Monday, January 25, 2010

Disability For Federal Employees

An employee of the federal government whose medical condition prevents him or her from continuing to work may seek a disability retirement under the Federal Employees Retirement System (“FERS”). FERS interacts with Social Security Disability (“SSD”) in several ways. For example, FERS benefits cannot begin until an SDD application has been filed, and there is some offsetting of benefits. If the U.S. Office of Personnel Management (“OPM”) approves a claimant’s application for disability retirement under FERS it should help the SSD application process.

To obtain SSD benefits, a claimant usually must demonstrate an inability to perform past work. If a claimant receives disability retirement benefits under FERS, then it means that the OPM determined that the claimant was unable to perform the duties of his or her past work. Decisions from other agencies, such as the OPM, are not binding on the Social Security Administration (“SSA”). However, under an SSA ruling, the decisions of other agencies are entitled to considerable weight.

A former mail handler retained me a couple of weeks before he was scheduled to appear for a hearing before an SSA Administrative Law Judge (“ALJ”). My prehearing submission included the mail handler’s OPM decision approving disability retirement benefits under FERS. I argued that OPM is in a better position to determine if the claimant could do his past work than the SSA. Therefore, the only remaining issue for the ALJ would have been was whether the mail handler could perform any other type of work. However, because the claimant was 50 years old, and a mail handler has no transferable skills to sedentary work, a SSA medical – vocational rule required the ALJ to find the claimant disabled. Accordingly, the ALJ canceled the hearing, and approved the claimant’s SSD benefits.

Had the claimant retained me sooner, then I could have used the same arguments in my prehearing submission that the ALJ accepted for an on-the-record (“OTR”) request. The OTR would have avoided most of the time that the claimant spent waiting for his hearing date.

Friday, January 22, 2010

Chronic Fatigue Syndrome

Chronic Fatigue Syndrome (“CFS”) is characterized by incapacitating fatigue, that is experienced as profound exhaustion and extremely poor stamina, and problems with concentration and short-term memory. CFS is usually accompanied by flu-like symptoms, such as pain in the joints and muscles, unrefreshing sleep, tender lymph nodes, sore throat and headache. CFS sufferers experience post-exertional malaise,which is a worsening of symptoms following physical or mental exertion occurring within 12-48 hours of the exertion and requiring an extended recovery period.

The symptoms of CFS are highly variable and fluctuate in severity, which complicates treatment and the ability to cope with the illness. Since most symptoms are invisible, CFS is difficult for others to understand it. In fact, the Social Security Administration (the “SSA) had to issue a Ruling specifically addressing how CFS claims need to be evaluated.

A 51 year old medical secretary with CFS retained me after her application for Social Security Disability (“SSD”) benefits was denied. I reapplied and secured her SSD benefits without a hearing. The key was obtaining reports from the treating doctor that provided the information described by the CFS Ruling together with detailed functional findings.

When seeking SSD benefits based upon CFS make sure that you submit medical evidence reflecting the information that the Ruling discusses. Because of the complex nature of CFS and absence of applicable diagnostic testing, it is advisable to consult with a disability attorney before applying for any type of disability benefit.

The Grids

It is just as important to understand the role that vocational evidence plays in securing disability benefits as it is to understand the role that medical evidence plays. Vocational evidence is critical when it comes to applying the medical-vocational rules, known as the “Grids,” when applying for Social Security Disability (“SSD”) benefits.

I represent a 59 year old janitor whose SSD application was approved in three months based on the Grids. Janitorial work is considered “heavy” and unskilled work. If a 59 year old person’s past relevant work consists of heavy and unskilled work, then he or she is entitled to SSD benefits even if able to perform “light” work. Among other things, light work requires the ability to be on your feet for most of the work day, and lifting up to 20 pounds for a third of the day. That means that the claimant must be able to do at least “medium” work to be found not disabled. Medium work requires the ability to lift up to 50 pounds.

By highlighting the applicable Grid rule, I made it clear to the Social Security Administration (the "SSA") that it would be very difficult to reject the claimant’s SSD application. The SSA obviously took note as it approved SSD benefits in only three months. The claimant’s application would not have been approved so quickly if the significance of the vocational evidence were disregarded.

Adult Disabled Children

A person who becomes disabled before turning 22 may qualify for benefits from Social Security despite lacking work credits. If the claimant has a parent who is dead or is receiving Social Security disability or retirement benefits, then the claimant can apply for Disabled Adult Children (“DAC”) benefits based on their parents’ work record.

I obtained Social Security Disability (“SSD”) for a police officer several years ago, and then secured auxiliary benefits for his daughter, which stopped when she turned 18. Since then, due to Bipolar Disorder and Asperger Syndrome, the daughter has been unable to work more than half a day per week.

