Best Time to Apply for SS

You work hard your entire life, and want to make sure you get the most out of your retirement benefits. Max Richtman's article in Newsweek discusses your options, and how to choose the optimal time to claim your retirement benefits from Social Security.

Parkinson's Disease

Parkinson’s Disease (“PD”) is a neurodegenerative brain disorder. According to the Parkinson’s Foundation, about a million Americans have PD.

The Social Security Disability (“SSD”) regulations provide that your statements about how your pain or other symptoms effect your ability to work will not be rejected solely because the available objective medical evidence does not substantiate your statements. In practice however, especially before you reach the hearing stage, SSD benefits are rarely approved without objective evidence.

I represent a 52 year old former social worker with PD whose SSD application was approved today. The claimant had already provided medical records to support the opinion of the treating neurologist that the claimant was unable to work due to PD, yet the claim had been denied.

On appeal, we submitted the claimant’s DaT Scan, which provided definitive objective proof that the claimant had PD. Less than a week later, the claimant’s SSD benefits were approved.

PD is progressive and incurable . It appears that once the DaT scan provided objective proof of the progressive and incurable disease, there was no need to hold a hearing.

SSA in Crisis

I have posted many blogs regarding the outrageous backlog of disability claims at the Social Security Administration (“SSA”). This article highlights some of the reasons for the backlog, and for the increase in denials of claims. According to Judge Marilyn Zahm, National President of the Association of Administrative Law Judges, the government is not treating the disarray at the SSA as a crisis, which is how they should be treating it. There are not enough Judges or staff to assist the Judges. Perhaps most importantly, the Judges are being pressured to deny more claims. It is a dire situation for the millions of disabled people applying for disability benefits, and nothing is being done to fix it.

SSD Reform Needed

This article, written by Rep. Jackie Walorski (R-Ind.) in The Hill, succinctly sums up the problems with Social Security and the back log in waiting for Social Security Disability benefits.

Applying for SSD Benefits

This article appeared in the Tribune Star and has good information for anyone thinking about applying for Social Security Disability benefits.

Headaches

Technically, when seeking Social Security Disability (“SSD”) benefits, you are not required to have objective evidence to establish your disability. Otherwise, a person with medical conditions such as fibromyalgia or chronic fatigue syndrome would never qualify for SSD benefits.

As a practical matter, without objective evidence, Social Security makes it very difficult to get approved for SSD benefits. When an administrative law judge (“ALJ”) assesses a claimant’s credibility, they are required to determine if there is a medical condition that could reasonably produce the symptoms that limits the claimant’s ability to work.

Headaches can cause pain, and can result in becoming unable to work on a full time basis. However, it is difficult to establish disability due to headaches because the ALJ will ask what evidence shows you actually have headaches, and are not simply making it up.

I represent a former 59 year old nursing assistant who had to stop working because of headaches. ALJ Weiss indicated that he agreed that the claimant’s 32 year work history supported that she was credible regarding her ability to work. However, a Medical Expert (“ME”) rejected many of the conclusions of the treating physicians.

Besides treating with a pain management specialist for headaches, the claimant had been treating with a neurologist. The neurologist concluded that the claimant was disabled by migraine headaches. In addition, the neurologist had sent the claimant for an MRI of the brain, which revealed abnormalities consistent with migraines according to the radiologist who performed the MRI.

Surprised by ME Pierko’s opinion, ALJ Weiss confirmed that Pierko was aware of the MRI. He even pointed out that this was a somewhat unusual case in that there was objective evidence, the MRI, to explain the etiology for the headaches. Pierko could not explain why she would not change her opinion regarding this issue.

ALJ Weiss rejected the ME’s opinion about the claimant’s headaches. There may well have been a different outcome if the claimant’s work history was not as strong. ALJ Weiss may have accepted the ME’s opinion without the MRI, which illustrates the difficulty getting SSD benefits without any objective evidence.

Disabling Fibromyalgia

There is no diagnostic test for fibromyalgia. According to the American College of Rheumatology, fibromyalgia is diagnosed based on the patient’s relevant symptoms, not simply tender points. So what can a claimant do to strengthen a fibromyalgia claim? 

If a claimant has a good work history, then I emphasize that point. The more years you work, and the more money you earn, the better. The commonsense argument is that if you have a strong work ethic, or made a lot of money, you have no incentive to stop working. 

I also obtain support letters from friends and relatives to describe how the claimant’s fibromyalgia has progressively affected her ability to function. Support letter are especially important if the claimant is unable to bring a witness to testify at a hearing. 

