Social Security Disability

  • By Shanley & Justin
  • 25 Aug, 2016

The Basics

This blog is intended to be a very basic introduction to the process of applying for social security disability.  This can be a very time consuming and confusing process for many people.  In most cases, my clients are already dealing with significant mental and physical illnesses and they can very quickly become overwhelmed by this process (reason #1 why it's a good idea to have a lawyer).  Most clients are also surprised to learn that they have applied for two different disability programs, SSDI and SSI.  However, most clients do not know the difference between the two (reason #2 why it's a good idea to have a lawyer).


SSDI (Social Security Disability Insurance): This is a program for those people who have worked and paid into the system.  In order to be eligible for SSDI benefits, you must not only be deemed medically disabled, according to social security's standards,   https://www.ssa.gov/redbook/eng/definedisability.htm , but you also need to have earned enough work credits to be covered.  In general, you need to have worked 5 out of the last ten years to be covered for SSDI benefits.  The problem? Your SSDI benefit coverage expires! Most people don't realize this.  In order to be eligible for these benefits, in addition to the medical requirements, you must show that you became disabled PRIOR to the expiration of your date last insured.


So, if your date last insured is in the future, say 12/1/2016, then coverage will not be an issue for you, and you can feel free to concentrate your efforts on proving your medical disability now.  But, if your DLI is in the past, say 12/1/2010, then you have some work to do.  You must show not only that you are disabled now, but that your disability existed prior to 12/1/2010.  This can be a much more difficult task.


SSI (Supplemental Security Income) This is a program for those people who do not have SSDI coverage.  The medical requirement here is the same, you must be found to be medically disabled according to social security's standards.  The difference here is that you must also show that there is a  financial need as well (what social security refers to as limited income and limited resources).  


Understanding the difference between these two programs and which one you may qualify for is an important part of your claim.  Sometimes social security, or the Judge presiding at your hearing will ask you to amend your onset date (the date you claim you became disabled).  In some cases this is a good idea, but, if you amend your onset date to a date that is AFTER your DLI, you may be denied benefits, even if you are otherwise disabled.  This is just one of the many traps one can fall into when dealing with Social Security.  

Shanley & Justin

By Shanley & Justin 27 Aug, 2017
In Massachusetts, operating a vehicle under the influence is a serious charge with potentially far reaching consequences.  Although most people are familiar with the basics of this charge, these types of cases remain very fact specific, and there is no standard approach in attempting to resolve them.  While one resolution may be a good fit for a particular client, that same resolution could be potentially disastrous for a different client.  This is why it is so important to understand not only what the potential resolutions are, but also the potential consequences.  

The elements of OUI (which are the specific points the State must prove beyond a reasonable doubt in order to obtain a conviction) are fairly straight forward and can be found here  https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section24 .  In a nutshell, the State must prove three things: that a person 1) operated a motor vehicle, 2) did so on a public way, 3) and while under the influence of intoxicating liquor.  All three elements must be proved beyond a reasonable doubt in order for the state to obtain a conviction.  

In Massachusetts, a first time OUI offender is likely to be offered a plea bargain prior to trial.  This is almost always the offer of a Continuance Without a Finding (CWOF).  While this can often be the best possible outcome for some, for others it can have far reaching consequences for years to come and requires a serious look at all possible ramifications of this plea.  

So, what is a CWOF? Basically, it is a type of probation but without a guilty finding.  When you accept a CWOF, you are telling the court that you agree that there is enough evidence against you to be found guilty at trial.  You will be placed on probation for a specified time (usually one year), but WITHOUT a finding of guilt, as long as you adhere to the terms of the probation.  At the end of the one year period, as long as all conditions have been met, the case is dismissed and you will not have a criminal conviction on your record.  Conditions of probation can include payment of fines, completion of classes, community service, drug and alcohol testing, and, perhaps most importantly, NOT incurring any additional criminal charges during the probationary period.  This could result in the CWOF being revoked and a guilty finding being entered.  Remember, by accepting the CWOF, you have in effect admitted to the charges.  If the terms of the CWOF are violated, the court can enter the guilty finding without further proceedings.

For some people, particularly those who do not have a criminal record and who may not have a valid defense to the charge, a CWOF is a great and quick solution, which allows people to move on with their lives fairly quickly.  

