Illegal Drugs, Alcohol and your Social Security case DON’T mix!
Several years ago, the Social Security Administration provided disability benefits to individuals based on their addictions to controlled substances such as Alcohol and Illegal Drugs. However, the Social Security Administration reversed this position and now, individuals who are applying for disability benefits must keep in mind the impact that illegal drugs or alcohol may have on their case.
The regulations refer to this as standard as the materiality standard. In other words, the SSA wants to know what type of impact that drugs or alcohol may have on your case.
Here’s how it works, suppose you’re alleging that you’re depressed. However, at the same time, you’re using an illegal drug like ‘cocaine or marijuana’. Well, the question the SSA is going to ask is if you stopped using cocaine or marijuana (or whatever illegal substance), will you improve? If your condition improves, then it is assumed that the drugs are material to you being found disabled.
Now, every situation is a little different but it’s important to remember that illegal drugs or alcohol will NOT help your social security claim. it’s important that you realize that if you are applying for disability benefits, any use of illegal drugs or alcohol may have an adverse effect on your case. So please keep these things in mind.
Don’t KILL your case!
The legal process is a frustrating beast and let me be the first to tell you, the BEAST always wins! Now, I am not saying that the BEAST will beat you but what I am saying is that most people get so upset with the waiting, the red tape, and all of the little steps you have to take in order to get from point A to Point B that they sometimes do things in order to fight the BEAST.
If you’ve hired an attorney, your attorney is trained to fight for you as well as deal with this BEAST that is known as the LEGAL process. Unfortunately, too many times, people will do things that may potentially HURT (or even KILL) their case:
1) Talking to witnesses on your own. Depending on the situation, you really should let your attorneys talk to potential witnesses. Why? One, attorneys tend to fully document the context of the conversation. Two, attorneys tend to have specific, well crafted questions that they ask which will give them an idea of whether the witness’s information is helpful or harmful. Three, what you tell your witnesses may eventually come back to bite you in court. You don’t know how someone will convey what you said to them.
2) Sending in your own evidence. So you found something that you think is useful, that’s great. Make sure you let your attorney see it first. Most attorneys are aware of discovery requirements but if you decide to give the other side some information that you didn’t necessarily have to give and it’s damming to you……….do I need to go further??
3) Taking steps without consulting your attorney. If you are going to do what you want to do, then you probably don’t need an attorney. Most attorneys work to carefully lay out a plan of attack to deal with any issues or problems that may arise and if you decide that you are going to do things that undermine that, the attorney can’t help you.
4) Responding to the court or the other side on your own. If you get documents from the court or the other side, unless you don’t have an attorney, please be careful not to respond. So much time, we think that if respond to someone right away, it will help our case.
5) following the advice of someone who is NOT your attorney. I had a friend of mine who is an attorney tell me that she has to tell her client’s all the time “I didn’t know they gave out law degrees at the gas station?”. The reason she says this is because so many times, her clients will come to her FIRED up because someone who is NOT an attorney will tell her client something and then come to her HOT! Becareful about following the road of some person who THINKS they know what’s going on when in reality, they don’t.
Like I said, the legal process is a BEAST but don’t add to the problem by giving the BEAST food to eat. The process is tough but it can be tougher if you do things to make it worse.
Timing may not be enough
When you are terminated from your job or experienced some form of adverse employment action (whether it be demotion, disciplinary action, or hostile work place), you may take at the possibility that these actions may be in response to something else.
In other words, if you have done something you were legally permitted to do or you are a member of a protected class (i.e. race, sex, age, etc.), you may consider the possibility that you were retaliated against by your employer.
However, retaliation is sometimes very tough to prove. The first portions of the analysis may be easy. Part 1 may require you to demonstrate that that you were conducting an activity that was legally protected (like participating in an investigation or refusing to do something illegal). Part 2 may require you to demonstrate some adverse employment action (like getting demoted or fired). Those two parts are usually the easiest. The hardest part is the last part where you must demonstrate that there is a causal link between the two. Now, after you’ve laid out your theory, the employer has the chance to come back and say “Hey, I had a legitimate reason for doing what I did”. Then, the ball is back in your court. You have to prove that the employers actions were pre-textual. In other words, you gotta show that the adverse employment action was done in an attempt to retaliate against you for your actions.
