed this amount, SSA may argue that you are still capable of earning a living and will deny your claim.

What Are the Criteria for MS Under SSA’s Blue Book?

The Social Security Administration evaluates disability claims for MS under Listing 11.09 of the agency’s Blue Book. To meet the criteria, you must provide extensive medical documentation. To qualify for SSDI benefits under this listing, you must show one of the following:

• Impaired motor function in two extremities (arms or legs) that makes it extremely difficult to use your extremities, balance while walking or standing, stand up from a seated position, or
• Marked limitations in physical functioning include concentration, persistence, and keeping pace; interacting with others; remembering, applying, or understanding information; and adapting and managing oneself.

What Types of Medical Documentation Does SSA Require?

In filing for SSDI benefits with MS, you must prove the impact of the disease on your ability to work. SSA will rely heavily on your medical records, which may include the following:

• Statements from treating physicians regarding how MS limits your ability to perform job-related tasks
• Documentation of your treatments, including physical therapy, medications, or other interventions, and how they have or have not improved your condition
• MRI scans showing brain or spinal cord lesions
• Neurologist reports detailing your diagnosis and progression
• Cognitive assessments if you experience concentration or memory issues
• Coordination, gait, and muscle strength test reports

In addition to the above, a Residual Functional Capacity (RFC) assessment may be crucial. Your doctor completes this assessment, which the Social Security Administration may require in some cases. An RFC will outline your physical and cognitive limitations in the workplace. For example, it can show whether you can lift objects, stand, walk, or handle stress effectively. 

What Are the Steps of the SSDI Application Process?

Take the following steps to apply for SSDI benefits with MS:

• Gather your medical records: Ensure you have a comprehensive medical history to support your claim.
• Complete the SSDI Application: You may complete the application for disability benefits online. If you are unable to do so, call SSA toll-free at 1-800-772-1213 between 8:00 a.m. and 7:00 p.m. to make an appointment. 
• Submit supporting documentation: Your work history, physician statements, and reports on your daily activity can strengthen your case.

Respond to SSA requests: It is important to respond promptly

What Are the Common Pitfalls with SSDI Applications?

The SSDI application process can be daunting. Most first-time applicants are denied due to application errors, insufficient medical evidence, or failure to meet SSA’s strict requirements. The following are common reasons for denial of benefits:

• Incomplete application forms
• Lack of consistent medical treatment
• Insufficient medical evidence
• Earning too much income
• Failing to meet SSA’s definition of disability

What Happens If Your Claim Is Denied?

A denial of benefits is not the end of the road. Appeals are common and often successful. The SSDI appeals process in Florida involves the following stages:

• Reconsideration: You may request a review of the initial denial. Unless new medical evidence is presented, this stage rarely results in approval.
• Hearing before an Administrative Law Judge (ALJ): Many claims are won at this stage. The ALJ will review your case and may allow you to present new evidence or testimony.
• Appeals Council review: If the ALJ denies your claim, you may request a review of the decision by the Appeals Council.
• Federal court case: The last option is to file a lawsuit in federal court. 

How Can a Florida SSDI Lawyer Help?

Navigating the SSDI process can be overwhelming, and an experienced disability attorney can make all the difference. Our legal team at the Law Office of Nancy L. Cavey can collect and present the strongest medical evidence; ensure your application is complete and meets SSA standards; represent you at hearings and argue your case before the judge; and increase the likelihood of a successful appeal. If you seek SSDI benefits for multiple sclerosis, our legal team is here to help you navigate this vital action. Contact our firm at 727-477-3263.

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Short-Term Disability Coverage for Pregnancy-Related Conditions in Florida 15 Feb 12:42 AM (2 months ago)

What Disability Coverage is Available for Pregnant Employees in Florida?

What short-term disability coverage is available in Florida for employees who are pregnant or dealing with a pregnancy-related medical condition? And when will an employee need the assistance of a St. Petersburg disability attorney to obtain that coverage?

According to the Council for Disability Income Awareness, pregnancy is the number one reason for short-term disability insurance claims in the United States. Approximately 22 percent of short-term disability claims are prompted by pregnancy.

Few Florida employers provide paid time off for expectant mothers. Only four states require employers to offer paid family leave, and Florida is not among those states. What are the options for short-term disability coverage when an employee becomes pregnant in Florida?

What is the Family and Medical Leave Act?

Many employed pregnant women in Florida use a combination of short-term disability, personal days, sick leave, and vacation time, along with the twelve weeks provided by the federal Family and Medical Leave Act (FMLA), to get time off with a newborn.

The FMLA lets eligible workers take up to twelve weeks a year for medical reasons, including pregnancy and time with a new child. FMLA leave is unpaid, but employees may use their paid time off, sick leave, or vacation time to receive pay during those twelve weeks.

The FMLA applies to all employers in the U.S. with at least fifty employees for at least twenty weeks in the current or previous year. Pregnant employees may use their FMLA leave for prenatal care and for periods when they cannot work due to a pregnancy-related condition.

What is the Pregnancy Discrimination Act?

The federal Pregnancy Discrimination Act prohibits employer discrimination based on pregnancy in areas that include hiring, terminations, job assignments, promotions, pay, training, fringe benefits, and layoffs, as well as leave and health insurance.

