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Video – Experts at Social Security Hearings

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The Recency Element of Past Relevant Work

The Recency Element of Past Relevant Work

Social Security will deny a disability claim if they find the claimant can do “Past Relevant Work” (PRW), either as it was actually performed or as that type of work is generally performed based on the appropriate Dictionary of Occupational Titles code.[1] In order for a prior job to be PRW it must meet three elements: Substantial Gainful Activity (SGA), Duration and Recency.[2]

  1. SGA

This element is satisfied if the work met the definition of SGA under 20 CFR Sections 404.1571-404.1575 and 416.971-416.975.

  1. Duration

This element is satisfied if the job lasted long enough for the claimant to have learned the skills necessary to resume that type of work and achieve average performance without significant re-training.

  1. Recency

This element is met if the job was performed within the 15 years prior to the date of adjudication or the Date Last Insured, whichever comes first. The scope of this period may be extended if there is a continuity of skills, knowledge and processes that can be established between such work and the claimant’s more recent work. However, the scope of this period may not be shortened.

In the interest of certainty, Social Security has formulated rules for decision-makers to follow. Some rules seem “black and white” and I often tell my clients “Social Security has to draw the line somewhere.” However, in certain cases, these rules would produce an unfair result when the exact language of the rule is not matched but the underlying rational behind the rule is present. For most of these rules Social Security has created exceptions that prevent unfair results. For example, there are several exceptions to the SGA guidelines, including the subsidized work environment[3] and the unsuccessful work attempt.[4] In the context of the Grid rules, Social Security acknowledges that in some cases it would be unfair for the rules to change overnight when the claimant reaches a certain age, so the borderline age situation was developed.[5] In the context of transferrable skills, Social Security recognizes that as a claimant gets older, obtaining employment would be increasingly more difficult unless only a minimal amount of adjustment is required, such that the claimant could be expected to perform “at a high degree of proficiency with a minimal amount of job orientation.”[6]

These concepts should be applied to the PRW 15 year rule. For example, take an individual of advanced age (55-60), who worked in manual labor for the last 14 years but is now reduced to the sedentary exertional level. The Grid rules would ordinarily direct a finding of disability.[7] However, if this individual worked as a telemarketer for three months 14.5 years ago, the Grid rules would direct a denial (unless other limitations prevent the claimant from doing that work). In this case, using the rational above, vocational analysis of PRW should address whether any significant changes have occurred in telemarketing work since the claimant last performed it. This might reveal two things: First, that there are currently comparable jobs available but in fewer numbers. Second, that despite the claimant’s prior work experience, telemarketing is so different now that the knowledge from this experience is obsolete and the claimant would need to be completely retrained. In this case, the rational behind the recency element is not met, and telemarketing should not be found to be PRW.

This could be a critical issue in your Disability case. Consider a free consultation with a disability attorney who is familiar with these rules and regulations.

 

By Charles Sagert

[1] 20 CFR § 404.1560; SSR 82-62.

[2] SSR 82-62.

[3] SSR 83-33.

[4] SSR 05-02.

[5] 20 CFR § 404.1563(b); HALLEX II-5-3-2.

[6] SSR 82-41.

[7] 20 CFR Part 404, Subpart P, Appendix 2.

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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Social Security approved me for disability benefits, now what?

Social Security Disability Insurance and Social Security Insurance are the two benefit programs that a disabled person can submit a claim for. While both benefit programs are for disabled individuals, they slightly differ in the requirements. Social Security Insurance(SSI) are for individuals who have not worked but are disabled and have little to no income or resources. Social Security Disability Insurance(SSDI) are for individuals that paid FICA taxes over many years. So for this program, you do not need to meet income limits in order to qualify. A finding of disability and the required work earnings are sufficient.

It may have been a long and frustrating road to get to this point but you are finally here. Your decision, may it be fully or partially favorable is now a reality. You are given back your independence and now know that you will have the ability to pay bills and buy the things that you need. Now, you’re wondering how long will it take to get your money. Unfortunately, you may have to wait another 1-3 months before you receive your first payment.

Social Security Supplemental Income(SSSI) will consider your resources such as spousal income, cash, bank accounts, stocks personal property, vehicles, life insurance, and anything that can be exchanged for cash. Social Security Disability Insurance(SSDI) will consider other employment or disability money received during the time your claim was pending such as, unemployment benefits, workers’ compensation, or long term or short term disability payments. Social Security will have to verify all sources of income before sending you your first check. However, being upfront and having these documents readily available could be of benefit in terms of speeding up this process.

 

For more information, please contact the attorneys at Hoglund, Chwialkowski, & Mrozik PLLC.

By Shana Knotts

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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Duration of Chapter 13

Chapter 13 bankruptcies have a minimum commitment period of three years and a maximum of five years. This means that the repayment plan in a Chapter 13 will last somewhere between three and five years. A number of considerations determine this.

The first consideration is whether a debtor is below or above the median income. The median income is the median income for the household size of the debtor in the state the debtor lives in. If the debtor is below the median income, the debtor can elect a three-year plan. If the debtor is above the median income, then the debtor must have a five-year plan.