For others, however, a CWOF can have life altering consequences.  To begin with, although a CWOF is not technically a conviction, it does remain on your record, and does count as a first offense OUI, even though it is not a conviction.  What this means is that if you are charged again with OUI, the CWOF can and will be held against you, and you will face harsher penalties the second time around.

Second, if you are asked by an employer if you have ever been convicted of a crime, you can truthfully answer no.  A CWOF is not a conviction.  However, for those employers who perform full background checks, the CWOF is likely to show up.  A perfect example of someone who should probably not take a CWOF is a nurse.  Nurses are likley to lose their nursing license due to drug or alcohol related offenses, and the CWOF will show up on a full background check by these types of employers or professional licensing entities.  

Finally, a CWOF can have far reaching issues in terms of immigration.  It is very important to understand that under federal immigration law, a CWOF in Massachusetts is considered a conviction. This means that whether you plead guilty, are found guilty, or agree to a CWOF in Massachusetts, you are subject to the same immigration consequences.  While these consequences vary widely and can become very complicated and technical, for the purposes of this blog, it is sufficient to say that you need to be aware of the potential immigration consequences before you decide whether or not to accept a CWOF.

This is why it is so important to obtain legal representation when facing this type of charge.  Things move very quickly in the criminal courts and the process can be complicated and overwhelming.  It is imperative that you understand not only what your choices, but also the consequences of those choices, which can negatively impact your life and career for years.  

If you have read this blog and have any questions or would like additional information, please feel free to contact us. Consultations are always free and we are happy to answer questions or discuss your case.   


By Shanley & Justin 06 Jun, 2017
If you have applied for Disability benefits and have been denied , chances are very good that you will eventually have a hearing scheduled.  There are some people who are lucky enough to be approved before this step, however the majority of people who have applied and been denied will eventually need to attend a hearing.  The intention of this post is to explain the basics and what to expect at your hearing. 

Information from the Social Security Administration regarding the hearing process can be found here:   https://www.ssa.gov/appeals/hearing_process.html

I find that one of the biggest misconceptions of these hearings is that your attorney will be speaking on your behalf and arguing your case for you.  While this is true to some extent, the majority of the hearing will be comprised of your testimony.  This is your chance to tell your story and to really make the judge understand your disability.

Who is present at the hearing? Social Security hearings are closed hearings, meaning that they are not open to the public.  When you attend your hearing, you will be in the room with your attorney, the judge, an assistant who is in charge of recording the hearing, a vocational expert (more on them later), and sometimes a medical expert.  That's it. 

What happens at the hearing?  Most hearings, with few exceptions, are run the same way.  The judge presiding over the claim will make a brief introduction, and will administer an oath to both you and the vocational expert.    The judge will then lead with a series of questions.  Typically, these initial questions will cover your educational and work history, some details of your personal life (who you live with, whether you are married, how many children you have etc).  They will then begin to questions you about your specific illnesses and how they affect you.  If you have a physical disability, for example, the judge is likely to ask you about your physical limitations, i.e., how far can you walk before needing to stop, how much weight can you lift, how long can you sit in one position, etc. 

What is my lawyer's role at the hearing?  When the judge has completed their line of questioning, he or she will then turn the questioning over to your lawyer.  At that point, it is up to your lawyer to question you about anything the judge may have left out.  It is also an opportunity for your lawyer to question you with the specific purpose of obtaining more detail than you may have given the judge, or to get further explanation on an answer that may not have been terribly helpful to your claim.  For example, the following is a good example of a typical exchange at a hearing (if your lawyer is paying attention).

Judge: "Are you able to complete any outdoor chores around the house"

Client Answer: "I sometimes rake leaves and mow the lawn."

The judge will then continue her line of questioning.  When she is done, she will then ask your attorney if they have any questions.  A good lawyer will have been paying attention to that answer.  A good lawyer will also know that there is more the story than the simple question and answer implied.

Lawyer: "You testified that you can rake leaves and mow the lawn despite your back injury.  How long does that typically take you?"

Client: "About 5 hours."

Lawyer: "How large is your yard?"

Client: "About one acre."

Lawyer: "Can you explain why it takes you 5 hours to rake and mow one acre of land."

Client: "Because I can't do it all at once.  I go out and rake for about 10-15 minutes, then need to come in and sit down for 30 minute because of the pain.  Then I go back out for another 10-15 minutes, then come back in." 