The Pregnancy Discrimination Act doesn’t require an employer to provide pregnancy or family leave, but if a Florida employer offers leave for other temporary disabilities, it must make the same leave available to its pregnant employees.

Should You Purchase Short-Term Disability Insurance?

In Florida, short-term disability insurance can replace part of your income if you can’t work due to pregnancy or a pregnancy-related condition. Florida does not require employers to provide short-term disability pay and doesn’t have state-sponsored short-term disability coverage.

A small number of Florida employers provide short-term disability insurance that may be applied to pregnancy, but if an employer does not offer this benefit, an employee should consider purchasing a short-term disability policy from a private insurance carrier.

How Do Short-Term Disability Policies Cover Pregnancy-Related Conditions?

However, most short-term disability policies cover only serious conditions or incapacity related to pregnancy. You may be eligible for short-term disability benefits if you are unable to work due to pregnancy-related complications such as gestational diabetes, pre-eclampsia, or premature labor.

Short-term disability policies usually cover six to eight weeks and typically pay fifty to one hundred percent of the employee’s salary.

Working women in Florida should obtain short-term disability coverage before they become pregnant because pregnancy is considered a pre-existing condition. The exclusion period for short-term disability policies is typically one year.

What Should You Know About Filing a Short-Term Disability Claim?

When you submit a claim for short-term disability insurance based on your pregnancy, you will need medical documentation that includes your due date, your restrictions, and your expected length of time away from work.

It usually takes insurance companies several weeks to review these claims, so you should submit your claim well in advance of the date when you will need the benefit.

When Should You Contact a Disability Attorney?

If your Florida employer improperly denies your FMLA leave or discriminates against you due to your pregnancy, contact a St. Petersburg disability lawyer immediately. A disability lawyer can determine what steps to take to protect your rights.

Insurance companies can deny short-term disability claims for pregnancy for a variety of reasons. If you become pregnant during the exclusion period or deliver within a certain number of months of the policy’s effective date, the insurance company will reject your claim.

If you fail to visit your doctor as scheduled or follow your doctor’s orders, your claim may also be rejected.

If Your Claim is Denied, What Are Your Options?

If your short-term disability claim is denied, you can appeal the decision directly through the insurance company’s internal appeals process, but you should have the assistance of a St. Petersburg disability attorney who will advise you and help you gather the documents you need for an appeal.

An insurance company usually takes approximately thirty days to decide on an internal appeal. Some of these appeals are successful, but if your appeal fails, your disability attorney may recommend taking the matter to arbitration, mediation, or court.

An experienced St. Petersburg disability lawyer will provide the personalized legal advice you need and, depending on the details of your short-term, pregnancy-based disability claim and its rejection, will develop a strategy for challenging the denial of your claim.

You should be advised and represented by a Florida attorney with considerable experience in employment law and disability claims. In the Tampa Bay area, that attorney is Nancy L. Cavey.

Take Your Disability Case to the Law Office of Nancy L. Cavey

From her St. Petersburg law office, attorney Nancy L. Cavey focuses on disability law and helps disabled clients, including pregnant clients. Her legal team works on behalf of disabled and pregnant clients across the Tampa Bay region and throughout Florida.

If your employer improperly denies your FMLA leave or discriminates against you because you’re pregnant, or if a short-term disability claim based on your pregnancy is denied, contact the Law Office of Nancy L. Cavey immediately by calling 727-47  7-3263.

Our legal team has four decades of experience resolving the most complicated disability claims and cases. If you need disability benefits because of your pregnancy, call us at once and let our legal team work for you. Your first case evaluation with the Law Office of Nancy L. Cavey is provided with no cost or obligation.

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Can You Get SSDI for Rare or Unlisted Medical Conditions? 14 Jan 8:25 PM (3 months ago)

SSDI Benefits for Rare or Unlisted Medical Conditions?

Social Security Disability Insurance (SSDI) benefits are vital for individuals who are unable to work due to a disabling medical condition. While many qualifying conditions are explicitly listed in the Social Security Administration’s (SSA) Blue Book, individuals with rare or unlisted conditions often question whether they are eligible. The good news is that the SSA evaluates disability based on how your condition affects your ability to work, not solely on whether it appears in the Blue Book.

This comprehensive guide will help you understand how to qualify for SSDI with a rare or unlisted medical condition and how to navigate the challenges of the application process.

How Does the SSA Evaluate Medical Conditions?

The SSA’s evaluation process at Step 3 of the 5 Step Sequential evaluation begins with its Blue Book, which outlines a range of conditions and the criteria applicants must meet to qualify for disability benefits. The Blue Book acts as a guide for both common and well-documented medical conditions. However, the SSA recognizes that not all disabling conditions fit neatly into these categories.

For individuals with rare or unlisted medical conditions, the SSA uses alternative methods to assess eligibility:

• Medical Equivalence: The SSA compares your condition to a similar listed impairment in the Blue Book. If your condition is of equal severity to one of the listed impairments, you may still qualify for benefits.

If you don’t meet a Listing at Step 3, SSA will determine if you can return to the lightest and simplest job you held in the 5 years before your claim is decided and if you can do other work in the national economy. They do that by determining your Residual Functional Capacity.    