If the debtor is below the median income, the debtor may choose to enter a repayment plan that lasts longer than three years. For example, if the debtor is filing a Chapter 13 in order to pay mortgage arrears and stop a foreclosure, then debtor may elect to file a five-year plan. The debtor may choose this to keep the payment in the Chapter 13 more affordable. All mortgage arrears must be paid back in full over the course of the plan. Stretching the plan over 5 years would allow for a lower payment in some circumstances. The debtor could also elect to have the plan duration be any number of months between 36 (three years) or 60 (five years).

 

By Kris Whelchel


Client Communication

When attorneys meet clients for social security disability cases, they usually have a lot of questions.  First question usually is, how long does the social security disability process take?

It is important for the social security disability attorney to explain each stage separately and that on average, a client will likely end up at hearing before being approved, if they are ever approved.  This will take over two years.

It is important that clients are aware this is normal and having low income or significant pain or difficulties will not speed their case up.  Getting an attorney in general does not speed the process up, but the proper attorney will make sure appeal deadlines are not missed, that all the medical records are ordered and received, and that the claimant is prepared when the hearing time comes.  This is primarily why it is prudent to hire an attorney.  Clients need to have realistic expectations of this long process.

Another frequently asked question is can I work?  Although attorney can quickly explain SGA limits, which is currently $1,130 before taxes, it is important to go beyond that, and discuss that this is an inquiry to be made with their doctor. Discuss working restrictions from a physical and mental aspect with their doctor beyond just the allowable dollar amount from social security is prudent.  Attorneys know that this is a long process and people need to get by, but these questions need to be discussed with counsel and a doctor to make the most informed decisions.

Client communication is an ethical obligation and an important aspect of effective representation in a social security disability case.  For example, an attorney cannot be effective if the claimant does not give the attorney all of their medical sources and symptoms of their conditions, and a client cannot be helpful if they are not made aware of how the process works and what the social security looks at.  Communication is key to obtaining benefits.

 

By Joshua Tripp

Written by Joshua Tripp

Joshua Tripp practices in the social security disability department of Hoglund law offices. Prior to focusing on social security disability alone, Mr. Tripp has practiced in several civil areas of the law including personal injury, probate and family law.

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Student Loans and Disability

Many people applying for Social Security disability have financial obligations that are put on hold during the determination process. One of these affecting more and more applicants are student loan payments. If you are approved for Social Security disability, you may be eligible to have these loans discharged. The U.S. Department of Education has a fairly simple process for determining disability, and once you meet their standards, your federal student loans may be discharged. Private loans are typically not eligible for this process, and you would need to contact your individual loan company to find if you are eligible for any other disability discharge.

After Social Security finds you disabled, make a copy of the determination letter laying out your benefits as well as when your next disability review date is, typically scheduled for five to seven years after the approval. Submit this letter to the Department of Education, along with the other forms required, available on their web site, www.disabilitydischarge.com. They may temporarily suspend your loan payments while deciding whether you qualify for loan discharge.

Once the discharge is approved, there are other requirements that must be met, such as your income must remain below a certain level, you may not apply for any other federal student loans, or you must continue to be disabled under Social Security’s rules. If these are not met, the loans may be reinstated. Keep in mind you may be responsible for any tax burden related to the discharge of the loans. Typically, the discharged loan amount is reported to the IRS, and may be considered income to you, the tax payer.

If your disability case is pending with Social Security, then you may be able to apply for a loan discharge before they find you disabled. If you have a supportive doctor that is willing to complete the necessary certification paperwork, showing that your condition may either result in death, has lasted for a continuous period more than 60 months, or can be expected to last more than 60 months, this may be sufficient for the Department of Education to discharge your loans. The same post-approval requirements would apply.

If you are receiving Disability Income or Supplemental Security Income from Social Security, and your federal loans are approved for discharge, this will not affect the benefits you receive.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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The Importance of Choosing the Correct Onset Date

When applying for Social Security Benefits, you will need to fill out the initial application to get your claim started. On this initial application, you will put in the start date of your disability. This date is known as your Alleged Onset Date. It is a date that Social Security will use to build your case.  Sometimes it may not be as easy to pinpoint this date. However, it is strongly recommended that you try and choose as close of a date to when your condition(s) begin to worsen. There are many signs that lead up to figuring this date. One example would be a decrease in your work hours or having to end your employment. It is good to keep a journal of any major medical events that have affected your daily routine. Also, it is important that you speak to your doctor about any disruptions that you are experiencing in you daily routines due to ongoing symptoms. The more information you have in your medical records, the more of a benefit it will be to you when choosing you Alleged Onset Date.

Social Security does not always agree with the date that you have chosen. If Social Security chooses a different date, it will be a later date. Your medical records may support a different date of disability. The change in the Alleged Onset Date (AOD) by Social Security is known as the Established Onset Date (EOD). The newly Established Onset Date (EOD) chosen by Social Security may affect the amount of backpay that you receive. You can Appeal this decision if you do not agree with the date that Social Security has chosen. Having an expert to assist you through the process would help you avoid mistakes.

 

Please contact one of our attorneys at Hoglund, Chwialkowski, Mrozik, PLLC. today for more information.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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I Received a Complaint Saying My Creditors Are Suing Me, What Do I Do Now?

