Law Office of Michael Tonder, P.C.

65 Pineville Road, Suite 2
Monroeville, AL 36460

P.O. Box 337
Excel, AL 36439‎

251.302.2228


Michael Tonder

Average Wait Times Before Hearing

The most common question asked by disability claimants is “how long will it take for a hearing?” Throughout the years the waiting period has fluctuated.  Currently, the Mobile, Alabama Office of Disability Adjudication and Review takes an average of one year to decide a claim. http://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html Remember, this is the time period from when the Request for Hearing is filed until decision, and not the time period from when you initially apply.

During this waiting period, it is best to see your doctor and submit any and all evidence connected to your disability appeal.   There are also mechanisms that allow the Administrative Law Judge (“ALJ”) to review your case and determine whether it can be approved without having a hearing.  Usually, this requires submission of evidence that overwhelmingly supports your claim.  Keep in mind that some ALJ’s rarely issue a decision without having a hearing and that your case is randomly assigned to an ALJ.  As with many things, the amount of time you have to wait for a decision can sometimes be determined by the luck of the draw.

Nurse Practitioners and Physician Assistants

Earlier in this blog, we discussed how Social Security evaluates a doctor’s opinion in the context of a disability claim. Unfortunately, there are many people that never see an actual Medical Doctor (M.D,) when they go to a clinic. Instead, they see a Certified Registered Nurse Practitioner (CRNP) or a Physician’s Assistant (PA).

In the real word, for many patients there is practically no difference between an M.D. and a CRNP/PA. Each comes into the room, examines you, and prescribes medicine. For purposes of a disability claim, there is a huge difference between an M.D., and a CRNP/PA. Under the Social Security regulations, the agency has to consider an MD’s opinion differently: an MD’s opinion is entitled to the most deference. Although the agency can defer to the opinion of a CRNP/PA, the agency can also discard a CRNP/PA opinion much easier than an MD’s opinion.

With that said, it must be stressed that the disability claimant continue to get medical treatment, even if they can only afford to go to a clinic and see a CRNP/PA. The Administrative Law Judge might be willing to adopt the CRNP/PA opinion if it is consistent with the medical records. Most Administrative Law Judges are aware of the different clinics in the area and that not everyone sees a doctor when they visit a clinic.

I have a conditional green card and my spouse wants to leave me.

I often get calls with the following fact pattern.  A  U.S. citizen marries a foreigner (“spouse”).  The U.S. citizen sponsors the spouse and a conditional green card is issued.  Before it is time to remove the conditions, the U.S. citizen and spouse have a falling out.  Now the spouse is worried that the U.S. citizen will not help them remove the conditions on their conditional green card.  What can they do?

Hopefully, the couple will find a way to work things out. If they can’t, the spouse can still get the conditions removed without the help of the U.S. citizen.   If the couple divorces, the spouse can file a divorce waiver with USCIS.  The spouse will still need to show the marriage was entered into in good faith.  It will also help if the foreign spouse’s actions were not the cause of the divorce.

What to do BEFORE filing a disability claim

A Social Security Disability Insurance Benefit (“DIB”) or Supplemental Security Income (“SSI”) claim can be a life altering experience.  If the claim is awarded, the disabled person will receive monetary benefits plus medical insurance.  Although a person will not get rich from disability, it is better than having zero income and being uninsured.   It is important to put your best foot forward if you are thinking of filing an application for disability.  Here are some tips I give people if they are thinking about filing a claim:

Try to save enough income to cover living expenses for a year.  Sometimes it takes over a year before an application is approved.

Try to keep your medical insurance for as long as you can.

Talk to your doctor about a potential disability claim before your insurance expires.  It might be difficult to see your doctor once your insurance expires.

Try to get all scans, x-rays, and lab work done before your insurance expires.

Obtain letters from former employers detailing how your medical condition affected your job performance.

 

These are a few tips I tell people if they are thinking about filing a disability application.

Veteran’s Day

Veteran’s Day is Monday. In honor of the day, go out and watch a parade, visit a veteran, or just enjoy the day with your family and recognize the sacrifice others have made. In Mobile, Alabama there is usually a Veteran’s Day Parade downtown. Try to catch it if you can.

B-2 Visa

What is a B-2 visa?