• Residual Functional Capacity (RFC): If your condition does not meet or equal a listed impairment, the SSA evaluates your RFC to determine how your condition limits your ability to perform work-related tasks, such as sitting, standing, lifting, or concentrating.
• The key is proving that your condition significantly impairs your ability to work, regardless of its inclusion in the Blue Book.

Examples of Rare or Unlisted Medical Conditions

Rare and unlisted medical conditions can include a wide range of diagnoses that are not commonly encountered or that lack standardized diagnostic criteria. Examples include:

• Autoimmune Disorders: Diseases such as Behçet’s disease, relapsing polychondritis, or mixed connective tissue disease.
• Neurological Disorders: Rare conditions like Kleine-Levin syndrome, Stiff Person Syndrome, or progressive supranuclear palsy.
• Genetic Disorders: Conditions such as Ehlers-Danlos syndrome, mitochondrial disorders, or Marfan syndrome.
• Rare Cancers: Cancers that are not specifically listed in the Blue Book, such as sarcomas or rare hematologic malignancies.

Each of these conditions can cause significant limitations, but documenting their impact is crucial to building a successful SSDI claim.

Steps to Qualify for SSDI with a Rare or Unlisted Condition

If you are applying for SSDI benefits with a rare or unlisted medical condition, the following steps can help strengthen your application:

1. Compile Comprehensive Medical Evidence:
   • Include detailed medical records from your healthcare providers, including diagnostic tests, imaging results, and physician statements.
   • Ensure your medical evidence clearly explains your diagnosis, symptoms, and prognosis.
2. Highlight Functional Limitations:
   • Provide evidence of how your condition limits your ability to perform basic work-related tasks.
   • Include examples of activities you can no longer perform due to your condition.
3. Request a Medical Equivalence Evaluation:
   • Work with your doctor to identify a listed impairment in the Blue Book that closely resembles your condition.
   • Have your physician explain how your condition matches or exceeds the severity of that impairment.
4. Document Your Treatment History:
   • Provide a detailed account of all treatments you have undergone, including medications, surgeries, or therapies.
   • Demonstrate that your condition persists despite compliance with prescribed treatments.
5. Seek Legal Assistance:
   • An experienced SSDI attorney can help organize your evidence, prepare your application, and ensure your claim meets SSA standards.

What Is the Residual Functional Capacity (RFC) Assessment?

The RFC assessment is critical for applicants with rare or unlisted conditions. This evaluation measures your physical, mental, and sensory limitations to determine whether you can perform work-related activities.

The SSA will review:

• Physical Capabilities: Your ability to lift, carry, stand, walk, or perform other physical tasks.
• Mental Capabilities: Your ability to concentrate, follow instructions, or interact appropriately with others.
• Environmental Sensitivities: Whether you have limitations related to temperature, light, or other environmental factors.

Your healthcare provider may complete an RFC form, and the SSA may request additional input from their own medical consultants.

Challenges in SSDI Claims for Rare Conditions

Applicants with rare or unlisted conditions often face unique hurdles, including:

• Lack of Awareness: SSA evaluators may be unfamiliar with your condition, making it essential to provide detailed and persuasive medical evidence.
• Insufficient Diagnostic Criteria: Rare conditions may lack standardized diagnostic tests, leading to challenges in proving their severity.
• Misinterpretation of Symptoms: Symptoms of rare conditions may mimic more common ailments, resulting in skepticism or misdiagnosis.

Proactively addressing these challenges can significantly improve your chances of approval.

How an Attorney Can Help

Navigating the SSDI process can be daunting, especially when dealing with a rare or unlisted condition. An experienced social security disability attorney can:

• Build a Strong Case: Organize and present medical evidence to clearly demonstrate your condition’s impact on your ability to work.
• Collaborate with Medical Experts: Work with specialists to provide additional credibility and detail to your claim.
• Appeal Denials: If your initial claim is denied, your attorney can guide you through the appeals process, including representation at administrative hearings.
• Manage Deadlines: Ensure all forms and evidence are submitted on time, avoiding unnecessary delays.

Having a skilled attorney by your side can make all the difference in securing SSDI benefits.

What to Do If Your Initial Claim Is Denied

If your initial SSDI application is denied, you still have options. The appeals process includes:

1. Reconsideration: Submit additional evidence and clarify any ambiguities in your original claim.
2. Administrative Hearing: Present your case before an administrative law judge (ALJ) with the help of your attorney.
3. Appeals Council Review: Request a review of the ALJ’s decision by the SSA Appeals Council.
4. Federal Court Appeal: File a lawsuit in federal court as a last resort.

Working with an attorney throughout the appeals process ensures your claim is presented effectively at every stage.

Tips for Strengthening Your SSDI Claim

• Work with Specialists: Seek care from specialists who can provide detailed and credible medical documentation.
• Keep a Daily Journal: Track your symptoms, treatments, and limitations to provide a clear picture of your challenges.
• Follow Treatment Plans: Demonstrating compliance with recommended treatments shows that you are actively managing your condition.
• Be Persistent: The SSDI process can be lengthy and challenging, but perseverance often pays off.

These proactive measures can improve your chances of a successful claim.

