Now that the Help America Vote Act of 2002 is being enforced in New York, there is voting technology at every polling site that enables people with disabilities to vote privately and independently so they are no longer required to use absentee ballots or special polling sites for the disabled. According to government statistics, one out of every 5 people has a disability, and a 20 year old has nearly a one out of three chance of becoming disabled before reaching retirement age.
There are many critical issues facing the disabled. The insurance companies have been preventing the New York State Insurance Department from implementing rules that would prevent insurers from issuing policies that provide them with discretionary authority, which authority they have been abusing routinely. The wait for a hearing for a claimant seeking Social Security Disability or Supplemental Security Income benefits is typically one to two years. These and many other issues concerning the disabled are not being discussed even though they cut across party lines. As more disabled people vote, hopefully the candidates will begin to recognize that the interests of the disabled are just as significant as any other bloc of voters.
Saturday, October 18, 2008
Friday, October 17, 2008
Vertigo
Yesterday, Janet Jackson resumed her concert tour after canceling two weeks of shows due to vertigo. Besides being the name of a famous Alfred Hitchcock movie, vertigo is the sensation that you are dizzily turning around or things are dizzily turning about you. Vertigo is usually associated with an inner ear or vestibular disorder. When severe, vertigo can be disabling.
I represent a former psychiatric nurse with vertigo whose Social Security Disability ("SSD") benefits were approved in less than five months. The key was showing that the claimant met the criteria of what is referred to as a "listed impairment". A listed impairment is a medical condition that is so serious that a person is deemed disabled if the criteria are met. Vertigo can fall under listing 2.07, entitled Disturbance of labyrinthine-vestibular function.
I was able to demonstrate that the claimant's vertigo satisfied the criteria of listing 2.07. I supplied clinical records reflecting a history of balance disturbance, lightheadedness, hearing loss, nausea and tinnitis. I also submitted rotational chair balance and platform posturography reports, which are test diagnostic teststhat confirm the vestibular labyrinth dysfunction, together with audiometric evaluation reports that established the degree of hearing loss.
Because the claimant had both clinical and diagnostic evidence to support her condition, she was able to show that she met the listing, which enabled her to receive her SSD benefits relatively quickly. Otherwise, she probably would have needed to wait until a hearing, and that would have delayed her receipt of benefits for over a year at a minimum.
I represent a former psychiatric nurse with vertigo whose Social Security Disability ("SSD") benefits were approved in less than five months. The key was showing that the claimant met the criteria of what is referred to as a "listed impairment". A listed impairment is a medical condition that is so serious that a person is deemed disabled if the criteria are met. Vertigo can fall under listing 2.07, entitled Disturbance of labyrinthine-vestibular function.
I was able to demonstrate that the claimant's vertigo satisfied the criteria of listing 2.07. I supplied clinical records reflecting a history of balance disturbance, lightheadedness, hearing loss, nausea and tinnitis. I also submitted rotational chair balance and platform posturography reports, which are test diagnostic teststhat confirm the vestibular labyrinth dysfunction, together with audiometric evaluation reports that established the degree of hearing loss.
Because the claimant had both clinical and diagnostic evidence to support her condition, she was able to show that she met the listing, which enabled her to receive her SSD benefits relatively quickly. Otherwise, she probably would have needed to wait until a hearing, and that would have delayed her receipt of benefits for over a year at a minimum.
Sunday, October 12, 2008
Multiple Impairments
A person may be entitled to receive Social Security Disability (“SSD”) benefits even if no one impairment is disabling. I represent a 28 year old drug store manager woman whose SSD benefits were approved today even though she had no single medical condition that prevented her from being able to work.
The claimant, who was referred by a traumatic brain injury (“TBI”) support group, came to me seeking SSD benefits because her TBI caused vertigo. The claimant’s family doctor performed diagnostic tests that confirmed the vertigo. After interviewing the claimant, I learned that she had other problems, including headaches, back problems and depression. I convinced the claimant to secure medical reports from her pain management specialist, neurologist and psychiatrist regarding her other impairments.
One of the records that I submitted was a report from a psychiatrist hired by the claimant’s employer to perform an independent medical examination (“IME”). I argued that the psychiatrist performed the exam at the request of a party with a vested interest in minimizing plaintiff's impairments – the claimant’s former employer's workers' compensation carrier, and therefore, his conclusion that the claimant could not work was highly probative as an admission against interest. Most ALJ’s do not pay much attention to a workers compensation IME conclusion because they say it is based upon a different standard. However, this ALJ had been a workers compensation ALJ, and recognized that IME conclusion do not normally support a claimant’s position.
The ALJ did not find the claimant’s vertigo, headaches, back pain, or depression disabling. However, the ALJ did find that the combined effect of the claimant’s vertigo, headaches, back pain, and so narrowed the range of work available to her that a finding of disabled was appropriate.
