Wednesday, September 10, 2014

Supplemental Hearing Cancelled

I represent a 46 year old delivery driver with neck, back, shoulder, and knee problems, who submitted reports from several of his doctors that provided for a very restrictive functional capacity. The administrative law judge (“ALJ”) said that he wanted a supplemental hearing after a consultative examination (“CE”) because he could not understand the basis for the restrictions. I objected to the CE on the grounds that the ALJ was obligated to contact the treating doctors if he believed the restrictions were inconsistent with the medical records. 

After receiving additional treatment records, the ALJ cancelled the supplemental hearing and CE. The treatment records did provide a wealth of contemporaneous objective and subjective evidence regarding the claimant’s condition. However, the treatment records did not provide functional limitations, which treatment records rarely if ever do. 

The purpose of treatment records is to provide information that the doctor may want to remember at the next exam; not to provide evidence of functional restrictions and limitations for legal proceedings. The Social Security Administration (“SSA”) knows that, which is why it uses forms such as DDD-3883 and HA-1151 to obtain restrictions and limitations from treating doctors. The problem is that ALJs are requiring that treatment records to serve as evidence to support a doctor’s functionality assessment, which is absurd because treatment records serve a completely different purpose. 

Physicians do not record all of their observations when taking exam notes, especially ones that have been made before or for which reminding is not needed. If a patient sees a doctor for back pain, the doctor is unlikely to write in that date’s notes that the patient’s back was sore or stiff. However, some ALJs would deny benefits on the grounds that the clinical findings supposedly are inconsistent with the functional restrictions. Asking the treating doctor to harmonize the alleged inconsistency prevents an ALJ from improperly rejecting a treating doctor’s opinion.

SSA Still Not Using eCAT Properly

The Social Security Administration (“SSA”) has been using the electronic claims analysis tool (“eCAT”) to document a disability adjudicator’s analysis since 2009. The goal was to foster uniformity so that applicants would be treated the same regardless of where they lived, and to ensure that all SSA policies are considered during the disability adjudication process

The eCAT produces a Disability Determination Explanation (“DDE”) that documents the detailed analysis and rationale for either allowing or denying a claim. The DDEs of my claimants repeatedly show that the eCAT is failing to ensure the SSA policy of asking treating sources to conduct a consultative examination (“CE”) is being followed

I represent a 50 year old landscaper with cervical radiculopathy, diabetic neuropathy, and arthritic knees, whose Social Security Disability application was approved today without a hearing by an Administrative Law Judge (“ALJ”) after a State agency examiner named Davidson, who used the eCAT to create the DDE, had denied the application. Davidson denied the SSD application solely because the claimant refused to attend an unnecessary CE that would have violated the Social Security rules and regulations. In the DDE, Davidson misrepresented that she contacted a treating doctor who refused to accept the State approved fee for performing the CE. The truth was that each treating doctor was ready, willing, and able to perform the CE. 

To compound matters even further, Davidson also expunged critical evidence from the file that supported the claimant’s application. In the Residual Functional Capacity (“RFC”) section of the DDE, Davidson also misrepresented that no RFC assessments are associated with the claim, yet Davidson even admitted in the Record Source Statement section of the DDE report that one of the claimant’s dual board certified specialists in Pain Medicine and Physical Medicine and Rehabilitation concluded the claimant was limited to sitting 2 hours, and standing/walking less than 1 hour. 

The ALJ approved the claimant’s SSD application based on the RFC provided by the claimant’s treating physician. If Davidson had followed the goal of the eCAT, and had complied with the SSA policy of asking treating doctors to perform CEs, then the time and resources of the SSA would have been preserved, and the claimant would have received his approval sooner. The State agency needs to be made accountable for habitually ignoring the purpose of the eCAT.

Tuesday, September 9, 2014

Passive Income

You can receive Social Security Disability (“SSD”) benefits and still receive income from other sources. If the income is passive, such as money from investments, there are no limits to how much you can receive. There are limits only if the income is from your work activity. 

SSD benefits are often held up because the Social Security Administration believes claimants are working. If a claimant explains that income is from rental property, the SSA requires a hearing to take sworn testimony that the claimant is not doing any physical work for the property. If a claimant explains that income is from their former business, then SSA will want letters from former suppliers that the claimant no longer works there, or proof of the business being closed. 

I represent a 55 year old lab technician with cervical and lumbar radiculopathy and carpal tunnel syndrome whose SSD benefits were held up because of “earnings” after her disability onset. The amount of the “earnings” greatly exceeded substantial gainful activity limits. The source of the earnings was an insurance company, which we were able to show represented benefits paid under a group disability plan through work. This shows that as long as the income was passive, a claimant is entitled to SSD benefits regardless of the amount of the passive income.

Establishing Mental Disability

The Social Security Administration (“SSA”) uses the same process for evaluating disability regardless of whether the cause is mental or physical. In short, the SSA determines whether or not the limitations from mental impairments result in a functional capacity to work. 

The problem establishing mental, as opposed to physical, disability is that the doctors treating the problem usually refuse to disclose their treatment records as confidential and privileged. Even though no rule or regulation specifies that treatment records are required, the SSA rarely approves disability benefits now without them. One way to avoid this predicament is to show the claimant meets a listing through a treating doctor’s narrative report. 

If a claimant meets the requirements of a mental listing, then he or she is presumed entitled to disability benefits. Even if a claimant has severe mental illness symptoms, unless they preclude or make it difficult to perform cognitive tasks and get along with others, he or she will not be granted disability. A narrative report explaining why a claimant meets the criteria of a listing should suffice to demonstrate the claimant’s presumptive disability due to the inability to perform the basic mental demands of work. 

A 46 year old telecom worker retained me after her application for Social Security Disability (“SSD”) benefits was denied. I obtained a report from the claimant’s psychologist explaining why she met the criteria of the listing for affective disorders. She was awarded SSD benefits based largely on the listing letter.

Friday, September 5, 2014

Langerhans Cell Histiocytosis

Langerhans cell histiocytosis (“LCH”) is a rare disorder that is treated like a cancer, but is an autoimmune disorder in which immune cells begin to overproduce and attack the body instead of fighting infection. LCH creates excessive histiocyte cells, which normally help the immune system destroy foreign materials and fight infection. The extra histiocytes can form tumors, or cause pain and swelling and other complications, such as fractures or secondary compression of the spinal cord. 

Like many types of cancer, the Social Security Administration (“SSA”) recognizes that LCH is such a serious medical condition that it gets expedited review as a potential Compassionate Allowance. Compassionate Allowances allow the SSA to identify medical conditions that invariably qualify for Social Security Disability (“SSD”) benefits based on minimal objective medical information. 

Once objective diagnostic testing confirms the presence of a condition on the Compassionate Allowance list, the SSA usually approves SSD benefits without any further inquiry. In other words, the SSA approves benefits based upon the presence of the condition. Meeting a listing even requires showing that a serious medical condition has reached a certain severity level. 

I represent a 53 year old restaurant manager with LCH whose SSD application was approved two months after it was filed, and less than a week after I submitted reports from the claimant’s two doctors providing for the LCH diagnosis.