Carpal Tunnel Syndrome (“CTS”) is the name given to the nerve damage from entrapment of the median nerve. CTS causes paresthesia, pain, numbness, and other symptoms in the distribution of the median nerve, which includes the fingers. According to the National Institute of Health (“NIH”), CTS is common in people who perform repetitive motions of the hand and wrist, most commonly, typing on a computer keyboard. Other causes include: sewing, driving, assembly line work, painting, writing, use of tools, sports such as racquetball or handball, and playing some musical instruments. The NIH says that CTS is a costly and disabling occupational illness.
I represent a claimant who was just approved for long term disability (“LTD”) benefits under a group disability policy issued and administered by Liberty Mutual. In the approval letter, Liberty said that LTD benefits were approved because the claimant was unable to do his own occupation, and that the claimant was required to apply for Social Security Disability (“SSD”) benefits.
Most group LTD policies require filing for SSD, and then will reduce the LTD benefit by the amount of the SSD. Moreover, the failure to apply for SSD will result in the insurance company deducting the estimated amount of the SSD from the LTD benefit. Many insurance companies refer claimants to their SSD company, which is a bad idea. Because SSD companies get their clients from the LTD carriers, they perceive the insurance company as their real client.
In some circumstances, it may be possible to get SSD benefits while conceding the functional ability to sedentary or light work, or even medium work in rarer circumstances. However, most group LTD policies require claimants to prove they cannot do any occupation after 2 years. Since the SSD company is beholden to the referring insurance company, the SSD company does not bother to argue that the claimant cannot do sedentary or light work, and while enabling the claimant to get SSD benefits, sets the claimant up to have his or her LTD benefits terminated.
Friday, February 10, 2012
Thursday, February 9, 2012
SSD Approved in Two Months
I represent a 55 year old former truck driver with a bad back whose application for Social Security Disability (“SSD”) benefits was approved after two months. The severity of his back condition was bad, but no more so than many other claimants with failed back surgery who seek SSD benefits. It was the presentation of the vocational evidence that made the difference.
If a claimant is unable to “communicate in English,” then special rules apply that make it easier to obtain SSD benefits. The question is what does communicating in English mean? Even if a person has a limited ability to speak and understand English, if also unable to read and write English, then that person could qualify for SSD benefits under special rules that would preclude benefits for a person with the same medical circumstances who were literate.
In light of the above, it is important to make sure that a claimant is able to read and write in English. If not, it should be made clear to the state agency when initially applying that the claimant lacks the ability to do so, and to spell out the implications of being unable to read and write when submitting medical evidence. The result should be a quicker approval than usual.
If a claimant is unable to “communicate in English,” then special rules apply that make it easier to obtain SSD benefits. The question is what does communicating in English mean? Even if a person has a limited ability to speak and understand English, if also unable to read and write English, then that person could qualify for SSD benefits under special rules that would preclude benefits for a person with the same medical circumstances who were literate.
In light of the above, it is important to make sure that a claimant is able to read and write in English. If not, it should be made clear to the state agency when initially applying that the claimant lacks the ability to do so, and to spell out the implications of being unable to read and write when submitting medical evidence. The result should be a quicker approval than usual.
Monday, February 6, 2012
Reflex Sympathetic Dystrophy
Yesterday’s Newsday had an article about a person’s ordeal with Reflex Sympathetic Dystrophy (“RSD”), also known as Complex Regional Pain Syndrome (CRPS). According to the National Institute of Neurological Disorders and Stroke, symptoms include crippling pain, burning sensation, skin color, temperature, and sensitivity changes, sweating and swelling. And according to the International Research Foundation for RSD/CPRS, the incurable condition affects over a million Americans.
Because RSD/CRPS affects so many people, the Social Security Administration (the “SSA”) promulgated a special rule for it. The rule notes that conflicting evidence is not unusual in cases of RSD/CRPS, and that its chronic pain and medications can affect an individual's ability to maintain attention and concentration, which obviously can interfere with one’s ability to work. The rule also discusses how third-party information, including Information from nonmedical sources such as neighbors, friends, relatives, clergy, past employers, rehabilitation counselors, or teachers is important.
When applying for disability benefits it is important to understand the nature of RSD/CRPS in order to present a case that properly explains how it limits the ability to work. When applying for disability benefits from the SSA make sure that your attorney is aware of the special rules that apply for RSD/CRPS.
