Objective Evidence

While a Social Security Disability (“SSD”) application can be approved based subjective evidence, it is more likely to be approved if based upon objective evidence. Additionally, the stronger the objective evidence, the sooner the SSD application is likely to be approved.

I represent a 49 year old building superintendent whose SSD application was approved today based on my request for a fully favorable decision on the record (“OTR”). This avoided the claimant’s having to appear, and more importantly wait, for a hearing. The OTR highlighted the objective medical evidence supporting the treating physician’s opinions regarding the claimant’s functionality.

Objective medical evidence can be broken down into two types: diagnostic and clinical. In support of the OTR, I submitted four diagnostic reports: a lumbar spine MRI, lumbar spine fluoroscopic discography, CT discogram, and cervical spine MRI, each with positive findings. I also submitted reports from the claimant’s treating orthopedist, pain management specialist, and two spine specialists that summarized their physical examination findings. Thus, the disability opinions of the claimant’s four treating physicians were supported by objective, and their opinions were given controlling weight.

It is possible that the claimant’s application may have been approved without all the objective diagnostic tests and clinical reports that were submitted on the OTR. However, without all of the evidence submitted on the OTR, the claimant probably would have needed to wait for a hearing before his application was approved. While there was some additional expense and effort required on the claimant’s part to obtain all of the evidence for the OTR, it probably enabled him to receive benefits close to two years sooner.

Disability Appeals

Many disability attorneys are of the firm belief that the default position of disability insurers is to deny a benefit claim regardless of the evidence submitted. That belief is supported by the inherent conflict of interest faced by insurers. If they approve a claim, then they have to pay it, which hurts their profitability. The fact that the claims people can receive additional compensation for denying or terminating claims further substantiates this conflict.

In order for a disability appeal to an insurance company to be successful you obviously have to rebutting every single adverse medical finding made in the prior denial, which I suggest doing with multiple treating and consulting medical sources. What is less obvious is that you also need to do the same thing with respect to the vocational evidence. I took over a case involving a claimant with HIV from another law firm after Prudential twice denied the claim by doing these two things.

I received medical reports and test data from four treating doctors that affirmatively rebutted every medical basis that had been previously asserted as a basis for terminating the claim. Perhaps more importantly, I secured a vocational assessment that helped why the claimant remained incapable of working. The report addressed issues such as how thrice weekly fever would cause unacceptable absenteeism, and chronic daily diarrhea would require extra work breaks, as well as the discomfort of co-workers when faced with the claimant’s constant skin infections and so on.

The vocational report also helped establish the claimant’s credibility. The report confirmed that the claimant enjoyed his job, working 60 to 70 hours a week, and earned over $100,000, plus a bonus in the range of $10,000 to $50,000. Logic dictated that the claimant would want to continue working, which was established by the fact that he did for nearly a decade after being diagnosed with HIV.

Strong medical evidence had been submitted in connection with the claimant’s first two appeals. This indicates that the additional vocational evidence probably led Prudential to reverse its prior decision to terminate the claimant’s long term disability benefits.

Police Officer

I represent a 55 year old police officer in connection with his Social Security Disability (“SSD”) application. The officer was already found incapable of working as a police officer by the Police Pension Medical Board. He had been reluctant to provide me with a copy of the Medical Board’s decision. After finally reviewing a copy, I learned that his reluctance was because the Medical Board had indicated that while he could no longer work a police officer, he did have a sedentary work capacity.

I submitted the Medical Board’s decision to the Social Security Administration (“SSA”). I explained to the officer that vocational experts from the SSA have testified that police officers do not have skills that are transferable to sedentary work. If a person is over 50 years of age, has only done non-sedentary work for the past 15 years, then that person is entitled to receive SSD benefits under the SSA’s medical-vocational rules even if he has a sedentary work capacity.

Because the Medical Board’s decision showed that the police officer could not perform his past work, he was entitled to receive SSD benefits. After making perfectly clear and highlighting the applicable medical and vocational rules for the State agency, the police officer’s SSD application was approved.

Irrelevant Medical Conditions

The Department of Disability Determinations is the state agency that initially decides Social Security disability applications (the “DDD”). Every so often, the DDD requests medical information regarding a medical condition about which the claimant never complained. The DDD contends that it needs the information to ensure that the claimant has the best chance of securing benefits, but experience indicates otherwise.