A B-2 visa is a mechanism for someone to visit the United States for purposes such as tourism, vacations, visit relatives and/or friends, medical treatment, etc. A B-2 is not for employment. To obtain a B-2 an application must be completed with the State Department. An interview might be required at the U.S. embassy or consulate in the country where the applicant lives. The consulate is looking for information that establishes that the applicant will not stay in the U.S. past their authorized stay. The consulate will consider such issues as

1. Does the applicant have strong ties to their country of residence? If so, it helps show that the applicant is likely to return home.
2. Are the applicant’s reasons for traveling to the U.S. legitimate activities relating to business or pleasure?
3. Does the applicant intends to enter the United States for a set period of time? The more specific, the better.
4. Are the applicant’s plans specific and realistic?
5. Does the applicant have adequate funds to avoid unlawful employment while in the U.S. Can the applicant afford their stay?
6. Is the period of time in the U.S. consistent with purpose of stay?

K1 Visa

K1 Visa.

What is a K1 Visa?  A K1 Visa is used to get a foreign fiancée to the U.S. in order to get married.   The procedure to obtain a K1 Visa is as follows:

First, the U.S. citizen petitions for the foreign fiancée via form I-129f.   The U.S. citizen will have to prove that he or she has met their foreign fiancée in person within the last two years.

Once USCIS approves the petition, it will send the petition to the U.S. Consulate where the foreign fiancée will apply for a nonimmigrant visa.  The U.S. Embassy or Consulate will notify the foreign fiancée to get a medical examination and also attend an interview.  The foreign fiancée will have to fill out many forms to submit to the Consulate.

If the application is approved, the foreign fiancée will be issued a visa to travel to the United States.  Once the foreign fiancée arrives in the United States they will be inspected and if granted admission, have 90 days to marry their U.S. Citizen fiancée.

Once married, an application to adjust status to a Legal Permanent Residence (LPR or Green Card holder) can be filed.

As with most immigration issues, the K1 Visa process can be very tricky.  If your fiancée is a citizen of another country and not currently in the U.S., please speak with an immigration attorney to insure the visa petition goes as smoothly as possible.

Social Security is reviewing my case years later

Social Security is reviewing my case years later.

If you are found disabled, the chances are pretty high that Social Security will review your case sometime down the road.  Social Security will usually write to inform you that they are reviewing your claim.  They will gather your medical records and probably send you out for an examination just like they did when you first applied.   Eventually Social Security will make a decision whether or not you are still disabled.

If Social Security decides you are still disabled, they will write you a letter stating so.  There is nothing else to do.  But remember, Social Security might review your case again in a few years.

If Social Security decides that your disability has improved to the point where you can work, there are deadlines that you must be aware of if you plan to appeal.  You have sixty days (60) to appeal the decision, but if you want your benefits to continue during the appeal process you must appeal within ten days (10) of the notice.  Remember that if you continue your benefits during the appeal and you ultimately lose, Social Security can request that you pay back the money you received during the appeal.

If you appeal the decision, you can request an informal hearing.  This hearing usually takes place at the local Social Security Office.  It is very informal.  The Decision Officer will ask you a series of questions and will allow you to tell them any information that is pertinent to the case.  These hearings usually last around thirty minutes (30).

The Decision Officer will make a decision and send you a copy of it.  You will continue receiving your benefits if you are found disabled. If you are found not to be disabled, you will have to appeal the decision for a hearing before an Administrative Law Judge.  Once again, you must appeal the decision within sixty days (60).

If you are receiving Social Security Disability Benefits or Supplemental Security Income and have received a letter from Social Security that they are going to review your case, you should contact an attorney to help you.

Lost your disability case? Now what?

So, you lost your Social Security Disability claim.  Now what?

Many people choose to attend their Social Security Disability hearing without representation.  Some win. Some lose.  What are your options if an Administrative Law Judge (“ALJ”) issues an Unfavorable Decision (“UFD”)?

First off, you should consider your appeal options.  You can appeal a UFD to the Appeals Council.  You only have sixty days from the date of the UFD to appeal.  If you miss the deadline to appeal you must show good cause why your appeal is late.  The Appeals Council has the authority to reverse the ALJ’s decision, remand it for a new hearing, or keep it the same.  If you do not appeal the UFD, it become final and it is extremely difficult to change the decision later.

You can also decide to file a new claim for benefits.  This is usually not recommended because you are essentially giving up all of your past due benefits, which can be a substantial amount of money and insurance.  However, sometimes this is the best option for the claimant.  Your situation will determine whether you should file a new claim.

If you represented yourself before an ALJ and received a UFD, you should make an appointment to speak with an experienced disability attorney to discuss your options.