Start Pursuing SSDI Benefits for Rare Conditions

Qualifying for SSDI with a rare or unlisted medical condition may seem daunting, but it’s entirely possible with the right approach. By understanding how the SSA evaluates claims, gathering thorough documentation, and seeking legal guidance, you can build a compelling case for the benefits you deserve.

At The Law Office of Nancy L. Cavey, we specialize in helping individuals with rare and complex medical conditions navigate the SSDI process. Contact us today for a consultation, and let us help you secure the financial support you need.

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Top Mistakes to Avoid When Appealing an SSD Denial in Florida 21 Dec 2024 5:33 AM (3 months ago)

The first and worst mistake is not to pursue an appeal—you have the right to do so. In Florida, more than half of initial SSDI claims are denied, and reconsiderations have even lower success rates. Nonetheless, persistence and a hearing before an administrative law judge can carry the day, especially if you have an experienced SSDI attorney at your side.

Disability attorneys often see SSDI claimants making the following mistakes:

Missing the Deadlines

There are four opportunities for appeal from an SSDI denial. After an initial claim denial, you can request a reconsideration of your claim. When the reconsideration is denied, you have the right to request a hearing before an administrative law judge. If the judge denies the claim, you can request another hearing before the Appeals Council. Finally, if this fails, you may be able to file suit in federal court.

You have 60 days to file an appeal, starting from the day you receive the notice of denial. This is counted from the fifth day after the date of the notice unless you can prove you received it later. If the sixtieth day falls on a weekend or holiday, the next business day is the deadline. See the SSA’s appeal guide for details.

You may still be able to file an appeal after the deadline if you can show that you missed it for “good cause.” This can include illness, a death or serious illness in the family, or the accidental destruction of important records. See POMS GN 03101.020.

Understatement or Exaggeration

Those of us who have had chronic pain for some time—or are simply not used to asking for help—may not state the full scope of their issues. Long-term habits of adaptation and minimization can lead claimants to accidental understatement, which could be fatal to a case.

It is crucial to convey your fundamental limitations in the context of your own employment, particularly your inability to sit, stand, or handle objects for the appropriate periods.

On the other hand, some of us may believe the facts are not enough. Examiners and judges have become skilled at spotting exaggerations, especially at hearings—a suspiciously new-looking cane, a theatrical cough. Do not behave in any way or make any statements that you cannot back up with evidence.

Inappropriate Behavior at a Hearing

An SSDI hearing is a court appearance. Claimants should act and dress accordingly, presenting themselves with respect and deferring to the judge. Showing courtesy is not the same as showing weakness. Rather, it is a vital part of demonstrating that you understand the gravity of your request. Your attorney can advise you on this. Moreover, the attorney will take the initiative to defend your rights, so you will have no need to fear that you have not asserted yourself enough.

Inadequate Records

Your medical records are the key to your case. To receive SSDI benefits, you must establish that you cannot do the work you have done in the past and that there is no other work you can do.

Examiners and judges want to establish your residual functional capacity (RFC) for work by reviewing the objective medical evidence, together with other evidence from medical and nonmedical sources. You will need an RFC form from your treating physician, which many first-time claimants overlook. An SSDI attorney knows how to assemble a medical file that will demonstrate the depth and breadth of your disabilities.

Lack of Compliance with Treatment

It is crucial for you to remain compliant with your doctor’s orders—taking medications, attending physical therapy, and otherwise keeping up with your treatment requirements. You should also avoid any possible suggestion of drug or alcohol abuse. The last thing you need is for the examiners or the judge to believe that you do not want to be well.

Flying Solo

Although you can represent yourself and handle your own claim, it is far better to work with an SSDI attorney for your claim and appeals.

For example, at an SSDI hearing, you will encounter a vocational evaluator. This expert will testify to the judge about the physical requirements of your past work and what kind of work you can do under your limitations. An SSDI attorney knows how to cross-examine the vocational evaluator and question them about the scope of your disabilities. Without an attorney, the judge could simply accept the evaluator’s word that you could do some kind of work in the world and dismiss your case.

You may think it’s no surprise that a law firm would say that you need a lawyer, but the fact is that Social Security law is a complex and shifting landscape, requiring local and national knowledge. Upcoming changes in government or regional personnel turnovers may affect your case. Seasoned counsel who frequently works with your field office can make every difference, potentially saving thousands of dollars and months of your life in the long run.

Contact our St. Petersburg office today at 727-477-3263 to schedule your free initial consultation about a Florida SSDI claim or appeal.

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The Importance of Accurate Medical Records for Florida Social Security Disability Claims 12 Dec 2024 4:10 AM (4 months ago)

It is notoriously difficult to get prompt approval for SSDI claims. According to one study, in 2022, Florida’s Disability Determination Services (DDS) approved only 40% of initial claims and just 15% after reconsideration. Since applications take months to process, you need to come prepared with the best possible file. That requires understanding what the DDS needs to see in order to approve an application.