The application forms do not request information concerning all medical impairments; only those that impact the claimant’s ability to work. I used to comply with the DDD requests for medical evidence regarding secondary impairments. However, I no longer do so because applications were being denied on the grounds that those secondary impairments were not disabling, and the primary impairments were being ignored.

I represent a claimant whose application papers specified that she was disabled by her knee, back and shoulder problems. The DDD was provided with reports from the claimant’s treating arthritis specialist, pain management specialist, chiropractor, internist, and physical therapist. Each treating source provided an extremely limited functional capacity that precluded work. Nonetheless, the DDD sought information relating to the claimant’s “cardiac condition.”

I advised the DDD that the claimant would not submit any further medical evidence because more than enough medical evidence had already been submitted to approve the claim. I demanded that benefits be approved immediately or the application denied so I could seek an approval on the record with the Social Security Administration. The application was approved shortly thereafter.

Establishing Credibility

The majority of disability claims involve assessing the claimant’s credibility. The existence claimant’s medical condition or diagnosis is not questioned, only its severity. I represent a claimant whose application was approved today without a hearing because I was able to objectify her credibility.

The claimant had orthopedic problems that caused her pain. While the diagnosis of degenerative disc disease was accepted, the application was initially denied on the grounds that her condition was not severe enough to prevent her from working. In other words, her complaints of pain were not deemed credible. I did several things to establish the claimant’s credibility, and I’ll discuss two in brief.

The medical evidence can usually be used to support a claimant’s credibility in a variety of ways. The reports of the pain management specialist who gave the claimant epidural steroidal injections are fairly obvious. Less obvious are pharmaceutical records. I submitted the claimant’s pharmacy printout, which revealed a constant supply of Tylenol with codeine and Lyrica that her orthopedist had been prescribing. Just as an anesthesiologist only inject drugs into the spine when a patient has a severely painful medical condition, so too an orthopedist only prescribes those potent oral medications when a severely painful condition exists.

I also relied on the vocational evidence to support the claimant’s credibility. The courts have ruled that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. Because the claimant had worked for over 30 years, including over 25 years as a bus drive, I argued that the claimant’s work history justified the inference that when she stopped working she did so for the reasons testified to.

Medical Updates

It can take months, even years, to get a decision on a disability application or appeal. While waiting for a decision, it is important to provide updated medical information that further supports the disability claim.

I filed an appeal last November after a disability application was denied in October. Last week, I finally obtained records from the claimant’s new pain management specialist, who had administered epidural steroid injections (“ESIs”) in September and October 2007. The claimant decided to have the ESIs after a visit to the emergency room because her pain was so bad, and Morphine, Lyrica and Skelaxin failed to alleviate the pain.

The claimant’s application was denied even though her orthopedist and chiropractor provided medical reports concluding that she could not work. Today, shortly after providing the records from the pain management specialist and emergency room visit, the claimant’s appeal was approved.

No Health Insurance

The purpose of health insurance is to make sure that you can afford medical treatment. Unfortunately, when people become disabled and can no longer work, they frequently lose their health insurance just when they need it the most.

A claim for Social Security Disability (“SSD”) benefits can take years to process. If a claimant cannot afford to continue medical insurance under COBRA, then even if the SSD application is approved, Medicare may not be available for 24 months. During the interim, a claimant’s condition can become much worse.

A disability claimant who lacks medical insurance and is unable to obtain medicine or medical care should notify the Social Security Administration (“SSA”). The claimant should specify the basis for the lack of medicine or medical care. For example, stating that the he or she needs medicine or medical care, but is unable to obtain it either because there is no health insurance or because of lack of resources. When a person has a dire need for medical care, that critical situation is supposed to receive expedited treatment by the SSA.

I represent a claimant whose SSD application was denied on October 22, 2007. I submitted a request for a fully favorable decision on the record (“OTR”) on January 4, 2008. On February 15, 2008, I notified the SSA of the claimant’s dire need for medical treatment. That same day, the claimant’s OTR was approved, which could be a coincidence. Nonetheless, it certainly cannot hurt to notify the SSA of dire need circumstances, such as lack of medical care, food or housing.