Because RSD/CRPS affects so many people, the Social Security Administration (the “SSA”) promulgated a special rule for it. The rule notes that conflicting evidence is not unusual in cases of RSD/CRPS, and that its chronic pain and medications can affect an individual's ability to maintain attention and concentration, which obviously can interfere with one’s ability to work. The rule also discusses how third-party information, including Information from nonmedical sources such as neighbors, friends, relatives, clergy, past employers, rehabilitation counselors, or teachers is important.
When applying for disability benefits it is important to understand the nature of RSD/CRPS in order to present a case that properly explains how it limits the ability to work. When applying for disability benefits from the SSA make sure that your attorney is aware of the special rules that apply for RSD/CRPS.
Monday, January 30, 2012
Veterans Medical Source Statements
Medical Source Statements that describe a claimant’s functional restrictions and limitations are crucial to any type of disability claim, as it is the effect of a medical condition, not its mere diagnosis, that actually counts. For example, in POMS DI 22505.007, the Social Security Administration (“SSA”) discusses the importance of obtaining a functionality assessment from the claimant's treating doctor because he or she should have the most knowledge about the claimant’s impairments.
Because the SSA usually does not request functional assessments from claimants’ doctors, the claimant must do so. Historically, it was very difficult to obtain functional assessments for claimants who were treated through the Veterans Health Administration (“VHA”). However, that changed when the VHA issued a directive on October 29, 2008, 2008-071, which requires it to assist veterans with completing forms for various benefits, specifically including Social Security Disability (“SSD”) benefits.
A veteran retained me after his application for SSD benefits was denied. Citing the VHA directive, I was able to secure a functional assessment from the claimant’s treating physician at the VHA. With the addition of the VHA Medical Source Statement containing the claimant’s functional assessment, the SSA approved the claimant’s SSD benefits.
Because the SSA usually does not request functional assessments from claimants’ doctors, the claimant must do so. Historically, it was very difficult to obtain functional assessments for claimants who were treated through the Veterans Health Administration (“VHA”). However, that changed when the VHA issued a directive on October 29, 2008, 2008-071, which requires it to assist veterans with completing forms for various benefits, specifically including Social Security Disability (“SSD”) benefits.
A veteran retained me after his application for SSD benefits was denied. Citing the VHA directive, I was able to secure a functional assessment from the claimant’s treating physician at the VHA. With the addition of the VHA Medical Source Statement containing the claimant’s functional assessment, the SSA approved the claimant’s SSD benefits.
Wednesday, January 25, 2012
Disabled by Schizophrenia
Many people are under the misperception that schizophrenia is a disease where the person has a split or multiple personality. According to the Mayo Clinic, schizophrenia is a group of severe brain disorders in which people interpret reality abnormally, and may result in some combination of hallucinations, delusions and disordered thinking and behavior. Importantly, the Mayo Clinic points out that the ability of schizophrenics to function normally and to care for themselves usually deteriorates over time.
When applying for disability benefits, the question is has the schizophrenia deteriorated the claimant’s ability to function in a work setting. A 41 year old college graduate, who had been a shoe salesman for nearly a quarter century, retained me after his application for Social Security Disability (“SSD”) benefits had been denied on the ground that he could “perform simple low level jobs.” Social Security agreed that the claimant could no longer work as a shoe salesman, but identified three other jobs from the Dictionary of Occupational Titles that he purportedly could perform.
Before preparing to attack Social Security’s conclusion that the claimant could perform the three identified occupations, I decided to investigate if the evidence would demonstrate that the claimant met the “listing” for schizophrenia. If a claimant meets a listing, then Social Security must find that the claimant is disabled without needing to determine if the claimant has the functional ability to work.
The records in the claimant’s Social Security file appeared to show the claimant met the criteria of the listing for schizophrenia. Rather than making a legal argument explaining why the claimant met the listing, I provided the listing criteria to the treating psychiatrist, and asked for his medical opinion as to whether or not the claimant met the listing. Since the psychiatrist did opine that the claimant met the listing, I requested a fully favorable decision on the record (“OTR”), which was approved.
The OTR was particularly advantageous to the claimant. Besides reducing his attorney fee, the OTR also enabled the claimant to avoid the stress of a hearing. Moreover, knowing that he would be approved for SSD benefits mitigated the likelihood of the claimant’s condition deteriorating even further.