Among other things, I procured reports from the claimant’s psychiatrist and psychologist that explained why the claimant’s condition prevented her from being able to perform substantial gainful activity. DAC benefits were approved, without a hearing, in an amount equal to about half of the father’s SSD benefits, which significantly exceeds the current monthly SSI allotment. Perhaps more importantly, after 24 months, the daughter will be eligible to receive Medicare.

Friday, January 15, 2010


Charcot-Marie-Tooth (“CMT”) is an inherited neurological disorder that affects an estimated 2.6 million people. CMT patients gradually lose normal use of their upper and lower extremities as peripheral nerves degenerate and the muscles become weakened because of the loss of stimulation by the affected nerves.

Late September, I filed an application for Social Security Disability (“SSD”) benefits for a 57 year old car salesman with CMT. Three months later, Social Security told my client that he had to see their unnamed doctor, with an undisclosed specialty, for a consultative examination (“CE”) regarding his “bone condition.” Social Security warned that failing to attend the CE could hurt his chances of securing SSD benefits.

My client followed my advice not to attend the CE because CMT was not a bone condition, and because I had already provided detailed medical reports from the claimant’s treating doctors. Four days ago, I received a letter from Social Security stating that they no longer wanted my client to attend the CE. Today, less than four months after filing the SSD application, I received a notice of award approving benefits.

Social Security automatically tells disability claimants that they must attend CEs. However, the Social Security rules and regulations significantly limit the circumstances where a CE is appropriate. A disability claimant should not submit to a CE before carefully determining whether the circumstances warrant it.

Tuesday, January 12, 2010

Depression and Anxiety

The Social Security Administration (the “SSA”) typically requires objective evidence before approving a claim for Social Security Disability (“SSD”) benefits. The SSA also usually requires a hearing to assess a claimant’s credibility when evaluating that person’s subjective complaints. Therefore, is it possible for a claimant with depression or anxiety to obtain SSD benefits without a hearing since those conditions are based on subjective symptoms? The answer is yes of course; otherwise, I would not be writing this blog entry.

The strongest type of evidence that an SSD claimant can submit for any type of medical condition is evidence showing the medical condition meets a “listing.” If a claimant meets a listing, then he or she is presumed to be disabled. Like many other medical conditions, there are listings for depression and anxiety.

I represent a woman who had to stop working as a teacher and selling real estate because of her depression and anxiety. I succeeded in securing her SSD benefits without a hearing by submitting evidence that she met the SSA listings for both depression and anxiety. That evidence took two different forms. First, I obtained functional assessments from the treating doctors that matched the criteria of the listings. Second, perhaps just as importantly, I had each doctor explain in a brief narrative report why the claimant met the listings. That way, there is a medical opinion that the claimant met the listings, as opposed to my simply making a legal argument.

Tuesday, January 5, 2010


Reflex Sympathetic Dystrophy (“RSD”), also known as Complex Regional Pain Syndrome (CRPS), is a chronic neurological syndrome that is characterized by severe burning pain, pathological changes in bone and skin, excessive sweating, tissue swelling, and extreme sensitivity to touch. Symptoms from RSD/CRPS can be severe enough to prevent a person from working.

I represent a 34 year bakery wrapper whose wrist injuries resulted in RSD/CRPS that causes pain, sweating, chills, numbness, and hypersensitivity. She retained me after her Social Security Disability (“SSD”) application was denied. Because of her age, and because RSD/CRPS is not a “listed” impairment, the claimant had to prove that she was unable to perform sedentary work to establish her entitlement to SSD benefits.

An anesthesiologist who was providing the claimant’s pain management wrote a brief note in October 2007 stating that the claimant was unable to work. Subsequent treatment records stated that the claimant’s condition was getting worse. The Social Security Administration (the “SSA”) requires a specific functional capacity assessment from a medical doctor before approving an application for SSD benefits; however, the anesthesiologist did not want to do so. Therefore, I obtained a functional assessment from the claimant’s physical therapist, which consistent with the opinion of the anesthesiologist, provided a functional capacity assessment that precluded sedentary work.

Ordinarily, the SSA will give little weight to an opinion from a physical therapist regarding a claimant’s functional abilities. However, there is a Social Security Ruling covering RSD/CRPS cases that says an opinion from a treating source who is not a medical doctor is often critical in deciding the claimant’s ability to work. Based on the anesthesiologist’s diagnosis of RSD/CRPS, and the physical therapist’s opinion about the claimant’s functional abilities, the claimant’s application was approved on the record without a hearing.

When applying for SSD benefits based on RSD/CRPS make sure that your attorney is aware of the special rules that apply. There are also special rules for many other medical conditions.