This is a good example of the importance of detail, and of having a lawyer who is paying attention and knows your case.  If there was no follow up after the judge's initial question,  she would have been left with the impression that the client is able to perform yardwork with no difficulty.  The additional detail of only being able to perform this work for 10-15 minutes at a time with multiple breaks is crucial. 

After you have answered all relevant questions, the judge will then question the vocational expert.  This testimony is very technical and most likely will not involve you at all.  While the VE is an important element of the hearing, a more complete explanation of their role will be explained in a separate post.  For the purposes of this general post, it is sufficient to say that they are present to testify as to what jobs, if any, they believe you could do depending on what limitations the judge places on you.  Your lawyer is also given the opportunity to cross examine the VE after the judge has completed her questioning. 

This is a very basic explanation of what to expect at your hearing.  Of course, all hearings will be a little different.  Some cases are more complicated, some case will involve medical expert testimony, some judges are less pleasant than others but, for the most part, these hearings will be similar to what is described above.  As always, if you have any questions regarding this process, please reach out to us! We are always happy to answer questions.

-Amy


By Shanley & Justin 25 Oct, 2016

Today on the blog, we’re looking into the potential lengths of license suspension you could receive for complying with a police officer’s request or refusing a breath test in Massachusetts. We also describe the appeals process you need to go through to have your license reinstated after a suspension.

SUSPENSIONS

If you comply with a police officer’s request to take a breath test in Massachusetts, you could face the following suspensions:

  •  If you are 21 or older and you fail a breath test with a blood alcohol content (BAC) of 0.08 or higher, you will receive a 30-day license suspension.
  • If you are under the age of 21 and you have a BAC of 0.02 or higher, you will receive a 30-day suspension, and you must complete a mandatory youth alcohol program.
  • After your suspension is complete, you will need to pay a $500.00 reinstatement fee.

If you refuse an officer’s request to take a breath test, you could also face a suspension of your license:

  • If you are 21 or older with no prior convictions, the length of suspension is at least 180 days.
  • If you are 21 or older with one prior conviction, the length of suspension is three years.
  • If you are 21 or older with two prior convictions, the length of suspension is five years.
  • If you are 21 or older with three or more prior convictions, the length of suspension is lifetime.

If you are under 21 years old, you could face the following suspensions:

  • With no prior convictions, the length of suspension is three years.
  • With one prior conviction, the length of suspension is three years.
  • With two prior convictions, the length of suspension is five years.
  • With three or more prior convictions, the length of suspension is lifetime.

People of all ages could face certain, additional penalties that are associated with prior convictions:

  • If you’ve been convicted previously with an OUI that involved serious bodily injury, your license could be suspended for ten years.
  • If you’ve been convicted previously with an OUI that involved vehicular homicide, your license could be suspended for a lifetime.

APPEALS PROCESS

If your license has been suspended for refusing to take a breath test, you have fifteen calendar days to file an appeal at the Boston office of the Registry of Motor Vehicles, between the hours of 9:00 a.m. and 3:00 p.m. on a walk-in basis. You are allowed to have an attorney represent you at this hearing. If the registrar denies your request for reinstatement, we will be able to then challenge their administrative decision at the district court in the district where the offense occurred. This will offer the best possibility for you to have the refusal to comply suspension overturned.

There are three issues that may be challenged at the hearing for refusal to take a breath test:

  1. Did the police officer have reasonable grounds to believe that you had been operating a vehicle while under the influence of intoxicating liquor upon any way?
  2. Were you placed under arrest?
  3. Did you refuse to take the chemical test?

You should file an appeal within the fifteen day appeal window because the suspension for refusing a breath test does not run concurrent with any license suspension that may be imposed by the court. What does this mean? As an example, if you have a prior OUI conviction and refuse to take a breath test, you will have a three-year suspension for refusing the breath test. This three-year suspension needs to run before any following suspension that may be issued by the court upon a conviction or continue without a finding. It is possible then that your license maybe suspended for up to five years for this particular example. You will not be able to obtain a hardship license during the refusal suspension period, unless the first offense OUI charge has been adjudicated.

It is important that you work with an attorney as soon as possible regarding any DUI/OUI/DWI arrest and license suspension. You need to be made aware of your rights and work with a DUI attorney with experience dealing with these types of hearings. Here at Shanley & Justin, we are available to assist you with any criminal allegation and will zealously defend any charges levied against you. Contact our office today to schedule a free consultation visit with one of our experienced attorneys. Do not hesitate as time is of the essence in all legal matters. Call our office at (978) 454-3322.  

