Appealing A Denial of Social Security Benefits

By Timothy H. Baland, Esq. | Published: July 17, 2011

INTRODUCTION

The Social Security Administration (“SSA”) administers two programs: Social Security Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”).  Although a detailed discussion of the criteria you must meet to be eligible for benefits under either program is beyond the scope of this article, SSDI is generally for persons who are permanently and totally disabled according to SSA’s definition of disability and unable to work, but have accumulated sufficient work credits from working to be eligible for benefits.  SSI is generally for persons who are older than age 65, blind, or disabled.

APPEALS

If you have applied for Social Security Benefits but your application has been denied, you can appeal that the denial, but you must act quickly because you only have 60 days from the date printed on the denial letter to appeal.  There are four levels of appeal: (1.) Request for Reconsideration; (2.) Hearing; (3.) Appeals Council; and (4.) District Court.  Each of these levels of appeal will now be discussed in more detail.

1. REQUEST FOR RECONSIDERATION

If your initial application for benefits is denied, you can submit a Request for Reconsideration (“RFR”).  By submitting an RFR, you are asking SSA to have an agent other than the agent that denied you benefits in the first place review your application.  The new agent will completely review your file, as well as any additional information that you submit, such as more recent medical records.  Generally, the reconsideration occurs without a hearing, although if you are appealing a denial of benefits because SSA says that you are no longer disabled, you may have to appear before a SSA agent to explain why you are still disabled.

2. HEARING

If your RFR is denied, you can request a hearing before an Administrative Law Judge (“ALJ”).  Again, you must act quickly, because you only have a limited amount of time to request a hearing.  After you request a hearing, SSA may ask you to produce additional information in support of your application for benefits.  You may submit additional information, and you may be required to an independent medical, psychological, or vocational examination.

At the hearing, the ALJ will question you, your witnesses, and SSA’s witnesses about your disability and other qualifications for benefits.  There may adverse witnesses from or on behalf of SSA who will testify against your claim, but you or your representative will have the opportunity to question those adverse witnesses.  After the hearing is concluded, the ALJ will issue a determination of your eligibility for benefits.  The ALJ will take into account all of the evidence submitted in support of your application, including your testimony, the testimony of any witnesses on your behalf, the testimony of any adverse witnesses, all of the evidence already in the file, and any additional evidence that you have submitted in support of your application for benefits.

3. APPEALS COUNCIL

If the ALJ denies your application, you may appeal the denial to the Appeals Council.  Your case will be reviewed by an Appeals Analyst, who will review all of the information in your file and then make a recommendation to an Appeals Judge or Appeals Officer.  The Appeals Judge or Appeals Officer will consider all of the information in your file, the ALJ’s decision, the reasons for the ALJ’s decision, the reasons for the original denial of your application for benefits, and the recommendation of the Appeals Analyst.  After considering all of these factors, the Appeals Judge or Appeals Officer will issue a decision either granting or denying your application and explaining the reasons why your application was granted or denied.

4. FEDERAL COURT

The last stage in the appeals process is filing a lawsuit in federal district court.  Again, you must file your lawsuit within the period of time listed on your denial letter from the Appeals Council.  Very few applicants get to this point, so I won’t discuss it in detail.  However, suffice it to say that filing a lawsuit in federal district is an extremely complex and difficult process, and you are well advised to seek out the services of an attorney to represent you.

ATTORNEYS

Applicants for social security benefits frequently ask if they should have an attorney represent them in the application and appeals process.  From my perspective, the short answer is yes, for two reasons.  First, you typically hire the attorney on a contingent-fee basis of 25% of past-due benefits, or $6,000.00, whichever is less.  That means that you don’t pay any money, except for expenses, out-of-pocket, and that the attorney does not get paid unless you prevail.  Second, the law related to social security benefits is mind-numbingly complex, and you need an attorney to navigate the maze of laws, regulations, and cases that govern social security, apply the law to the facts of your case, put the facts most favorable to you forward, and zealously represent you in your application and at all stages of appeal.

So, you really have nothing to lose by hiring an attorney to represent you.  Some people apparently believe that you should apply for social security benefits by yourself the first time, when you do the initial application, but then hire an attorney if your application is denied.  I have to disagree with this notion, because you’re better off with an attorney representing you from the beginning.  The ultimate attorney fee might be less, but I’d rather see you qualify for benefits sooner  After all, the focus is on you, not the attorney.