If you received a lawsuit document indicating the creditor is attempting to sue you, it can be a worrisome situation. When you receive the initial complaint, it indicates a law firm is representing the creditor to further pursue their claim against you.

The first step in the process is for the creditor to serve you with a “Summons and Complaint” document indicating the nature of the lawsuit. In the paperwork, it will set forth the factual allegations and legal complaints against you. They can “serve” the lawsuit on you in one of two ways:

  • by delivering it to you personally or leaving it at your home with a person of suitable age and discretion; or
  • by mail, if you agreed in writing to accept service of the Summons and Complaint by mail and signs a form that indicates your acceptance.

 

If you wish to contest the lawsuit, you need to serve the creditor’s attorney with a form called an “Answer.” If you do not provide the Answer in the time period of 20 days, the creditor may enter a default judgment against you which allows them to take further action.

There are several defenses against the lawsuit; however, not being able to afford to pay the debt is not a defense. Some of the available defenses are: improper service, statute of limitations, FDCPA violations, lack of standing, proof of payment, fraud, mistaken identity and lastly bankruptcy.

Filing bankruptcy is a protection against a lawsuit served upon you and can be used as a defense to stop any further action. When you receive any lawsuit document, it is important to consult with an attorney who can give you advice about your specific situation. One of our experienced bankruptcy attorneys can sit down with you and review the lawsuit to give you the best advice towards your next steps.

 

By Ann Hagerty

Written by Ann Hagerty

I have a passion for working directly with clients and helping them navigate difficult financial decisions. I love practicing in bankruptcy because it is one of the rare opportunities in life where someone can start fresh and free themselves of financial stress.

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My Credit Score After Filing Bankruptcy:

Your credit score will take a hit after filing a chapter 7 bankruptcy. If your score was low before you filed, the drop will not be as significant as if your score is high. The fact that you filed bankruptcy will show up on your credit score for about 10 years, but that alone is not going to keep you from getting that new car, apartment, house, etc. Needless to say, the fact that you filed and a drop in your credit score is not the end of the financial world. The key is what you choose to do after the bankruptcy. Rebuild.

Filing your chapter 7 bankruptcy will the stop the bleeding in the injuries caused by your debt. As soon as your case is filed the creditors stop calling, wage garnishments and bank levies come to an end, foreclosure or repossession actions come to a halt, and minimal payments are no longer required.  Once the stress of creditor harassment comes to an end, it is time to rebuild your credit. This is an endeavor we do not want you to undertake alone. Our office works with the 720 Credit Score program to help our clients rebuild towards their financial goals after filing. 720 Credit Score is a seven step program that guarantees your credit score will be 720 or higher within 12-24 months after receiving your chapter 7 discharge. Call us today to set up an appointment and learn more about this program.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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What If I Don’t Fit Exactly Into Disability’s Age Categories?

What if I Don’t Fit Exactly Into Disability’s Age Caegories? by Scott Bowers

In order to receive Social Security disability benefits, the Social Security Administration (SSA) must find that you are unable to do a full time job due to your medical conditions. The general rule is that they cannot consider whether someone will hire you, or whether you can find a job. However, because the SSA recognizes that older workers may have more trouble adapting to new types of employment, it will consider factors other than just your medical conditions when you reach a certain age.

            The SSA groups disability claimants into 4 basic categories:

1. Younger individuals (18 through 49)

2. Closely approaching advanced age (50 to 54)

3. Advanced age (55 and over), and

4. Closely approaching retirement age (60 and over)

If you are in the first age group, the SSA will not consider you disabled if you are capable of ANY kind of work, including sedentary, unskilled work (i.e., simple jobs that do not require lifting over 10 pounds, or standing/walking for prolonged periods of time). However, if you are in the closely approaching advanced age, you could still be found disabled even if you are able to do sedentary work, depending on your education and past work experience.

            However, what happens if you are about to turn 50 in a few months, but have serious medical issues that limit your ability to work? Luckily, the SSA recognizes that you do not just instantly become disabled the day you turn 50. Thus, if you are within a few days or few months of changing age categories, the SSA may deem you to be older than you are. However, there are some rules to this, and it does not happen automatically.

            First, “within a few days to a few months” does not have an exact definition, but it does mean a period of less than 6 months. Thus, if you are 53, the SSA will not consider moving you to the advanced age category.

            Second, there must be a “borderline age situation.” This means that in addition to being close to the next age category, using your actual age would result in a denial AND moving you to the next category would result in an approval. For example, if you are able to do light work (i.e., some standing and some sitting, and lifting up to 20 pounds occasionally), and you are 3 months from your 50th birthday, you would be denied in either age category.

            Lastly, there are 4 factors that must be considered:

1. Time period

2. Education

3. Past relevant work (PRW)

4. Residual functional capacity (RFC)

There are many considerations that go into arguing these factors (i.e., they cannot be double weighed – that is if education is already factored when deciding if it is a borderline age situation, it cannot again be a factor when considering an allowance). Thus, it is always recommended that you seek the help of an attorney for your disability claim.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Does Social Security Consider Anything Other Than My Medical Conditions

In order to receive Social Security disability benefits, the Social Security Administration (SSA) must find that you are unable to do a full time job due to your medical conditions. The general rule is that they cannot consider whether someone will hire you, or whether you can find a job. However, because the SSA recognizes that older workers may have more trouble adapting to new types of employment, it will consider factors other than just your medical conditions when you reach a certain age.