One thing that courts may take into consideration is timing. In other words, courts will look at when you did something and how soon after the action did the adverse employment action occurred. Alot of times, people get pumped up because they think that if something bad happens within a short period of time, this information will solidify their case and slam dunk the employer.
However, you gotta keep a few things in mind when looking at timing:
1) The longer the time, the tougher the case. The longer the time period elapses between the protected activity and the adverse employment action, the more difficult it is to prove a causal link. In other words, if you complain of sexual harassment in 2002 but nothing happens to you until you get fired in 2007, you are going to have a tough road to prove the complaint is tied to the firing.
2) You better keep clean. If you were a problem child before and the employer documented this before and they continue to document that you are a problem child, you may have a hard time distinguishing between the employer’s retaliation and the employer merely documenting your behavior.
3) No magical time. Always remember that timing is added factor that courts can consider. however, timing is not enough by itself to automatically slap culpability to the employer. it can be extremely persuasive but it is NOT an automatic win.
It’s important that you take the opportunity to talk to your attorney before moving forward so that you can get a true appreciation of how ‘timing’ may play a role in your case. You don’t want make too much out of your situation if there is really nothing there.
If you need help, don’t have an attitude
I am always amazed how people who feel that they have some sense of entitlement or feel that they have a strong case or feel that you have DUTY and RESPONSIBILITY to help them tend to communicate these feelings in an aggressive manner.
In other words, I’m always amazed by people who are asking for help will get an ‘attitude’ when you don’t jump up and pay attention.
I know these words may seem over simplified and PLEASE don’t think that I am trying to insult ANYONE’s intelligence. However, you have to keep things in their proper perspective. When you are trying to ask someone to help you with a matter or situation that needs to be resolved, the last thing you want to do is walk into their office or their space and ACT like they need to ‘buck up and step right’!
Some of you may still be confused about what I am talking when I’m saying these things. Let me take it a step further. Anytime you are dealing with people who are providing professional services, you have to remember that they are professionals and they are offering to provide a service.
Remember, this is just an OFFER! They don’t HAVE to serve you. It really doesn’t help your situation or your case to walk around with your lip poked out or your chest poked out think that you are entitled to receive a certain amount of treatment or service just because YOU demand it.
Now, don’t get all bent of shape. I’m not saying that if you have a great case that you should be humble or that you should be shy. What I am saying is that you gotta be careful going into a meeting or discussion with a professional (like a doctor, mechanic, or attorney) and have this chip on your shoulder.
And for those of you who still may not understand why some professionals may not like to deal with an attitude, here are a few other things to consider:
1) If you got attitude now and you are ASKING for help, what makes you think you want have MORE attitude later. Think about it. Here you are asking for help and you got ALLLLLL kind of mouth! When you step to someone like that, there is no reason to believe it won’t get worse.
2) Life is filled with stress already so why should YOU add to it? I work with people all the time who are devastated by their financial situation. So I understand how stressful life can be. In all instances, I reiterate to people that I am THERE for them so they understand that I am a part of the solution and not the problem. However, some professionals have a lot of stress to deal with it and if YOU are going to add to that stress, then why should they bother?
3) You MIGHT be a NIGHTMARE! Sometimes, when you complain a lot or have an attitude about everything, this sends a HUGE message to the professional that you may have some unrealistic expectations about what you expect to have happen. As a result, this may be a problem because if you have it in your mind of what YOU expect to have happen (despite what is being told to you), you may make things more difficult for those who are trying to help you.
4) Just because I have a suit on doesn’t mean I am SOFT! Sometimes, we get into these positions where we believe that individuals who provide us services are weak. As a result, we feel the need to exert our influence on them to let them know that we will not be denied. However, don’t EVER think in your mind that just because someone is polite and articulate and has a suit that they can’t get JIGGY!! I knew an attorney who cussed someone out who was repeatedly rude to her despite her best efforts. After several visits, she clicked and he learned very fast that she was much more aggressive than he thought she was.
Now, I am not going to sit around here and act like I have never had an attitude about something. I have walked around with the hoochie and gotten live with people on more occasions than I probably should have. However, after almost 8 years of practicing law, I realize that you really get more out of people when you are kind as opposed to kinding being rude. Remember, if you don’t want anyone coming at you with attitude, what makes you think that they want attitude?