Baland Law Office, P.L.L.C. represents applicants for social security benefits at all stages of the application and appeals process.  Please call (763) 450-9494 to set up an initial consultation to discuss your case and options.

Posted in Administrative Law, Appeals, Baland Law Office, P.L.L.C., Social Security, Social Security Appeals, Social Security Disability, Social Security Income | Leave a comment

Bankruptcy: Is It for You?

By Timothy H. Baland, Esq. | Published: April 17, 2010

Are you overwhelmed with debt?  Are your unpaid bills piling up?  Are creditors or bill collectors hounding you for payment?  Are collection agencies calling?  Have you been sued, or has a creditor gotten a judgment against you?  Are your wages or bank accounts being garnished?  If so, declaring bankruptcy may be an option for you to consider.

Consumers have two options under the law for declaring bankruptcy: Chapter 7 and Chapter 13.  Chapter 7 is a total liquidation of debt that wipes the debtor’s financial slate clean and allows the debtor to get a fresh start.  Chapter 13 sets up a repayment plan that allows the debtor to pay down debts over the course of 3 – 5 years.  Declaring bankruptcy under either chapter will stop collection efforts and garnishment.  If funds were garnished within 90 days of the date of the filing of the bankruptcy petition and all of the garnished funds are exempt, then the debtor might be able to get the garnished funds back.  The remainder of this article applies primarily to a Chapter 7 bankruptcy.

To initiate a bankruptcy, you file a bankruptcy petition and  accompanying schedules in the appropriate federal court.  The petition and accompanying schedules list all of your creditors, all of your debt, as well as information about your property, assets, and income.  A debt that is not listed on your bankruptcy petition is not discharged in bankruptcy.  In other words, you will remain personally liable for a debt not listed on your petition.  However, if you missed a creditor, you can add that creditor after you file your bankruptcy petition.

After you declare bankruptcy, your property becomes part of what is called your bankruptcy estate.  The bankruptcy estate is administered by the bankruptcy trustee, an attorney appointed by the bankruptcy court to supervise your bankruptcy estate.  The trustee will sell the property in your bankruptcy estate and distribute the proceeds to your creditors.

However, not all property automatically becomes part of your bankruptcy estate.  The law provides that certain property is exempt.  If you want to keep a certain item of property and that item of property is not exempt, you can either reaffirm the debt or buy the property back from the bankruptcy estate.  Most commonly, perhaps, a debtor owns a vehicle and wants to retain that vehicle rather than have it become part of the bankruptcy estate.  In that case, the debtor would reaffirm the debt by promising to continue making payments.  Alternatively, you can buy the property back from the trustee.  If, for example, you own a parcel of land in addition to your homestead, that parcel would become part of your bankruptcy estate.  However, you can buy the parcel back from the trustee and remove the parcel from your bankruptcy estate.

Not all debts are dischargeable in bankruptcy.  For example, back taxes, child support and alimony, fines, and student loans, among other kinds of debt, are generally not dischargeable.   However, after you receive a bankruptcy discharge, your personal liability for all dischargeable debts listed on your bankruptcy petition will be eliminated.

Baland Law Office, P.L.L.C. represents consumer debtors in both Chapter 7 and Chapter 13 bankruptcy proceedings.  Please call (763) 323 6911 to schedule an appointment to discuss your situation today and find out whether declaring bankruptcy is the right option for you!

DISCLAIMER: Baland Law Office, P.L.L.C. is a debt-relief agency, and Timothy H. Baland, Esq. is a debt-relief agent.  We help people like you to obtain bankruptcy relief.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 323 6911 to set up an appointment to discuss your situation.

Posted in Attorneys, Baland Law Office, P.L.L.C., Bankruptcy, Chapter 7, Debt, Discharge, Judgment | 3 Comments

Served With a Summons and Complaint

By Timothy H. Baland, Esq. | Published: March 28, 2010

If you are served with a Summons and Complaint in a civil case, you should contact an attorney as soon as possible because you only have a very limited period of time to respond.  More specifically, you have twenty (20) days under the Minnesota Rules of Civil Procedure to file and serve your Answer.  Further, your Answer must comport with the Minnesota Rules of Civil Procedure.  Regardless, if you do not Answer within the time specified, a Default Judgment may be entered against you.