The SSA groups disability claimants into 4 basic categories:

  1. Younger individuals (18 through 49)
  2. Closely approaching advanced age (50 to 54)
  3. Advanced age (55 and over), and
  4. Closely approaching retirement age (60 and over)

 

If you are in the first age group, the SSA will not consider you disabled if you are capable of ANY kind of work, including sedentary, unskilled work (i.e., simple jobs that do not require lifting over 10 pounds, or standing/walking for prolonged periods of time). However, if you are in the closely approaching advanced age, you could still be found disabled even if you are able to do sedentary work. At this age category, the SSA decision-maker will look, with the help of a vocational expert (i.e., an expert on jobs and employment related matters), to see whether you have skills that could be used in sedentary work. These skills could come from your education (i.e., a college degree or vocational training), or your past work (i.e., whether you had the power to hire and fire employees, set schedules, or do bookkeeping). If you do have skills, you would be found not disabled. If you do not have skills, you would be found disabled. When you are in the next age categories, you can still be found disabled if you do not have skills that would transfer to light work, even if you are capable of that type of work (i.e., jobs that involve lifting up to 20 pounds, and standing/walking about half the day, and sitting the other half).

There are also other ways to prove that skills are not transferable, even if you do have them. One way is if you have a severe psychological condition that would prevent you from doing skilled work. Due to the complicated nature of these rules, it is always a good idea to hire an experienced disability attorney to help you navigate this complex system.

 

By Scott J. Bowers


The Myth of Widespread Social Security Disabilty Fraud

We have all heard them – those friends or relatives who claim they know someone who is collecting disability who shouldn’t be.  Why do we pay our taxes for those freeloaders, the argument goes.

I always like to ask those that complain about social security fraud if they have reported the suspected fraudster to the authorities.  The answer is always no.

While there is little doubt that there is fraud in the disability system, there is NO evidence that this fraud is rampant.

Here are some facts that cannot be ignored or discounted:

It is not easy to get approved for social security disability.  The vast majority of people who apply are denied.  Approximately 65 percent of applicants are denied at the initial level, and about 85 percent of applicants are denied on reconsideration.  Of those that appeal to the hearing level in front of a judge, about 50 percent are approved.

Many reasons exist for denying applicants.  Claimants can be denied because they haven’t worked enough to qualify for SSDI.  To qualify a claimant must have worked for five out of the last ten years prior to application and paid into the social security system while doing so.  Others are denied for medical reasons.  To get approved, the claimant must have a physical or mental disablitiy that is severe and is expected to last at least 12 months.

The social security administration requires solid medical documentation in making its determination of phisyical or mental disability.  If a claimant is not treating with a valid medical provider such as an M.D.. it is very unlikely the claimant will be approved.  It is not easy to “pretend” you are disabled. Usually when a claimant is disabled, ongoing and lengthy treatment with a specialist is a given.  A record lacking such evidence is frowned upon by the Social Security Administration.

The statistics show that people who apply for disabiltiy have much higher death rates than the general population.  It is pretty difficulty to fake ones death.  People on disability are up to six times more likely to die than people in their age group who don’t receive benefits.

The solution is not gut the system of much needed funding, but rather to detect and frett out fraud when it occurs.  The social security disability system is a lifesaver, and you can be assured that the vast, vast majority of those receiving benefts are legitamately disabled.

For more information see:  The Center on Budget and Policy Priorities report on the disability system.  http://www.cbpp.org/research/chart-book-social-security-disability-insurance

 

By Michael J. Cerniglia

Social Security Disabiltiy Attorney

Hoglund Law Firm

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Domain #5 – Caring for Self

If a child has a severe impairment(s) that does not meet or medically equal any listing, the Social Security Administration (SSA) will then look to see if the child functionally equals the listings.  To functionally equal the listing, the child’s impairments must result in marked limitations in two domains, or extreme limitation in one domain.

The fourth domain used by SSA is called 5. Caring for Self.  In this domain, SSA will focus on how well the child takes care of themselves, physically and mentally.  As children age, they should become more independent with regards to making their own decisions.  Children should be able to know the difference between what is right and wrong.  They should understand what their physical and emotional needs are and how to control their thoughts and maintain their well-being.

For more information, please contact one of the attorneys at Hoglund, Chwialkowski & Mrozik.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Who Determines Whether I Am Disabled or Not?

The short answer is the Social Security Administration (SSA); however, the longer and more accurate answer is Disability Determination Services(DDS).

First, SSA will review your application to make sure you meet some basic requirements for disability benefits. They will check whether you worked enough years to qualify. Additionally, they will undergo an evaluation of any current work activities. If you meet these requirements, they will process your application and forward your case to the DDS office in your state. This state agency completes the initial disability determination decision for SSA. Claims examiners and medical examiners in the state agency ask your doctors for information about your condition. DDS is supposed to consider all the facts in your case. They’ll use the medical evidence from your doctors, hospitals, clinics, or institutions where you have been treated and possibly additional information.