When applying for disability benefits, the question is has the schizophrenia deteriorated the claimant’s ability to function in a work setting. A 41 year old college graduate, who had been a shoe salesman for nearly a quarter century, retained me after his application for Social Security Disability (“SSD”) benefits had been denied on the ground that he could “perform simple low level jobs.” Social Security agreed that the claimant could no longer work as a shoe salesman, but identified three other jobs from the Dictionary of Occupational Titles that he purportedly could perform.
Before preparing to attack Social Security’s conclusion that the claimant could perform the three identified occupations, I decided to investigate if the evidence would demonstrate that the claimant met the “listing” for schizophrenia. If a claimant meets a listing, then Social Security must find that the claimant is disabled without needing to determine if the claimant has the functional ability to work.
The records in the claimant’s Social Security file appeared to show the claimant met the criteria of the listing for schizophrenia. Rather than making a legal argument explaining why the claimant met the listing, I provided the listing criteria to the treating psychiatrist, and asked for his medical opinion as to whether or not the claimant met the listing. Since the psychiatrist did opine that the claimant met the listing, I requested a fully favorable decision on the record (“OTR”), which was approved.
The OTR was particularly advantageous to the claimant. Besides reducing his attorney fee, the OTR also enabled the claimant to avoid the stress of a hearing. Moreover, knowing that he would be approved for SSD benefits mitigated the likelihood of the claimant’s condition deteriorating even further.
Wednesday, January 18, 2012
Receiving SSD Benefits and an Income
I represent a 40 year old machinist with orthopedic impairments, diabetes, and sleep apnea who was just approved for Social Security Disability (“SSD”) benefits without a hearing even though he is receiving an income.
The first question to be determined when reviewing an SSD application is whether the claimant is working. If the answer is yes, and the amount earned from working is substantial, then the application will be denied. Social Security normally investigates evidence of work activity after a claimant’s disability onset date by reviewing earnings information from the IRS. However, not all income is treated the same.
To be eligible for disability benefits, a person must be unable to engage in substantial gainful activity (“SGA”). The income must be derived from work activity. Income that is not related to work does not constitute SGA. Examples would include passive investment income, return of loan payments, gifts, and other types of disability benefits.
The claimant’s application was held up because Social Security said they had evidence of work activity after the onset date. The evidence was simply learning that the claimant had income, as opposed to any evidence of actual work activity. Once I established that the source of the income were long term disability benefits, SSD benefits were approved.
Tuesday, January 17, 2012
Vocational Credibility
I represent a 58 year old criminal attorney whose Social Security Disability (“SSD”) application was just approved without a hearing. I had submitted a report from the treating psychologist assessing the claimant’s mental residual functional capacity that showed he met the listing for affective disorders. However, I have submitted similar reports on other cases where a hearing was required. What was different here?
The ostensible purpose of a hearing is to assess the credibility of the claimant’s testimony if the medical records are deemed equivocal. Why was the psychologist’s report accepted as a reliable measure of the claimant’s symptomatology on this occasion? I believe the answer is the claimant’s work history.
The claimant worked for over 30 years. I cited the case law holding that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability, and that such a record justifies the inference that a claimant stopped working upon becoming disabled. In other words, the vocational evidence buttressed the medical evidence.
Even more important than the longevity of the claimant’s work history was his earnings history. I emphasized that the claimant was earning $250,000 a year. I posed that if the psychologist’s opinion that the claimant met a listing were rejected, then the only issue was whether the claimant, who was earning $250,000 a year was exaggerating his claim that he lacks the ability to perform simple, unskilled work in order to receive SSD benefits equal to less than 10% of his predisability income.
Sometimes commonsense is more important than medical evidence.
The ostensible purpose of a hearing is to assess the credibility of the claimant’s testimony if the medical records are deemed equivocal. Why was the psychologist’s report accepted as a reliable measure of the claimant’s symptomatology on this occasion? I believe the answer is the claimant’s work history.
The claimant worked for over 30 years. I cited the case law holding that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability, and that such a record justifies the inference that a claimant stopped working upon becoming disabled. In other words, the vocational evidence buttressed the medical evidence.
Even more important than the longevity of the claimant’s work history was his earnings history. I emphasized that the claimant was earning $250,000 a year. I posed that if the psychologist’s opinion that the claimant met a listing were rejected, then the only issue was whether the claimant, who was earning $250,000 a year was exaggerating his claim that he lacks the ability to perform simple, unskilled work in order to receive SSD benefits equal to less than 10% of his predisability income.
Sometimes commonsense is more important than medical evidence.
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