A concussion is a traumatic brain injury that affects your brain function. According to the CDC: physical symptoms include headaches, dizziness, and fatigue; cognitive symptoms include poor concentration, focus and memory; and emotional symptoms include irritability, depression and anxiety.
A neurologist usually treats the physical and cognitive symptoms from a concussion, while a mental health provider treats the emotional symptoms. When seeking disability based upon post-concussion syndrome, it is best to support the claim with the medical records from both professionals.
I represent a 58 year old teacher’s aide whose Social Security Disability (“SSD”) disability claim was approved today based upon a combination of all her symptoms. Great weight was given to the treating neurologist’s opinion regarding the claimant’s physical and cognitive symptoms, and great weight was given to the claimant’s psychologist regarding the claimant’s emotional symptoms. Notably, less weight was given to the opinions of the claimant’s other treating specialists and examining physicians.
Wednesday, January 16, 2019
Migraines
According to the Mayo Clinic, “Migraine attacks can cause significant
pain for hours to days and can be so severe that the pain is disabling.”
Nonetheless, proving that migraines are disabling enough to collect
Social Security Disability (“SSD”) benefits is difficult. Many
administrative law judges (“ALJs”) dislike finding migraines disabling
because they are hard to establish objectively.
I represent a 37 year old woman, who was able to establish the chronicity of her migraine headaches through her treatment with a neurologist that specialized in headaches. Just as importantly, the claimant was able to establish the severity of her headaches by submitting records from two-dozen emergency room visits when her ongoing treatment with her headache specialist and pain management specialist was unavailing.
The claimant’s doctors stated that the headaches would result in the claimant missing more than 3 days of work a month, and being off task more 10% of the time. A vocational expert said those limitations would preclude full time work. Accordingly, the ALJ found the claimant’s migraines were disabling, and entitled to SSD benefits.
I represent a 37 year old woman, who was able to establish the chronicity of her migraine headaches through her treatment with a neurologist that specialized in headaches. Just as importantly, the claimant was able to establish the severity of her headaches by submitting records from two-dozen emergency room visits when her ongoing treatment with her headache specialist and pain management specialist was unavailing.
The claimant’s doctors stated that the headaches would result in the claimant missing more than 3 days of work a month, and being off task more 10% of the time. A vocational expert said those limitations would preclude full time work. Accordingly, the ALJ found the claimant’s migraines were disabling, and entitled to SSD benefits.
Friday, January 11, 2019
Physician Assistants
According to the American Academy of PAs, PAs are medical professionals who diagnose illness, develop and manage treatment plans, prescribe medications, and often serve as a patient’s principal healthcare provider. For the longest period of time, the Social Security Administration (“SSA”) did not consider a PAs to be acceptable medical sources (“AMS”).
SSA regulations provide that only the opinions of AMS can be given controlling weight, and can establish medically determinable impairments. I represent a welfare examiner whose SSD benefits were approved today, but whose PA’s opinion was given no weight because he was not an AMS.
The claimant filed her SSD application on October 23, 2016. However, for claims filed after March 27, 2017, PAs are now AMS. There were several reasons why the SSA committed legal error by giving the PA’s opinion no weight. However, those errors were moot since SSD benefits were approved. Nonetheless, for claims filed after March 27, 2017, a PA’s opinion can no longer be disregarded simply because they are not a physician.
SSA regulations provide that only the opinions of AMS can be given controlling weight, and can establish medically determinable impairments. I represent a welfare examiner whose SSD benefits were approved today, but whose PA’s opinion was given no weight because he was not an AMS.
The claimant filed her SSD application on October 23, 2016. However, for claims filed after March 27, 2017, PAs are now AMS. There were several reasons why the SSA committed legal error by giving the PA’s opinion no weight. However, those errors were moot since SSD benefits were approved. Nonetheless, for claims filed after March 27, 2017, a PA’s opinion can no longer be disregarded simply because they are not a physician.
SSA Stay Denied
I represent a plaintiff seeking Social Security Disability (“SSD”) benefits in federal court. Because of the partial government shutdown, the Social Security Administration (“SSA”) asked the court to stay oral argument scheduled for next Monday indefinitely.