A few definitions are in order.  A Summons tells you that you have to do something, such as file an Answer or appear in Court, within a specified period of time or on a specific date, while a Complaint generally sets forth the opposing party’s claim against you.   An Answer is your response to the allegations made in a Complaint.     A Default Judgment means that you did not appear by filing an Answer in response to a Complaint.  If a Default Judgment is entered against you, the Judgment-Creditor can garnish your wages and bank accounts.

The information in this blog post is intended to apply to civil cases only, and may not be applicable to criminal, family, or other non-civil cases.  However, the point remains the same: if you are served with a summons and complaint, charged with a crime, or receive a family-law petition or motion, you need to contact an attorney as soon as possible.  Generally, whatever your situation, it is much easier and less costly to take action now than later to try to undo damages caused if you simply ignore the problem.

Baland Law Office, P.L.L.C. represents both plaintiffs and defendants in civil actions,  We also represent criminal defendants.  Please call (763) 323 6911 to schedule an appointment to discuss your situation today!

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 323 6911 to set up an appointment to discuss your situation.

Posted in Answer, Civil, Complaint, Default, Judgment, Litigation | Leave a comment

Evictions (Unlawful Detainers)

By Timothy H. Baland, Esq. | Published: February 28, 2010

All landlords and tenants should know the provisions of Minn. Stat. Ch. 504B that govern evictions in Minnesota.  These laws apply to apply to all landlord-tenant situations, regardless of whether the landlord or tenant is a corporate entity or an individual.  Please note that, in Minnesota, all corporate entities must be represented in court by a licensed attorney.  Minn. Stat. § 481.02, subd. 3(12); Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 754 (Minn. 1992).

A landlord can bring an eviction action in three circumstances: (1.) a tenant does not pay rent; (2.) a tenant violates the terms of their lease; and (3.) a tenant remains in the rental property after being given proper notice to vacate.  The law governing evictions also applies to situations where the tenant remains in the property (a.) after the property is sold pursuant to an execution or judgment or (b.) after the period of redemption has expired for the owner of the property to redeem it from a foreclosure.

Eviction, sometimes called unlawful detainer, is all about who has the right to possession of the property.  If the tenant has not paid rent, has violated the terms of the lease, or is otherwise holding over after being given the proper notice to vacate, then the landlord is entitled to possession of the property.  However, the tenant may have a defense if the tenant can prove that the eviction action brought by the landlord is in retaliation for the tenant’s proper assertion of legal rights.  Minn. Stat. § 504B.185, subd. 2.

After the eviction summons and complaint is filed with the court and served upon the tenant, the court schedules a hearing to determine if the tenant has an excuse under Minnesota law for not paying rent.  If the court determines that the tenant does not have an excuse, the court will issue a Writ of Execution, which is an order for the Sheriff to remove the tenant from the property.  However, the Writ of Execution will be stayed for a period of time, usually less than seven (7) days, to give the the tenant time to vacate the property voluntarily.  If the tenant does not voluntarily leave within the specified period of time, the Sheriff will remove the tenant from the property.

A trial will be scheduled only if the court determines at the initial hearing that the tenant has an excuse under Minnesota law for not paying rent.  Typically, however, the landlord and tenant will reach a settlement whereby the tenant will pay all or a part of the rent owing within a certain period of time, or a Writ of Execution will be issued upon the filing of an affidavit by the landlord and the tenant will be evicted.  If the tenant is evicted, the landlord will initiate a separate action, usually in conciliation court, to recover the unpaid rent.

Baland Law Office, P.L.L.C. represents both landlords and tenants in eviction actions, and in other litigation related to the landlord-tenant legal relationship.  Please call (763) 323 6911 to schedule an appointment to discuss your situation today!

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 323 6911 to set up an appointment to discuss your situation.

Posted in Eviction, Landlord and Tenant, Landlords, Tenants, Unlawful Detainer | Leave a comment

Unemployment Benefits

By Timothy H. Baland, Esq. | Published: February 21, 2010

If you’re out of work, the first question you may have is whether you are eligible for unemployment benefits.  The answer depends on whether you were laid off, fired, or quit.  Regardless, you should apply for unemployment benefits as soon as possible after losing or leaving a job.