Some of the questions they will ask pertain to the following:

  • Your medical condition(s);
  • When your medical condition(s) began;
  • How your medical condition(s) limit your activities;
  • Medical tests results; and
  • What treatment you’ve received.

 

DDS also ask the doctors for information about your ability to do work-related activities, such as walking, sitting, lifting, carrying, and remembering instructions. Keep in mind that it is not your doctors who decide if you’re disabled. Rather, according to the rules it is up to DDS to make that determination. Also, if your medical sources can’t provide the necessary information, DDS may ask you to a consultative examination. Social Security will pay for the exam and for some of the related travel costs.

When DDS makes its determination on your case, they will send a letter to you. If your application is approved, the letter will show the amount of your benefit, and when your payments start. If the application isn’t approved, you typically have the option of appealing the decision.

To learn more about the appeals process, please read “Social Security Denials and Appeals” available through disabilitysecrets.com.

 

By Kevin J. Kohler


Reopening a prior Disability Claim

Often, Social Security Disability claimants have previously applied for benefits, unsuccessfully. In these situations, it is always a question as to whether the previous application can be reopened in a current claim. Many factors are involved in answering this question. Generally speaking, however, it must be said that reopening a final decision from an administrative law judge is an unlikely occurrence, as great weight is given to previous decisions absent clear evidence that the decision was incorrect. Often claimants continue to allege that they have been disabled since their previous application, which then presents the possibility of reopening that claim.

First, the current application must allege an onset date that involves the previous application period, otherwise there is no need to examine the previous application, as it is not at issue in the case unless the argument is made

Second, a prior claim must be related to the current claim. This means that a previous application for schizophrenia cannot be reopened in a claim alleging only degenerative disc disease. In other words, the conditions alleged in the previous application must be involved in the present application.

Third, the age of the claim is relevant. If the previous claim is less than a year old, either a Disability Insurance Benefits (DIB) claim or a Supplemental Security Income (SSI) claim may be reopened at will by the Social Security Administration. If the claim is more than a year old, Social Security may reopen an SSI claim that is two years old or less if there is good cause. For DIB claims, any claim four years old or less may be reopened for good cause. “Good cause” generally means new evidence is available or that an egregious error occurred.

While reopening previous claims is possible, it generally is not likely. Consult with your Social Security Disability Attorney to determine if it is wise to attempt to reopen a previous claim.

 

By Adam Kachelski

Written by Adam Kachelski

Adam Kachelski is a 2014 graduate of the University of Wisconsin School of Law. He lives and works in Cincinnati.

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Social Security Income and the Means Test

When filing a Chapter 7 or 13 bankruptcy, a debtor must show that he passes the means test. The means test is basically a series of calculations that are supposed to show, in theory, whether or not the debtor has enough income to be able to pay back his creditors. To perform the means test, one must determine what the debtor’s income is. Almost all sources of income are to be taken account of on the means test. The amount of the income is determined by taking the six month average of the debtor’s various sources of income.

Social Security Income gets special treatment on the means test. It can be completely excluded. That means that Social Security Income does not have a negative impact when the means test is used to determine if someone may qualify for a Chapter 7.

The means test is not the only determining factor on what type of bankruptcy a person is allowed to file. The actual budget of a person is taken into consideration as well. This budget is represented on Schedules I and J. If Schedule J, shows a substantially positive amount, chances are that the debtor will not be able to qualify for a Chapter 7.

Social Security Income can also be excluded from a debtor’s budget. Therefore, it will not have an impact on a person’s qualification for a Chapter 7 here either.

If an individual wishes to file a Chapter 13, he may elect to include their Social Security income on his budget, so that he can show he does have enough income to afford a repayment plan.

 

By Kristen Whelchel


The Importance of Choosing the Correct Onset Date

When applying for Social Security Benefits, you will need to fill out the initial application to get your claim started. On this initial application, you will put in the start date of your disability. This date is known as your Alleged Onset Date. It is a date that Social Security will use to build your case.  Sometimes it may not be as easy to pinpoint this date. However, it is strongly recommended that you try and choose as close of a date to when your condition(s) begin to worsen. There are many signs that lead up to figuring this date. One example would be a decrease in your work hours or having to end your employment. It is good to keep a journal of any major medical events that have affected your daily routine. Also, it is important that you speak to your doctor about any disruptions that you are experiencing in you daily routines due to ongoing symptoms. The more information you have in your medical records, the more of a benefit it will be to you when choosing you Alleged Onset Date.

Social Security does not always agree with the date that you have chosen. If Social Security chooses a different date, it will be a later date. Your medical records may support a different date of disability. The change in the Alleged Onset Date(AOD) by Social Security is known as the Established Onset Date(EOD). The newly Established Onset Date(EOD) chosen by Social Security may affect the amount of backpay that you receive. You can Appeal this decision if you do not agree with the date that Social Security has chosen. Having an expert to assist you through the process would help you avoid mistakes.

Please contact one of our attorneys at Hoglund, Chwialkowski, Mrozik, PLLC. today for more information.