I opposed the stay on the grounds that the SSA attorney is unaffected by the shutdown because the SSA remains fully funded. The SSD hearings that have been scheduled for my clients in the next two weeks have not been stayed. Each day since the shutdown began, my office has conducted business with half a dozen of the SSA’s district offices. The SSA’s Appeals Council has also worked on my clients’ cases since the shutdown began.
I argued that since SSD hearings are proceeding, and every type of administrative business continues, there is no excuse to delay oral argument any further. The court agreed and denied the stay.
I opposed the stay on the grounds that the SSA attorney is unaffected by the shutdown because the SSA remains fully funded. The SSD hearings that have been scheduled for my clients in the next two weeks have not been stayed. Each day since the shutdown began, my office has conducted business with half a dozen of the SSA’s district offices. The SSA’s Appeals Council has also worked on my clients’ cases since the shutdown began.
I argued that since SSD hearings are proceeding, and every type of administrative business continues, there is no excuse to delay oral argument any further. The court agreed and denied the stay.
Friday, December 28, 2018
SSD After Returning To Work
It is possible to receive Social Security Disability (“SSD”) benefits even if you have recovered and returned to work. The SSD process is notoriously slow, and it is not unusual for a claimant to undergo a lengthy disability appeal process that has lasted for years. By the time the case has proceeded to a hearing, the claimant may have recovered from their disabling impairments.
A “closed period” of SSD eligibility could result. A closed period of disability can occur when a claimant was unable to work for 12 months, the durational requirement, but their medical condition improved and enabling them to resume working. Thus, even if you never applied for SSD benefits, if you were out of work for medical reasons more than a year you should consider proceeding with an SSD claim, even though you no longer qualify for benefits. SSD benefits will not be available during the five month waiting period.
It may be easier for a claimant to receive closed period disability benefits than it is to receive open period disability benefits. If an ALJ approves an open period disability, it will be costly, because it is likely the claimant will continue to receive SSD benefits for many years to come. Approving a closed period claim involves less of a financial risk for the SSA.
I just received an on-the-record (“OTR”) decision from an ALJ who rarely grants them. The OTR occurred after I notified the ALJ that the claimant would be seeking a closed period. The ALJ approved either because of the lower financial risk, or because the claim seemed more credible because of the additional evidence of a good work ethic.
A “closed period” of SSD eligibility could result. A closed period of disability can occur when a claimant was unable to work for 12 months, the durational requirement, but their medical condition improved and enabling them to resume working. Thus, even if you never applied for SSD benefits, if you were out of work for medical reasons more than a year you should consider proceeding with an SSD claim, even though you no longer qualify for benefits. SSD benefits will not be available during the five month waiting period.
It may be easier for a claimant to receive closed period disability benefits than it is to receive open period disability benefits. If an ALJ approves an open period disability, it will be costly, because it is likely the claimant will continue to receive SSD benefits for many years to come. Approving a closed period claim involves less of a financial risk for the SSA.
I just received an on-the-record (“OTR”) decision from an ALJ who rarely grants them. The OTR occurred after I notified the ALJ that the claimant would be seeking a closed period. The ALJ approved either because of the lower financial risk, or because the claim seemed more credible because of the additional evidence of a good work ethic.
Wednesday, December 19, 2018
Unum Avoids Trial
I filed a lawsuit in federal court against Unum for wrongful termination of long term disability (“LTD”) benefits in October 2016. Unum was never able to identify a single medical test, exam finding, or symptom that had changed, let alone improved, since it approved the claimant’s LTD benefits, as well as her short term disability benefits and her individual disability policy benefits.
Unum filed a motion to dismiss the action, and lost. Then Unum filed a motion for summary judgment, asking the court to remand the case, and they lost again. Since Unum always asks courts to uphold their decision, asking for a remand was an admission that they knew their decision was wrong. Now, just days before pretrial submissions were due for the trial, which is scheduled to begin next month, Unum asked the court to cancel the trial because they are reinstating the claimant’s benefits.
Unum knew all along that it lacked any legitimate defense for its decision to terminate LTD benefits. When it became obvious that my client would reject their low ball settlement offers, and would proceed to trial, Unum asked to cancel the trial at the eleventh hour. My client refused to waive her right to statutory attorney fees as the prevailing party, interest, and costs.