By Shanley & Justin 22 Sep, 2016

According to a recent Supreme Judicial Court (SJC) decision, law enforcement officers should, when practicable, record conversations between non-English speakers and translator services during interviews and interrogations. This mandate by the SJC is important because it helps to preserve the reliability of potential evidence and applies to every police department in the Commonwealth.

In Commonwealth v. Adonsoto , the Defendant was arrested for operating a motor vehicle under the influence of intoxicating liquors and brought to the police station, where she was subsequently read her rights and administered a breathalyzer exam. The Defendant did not speak English, which required the police department to use translator services via speakerphone to inform the Defendant of her rights, as well as walk her through the process of completing the breath test. The Defendant argued that the interpreter services used by the police department may not have been reliable or accurate, due to the relationship between the service provider and the police department.

The Court found no support for the Defendant’s argument questioning the reliability and accuracy of the translation. Furthermore, the main issue in the case was impairment, which the Court ruled there was sufficient evidence—slurred speech, smell of alcohol on breath, and running through a four-way stop intersection without stopping—presented during the jury trial to affirm the judgment. In further ruling, the Court mandated that police departments should record these interactions when translation services are utilized, when applicable, to avoid potential conflicts with the Confrontation Clause and Article 12 of the Declaration of Rights.  

This new protocol provides another layer of protection for non-English speaking criminal suspect’s when being interviewed by police officers, making sure that potential criminal suspects are not unduly influenced or mislead by an improper interpretations. Although, the Court did stop short of making it mandatory policy in all interviews, this added protection when practicable will definitely benefit the non-English speaking citizens and visitors of the Commonwealth.

Practicing proper due diligence and staying on top of the ever changing legal field is one way that our office strives to provide the best service to our clients. Knowing changes and new requirements to the laws allow us to file the proper motions in a criminal proceeding, which can lead to evidence being suppressed and charges being dismissed.

Here at Shanley & Justin, we provide legal aid to a truly diverse set of clientele, and have staff members that are fluent in Spanish. Call our office today to schedule a free consultation with one of our criminal defense attorneys.


By Shanley & Justin 08 Sep, 2016
The Social Security Disability application can be a difficult and confusing step in what is most often a long and drawn out process.  The Social Security Administration has made this somewhat easier by now allowing some people to complete applications as well as appeals on line.  If you would like to begin an application, a good place to start is here:  https://www.ssa.gov/planners/disability/dapply.html .  This page not only includes a link to the on-line application, but also a few pointers to get started.

While it is somewhat self explanatory to file the initial application, the rest of the process can quickly become overwhelming and confusing.  This is why we always recommend contacting us as early in the process as possible.  The initial application can take anywhere from 3-5 moths to be processed, and will statistically result in a denial.  At that point, there is only a limited time within which to file an appeal (in Massachusetts this is called the Request for Reconsideration  https://www.ssa.gov/forms/ssa-561.pdf ).  This will take another several months to be processed and is also statistically likely to be denied.  At that point, again within a limited time frame, the second appeal is filed, which is the request for a hearing before an ALJ,   https://www.ssa.gov/forms/ha-501.pdf .  Once this form is filed you will wait, and wait, and wait for your hearing to be scheduled.  Typically what we are seeing now is about an 18 month wait from the time you first apply to the time you get to the hearing.  

This is fairly standard in the New England region.  Some other parts of the country wait even longer.  Much has been written and discussed about the need for reform and a reduction in the significant backlog, however no concrete plan seems to be on the horizon just yet.  In fact, in some parts of the country, it is just getting worse.  A recent look at the backlog in Charlotte, N.C. has found that they have the most significant backlog in the country  http://www.wsoctv.com/news/charlotte-social-security-office-has-largest-disability-backlog-in-nation... , with claimants waiting an average of 622 days to get to a hearing.  

The length of time that one has to wait just to get to a hearing (when everything is done and filed correctly) is staggering.  The wait can be made even worse if a deadline is missed, or paperwork is not completed or submitted correctly.  This is why it is to your advantage to have an attorney who knows the system and knows what is required.  

While there is not much anyone can do to speed up the process of these applications, there are some steps you can take to minimize that damage while you are waiting.  A competent attorney can assist you with not only your disability application, but also with advice and a strategy for how to survive during the waiting game.  