 

By Shana Knotts

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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Domain #4 – Moving About and Manipulating Objects

If a child has a severe impairment(s) that does not meet or medically equal any listing, the Social Security Administration (SSA) will then look to see if the child functionally equals the listings. To functionally equal the listing, the child’s impairments must result in marked limitations in two domains, or extreme limitation in one domain.

The fourth domain used by SSA is called 4. Moving About and Manipulating Objects. In this domain, SSA will consider how well a child moves their body from one place to another and how they move and manipulate things. The SSA will look at both gross and fine motor skills.

Some areas of moving the body will include rolling, rising up from seated position, raising head and arms and legs. They will look at how the child transfers from one surface to another and how they move forward and backward when crawling, walking, and running.

With regards to moving and manipulating objects, SSA looks at how the child pushes, pulls, lifts, or carries objects. SSA will evaluate how the child controls their upper extremities in carrying objects. They will even consider eye hand coordination to manipulate small objects.

For more information, please contact one of the attorneys at Hoglund, Chwialkowski & Mrozik.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Can My Doctor Help Me Get My Social Security Disability Benefits?

Q & A with 20+ year Social Security Disability Attorney Andrew Kinney

Q: Can my doctor help me get my Social Security Disability benefits?
A: Yes! But perhaps not in the ways you would expect. I’ll explain.

In our law practice, we purposely do not interact with treating physicians. Our clients make their own health care choices. Our clients go to doctors because they want to get better, or at least improve their quality of life. We explain the law.
The Social Security Disability program is all about the medical evidence. Forget what you hear on TV. Talk is cheap. Regular medical treatment is important. Just as important, though, is developing a treating relationship with certain medical doctors you know and trust. When you treat properly with physicians you know and trust, you create a bread trail of your problems.

This is where your physicians can help you further. Right after your next appointment, ask the doctor who knows you best these things:

1. “Doctor, can you please make sure you document my problems well?”
2. “Doctor, can you please make sure your treatment notes are clear about how I am limited?”
3. “Doctor, I had to apply for Social Security benefits. Would you mind if my attorney sends you a short form to fill out about my limitations?”

It is vitally important that your medical treatment notes document your ongoing medical problems. Attorney forms track Social Security law. While it is unusual for physicians to object to an honest, straightforward approach to your medical care, it can happen. Some physician practices, including the VA, try to avoid “forms,” but they complete them for insurance daily. Some physicians say that they cannot “decide disability,” but they are not. They are simply determining physical and mental limitations for their patients—something they lay out for working patients with injuries all the time. Finally, some physicians think their patients over 50 can still do “desk work.” That is fine. Depending on your past kind of work you can no longer do, the law can still be on your side. Ask an experienced attorney in this area of law.

Your medical providers are trying to make you better. Keep trying to get better, and document the truth about your medical problems. Your Social Security attorney will argue the rest.

Andrew Kinney, Esq., 12/1/15

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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What Does it Really Mean to be Approved for Social Security Disability Benefits?

Q & A with 20+ year Social Security Disability Attorney Andrew Kinney

Q: What does it really mean to be approved for Social Security Disability benefits?

A: The media and some political leadership would have us believe that people are clamoring to live off government benefits. While there are freeloaders in all sectors (including the two above-mentioned groups), I want to offer you a more accurate portrait from someone who has sat with thousands of disabled people.

Almost all the people our law offices has represented for Social Security benefits (upwards of 50,000 at last count) would rather work. For many, applying for benefits is a failure. A failure to themselves, their families, and a failure in life. To even apply for benefits can a miserable recognition that everything they hoped for and dreamed to do is gone. Not such a pretty picture so far, now, is it?

Social Security Disability benefits do not nearly pay as well as working. And Social Security’s failure to hire sufficient numbers of judges has caused clients to lose their homes, families, everything—including dignity. Some tell me they must accept welfare, having vowed to never do so in their “working” lives. Personal philosophy doesn’t do a damn to heal their wounds or pay their bills.

The real way to understand what I have described above is to sit and talk with some of those who are applying. Perhaps sift through a few hundred pages of their medical records. And really listen before coming to conclusions. With any experience, you will recognize that disabled people are not statistics in government publications, they are not props in committee meetings with prepared minutes. These are real people who need benefits for very real reasons despite working very hard with doctors to get better. They aren’t freeloaders.

Go ahead. Call your disabled neighbor, close friend, family member, or (God forbid someday) yourself a freeloader. See how far that gets you. Then, take actual time to understand the people who rely on the disability program. Many, many people are in real need.
Listen to me here. When you truly understand real suffering, you know it doesn’t lie.

Andrew Kinney, Esq., 11/30/15

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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Can You Lie to Get Social Security Disability Benefits?

Q:  Can you lie to get Social Security Disability benefits?

A:  This question gets to the heart of the misunderstanding about the Social Security Disability program.  Anyone can lie about anything to anyone.  The real question, then, is whether lying can actually secure Social Security Disability benefits.  The short answer:  No.

The public at large is generally unaware about the level of medical evidence necessary to prove disability under the Social Security regulations.  Just having a physical or mental diagnosis is insufficient.  Your limitations must preclude your ability to work under the law.  The law does not allow mere “claims” of disability to prove limitations.  Medical testing and examinations over time must establish significant impairments.