5 Reasons why some representatives may not take Child’s Disability case
I am one of those attorneys who actually LIKES kids’ supplemental security income disability cases. Mostly because I usually feel sympathy for the children and I take the time to educate parents. Even with that said, I am very tough on scrutinizing kids’ cases. I can’t begin to tell you the number of parents who have come to me expressing their difficulty in finding a representative who handles kids’ cases. Well, in an effort to give you some insight into why it is so difficult, I thought I would share a few reasons that may affect the decision of a representative to work with your child’s case:
1) Hard to win
Most people don’t appreciate the fact that Social Security cases are hard to win when it comes to kids. Social Security is very leery about categorizing kids as being disabled. As such, the standard for determining if a child is disabled is much higher.
2) Some conditions are MUCH harder than others (Asthma, ADHD, slow learning, and behavioral problems)
Some conditions are fairly common amongst kids when it comes to SSI claims. ADHD, Asthma, Learning problems, and Behavioral problems are pretty common. Unfortunately, most people don’t appreciate how hard it is to prove these types of cases. In most cases, the child’s conditions have to be pretty severe and merely taking your child to the hospital once or twice or the fact that they are in Slow learning disabled classes may not be enough.
3) Assets and resources
Most people don’t realize that if the child’s case is being applied under Supplemental Security Income that assets and resources come into play. Remember, representatives get paid based on the amount of back pay. If the parent’s resources are of such a level that it reduces the amount of money the child may receive, this amount may affect the amount of back pay a representative may get.
4) Parents not doing what they are doing.
Unlike adults, children can only go and get treatment if their parents take them. Sometimes, parents are not as aggressive as they need to be in order to ensure that their kids get the treatment they need.
5) Parents making the condition worse than it is.
In some rare cases, the parent may be overstating the case. For instance, when asked the question “HOw often do you take your child to the hospital?”, some parents will say “Every month”. However, when you follow up with “So when I ask for records, i will have 12 visits? One for every month of the last 12 monts?”, then you may get a slightly modified version “Well, I go almost ever month.” It’s important that you give an accurate portrayal of your child’s condition.
Kid’s cases are very tough. It’s important that you take the necessary steps to address their medical issues but understand that the very fact that they are difficult to prove may make it tough for a representative to take.
Social Security Tips for certain disability cases, Part II: Epilepsy
Epilepsy is a severe medical condition that can have powerful effects on your day-to-day functions. Most people have epileptic events called seizures. These seizures are usually Petit Mal Seizures or Grand Mal Seizures.
Petit Mal Seizures may be manifested by ’staring episodes’. The individual may find themselves experiencing periods of time where they are cognizant of their surrounds and may literally be non responsive (even though they are awake). In most cases, persons with Petit Mal Seizures lose track of time during the seizures.
Grand Mal Seizures are the convulsive attacks that result in the individual experiencing rapid body movement, eye rolling, and other involuntary body functions for a period of time. The person may urinate or defecate on themselves during these attacks. These events are so traumatic that some people need lengthy periods of time to regain their composure.
Most people think that epilepsy is so traumatic that an individual should be approved fairly easily. Due to its unpredictability, the symptoms can affect you in a variety of different ways. Despite the severity of this condition, it is difficult to demonstrate that the condition can prevent from performing work on a full time basis.
In order to appreciate the difficulties of these cases, here’s a few things to keep in mind:
1) How often do you have them? A seizure calendar is a great tool. Take a blank calendar and everytime you have a seizure, mark it down. Distinguish between Petit Mal or Grand Mal. Since most people don’t remember when they have one, it is important that you have a loved one help you keep track.
2) Take your meds. Some people have the opinion that once they go a period of time without a seizure that they must be fine. It most instances, this just means that the medication levels are at a point where it can balance your seizure. Unfortunately, some people get a false sense of security and think this means they are cured. WRONG! Unless your doctor tells you to stop, keep taking your medicines.
3) What happens after the attack? Here’s where loved ones can help. Some people take a few minutes to recompose themselves. Some people need to take a nap. Some people need to lay down. In most instances, the person having the seizure doesn’t remember, but you should have a friend or family member let you know what is going on after you come out of your attack (as well as tell you how LONG the attack was).
4) What are your restrictions? Are you allowed to be around the stove? Can you stay with the kids by yourself? Has your driving license been taken away? All of these things are necessary to help you with your claim.
5) Sugar Coating it or Sour Coating it will NOT help your case. Listen, don’t front. Epilepsy cases are hard to win. So don’t act like you’re not having many seizures when you actually ARE and don’t act like you’re having a bunch when you’re not.