Disability and SSDI: What They Look For

It is not enough to prove that you are suffering or that you have been unable to work. The DDS performs this five-step analysis to determine whether you are eligible for SSDI:

1. Are you working? If your current work is “substantial gainful activity” (SGA)—earning more than $1,550 a month in 2024—you cannot qualify.
2. Is your condition “severe”? It must “significantly limit your ability to do basic work-related activities” for at least 12 months, either in the past or in the future.
3. Is it one of the disabling conditions on the SSA’s Listing of Impairments? If it is not, this is not necessarily disqualifying. However, certain ailments, such as ALS and frontotemporal dementia, can qualify for immediate acceptance through the Compassionate Allowance list. 
4. Can you do the work you were doing previously? To determine this, the DDS will examine jobs you took in the past five years and the typical activities they require. 
5. Can you do any other type of work? They “will consider your remaining ability to do other work considering your age, education, and work experience.”

How can your records best convey your level of disability?

Types of Medical Evidence

The DDS is interested in several categories of medical information:

• Objective medical evidence: “signs, laboratory findings, or both, from a medical source.”
• Medical opinion. Currently, for an adult’s claim, this “focuses on functional abilities and limitations” under working conditions. For a child’s claim under Title XVI, it is broader, encompassing daily life functions.
• Other medical evidence. This includes judgments from medical sources about treatments and prognosis.
• Evidence from a nonmedical source. This can include colleagues, employers, clergy, friends, family, and yourself.
• Prior findings of fact in the current claim.

See POMS DI 24503.005. 

Although the DDS may take a look at any type of evidence, it is not all equally helpful. For example, non-objective medical evidence and nonmedical sources can’t be used to establish a medically determinable impairment (MDI). This is why judges at a hearing would not be interested in testimony from lay witnesses about your condition.

Residual Functional Capacity

DDS claims examiners will look to determine your residual functional capacity (RFC)—what types of work you can still do. For the SSA’s purposes, there are five exertional levels of work: sedentary, light, medium, heavy, and very heavy. Sedentary work, the lowest level, requires mostly sitting; it can also involve light lifting under 10 pounds and the ability to use your hands well (as with typing). 

After reviewing your file, DDS consultants or examiners will complete RFC forms regarding your physical and mental capabilities. An RFC form:

• “Describes work-related functions a person can do on a sustained basis.
• “Addresses all functional capabilities and provides a written analysis of how the evidence in [the] file supports or refutes the following:
  • claimant allegations (including allegations of symptoms, such as pain, and their effects on functioning).
  • descriptions, observations, and all conclusions of all treating and examining sources.
  • other pertinent medical and nonmedical evidence
• “Resolves all issues of functional capacity pertinent to a determination of ability to do past relevant work or other work.
• “Provides conclusions as to functional capabilities (with a citation of pertinent evidence) and the reasoning to support these findings.”

(Source: POMS DI 24510.001)

Your own physician can complete an RFC form for your claim file. Presenting the evidence in the RFC format—in other words, the language that the agency speaks—can give you a head start by adding weight to the evidence.

Getting It Right

The time to assemble your best medical evidence is before the filing. After a claim is denied, you have the right to reconsideration. However, any new evidence you present runs a risk of being excluded unless it involves a new allegation or a worsening of your symptoms. See POMS DI 27001.001. Keeping your file up to date with findings of new or worsening conditions is a must.

Consulting an SSDI attorney before you file will help you understand what the DDS expects to see from you and your care team. Without guidance, some applicants understate their disability levels out of habit or pride; others try to exaggerate them. Claims examiners are looking for signs of exaggeration, and therefore, they will not stop to consider that an applicant may, in fact, be worse off than their statements reflect. An attorney will help you maneuver this delicate situation.

Navigating the Waters

SSDI laws and regulations are not easy to understand, and they can alter with policy shifts in government, as well as local personnel changes. Now more than ever, it is crucial to work with an experienced Florida SSDI disability attorney for your initial claim or appeals.

Contact the Law Office of Nancy L. Cavey at 727-477-3263 to schedule your free initial consultation today.

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What Steps Should You Take If Your Short Term Disability Benefits Are Exhausted in Florida? 17 Nov 2024 2:46 AM (5 months ago)

Short-term disability (STD) insurance typically covers weeks or months of inability to work for personal health reasons. Healing doesn’t work on a timetable, but insurance companies do. Insurers have been known to deny STD benefits simply to discourage plan members and save money.

What can you do when the end of your short-term benefits approaches—especially if the company isn’t playing fair?

Rules and Laws for STD Insurance

Before a policyholder can receive STD benefits, they typically have to wait for an elimination period to pass after their injury or diagnosis. This pause can last for two weeks or longer, depending on the policy; shorter elimination periods tend to come with higher premiums. To be eligible for STD benefits, the policyholder usually has to anticipate a lengthy illness of several weeks or months and provide medical proof of this.

STD benefits pay only a percentage of the policyholder’s usual wage. Depending on the plan, they may be up to 80% of the wage and are typically available for a year or less. The insurer may require regular reports on the beneficiary’s health status during the benefit period.

STD plans can be purchased individually on the open market or offered as group plans through employers. Individual plans can be customized, but they tend to be more expensive than group plans. The state of Florida does not require employers to offer STD plan benefits, but when employers do offer them, they are typically governed by federal ERISA law.

Plans covered by ERISA law have to maintain different standards than individual insurance plans. Individual policies in Florida are generally covered by Florida state law, although you will need to check your policy and circumstances to confirm the state law that applies.