Lying to an MRI won’t impact the results.  Lying to a physician will not change objective examination findings.  Lying to a psychiatrist will likely land you back in the waiting room.  You can try to fake a limp or fabricate headaches, but medical doctors are scientists.  The lack of objective detail will ultimately do you in.

So just how difficult is it to “talk” your way into benefits?  Let’s consider a real life example of a client of mine today who wasn’t lying about anxiety, but nonetheless will be denied benefits.  I had a Social Security hearing today in which my client had significant anxiety.  The lower State Agency level ignored the regulations in failing to get a treating source opinion (nothing new).  A government-paid “medical expert” at my client’s hearing droned on and on to use time, yet misread the file, inferred chemical dependency without a diagnosis, ignored hard evidence of disability from a psychiatrist, and missed another psychological diagnosis altogether.  The point?  Even people telling the truth with sufficient evidence (in this case, anxiety that left her virtually homebound) have a difficult time meeting Social Security’s regulatory standards.

What should you take from this blog?  Those who are approved for Social Security Disability benefits have medical professionals who have diagnosed, examined, and treated them over time.  Offer to open the door for them, not throw them under the bus.  You or a loved one could need these benefits next.

Andrew Kinney, Esq.

 

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Remote DLI – Seek Social Security Before It’s Too Late.

From:  Joshua Tripp

 

In some cases, where a claimant has not worked recently and there is too many household assets or too much income to be eligible for SSI, the claimants are left struggling to prove disability for many years prior to the current date. This can be very difficult to do and there must be more than just the claimant’s testimony to win the case.

For an example, I recently had a social security claimant who had to go back about ten years to prove disability.  For approval here, it must be shown that the claimant had a disability prior to their date last insured and that their disability has continued.  This requires consistent medical evidence of severe impairment.  Additionally, to bolster the claimant’s medical record of ten years ago, I had the claimant’s current doctor, who was currently supportive of disability, write a narrative of the claimant’s impairments based on the current time frame, along with a review of the prior medical records.  This was helpful to assess that the conditions were as severe ten years as they are today.  He opined that the claimant was unable to work ten years ago and the condition has not improved.  Although this is important, his opinion needs to be supported by the medical record as a whole.  The medical evidence is particularly important for a case with a remote date last insured because it is hard to say the claimant can testify about conditions as accurately ten years ago as they could today.

It is always best to not wait to apply for social security disability.  Waiting can put you in the predicament of having to prove disability many years prior to the application, which is not an easy task.  Contact a social security attorney before it is too late.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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The Importance of Treating Source Statements

Most Social Security Disability cases turn on whether there are jobs available in the national economy that could be performed by the claimant, given his or her medical conditions. This requires a determination of the claimant’s Residual Functional Capacity (RFC). Social Security defines RFC as “the most you can do despite your limitations.”[1]

In making this determination, someone has to translate medical conditions and associated symptoms to functional limitations. Clearly, the most appropriate person for this task is a doctor. At the Initial Application and Reconsideration levels a state employed doctor (Medical Consultant) makes this determination based on your medical records. Social Security might also send you to Consultative Exam (CE), where a specialist might provide insight into a particular part of your RFC, for example: If you allege both physical and mental impairments, but treat for your mental impairments with your primary doctor only, Social Security would likely send you to a CE with a psychologist.

[1] CFR § 416.945(a)(1).

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Treating Source Statements

Opinion evidence can have a big impact in Social Security Disability cases, especially when it comes from a treating source. But sometimes a treating doctor, counselor or therapist will decline to provide an opinion if he or she is in the best, but not ideal, position to do so. For example, maybe the disability claimant can only afford to treat with their primary care doctor, who declines to provide an opinion because he or she is not a specialist. If Social Security has not sent the claimant to a consultative exam, there will be no opinion evidence in which a doctor identifies specific functional limitations caused by the claimant’s impairments (except for the doctor working for the state agency making the determinations at the initial and reconsideration levels). The treating provider may not fully understand how opinion evidence is considered in Social Security Disability claims, or may not want to take the time because a response is not mandatory. In these situations, a friendly letter explaining the role of opinion evidence and requesting that the doctor provide whatever he or she is comfortable with, even in the form of short narrative (preferably with the records used to form the opinion attached), can get results.

Consider contacting an experienced social security disability attorney for help with this and other issues.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Social Security Disability and Self-Employment

When Social Security receives a claim for disability benefits, the first question is whether the claimant performed Substantial Gainful Activity (SGA) during the alleged period of disability. If so, the claimant is ineligible for benefits during that time. SGA is generally defined as “work that involves doing significant and productive physical or mental duties, and is done (or intended) for pay or profit.” 20 CFR § 404.1510. Each year Social Security formulates a dollar amount that is used as the benchmark for SGA. In 2016 the amount is $1,130 per month and in 2015 it was $1,090. If this amount is or was exceeded, the earnings are presumed to be SGA. Gross earnings through employment can be easily compared to these benchmarks, but earnings through self-employment require further analysis.

