NYCERS

What do you do when despite submitting every type of medical record, test, and report, NYCERS refuses to consider your application for Disability Retirement due to a purported lack of evidence? The answer is, submit non-medical evidence.

I submitted a 195 page application, comprised mostly of medical records, in support a maintenance worker’s disability retirement application. The evidence included:

1) Decision from the Social Security Administration (the “SSA”) concluding that the claimant could not do any type of work;
2) Decision of the Housing Authority concluding the claimant could not do his job as a Municipal Maintenance Worker;
3) A description of the claimant’s medications objectively showing that his pain is severe since his doctors prescribed extremely potent pain killers, anti-inflammatories and muscle relaxants, whose side effects alone would preclude his working as a maintenance Worker;
4) The use of assistive devices for the claimant’s knees, back, and walking;
5) MRIs for the claimant’s left knee, right knee, left shoulder, and lumbar spine revealing an inordinate amount of objective evidence of abnormal findings, including conditions such as nerve root compression that are capable of causing severe pain and functional limitations;
6) Operative reports for the claimant’s left knee and left shoulder because the conditions were so severe;
7) VNG testing that confirmed moderate to severe vestibular dysfunction;
8) EMG testing confirming bilateral CTS and lumbar radiculopathy consistent with the lumbar MRI findings;
9) Treatment notes from: the doctor specializing in physical medicine and rehabilitation and pain management; neurologist specializing in spinal surgery; orthopedist who performed the surgeries; the internist who coordinates the claimant’s overall care; the rheumatologist specializing in arthritis who performed the EMG testing; orthopedist who conducted an independent medical exam;
10) Functional assessments from each of the six doctors; and
11) Hospital records demonstrating the effects of the claimant’s seizure disorder, as well as x-rays that revealed severe arthritis in the shoulder and knees, as well as other degenerative changes in the thoracic and cervical spines.

Nonetheless, the Medical Board asserted that it could not consider the application due to insufficient evidence, and would not state what type of additional evidence might suffice.

Since there was no further information that I could obtain from the claimant’s doctors, I made arrangements for a functional capacity evaluation (“FCE”) and vocational evaluation (“VE”). The FCE was performed by a physical therapist who determined that the claimant did not meet the strength requirements demanded by a maintenance worker. In fact, the FCE concluded that because the claimant was limited to lifting 2 pounds, and was unable to do any carrying, he was unable work in any capacity. The VE was a comprehensive functional vocational capacity evaluation that ultimately concluded the claimant was unable to work in any occupation, even at the sedentary level.

The Medical Board decided that there was enough information to consider the claimant’s application once I submitted the FCE and VE. After its examination of the claimant, the Medical Board recommended approving the claimant’s application for disability retirement.

Primary Care Physicians

It is generally accepted that the disability opinion of a specialist is entitled to greater weight than a general practitioner. In the Social Security Disability context, that principle is codified in a regulation that gives more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.

For a variety of reasons, this had led many people to disregard seeking medical support from their primary care physician (“PCP”), who usually is a general practitioner, such as an internist or family doctor. Depending upon a claimant’s impairments, an internist could be the specialist whose opinion is entitled to extra weight.

A woman seeking Supplemental Security Income (“SSI”) benefits retained me just prior to her hearing. The claimant’s internist diagnosed her with diabetes, hypertension, anemia, hyperlipidemia, cataracts, osteoarthritis, Lyme Disease, and osteopenia. There are medical specialists for each of those impairments. However, when no single impairment is disabling, the PCP, in this case an internist, is the appropriate specialist for treating the combination of all the impairments.

I obtained a detailed functional assessment from the claimant’s internist that showed the claimant lacked the ability to perform sedentary work. The Administrative Law Judge agreed that an internist was the appropriate specialist under the circumstances, and approved SSI benefits because he gave controlling weight to the internist’s opinion.

Social Security Rulings

A Social Security Ruling (“SSR”) is the Social Security Administration's (“SSA”) interpretation of the Social Security Act and regulations. An SSR is binding on all decision makers in the disability process and is given significant weight by federal court judges. It is important to analyze the SSRs when applying for Social Security Disability (“SSD”) benefits.

The SSA approved a Reflex Sympathetic Dystrophy (“RSD”) case today, which can be attributed to SSR 03-2p. The 38 year old SSD claimant had done secretarial work for her father. After the SSA doctor concluded that an examination was needed to determine the claimant’s ability to function, I obtained and submitted a report from the claimant’s family doctor who explained why the claimant was unable to perform sedentary work. Soon thereafter, I secured a report from the claimant’s pain management Physician’s Assistant, who corroborated the opinion of the family doctor.