Recognize the importance and the difficulty of your case if you are alleging Epilepsy. These little things may make a HUGE difference.
TOMORROW’s CASE: ASTHMA
Sometimes, there is no solution
It’s amazing the amount of times people come to lawyers with the mindset that the lawyer can help them get out of a situation. Attorneys have the ethical obligation to inform you of the pros and cons of your case. In addition, attorneys are responsible for informing you of the probability of success.
However, there are some of those times when the options to resolve your case are EXTREMELY limited:
1) Statute of limitations. Typically, legal actions have only a set period of time for you to file your cause of action. As such, it is important that you take it upon yourself to initiate your action as soon as possible. Interestingly, some of types of cases will allow a “good cause” exception for late filing.
2) No legal option. In some instances, you may not have any legal option available. In other words, the situation that you are faces may not be illegal or their may be no law to deal with those situations. In those instances, with the help of a clever attorney, you may be able to put a ‘unique spin’ on a situation in order to obtain a legal recourse.
3) No factual option. As an attorney, we spend alot of time trying to make the best of bad situations. Sometimes, the facts of the case are so bad that they offer almost no recourse whatsoever. In the words of some of my peers, “you’re arguing just to argue”.
4) Tough jurisdiction. How many of you have found yourself with a legal situation and said “YAYY, it’s ON” only to find out that you have to go to a different jurisdiction to seek a remedy? The next time you go on a cruise or vacation, look at your contract. Typically, companies will choose a venue that is advantageous to them. In other words, they go to the jurisdiction where the laws may be more favorable to them.
5) Only a limited bite at the apple. In some legal situations, you only get a limited number of opportunities to present your case. In some rare cases, you may only get one.
6) Took the wrong path. In some cases, you must go through certain processes and procedures BEFORE taking certain steps. If you don’t go through those steps, you may not have an option.
7) Already decided. There is a legal phrase that is called “Res Judicata” which is latin for “Matter already judged”. Sometimes, we have situations where a decision has already been made. Now, don’t get me wrong, if you have appeal options, you can always file those appeals accordingly. However, if all remedies are exhausted, you may not have any other option.
I’m a firm believer that you can always argue something, you can always sue someone, and you can always try the system even though there doesn’t appear to be option. However, there are some times when you are clearly facing a problem where there is no solution.
From LOVE to LEGAL Service: The UNSEXY nuts and bolts of a DIVORCE
“Til Death do us part!”
Those words sounds so romantic when we are standing in front of god (or whoever you worship), our family and our friends. We genuinely believe that we are going to be with that special someone for the rest of our lives.
Sadly enough, the phrase probably should say:
“Til Death or DIVORCE do us part!”
I’m pretty sure that everyone is intimately familiar with the various divorce rates in different parts of the country. Despite these rates, people still find themselves in the unique position of availing themselves of the legal proceedings when things go bad.
If you are one of those individuals who are curious about whether you should explore your legal rights to dissolve your marriage, here are a few things for you:
1) To separate or NOT to separate, THAT is the question. It is important to check your state’s separation requirements. Some states requires couples to be separated for a period of time before they are allowed the ability to dissolve their marriage. Part of this is based on the notion that an appropriate cooling off period may resolve the marriage. In addition, this allows the courts to determine WHO is serious about dissolving their marriage.
2) Have you REALLY lived in that state long enough? Some people will separate and try to relocate to a state that may have more favorable family laws. However, most states have a ‘residency requirement’ which means you would have had to have lived in that state for a particular period of time before you get the opportunity to file for divorce under those state laws.
3) Am I REALLY going to get anything?? Some states have some JAMMING dissolution laws as they relate marital and community property. In addition, these states don’t really care HOW LONG you’ve been married. However, some states are the exact opposite. As a result, just because you have a ’shotgun’ 3 day wedding doesn’t mean you’ll get half of her assets. Nor does it mean that you will get the person’s retirement or automatically get spousal support.
4) The REAL Tug of war: THE KIDS!! If there are children involved, WATCH OUT!! In the best of cases, one parent is taking care of the children already so there is probably not an issue. However, if both parents play an active role in the children’s lives, get ready for a fist fight. Courts don’t usually like to disturb where the child is currently residing but if the non-custodial parent can show that their living arrangement is better, the non-custodial parent may have a shot.