The claimant, who was referred by a traumatic brain injury (“TBI”) support group, came to me seeking SSD benefits because her TBI caused vertigo. The claimant’s family doctor performed diagnostic tests that confirmed the vertigo. After interviewing the claimant, I learned that she had other problems, including headaches, back problems and depression. I convinced the claimant to secure medical reports from her pain management specialist, neurologist and psychiatrist regarding her other impairments.
One of the records that I submitted was a report from a psychiatrist hired by the claimant’s employer to perform an independent medical examination (“IME”). I argued that the psychiatrist performed the exam at the request of a party with a vested interest in minimizing plaintiff's impairments – the claimant’s former employer's workers' compensation carrier, and therefore, his conclusion that the claimant could not work was highly probative as an admission against interest. Most ALJ’s do not pay much attention to a workers compensation IME conclusion because they say it is based upon a different standard. However, this ALJ had been a workers compensation ALJ, and recognized that IME conclusion do not normally support a claimant’s position.
The ALJ did not find the claimant’s vertigo, headaches, back pain, or depression disabling. However, the ALJ did find that the combined effect of the claimant’s vertigo, headaches, back pain, and so narrowed the range of work available to her that a finding of disabled was appropriate.
Monday, September 29, 2008
ALJ Hoppenfeld
Administrative Law Judge (the “ALJ”) Marilyn Hoppenfeld is an ALJ who dislikes Social Security Disability (“SSD”) applications that are based on fibromyalgia. On August 5, 2008, I appealed ALJ Hoppenfeld’s denial of my client’s SSD application. The Appeals Council, In a tacit indictment of ALJ Hoppenfeld’s grossly defective decision, rejected it in less than two months. Two years is a typical wait time for a decision from the Appeals Council.
The reason for the rapid reversal is two fold. I did not wait to receive copies of the hearing exhibits or a tape of the hearing, which usually takes months or even a year. Second, knowing ALJ Hoppenfeld’s propensity for denying fibromyagia claims, which is detailed in reported case law reversing her adverse fibromyalgia decisions, I made sure to create a well documented medical record. I submitted medical reports from the claimant’s rheumatologists, internist, physical medicine and rehabilitation specialists, and podiatrist. Not surprisingly, ALJ Hoppenfeld failed to state the basis for rejecting the opinions of the claimant’s treating physicians.
ALJ Hoppenfeld had a vocational expert (“VE”) appear at the hearing. On cross examination, I got the VE to testify that, in accordance with the reports of the treating doctors, there were few, if any, occupations that the claimant could perform on a sustained basis. Incredibly, while Hoppendfeld conceded that fact, she denied the case anyway. The Hoppenfeld decision was so obviously defective that the Appeals Council apparently saw the need to reject it with all due haste.
The reason for the rapid reversal is two fold. I did not wait to receive copies of the hearing exhibits or a tape of the hearing, which usually takes months or even a year. Second, knowing ALJ Hoppenfeld’s propensity for denying fibromyagia claims, which is detailed in reported case law reversing her adverse fibromyalgia decisions, I made sure to create a well documented medical record. I submitted medical reports from the claimant’s rheumatologists, internist, physical medicine and rehabilitation specialists, and podiatrist. Not surprisingly, ALJ Hoppenfeld failed to state the basis for rejecting the opinions of the claimant’s treating physicians.
ALJ Hoppenfeld had a vocational expert (“VE”) appear at the hearing. On cross examination, I got the VE to testify that, in accordance with the reports of the treating doctors, there were few, if any, occupations that the claimant could perform on a sustained basis. Incredibly, while Hoppendfeld conceded that fact, she denied the case anyway. The Hoppenfeld decision was so obviously defective that the Appeals Council apparently saw the need to reject it with all due haste.
Medicare
After securing Social Security Disability (“SSD”) and Federal Employee Retirement System (“FERS”) benefits for a client a couple of years ago, he asked me to represent his older child who had turned 18 years of age in connection with a claim for adult disability child (“ADC”) benefits. The client also had a younger child under 18 years of age who was still receiving child’s benefits.
Initially, the client thought that it might not be worthwhile applying for ADC because he would still receive the maximum family benefit between the SSD and child’s benefits. However, I explained to the client why, even if there were no monthly ADC benefits, it would still make sense for him to file for ADC for his older child.
Along with the potential for a monthly ADC benefit, after two years, the adult disabled child can begin receiving Medicare coverage. Anyone pricing health insurance premiums will realize that the approximately $100 a month cost for Medicare is well worth the trouble in applying for ADC.
Initially, the client thought that it might not be worthwhile applying for ADC because he would still receive the maximum family benefit between the SSD and child’s benefits. However, I explained to the client why, even if there were no monthly ADC benefits, it would still make sense for him to file for ADC for his older child.