LAID OFF OR FIRED: If you were laid off or fired, and assuming that you meet all of the other eligibility criteria, you are eligible to receive unemployment benefits unless you were laid off or fired because of employment misconduct.  Employment misconduct as “any intentional, negligent, or indifferent conduct, on the job or off the job that displays clearly (1.) a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee; or (2.) a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a).   So, unless you were laid off or fired for employment misconduct, and assuming that all of the other eligibility criteria are met, you are eligible to receive unemployment benefits.

QUIT: However, if you quit a job, you are not eligible for unemployment benefits unless you had good reason to quit caused by the employer, even if you meet all of the other criteria for eligibility.  A “good reason to quit caused by the employer” is  defined as “a reason (a.) that is directly related to the employment and for which the employer is responsible; (b.) that is adverse to the worker; and (c.) that would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.”  Minn. Stat. § 268.095, subd. 3(a).  So, if you quit, you are generally ineligible to receive unemployment benefits unless you had good reason to quit caused by the employer.

APPEALS: After you apply for unemployment benefits, Unemployment Insurance Minnesota (“UIMN”) will issue a determination of whether or not you are eligible to receive unemployment benefits.  If either the employer or applicant is not satisfied with UIMN’s initial determination, that party may appeal the determination.  There are three stages in the appeal process.

First, an Unemployment Law Judge (“ULJ”) presides over an evidentiary hearing, usually conducted by telephone.  At the evidentiary hearing, the parties present evidence about a former employee’s eligibility for unemployment benefits.  For example, if an employee was fired, the former employer would attempt to show that the employee was fired for employment misconduct, and vice versa.  The ULJ will make findings of fact and determine whether the applicant is eligible for unemployment benefits.

Second, if either the employer or applicant is not satisfied with the ULJ’s determination, that party can file a Request for Reconsideration (“RFR”) with the same ULJ.  The RFR must allege that factual errors, errors of law, or procedural errors were made at the evidentiary hearing.  The ULJ will then review the evidence presented at the evidentiary hearing and decide whether any errors occurred.  After reviewing the evidentiary hearing, the ULJ will then issue an order either affirming, reversing, or re-opening the evidentiary hearing.

Third, a party not satisfied with the outcome of the Request for Reconsideration can appeal to the Minnesota Court of Appeals.  Generally, the Court of Appeals will defer to the findings and determinations made by the ULJ, unless the ULJ clearly made an error of law, the hearing violated the applicant’s constitutional rights, or a procedural error occurred.  Minn. Stat. § 268.105, subd. 7(d).

THE BOTTOM LINE: If you want to appeal UIMN’s initial determination of eligibility or ineligibility, you should contact an attorney as soon as possible because you only have a limited amount of time in which to appeal.  Generally, you want to prevail at the evidentiary hearing because winning at the subsequent stages of the appeal process is much more difficult, largely because the subsequent appeals are reviews of what happened at the evidentiary hearing.  For this reason,  I strongly recommend hiring an attorney to represent you at the evidentiary hearing rather than later in the appeal process.

Baland Law Office, P.L.L.C. represents both applicants and employers at the evidentiary hearing and throughout the appeals process.  Please call (763) 323 6911 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 323 6911 to set up an appointment to discuss your situation.

Posted in Administrative Law, Appeals, Attorneys, Baland Law Office, P.L.L.C., Law, Unemployment Benefits | Leave a comment

When Do You Need an Attorney?

By Timothy H. Baland, Esq. | Published: November 21, 2009

You should consult with an attorney when you are facing a legal problem, believe that you have been treated unfairly, or when something about a particular situation that you are in just doesn’t feel right. In my experience, if something doesn’t feel right, it’s not, and you need to take action to protect your legal rights.  Hiring an attorney is not as expensive as you may think, and the cost of not taking action now to protect your rights can be more expensive than the cost of hiring an attorney to help you.

You always have legal options in any situation, and meeting with an attorney is the best way to discover your options. Baland Law Office, P.L.L.C. offers a 30-minute consultation for $75.00, so please call (763) 323 6911 to set up your appointment today.

Posted in Attorneys, Baland Law Office, P.L.L.C., Fees, Law, Lawyers | 2 Comments