The federal standards that ERISA requires may or may not be helpful to a policyholder. One stumbling block for disabled insureds is the dispute and appeal process that ERISA requires.

Denials of Short-Term Disability

When your STD benefits are denied or cut off while you are still unwell, your options depend on the type of policy you have and whether ERISA governs it. The mandated ERISA dispute process can favor insurers more than policyholders.

Under ERISA, you first have to appeal your claim denial to the insurer. As a plan member, the law gives you a right to a “full and fair review,” but it is vitally important to get this review right. It is your last opportunity to provide medical and vocational evidence and create a file for your case. If your claim is denied again, you can appeal to a federal judge, but the judge can only review the evidence already submitted to the file. To convince the judge, you will need to demonstrate that the insurer’s decision was “arbitrary and capricious”—a tough bar to meet without solid evidence.

An ERISA disability attorney understands how to create a lengthy, detailed appeal letter and submit the evidence you need. If you have long-term disability (LTD) insurance, it may require you to exhaust your STD benefits first. Your attorney should work not just to handle your STD appeal but to lay the groundwork for your LTD claim.

If you have an individual STD plan, Florida law allows more leeway in your challenge. You have a right to a jury trial, as you would if you encountered an unfair denial on another type of insurance policy.

However, no one actually wants to go to trial—it is an expensive ordeal. An experienced attorney can use this to your advantage, working to settle the matter in your favor as quickly as possible. Short-term health problems often become long-term issues, resulting in partial or total long-term disability.

When Benefits End, What’s Next?

Long-Term Disability Insurance

LTD coverage typically has longer elimination periods, often up to two years, intended to discourage people from joining when they have immediate medical issues. As with STD coverage, LTD coverage may come through employer benefits packages, governed by ERISA, or individual purchases, governed by state law.

An LTD insurance policy may be “own occupation” or “any occupation.” An any-occupation policy only pays out if the policyholder cannot work at all at any job. This condition favors the insurer, giving them a motive to decide that an insured could somehow work—even if they can barely stand. Under Florida law, at least, the insurer’s definition of total disability “may not be more restrictive than the person’s inability to perform any work or occupation for which the person is reasonably qualified or trained.” See Fl. Stat. § 627.4233.

Social Security Disability Insurance (SSDI)

Unlike LTD insurance, which must be secured ahead of time, SSDI is potentially available to any Florida worker. However, it provides benefits only for total disability, not short-term or partial disability. The applicant must also have enough qualifying Social Security credits in their work history.

The SSDI application process is famously difficult, with frequent first-time denials that discourage applicants. An experienced SSDI attorney can help you compile an application that pushes through the red tape as soon as possible.

Let Us Help You

Don’t let your insurer exhaust you before you exhaust your benefits—contact our office today. Attorney Nancy L. Cavey can help Florida workers plan their future claims and defend their benefit rights. Call 727-477-3263 to schedule a free consultation.

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What Are the Essential Elements of ERISA Compliance for Florida Businesses? 3 Nov 2024 10:11 PM (5 months ago)

ERISA law, overseen by the Employee Benefit Security Administration (EBSA), regulates the health, disability, and pension plans that employers can offer in the US. But how do you know if your employer or your plan’s manager is compliant with ERISA?

ERISA violations can lead to significant civil penalties for employers, administrators, or other fiduciaries. Minor infractions may lead to small fines, but these can quickly mount. Negligent or deliberate interference with a plan can cost much more and even result in criminal charges.

Qualifying Plans

ERISA applies when employers offer their employees specific types of benefit plans, including:

• Pension plans, such as 401(k)
• Group health insurance plans
• Health reimbursement plans
• Disability insurance

Employers and plan administrators have to follow laws and regulations intended to prevent plan members from losing their benefits or failing to understand their status. Not every employer plan falls under ERISA law, however. It does not cover:

• Government employee plans
• Plans established for employees of churches or other tax-exempt religious organizations
• Plans only instituted to comply with workers’ compensation, unemployment insurance, or disability insurance regulations
• Unfunded excess benefit plans

Key Documentation and Recordkeeping

Plan sponsors—that is, the companies offering plans—and plan administrators need to supply informative documents to plan members. These include:

• Summary plan descriptions (SPDs), informing members what benefits the plan provides and how it operates. 
• Summaries of benefits and coverage (SBCs), describing the plan’s features in plain language.
• Information on changes to their plans, either through revised SPDs or summaries of material modifications (SMMs).
• Notices of benefit determinations or “explanation of benefits.”
• Summary annual reports (SARs), describing the plan’s financial status and operation and summarizing the business’s Form 5500 filing.

The documents must be available on schedule. For example, a new participant must receive their SPD within 90 days of joining, and a SAR is due within 2 months of the Form 5500 filing (or 9 months from the end of the plan year). For more information about documents and disclosure, see the Department of Labor’s Reporting and Disclosure Guide.

ERISA also requires extensive recordkeeping, particularly since businesses may face audits by EBSA to check on their legal compliance. Documents should be retained for at least six years after filing. 29 USC § 1027.

Fiduciary Duties

Administrators, service providers, and many employers have a fiduciary duty to ERISA plan members. This means that they must act in the best interest of the plan members, using “care, skill, prudence, and diligence” to maintain the benefits that the members are entitled to. Anyone who has discretionary authority and control over a plan may be a fiduciary under ERISA, and some employers may not even be aware they are fiduciaries.