Unum filed a motion to dismiss the action, and lost. Then Unum filed a motion for summary judgment, asking the court to remand the case, and they lost again. Since Unum always asks courts to uphold their decision, asking for a remand was an admission that they knew their decision was wrong. Now, just days before pretrial submissions were due for the trial, which is scheduled to begin next month, Unum asked the court to cancel the trial because they are reinstating the claimant’s benefits.
Unum knew all along that it lacked any legitimate defense for its decision to terminate LTD benefits. When it became obvious that my client would reject their low ball settlement offers, and would proceed to trial, Unum asked to cancel the trial at the eleventh hour. My client refused to waive her right to statutory attorney fees as the prevailing party, interest, and costs.
Tuesday, December 11, 2018
State Agency Fraud
The Social Security Administration (the “SSA”) is reinstituting the reconsideration stage in New York come January 1, 2019. Close to 90% of claims are denied
on reconsideration, so why is it being restored? Given that the SSA has been passing
rules to make it more difficult to obtain benefits, such as eliminating the treating
physician rule, logic dictates that reinstituting reconsideration is intended to do the
same.
Here is a recent example of what can be expected from an extra round of State agency review. I represent a 58 year old claimant who had worked as a school nurse for 27 years. A pain management specialist, internist, and pulmonologist each concluded the claimant had a less than sedentary work capacity. The claimant’s pulmonary function tests each show she met a listing.
On January 9, 2018, “L. Samuel,” (the State agency doctors are afraid to disclose their first names) a State agency internist, concluded that the claimant was limited to lifting 10 pounds, and was credible. Based on that opinion, the State agency analyst advised approving the claim. However, it was decided that there was a vocational “error” in applying the medical-vocational rules. The State agency then had Samuel redo his report two weeks later.
During the two week interim period, there was absolutely nothing added to the claim file – no medical evidence, no financial evidence, no vocational evidence. Nonetheless, based on the identical information, without any explanation whatsoever, Samuel now concluded that the claimant could lift twice as much, 20 pounds, and for some reason, was no longer credible.
Subsequently, an internist from the SSA reviewed the medical records, and rejected Samuel’s attempt to “redo” his conclusions. When brought to the attention of the ALJ assigned to case, the claim was approved without a hearing. I suggested that L. Samuel be referred to the Office of the Inspector General to account for his fraud, but I am confidant that nothing will be done.
The above illustrates what happens when the State agency effectively reconsiders a claim. Although I would not anticipate that each reconsideration will result in fraud, this serves as evidence that State agency doctors are partial, which serves the interest in the SSA reducing the number of approvals, and increasing delays for those who eventually do get approved.
Here is a recent example of what can be expected from an extra round of State agency review. I represent a 58 year old claimant who had worked as a school nurse for 27 years. A pain management specialist, internist, and pulmonologist each concluded the claimant had a less than sedentary work capacity. The claimant’s pulmonary function tests each show she met a listing.
On January 9, 2018, “L. Samuel,” (the State agency doctors are afraid to disclose their first names) a State agency internist, concluded that the claimant was limited to lifting 10 pounds, and was credible. Based on that opinion, the State agency analyst advised approving the claim. However, it was decided that there was a vocational “error” in applying the medical-vocational rules. The State agency then had Samuel redo his report two weeks later.
During the two week interim period, there was absolutely nothing added to the claim file – no medical evidence, no financial evidence, no vocational evidence. Nonetheless, based on the identical information, without any explanation whatsoever, Samuel now concluded that the claimant could lift twice as much, 20 pounds, and for some reason, was no longer credible.
Subsequently, an internist from the SSA reviewed the medical records, and rejected Samuel’s attempt to “redo” his conclusions. When brought to the attention of the ALJ assigned to case, the claim was approved without a hearing. I suggested that L. Samuel be referred to the Office of the Inspector General to account for his fraud, but I am confidant that nothing will be done.
The above illustrates what happens when the State agency effectively reconsiders a claim. Although I would not anticipate that each reconsideration will result in fraud, this serves as evidence that State agency doctors are partial, which serves the interest in the SSA reducing the number of approvals, and increasing delays for those who eventually do get approved.
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