Ordinarily, the SSA will give little weight to an opinion from a family doctor because he is not considered a specialist, and even less, if any, weight to a Physician’s Assistant. However, SSR 03-2p recognizes that any “evidence from medical practitioners who have provided services to the individual, and who may or may not be ‘acceptable medical sources,’ is often critical in deciding the individual's credibility.” Undoubtedly, the claimant’s application was approved without a hearing based on SSR 03-2p.

Anxiety

People applying for Social Security Disability (“SSD”) benefits based on anxiety usually get denied. The Social Security Administration (the “SSA”) explanation of determination typically says that while the medical evidence shows the claimant has anxiety, they determined that the condition is not severe enough to prevent the claimant from working. The best way to address the severity of a claimant’s anxiety is through the applicable “listing.”

The SSA has listings for many impairments, including anxiety. If a claimant provides evidence that he or she meets the criteria in the listing, then the SSA must presume that the claimant is unable to work. Therefore, by proving you meet the listing, you establish that your anxiety is severe enough to keep you from working.

A 39 year old woman who taught health and fitness retained me after her SSD claim was denied based on cardiomyopathy. While interviewing the claimant, it seemed that her anxiety over her cardiomyopathy was actually worse than her cardiomyopathy. After reviewing a report from the claimant’s psychologist that indicated the claimant’s anxiety was severe, I obtained another report explaining why the claimant met the listing, which I used as the basis for requesting a decision without having to hold a hearing.

Although the claimant had not even alleged the anxiety was a contributing factor to her inability to work, her SSD application was approved without a hearing. The waiting time for hearings is up to two years. The SSA website provides the average wait time for each hearing office. Perhaps just as importantly, the claimant had been very anxious about having to testify at a hearing, and immediately felt better knowing that she did not have to appear.

Fibromyalgia

The most difficult disability claims to establish are those based upon subjective medical evidence, such as fibromyalgia. There is no diagnostic or laboratory test for fibromyalgia, and the diagnosis is confirmed through clinical findings of tender or trigger points on the body that cause pain.

While there is no diagnostic or laboratory test for fibromyalgia, that does not mean that a disability claim based upon fibromyalgia should disregard medical test data. Fibromyalgia is a rheumatic disorder and is frequently associated with positive blood test findings, which are indicative of inflammation or other systemic abnormality.

I represent a former plant manager who stopped working five years ago, when she was just 46 years old, due to fibromyalgia. Her disability application was just approved today without a hearing. Among other things, I obtained a report from the claimant’s rheumatologist stating that the claimant’s fibromyalgia prevented her from working.

This fibromyalgia claim was approved relatively quickly because in addition to providing the requisite evidence regarding trigger points, I also submitted records revealing abnormal blood test results, such as positive ANA antibodies. While the test evidence cannot confirm a diagnosis of fibromyalgia, it indicates that there is some systemic abnormality. While claim adjudicators dislike fibromyalgia cases in general, they appear more receptive to a claim when there seems to be an undiagnosed rheumatoid process, probably because they feel such evidence cannot be faked.

Retrospective Medical Opinion

Is an applicant entitled to receive Social Security Disability (“SSD“) benefits even if she has not worked in over 15 years? The answer might be yes.

To receive SSD benefits, you must establish that you became disabled before your “date last insured (“DLI”)” expires. I have consulted with many people who came to see me after they had been told that they were ineligible for SSD benefits because their DLI had passed. However, just because your DLI has expired does not preclude you from establishing you became disabled before then.

I represent a 48 year old woman who stopped working as a receptionist in 1992 because of depression. Her DLI was December 1997. She applied for SSD benefits November 2007, and had been unable to find an attorney willing to accept her case. Late last year, just before her hearing, she retained me.

The claimant had been treating for her depression steadily since 1994, including treating with her current psychologist since 1998. I amassed all of the claimant’s treatment records, and asked her psychologist to review them. Then I had the psychologist complete narrative and functionality reports to explain why the claimant had been unable to work since 1994. Based on the treatment records and the psychologist’s disability opinion, Administrative Law Judge Ronald Waldman approved the claimant’s SSD benefits.

Even though the claimant had not worked in more than 15 years, and even though her DLI had expired over a decade ago, the claimant’s 2007 SSD application was approved. The DLI is not akin to a statute of limitations that bars claims after a certain period of time. As long as the clinical and diagnostic evidence supports a treating doctor’s retrospective opinion that a claimant became disabled before the DLI, that claimant’s application should be approved.