Their obligations include:

• Avoiding conflicts of interest and prohibited transactions. (See more.)
• Diversifying investments to reduce exposure to losses.
• Monitoring administrators and service providers.

COBRA and Mini-COBRA Compliance

Under COBRA law, employers over a specific size must continue to offer health coverage to health plan participants, including spouses and dependent children, after several qualifying events:

• When a covered employee is terminated for any reason other than gross misconduct 
• When the employee’s hours are reduced 
• When the employee becomes entitled to Medicare
• When the employee dies or divorces their spouse
• When the employee’s child loses dependent child status

Source. The coverage can extend for 18 to 36 months, depending on the circumstances of the qualifying event.

COBRA applies only to private employers with over 20 employees and to state and local governments. Florida has a separate state law requiring smaller employers to offer continued coverage under similar conditions.

How Disputes Are Handled

If an ERISA plan member suspects their rights have been violated under ERISA—for example, a violation of fiduciary duty or a failure to disclose—they may file a complaint with the regional EBSA office. However, this is not the same process as a claim denial. It’s best to talk to an ERISA attorney before making a complaint to be certain that you’re making the right assertion for the help you need.

When an ERISA plan member objects to the denial of a claim under their plan, they must file an appeal to the plan administrator within a specific time period. For a disability claim, this is usually 180 days after the denial. They have a right to “a full and fair review” of their claim. See 29 USC § 1133.

A claimant should ideally work with an ERISA attorney for this appeal since it may be the last chance to present all the relevant medical information and vocational evidence for review. If the plan denies the claim again, the claimant can file a lawsuit in federal court.

However, it will rest on exactly the same information that the plan reviewed before its appeal denial. For the best chance of success, an ERISA attorney should prepare a strong, carefully documented file for a judge to review.

Defending Your Benefits

ERISA standards do not always help workers in the way they should, and employers or administrators may be careless about their duties.

Attorney Nancy L. Cavey has been fighting for Florida plan beneficiaries for years. Don’t let an ERISA violation or claim denial ruin your plans for the future. Contact us at 727-477-3263 to schedule your free initial consultation.

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How Long Does the SSA Claim Reconsideration Process Take in Florida? 16 Oct 2024 11:08 PM (6 months ago)

The SSA’s data shows that it takes roughly 213 days to process a claim reconsideration, a little over 30 weeks. Unfortunately, that is only an average. The entire SSA claim process will take months or even years for a Florida resident.

Why does it take so long, and why does Florida have particularly long waits for its applicants?

How an SSA Claim Works

Social Security pays disability benefits under two programs, serving different needs. SSDI (Social Security Disability Insurance) applies to workers who become disabled after acquiring enough Social Security credits to qualify. It also applies to their disabled surviving spouses or children who became disabled in youth. SSI (Supplemental Security Income) is available to people with few assets or resources who are disabled, blind, or over 65.

Claiming SSDI involves the following steps:

• An individual submits their application.
• “State Disability Determination Services (DDS) checks to see if the customer’s medical condition meets the disability requirements,” then the SSA field office “approves or denies the claim and issues the decision letter.” (Source)
• Since the SSA denies most initial claims—over 70%—the applicant can request reconsideration of their denial. 
• If a reconsideration ends in another denial, the applicant can request a hearing before an administrative law judge (ALJ).
• The applicant has a further right to appeal to the Appeals Council.
• Finally, if this appeal does not succeed, the applicant may be able to sue in federal court.

What Is Taking So Long?

Each state and region has its own set of field offices and DDS offices. Due to staffing difficulties and COVID-related backlogs at Florida offices, Social Security disability claims have a particularly long processing time. Even so, no SSA claim is exactly speedy. According to SSA’s own data, New York City applicants currently have the shortest average wait for a decision letter, which is still 148 days. Although the government is working to improve efficiency, the process has always been time-consuming.

After the claimant’s non-medical qualifications are verified, the state’s DDS reviews the claimant’s medical status. To meet the definition of disability, “you must have a severe impairment(s) that makes you unable to do your past relevant work … or any other substantial gainful work that exists in the national economy.” 20 CFR § 416.905. The DDS will examine work closely to decide whether it qualifies as substantial gainful activity (SGA), but it generally applies to any compensated physical or mental activity.

The Five-Step Process

The DDS uses a sequential five-step process for determining an adult claimant’s qualifications for disability:

1. Does the claimant engage in SGA? If so, the claimant is not disabled enough to qualify. If not—
2. “Does the claimant have a medically determinable impairment (MDI) (or combination of MDIs) that is both severe and meets the duration requirement?” A disability must either be expected to result in death or “to last for a continuous period of not less than 12 months from the onset of disability.” See DI 25505.030. 
3. Does the claimant have an MDI listed as an impairment “that we consider to be severe enough to prevent an individual from doing any gainful activity?” 
4. Does the claimant have enough residual functional capacity (RFC) to perform any of their past relevant work (PRW), either as they actually did or as it is currently performed in the national economy?
5. “Does the claimant have the ability to make an adjustment to any other work, considering the claimant’s RFC, age, education, and work experience?”