Along with the potential for a monthly ADC benefit, after two years, the adult disabled child can begin receiving Medicare coverage. Anyone pricing health insurance premiums will realize that the approximately $100 a month cost for Medicare is well worth the trouble in applying for ADC.
Monday, September 15, 2008
Fibromyalgia
Disability benefits adjudicators are averse to approving claims based upon fibromyalgia. Fibromyalgia claims are usually denied for allegedly lacking objective evidence. However, I represent a 32 year old who had worked at odd jobs until 1993, whose fibromyalgia claim was denied on the grounds that it was not severe.
The claimant retained me after an administrative law judge (“ALJ”) denied her third application claim for Social Security Disability (“SSD”) benefits. I persuaded the Appeals Council to remand the case for another hearing, and I made a motion that reopened the claimant’s prior applications. Today I received a fully favorable decision that found she became disabled because of her fibromyalgia as of 1991.
After the remand, I subpoenaed medical records that showed the claimant had been diagnosed and treated for fibromyalgia as of 1991. However, the ALJ had to be convinced that the claimant’s fibromyalgia was severe enough to prevent her from being able to do even sedentary work all the way back to 1991.
To ensure that there was no mistaking the severity of the claimant’s fibromyalgia, I submitted reports from three treating specialists. Based upon their review of the medical records, each specialist specified a retrospective onset date that predated their treatment.
The first doctor was the rheumatologist. The rheumatologist is important because the accepted objective evidence for fibromyalgia is the criteria from the American College of Rheumatology. The second doctor was the internist. ALJ’s usually overlook internists because they are considered more of a generalist. However, their opinions are particularly important when, as here, they have been treating a relatively long time. The third doctor was the neurologist. Her opinion corroborated the other two opinions. The new reports made it easy for the ALJ to conclude that the medical evidence now showed she could not work.
The claimant retained me after an administrative law judge (“ALJ”) denied her third application claim for Social Security Disability (“SSD”) benefits. I persuaded the Appeals Council to remand the case for another hearing, and I made a motion that reopened the claimant’s prior applications. Today I received a fully favorable decision that found she became disabled because of her fibromyalgia as of 1991.
After the remand, I subpoenaed medical records that showed the claimant had been diagnosed and treated for fibromyalgia as of 1991. However, the ALJ had to be convinced that the claimant’s fibromyalgia was severe enough to prevent her from being able to do even sedentary work all the way back to 1991.
To ensure that there was no mistaking the severity of the claimant’s fibromyalgia, I submitted reports from three treating specialists. Based upon their review of the medical records, each specialist specified a retrospective onset date that predated their treatment.
The first doctor was the rheumatologist. The rheumatologist is important because the accepted objective evidence for fibromyalgia is the criteria from the American College of Rheumatology. The second doctor was the internist. ALJ’s usually overlook internists because they are considered more of a generalist. However, their opinions are particularly important when, as here, they have been treating a relatively long time. The third doctor was the neurologist. Her opinion corroborated the other two opinions. The new reports made it easy for the ALJ to conclude that the medical evidence now showed she could not work.
Thursday, September 11, 2008
Appeals Council Remand
If an Administrative Law Judge (“ALJ”) denies your case, you can request Appeals Council review in 60 days by completing and submitting form HA-520. You can submit new evidence, and explain the reasons why the ALJ erred. The Appeals Council can approve benefits, which is rare, decide not to review your appeal, or send your claim back to the ALJ for another hearing. What should you do if your claim is remanded to the ALJ?
I received two Appeals Council remands this week. While the factual circumstances and legal issues were very different, in each case, the Appeals Council recommended that a Vocational Expert (“VE”) testify. orders Most Appeals Council remand orders direct the ALJ either to reconsider the same evidence, or to obtain new evidence. Regardless of what the remand order actually states, you should always submit additional evidence. I am advising the claimants to retain their own VE so they can provide reports to their ALJs.
I advise claimants to use VEs who testify for Social Security as this will expedite the appeal process. A VE report can be expensive, but is normally costs less than the amount of a month’s estimated Social Security Disability benefits. Additionally, retaining a VE prevents an ALJ who is predisposed to deny a claim from cherry picking a pet VE whom the ALJ knows will testify adversely.
I received two Appeals Council remands this week. While the factual circumstances and legal issues were very different, in each case, the Appeals Council recommended that a Vocational Expert (“VE”) testify. orders Most Appeals Council remand orders direct the ALJ either to reconsider the same evidence, or to obtain new evidence. Regardless of what the remand order actually states, you should always submit additional evidence. I am advising the claimants to retain their own VE so they can provide reports to their ALJs.
I advise claimants to use VEs who testify for Social Security as this will expedite the appeal process. A VE report can be expensive, but is normally costs less than the amount of a month’s estimated Social Security Disability benefits. Additionally, retaining a VE prevents an ALJ who is predisposed to deny a claim from cherry picking a pet VE whom the ALJ knows will testify adversely.
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