I represent a former collector with fibromyalgia, whose Social Security Disability (“SSD”) claim was approve today. She had worked for many years, and earned over $100,000. I questioned the claimant about these points in detail during the hearing. I had also submitted support letters from friends and relatives, describing their observations about how the fibromyalgia limited the claimant’s perform tasks. 

The administrative law judge (“ALJ”) found that the claimant had consistent complaints. However, the ALJ professed that, “the medical record is not extensive, and includes a number of normal studies.” Nonetheless, the ALJ approved SSD benefits after concluding that the claimant’s documented complaints were consistent, and were supported by her “very long work history.”

Garnishing SS Benefits

If you have worked long enough and paid into the Social Security system, then you will be eligible to receive benefits when you stop working. It is important to understand that if you have any outstanding federal debt such as student loans or tax debt, or civil judgements against you, such as being delinquent in child support, then your Social Security benefits could be garnished. In a worst case scenario, if you find yourself in one of the aforementioned situations, at least you can request a payment plan with the agency to which you are indebted.

Nurse Practioners

When the Social Security Administration (“SSA”) eliminated the treating physician rule, it also added Advanced Practice Registered Nurses (“APRNs”) as acceptable medical sources. According to the American Nurses Association, APRNs include: Certified Nurse Practitioners (“NPs”), Certified Registered Nurse Anesthetists, Clinical Nurse Specialists, and Certified Nurse Midwives. That change places the opinion of an NP on a par with a physician when a claimant seeks Social Security Disability (“SSD”) benefits. 

I represent a claimant who was seeking disabled adult child benefits. An NP who was treating the claimant furnished a report, which concluded the claimant is unable to work. The Administrative Law Judge (“ALJ”) gave the NP’s opinion great weight, and approved the SSD benefits. 

Prior to this year, the ALJ would not have afforded an NP’s opinion great weight. As NPs usually work with physicians, who can co-sign reports or give their own opinions to support a claimant’s case, adding APRNs to the list of acceptable medical sources may not help secure SSD benefits for a significant number of claimants. On the other hand, the elimination of the treating physician rule will decrease the percentage of claimants who obtain SSD benefits.

Trump Hurt Disabled Workers

It has been well known for many years that ERISA fails to protect workers adequately. For example, see my March 30, 2017 post.

To try to level the playing field somewhat, last year, on December 16, 2016, the U.S. Department of Labor (the “DOL”) announced new rules to strengthen protections for workers who file claims for disability benefits under their employers’ group disability insurance plans. The new rules were designed to ensure that disability claimants would receive a full and fair review of their claims. The DOL said that the new rules would help many disabled individuals avoid financial and emotional hardship by ensuring that they receive benefits that otherwise might have been denied by plan administrators, without the fuller protections provided by this final regulation. The new rules were supposed to go into effect January 1, 2018.

The DOL just announced that it would not put the new rules into effect.  The disability insurance companies are crying that the new rules would cost them more money and increase litigation. In other words, the insurance companies are complaining that if disabled claimants have to be treated more fairly, then the disability insurers will have to pay claims that they currently evade by treating claimants unfairly. The Obama Administration rejected the complaints of the multi-billion dollar disability insurance companies in favor of workers who have no income due to their impairments. President Trump issued Executive Order 13777 that stops the new rules from going into effect on New Years.

Expediting Hearing

We often post about the constantly increasing time that it takes to get a Social Security Disability (“SSD”) hearing. The average waiting time is now up to 633 days. Thousands of the most impaired SSD claimants are even dying while they wait for a hearing. Claimants should be aware that there are circumstances where you can get your hearing expedited. 

We represent a 49 year old former custodian with back and knee problems. In addition to the claimant's medical records, we submitted her mortgage statement and utilities bill that showed she was seriously in arrears. The claimant's situation had become dire as she had no income or savings. PSE&G threatened to turn off the claimant’s power, and her mortgage company was threatening to foreclose on her home. Consequently, we asked Social Security to expedite the claimant's case to prevent her from becoming homeless. 

The claimant's hearing was expedited and scheduled within 75 days, which required waiving the advance notice period. Administrative Law Judge (“ALJ”) Alan Berkowitz held the hearing yesterday. When the hearing was completed, ALJ Berkowitz announced his decision, which ALJs rarely do, approving SSD benefits. Kudos to ALJ Berkowitz for deciding the claimant’s case immediately in recognition of the claimant’s dire need situation. Hopefully, the ALJ will promptly issue a written decision so the claimant can get paid as soon as possible.