This evaluation process will end at any step where the answer is not a clear “yes” or “no,” as required.

When a claimant requests a reconsideration, that process is a “de novo review,” which means that the whole evaluation starts from scratch. See DI 27001.010. They claimant may need to take more questionnaires or a new consultative exam (CE). Nonetheless, if the claimant does not present new evidence of worsening about their condition, they are free to affirm the first evaluation as written. 

An SSA disability attorney knows how to prepare a strong reconsideration request, including new medical evidence and a strong appeal that helps you express how much you have struggled. Although many reconsideration claims are denied, you may have an even better chance if you follow this with an appeal and request for a hearing, as ALJs are not involved with previous rulings. Your attorney can prepare a clear argument for the ALJ, presenting your case at its strongest.

Don’t Go Alone

You should never face this long and baffling process without guidance. Our firm works only on getting retired and disabled Florida workers the help they need. We have personal experience with the red tape and unfairness of the system, and we want to be on your side. Call 727-477-3263 to schedule your free initial consultation.

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How Does ERISA Influence My Retirement Plans in Florida? 16 Sep 2024 5:18 AM (7 months ago)

ERISA is the system of federal laws that govern the health insurance, disability, and pension plans that employers can offer in the US.

Since it is federal law, the rules governing plans under ERISA are essentially the same in every state. However, not every plan falls under ERISA, and states can make rules governing some aspects of insurance and retirement plans.

It’s a good idea to learn more about how ERISA works, especially for those of us who have disability claims as well as retirement plans—and any one of us may have a disability claim someday.

What is ERISA and What Qualifies?

ERISA—the Employee Retirement Income Security Act of 1974—creates minimum federal standards for most health and retirement plans offered by private employers in the US. The Employee Benefits Security Administration (EBSA), an agency of the Department of Labor, oversees ERISA compliance.

ERISA applies to the following types of benefits that private employers may offer:

• Health insurance, including vision and dental
• Disability insurance
• Pension plans, such as 401(k) plans
• Certain severance contracts

However, it does not apply to:

• Plans for state and federal government employees
• Church plans—those maintained by a tax-exempt church or by an association of churches for their employees—unless the church elects to comply with ERISA
• Plans for employees outside the US, if they are primarily for the benefit of nonresident alien workers
• Unfunded excess benefit plans (such as deferred compensation plans or stock option plans)

Employers’ Obligations Under ERISA

Under ERISA, employers who choose to offer benefits must maintain specific standards, both in the plans they offer and in their administration of those plans. Employers, especially small employers, generally allow professionals to oversee and manage these responsibilities.

Those who are responsible for the benefit plans have fiduciary responsibilities to the employee plan members. This means that they are legally required to behave responsibly towards the employees’ investments and benefits. Fiduciary responsibilities toward benefit plan members include:

• Acting prudently on the members’ behalf
• Diversifying investments to minimize risk
• Complying with plan documents (where they are consistent with laws and regulations)
• Avoiding conflicts of interest 

Retirement plan administrators are fiduciaries. They must provide “the most important facts [plan participants] need to know about their retirement and health benefit plans including plan rules, financial information, and documents on the operation and management of the plan.” This includes a summary plan description (SPD) and a summary of benefits and coverage (SBC).

After a certain period of service with the employer, the plan’s benefits vest with the employee participants. Participants are entitled to their vested benefits whether or not they continue to work with the employer.

ERISA Retirement and Disability

Those with severe or long-term disabilities may want to retire early. However, ERISA retirement plans each have regulations determining the earliest possible retirement age. Before the age of 59½, a withdrawal from a qualified retirement plan is subject to a penalty—a 10% tax on the amount includible in gross income.

There are certain exceptions to this rule, and the IRS does provide one for those who are disabled. However, they limit it to those who are “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.” See 29 USC 72(m)(7).

As you can imagine, proving disability to the IRS can be difficult. If you are theoretically able to engage in any “substantial gainful activity,” regardless of the realities of your situation, it can fail.

Some retirement plans allow early hardship distributions without a tax penalty, but a disability may not qualify for such distributions, especially if the participant also has disability insurance. Reviewing your options with an expert can help determine what kind of hardship could qualify for an early distribution.

Your retirement benefits under a private ERISA plan will not affect any Social Security disability insurance (SSDI) payments. However, long-term disability insurance may require you to apply for SSDI and reduce its payments to match SSDI payments. This is a complex and painful area of law, and SSDI is notoriously difficult to qualify for, even when a disability is obvious.

It is vital to work with an attorney to submit your disability insurance application, both to help boost your chances of success and to understand how to maximize the resources you can legally maintain while receiving SSDI.

Defending Your Future

ERISA was intended to protect workers and retirees, but in practice, it makes life easier for insurers. Relying on what you’ve been told and filing claims without guidance can endanger your benefits and your ability to retire. Since the law isn’t on your side—and the companies certainly aren’t either—you need an advocate who lives in your state and understands your needs.

Attorney Nancy Cavey knows from experience what it’s like to face an uncertain future when you had believed your retirement plans were secure. Today, she fights to defend the rights of disability claimants and retirees. Our office looks forward to helping you with your claims under ERISA. Contact us at our St. Petersburg office to schedule your free consultation—call 727-477-3263 today.

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