5) If the divorce is dirty, friends may get dirty, too! Listen, friends DON’T like to get in the middle of messy divorces. However, the simple fact is that your friends may have information that may help your case. Your friends can testify if your spouse lives an lifestyle that is harmful to children or has made threatening remarks to you or the kids. It is not pretty but it is a reality.
6) If it’s simple, you may be able to get it done fast! Alot of states have family law assistance programs which enable you to get a divorce on your own. These programs will provide you the forms and the assistance to fill out the forms. These programs are great for short term marrigages or marrigages where there is not alot of assets and no kids.
7) If it’s complicated, get ready to wait! Recognize that if you got alot of assets or if your spouse or YOU are prepared to be a COMPLETE ASS, don’t expect this divorce to be quick. If your spouse is a JERK or you are being a JERK, be prepared for a fight. If you are being nasty, your spouse is going to want to defend themselves just as aggressively. If your spouse is being a jerk, you are NOT going to want to let them run over you.
In a perfect world, you want to believe that you can live happily ever after. If not, you want to, at least, believe that you can walk away from each other amicably. However, this may not always be the case so be prepared if you must get down and dirty.
The Great Transition: children taking care of their parents
When you’re in your teenage years or your twenties, you think that your parents are invincible. You turn to them for moral support, financial support and physical support. Your parents are there for you for the good times and for the bad times.
However, when you start getting into your thirties, a scary thing starts to happen. Your parents start to get old. Now, I’m not saying that they are disappearing to dust but you start to realize that they can’t do the things that they used to do. Your dad can’t work on cars like he used to do. Your mom can’t play basketball like she used to do. Your dad can’t stand in the kitchen for long periods of time. Your mom can’t remember how to fix the computer anymore.
To watch your parents grow old is a natural part of life. Even though it’s natural, it’s still horrifying. What gets even more scary is when you are placed in the position of having to step in when your parent is hit with a traumatic medical event. Your parents have a heart attack or a stroke or is diagnosed with a debilitating form of cancer. Now, all of sudden, you find yourself in the life altering position of trying to decide what to do with your mother or your father who can no longer independently care for themselves.
No one plans for these situations but the simple fact is that they happen on a regular basis. Even more pronounced in the situation is the fact that our parents are living much longer. So for the longer they live, the longer we may have to care for them if the needs arise.
Here’s a few things that may bring you piss of mind for th efuture:
1) If you’re married, have the conservation with your spouse BEFORE anything happens! The unfortunate thing about having to take care of family members is that some couples don’t anticipate this situation every happening. Therefore, they don’t discuss it. No one wants this to happen but you should, at least, have the discussion about what you will do if you need to take care of your loved ones.
2) Try to respect your parents’ desire to remain independent. When your parents are struck with a devastating condition, it is never their intent to remain in that position. They have desire to return to their way of living. It’s tough trying to convince your parents that they can’t live the way they used to live. However, it’s important that you take every step to make sure that they maintain as much independence as possible to ensure they still feel independent.
3) When you start noticing something is wrong, start stepping in immediately. Now, this is simply the hardest part of the equation. Alot of times, our parents may not see that they are ’slipping’. They ain’t trying to hear any of that noise about them slipping or losing their abilities. Now, the tough part is what do you do? It can start off simple. Ask about funds in the bank. Ask about who are on the bank accounts. Check the status of the mortgage, car notes, and other debts. Listen for anything out of the ordinary.
4) Get ready to talk to an attorney. Start looking to talk to an attorney that focuses on elder law or probate law. Start pricing assisted living facilities, nursing homes, extended living facilities, or in home care. Check for the establishment of wills, guardianships, or trusts. Unfortunately, when things get crucial, it gets crucial QUICK!!
5) Be prepared for family drama! That’s right, I said it! FAMILY DRAMA! Your parents have sisters or brothers or nephews or nieces who will feel the need to throw their two cents in the equation. What’s stressful about this situation is that everyone (who is NOT in your situation) feel the need to give their opinions about how to handle the situation. Unfortunately, it’s usually these same people who are not contributing to resolving the situation either.
6) Be patient! The hardest part about dealing with this situation is remembering that you MUST stay patient. It’s hard because any time a traumatic family situation occurs, it effects everyone in the family. Just remember, you have the tools to handle whatever challenge comes your way.
Taking care of your parents is a necessary step in the circle of life. Be prepared for it so you can provide the life for your parents like your parents provided for you.
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