By Shanley & Justin 25 Aug, 2016

This blog is intended to be a very basic introduction to the process of applying for social security disability.  This can be a very time consuming and confusing process for many people.  In most cases, my clients are already dealing with significant mental and physical illnesses and they can very quickly become overwhelmed by this process (reason #1 why it's a good idea to have a lawyer).  Most clients are also surprised to learn that they have applied for two different disability programs, SSDI and SSI.  However, most clients do not know the difference between the two (reason #2 why it's a good idea to have a lawyer).


SSDI (Social Security Disability Insurance): This is a program for those people who have worked and paid into the system.  In order to be eligible for SSDI benefits, you must not only be deemed medically disabled, according to social security's standards,   https://www.ssa.gov/redbook/eng/definedisability.htm , but you also need to have earned enough work credits to be covered.  In general, you need to have worked 5 out of the last ten years to be covered for SSDI benefits.  The problem? Your SSDI benefit coverage expires! Most people don't realize this.  In order to be eligible for these benefits, in addition to the medical requirements, you must show that you became disabled PRIOR to the expiration of your date last insured.


So, if your date last insured is in the future, say 12/1/2016, then coverage will not be an issue for you, and you can feel free to concentrate your efforts on proving your medical disability now.  But, if your DLI is in the past, say 12/1/2010, then you have some work to do.  You must show not only that you are disabled now, but that your disability existed prior to 12/1/2010.  This can be a much more difficult task.


SSI (Supplemental Security Income) This is a program for those people who do not have SSDI coverage.  The medical requirement here is the same, you must be found to be medically disabled according to social security's standards.  The difference here is that you must also show that there is a  financial need as well (what social security refers to as limited income and limited resources).  


Understanding the difference between these two programs and which one you may qualify for is an important part of your claim.  Sometimes social security, or the Judge presiding at your hearing will ask you to amend your onset date (the date you claim you became disabled).  In some cases this is a good idea, but, if you amend your onset date to a date that is AFTER your DLI, you may be denied benefits, even if you are otherwise disabled.  This is just one of the many traps one can fall into when dealing with Social Security.  

By Shanley & Justin 25 Aug, 2016
For those of you who have not yet found the joy of podcasts, I highly recommend the first season of Serial.  This is a riveting look at the case of Adnan Syed, a man convicted of murdering his girlfriend whose potential innocence has now come into question.  The podcast can be listened to here:  https://serialpodcast.org/season-one

There are also additional podcasts and reading materials.  The woman behind bringing so much attention to this case, Rabia Chaudry, also hosts a podcast regarding this case.  Hers is a bit more detailed and is a great supplement to Serial.  Her podcast, Undisclosed, can be found here:  http://undisclosed-podcast.com/about/

This case is another fascinating look at how our criminal justice system sometimes just gets it wrong, or at least does not do everything it is supposed to to get it right.  To read up on recent events surrounding this case, this is a goo place to start:  http://www.cnn.com/2016/06/30/us/adnan-syed-serial-new-trial/

Check back for more updates as this case progresses.  

AJ
By Shanley & Justin 25 Aug, 2016

Innocence Projects have existed in this country for many years.  The goal of these various innocence projects, which exist across the nation, is to free those who have been convicted of crimes they did not commit. There is a very important distinction to be made in the work that these organizations do, however. They are not looking for so-called legal loopholes, not interested in just a “not-guilty.” They are looking for, and often find, proof of actual innocence.

This blog will be used to provide updates on some of the more notable (and sometimes less notable) issues surrounding wrongful convictions.

If you believe you, or someone you know has been wrongfully convicted of a crime, a great place to start is the New England Innocence Project. For more information, visit their website, http://www.newenglandinnocence.org/


Perhaps the most notable recent case of a (potential at this point) wrongful conviction is the case of Steven Avery and Brendan Dassey.  These cases were made popular by the Netflix series Making  A Murderer.  This documentary is fascinating and if you have not seen it, I highly recommend it.  To read up on more recent developments, I also recommend the following articles:


http://www.jsonline.com/story/news/crime/2016/08/24/key-steven-avery-court-filing-due-soon/89224980/


http://www.cnn.com/2016/08/12/us/making-a-murderer-brendan-dassey-conviction-overturned/


These cases are fascinating and offer a glimpse into how damaged our criminal justice system can be.  Check back for frequent updates on both of these cases as new developments emerge.


AJ

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