The applicable rules are located in sections 404.1080 through 404.1096 and Social Security Ruling 83-34. The ruling should be consulted first for a general overview. Social Security may find that self-employment constitutes SGA under one of three tests:

  1. Under the Significant Services and Substantial Income test, both elements must be met. The significant services element is met if the claimant is a sole proprietor or, if not, performing more than half of the duties of the business or more than 45 hours per month of work. For a farm landlord, the question is whether he or she “materially participates,” not through an agent. The substantial income element is met if the claimant’s average monthly net income (countable earnings) reaches the benchmark amount; if the claimant’s livelihood derived from the business is the same as before he or she became disabled, or; if the claimant’s income is comparable to that of unimpaired individuals in a same or similar business in that community. If this test is not met, Social Security proceeds to the next two tests.
  2. Under the Comparability of Work test, the work is SGA if it is comparable in all relevant factors to that of unimpaired individuals in a same or similar business in the same community. Relevant factors include hours, skills, energy output, efficiency, duties and responsibilities.
  3. Under the Worth of Work test, the work is SGA, even if it is not comparable, if it is clearly worth more than the SGA benchmark amount when considered in terms of its value to the business or when compared to the salary an owner would pay to an employee for such duties in that business setting.

 

This is a general overview and the authorities cited above should be consulted for each individual situation. There are several additional details and nuances further explained in these sources. If your claim for Social Security Disability involves self-employment earnings, consider enlisting the help of a good attorney to interpret these rules and persuade social security that they operate in your favor.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Social Security Disability and the On the Record Process

On-the-Record Reviews are available to anyone who files a Social Security Disability claim. Once the lower levels processes have been exhausted. What that means, is that your claim must be at the hearing level to ask for an On the Record request.

So now you are at the hearing level. What’s next you ask! Well the review can happen in a few ways. An On the Record review can be initiated by an examiner that works for the Social Security Administration, which would be the best case scenario. This usually happens if new medical evidence is submitted and upon review by Social Security it is deemed that with the new evidence that a hearing is no longer needed and a fully favorable decision can be granted.

Another way for this request to be done is by your attorney representative. You may ask that your representative write a brief on your behalf. So that once your file from Social Security is available, your attorney can review what is already on record before requesting updated information on your behalf. Once all the new information has been reviewed, the brief can be written. But it should be noted, that not all cases make good On the Record cases. The attorney must make the decision on whether a brief should be written on a case to case basis after reviewing the information.

You could also put together the information yourself, if you are doing this process on your own. You will need to provide a detailed explanation that points out the specific medical evidence that proves that you are disabled by Social Security’s rules. Then write a formal request for an On the Record review.

Once the request for an On-the-Record Review has been submitted, one of these outcomes should happen. Your claim could be granted based on the evidence in your file along with the brief or a judge may feel that the evidence is not clear cut enough to approve the claim during an On-the-Record review. If a Judge cannot grant the case based on the information submitted, then your claim will have to be argued at a hearing by your attorney when a date becomes available. An On-the-Record Review cannot stop your claim from proceeding, unless a fully favorable decision can be reached.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Social Security Domain #4 – Health and Physical Well-Being

If a child has a severe impairment(s) that does not meet or medically equal any listing, the Social Security Administration (SSA) will then look to see if the child functionally equals the listings.  To functionally equal the listing, the child’s impairments must result in marked limitations in two domains, or extreme limitation in one domain.

The fourth domain used by SSA is called 4. Health and Physical Well-Being.  In this domain, SSA considers the physical effects of physical and mental impairments of the child.  Unlike the other domains, this domain does not address typical development and functioning.  This domain addresses how such things as recurrent illness, the side effects of medication, and the need for ongoing treatment affect a child’s body.

It is important to remember that the cumulative physical effects of a child’s physical or mental impairment(s) can vary in kind and intensity, and can affect each child in a different way.  As with all other domains, SSA does not consider the limitations in this domain unless it results from a medically determinable impairment(s).  However, it is very unlikely that a child who has a significant problem in this domain does not have an impairment that causes the problem.

 

For more information, please contact one of the attorneys at Hoglund, Chwialkowski & Mrozik.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Social Security Domain #3 – Interacting and Relating with Others

If a child has a severe impairment(s) that does not meet or medically equal any listing, the Social Security Administration (SSA) will then look to see if the child functionally equals the listings.  To functionally equal the listing, the child’s impairments must result in marked limitations in two domains, or extreme limitation in one domain.

The third domain used by SSA is called 3. Interacting and Relating to Others.  In this domain, SSA will consider the child’s ability to initiate and respond to exchanges with other people, and to form and sustain relationships with family members, friends, and other people.  This would include all aspects of social interaction in all different areas of the child’s life.

Also, because communication is essential to both interacting and relating, SSA considers speech and language skills that a child would need to speak intelligibly and to understand and use language of their community.  The ability to interact and relate with others begins at birth.  A child begins to us his/her ability in early infancy when they bond with a caregiver.

As with limitations in any domain, SSA does not consider a limitation in the domain unless it results from a medically determinable impairment(s).

For more information, please contact one of the attorneys at Hoglund, Chwialkowski & Mrozik.

 

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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