Ginsberg Law Offices

Will Social Security Penalize Me if I Refuse Electroconvulsive Treatment?

In Dec. 13, 2007 you responded to my question on your Social Security Disability podcast about non compliance and electroconvulsive therapy (ECT). I had tried numerous antidepressant medications with no success. I was desperate for answers and sought out a new psychiatrist who specializes in electroconvulsive therapy. After he conducted my fourth of six ECT treatments. I started experiencing a very weird scary state of mind, almost like I was seeing things in a dreamlike state of mind. I stopped at the fourth ECT for this reason. Its hard to describe such feelings in words but it was a very eery scary feeling. How will Social Security view my situation?

–Mike

Jonathan Ginsberg responds: Mike, I think that Social Security expects claimants to pursue all reasonable courses of treatment. This does not extend to invasive procedures (such as surgery), or therapy that involves powerful medications or treatments. In my view, therefore, your refusal to continue with ECT treatments because of undesireable side effects would not be held against you.

I recall having this discussion with one of the judges in my local hearing office. He gave me an example using his wife as an example. The judge revealed to me that his wife had a bad case of hemorrhoids, which could be easily treated with a 30 minute outpatient procedure. He indicated that if his wife was appearing before him claiming disability arising from pain associated with those hemorrhoids, he would want to know why she had not sought out such a readily available cure.

I think that this judge raised an interesting issue. I think that a judge would be reversed by the Appeals Council if he denied a claim because a claimant refused open heart surgery or a spinal fusion because it is entirely reasonable to decline treatment that carries with it a risk of permanent damage or death. I think that ECT treatments fall into this category.

On the other hand, I think that a judge would be justified in denying a claim for visual impairment if the claimant refused to wear glasses.

What about those cases where a claimant has moral or religious grounds to refuse treatment. Would a diabetic who refuses insulin on religous grounds or because of a fear of needles get approved? Would that hemorrhoid patient be denied because she feared any type of surgery, no matter how minor?

Judges are human beings and they expect that claimants will make a real effort to improve their health and rejoin the workforce. Judges sense when claimants are trying to avoid work, so, in general, if you have refused treatment, I think you need to be prepared to give a legitimate reason why.

I also think that if you refuse treatment, you should not expect to stay at home waiting for your check. Judges expect you to seek out whatever treatment you can handle and that you can afford. In Mike’s case, I think he is justified in refusing ECT because of the side effects, but I also think that he needs to continue with whatever other treatment has been prescribed – therapy, medications (if applicable), etc. Even if some of those alternatives don’t seem to be effective, it is important to build an on-going, long term medical treatment record.

Will Filing a Bankruptcy Affect My Social Security Disability Case?

In my law practice, I have handled both bankruptcy and Social Security disability cases. Unfortunately, with delays in the Social Security system approaching 3 years, more and more of my disability clients find themselves considering bankruptcy.

What happens, therefore, if you decide to file for bankruptcy while you are waiting for your Social Security decision? What happens if your SSDI or SSI case is approved the week after you file for bankruptcy? Can you keep your past due “lump sum?” Does your attorney get paid?

If you have a pending Social Security application, you need to let your bankruptcy lawyer know about it. Bankruptcy lawyers hate surprises and pending Social Security benefits are certainly relevant to a bankruptcy evaluation.

Under the current bankruptcy law, Social Security benefits are not countable for means test purposes but they may be countable for budget purposes. So, if you do get approved for benefits while your bankruptcy is still active, you may need to amend your budget.

In my view, bankruptcy works best when there are no changes during the course of your case – whether you file Chapter 7 or Chapter 13. The addition of, say, $1,500 per month to a bankruptcy budget will change things and you need to know in advance what this change will mean.

The question on the mind of most Social Security applicants has to do with the lump sum payment – which represents months or years of “past due benefits.” Can you keep this lump sum? The answer is “it depends.” It depends on your State’s exemption laws and the practice and procedure in your local bankruptcy court.

In the Northern District of Georgia, where I practice bankruptcy, I have successfully argued that my client’s Social Security disability payments are exempt assets pursuant to Georgia’s exemption statute, which makes exempt a “debtors right to receive a Social Security benefits.” I take the position that the monthly benefits would have been exempt and that the debtor should not lose his lump sum check because Social Security took two to three years to issue payment.

Every State has its own exemption rules. And every bankruptcy filing jurisdiction has most likely reached a consensus about this issue. I suspect that in some jurisdictions, the trustee will ask for some of the lump sum. Perhaps there are some where the entire lump sum is in play. The point – ask your bankruptcy lawyer. It may change when your file and what bankruptcy chapter you choose.

Similarly, you need to tell both your Social Security lawyer and your bankruptcy lawyer about both cases. Your Social Security lawyer is entitled to get paid for his efforts. He may need to file a special application in bankruptcy court to be approved as special counsel. He may also need to file a motion for approval of his fees.

The bottom line: advise both your bankruptcy lawyer and your disability lawyer about your respective cases. Ask your lawyer to sketch out in writing what you can expect. I can imagine nothing more frustrating than to hang on for three years waiting for that past due benefit check, only to find that a trustee has grabbed it.

Atlanta North Judge Gets Raw Deal from Social Security Administration

Today’s Atlanta Journal-Constitution printed a front page article entitled Ruling: Judge Slighted Duties. The article reports the finding of an administrative law judge that Atlanta North ALJ Kelly Jennings can be removed from his position as an ALJ because he simultaneously served as an active duty lawyer for the Army.

In addition to firing Judge Jennings, Social Security is also going to attempt to collect over $300,000 in back pay. The ALJ considering this case concluded that because he was working for the army, Judge Jennings was not able to give his Social Security cases his full attention, thus contributing to the backlog in the Atlanta North office.

Excuse my use of the vernacular here, but this ruling against Judge Jennings is a load of crap. First and foremost, I find it incredible that any trier of fact would attempt to blame the Atlanta North backlog on one judge. The problem in Atlanta North does not lie at the feet of the judges; instead, the problem has to do with the lack of staff and Social Security’s slow embrace of technology. Judges are part of the puzzle, to be sure, but if the case files are not put together, if the hearings are not scheduled, if there are not enough writers to prepare draft decisions, and if thousands upon thousands of claims are being filed, there are going to be delays.

I try cases in the downtown Atlanta hearing office, as well as in Rome, Columbus, Macon and Savannah. The Atlanta North office has been the slowest in adopting the paperless exhibit files (exhibits are on CD) the paper files that we do use are usually not numbered or properly prepared for hearings. If Judge Jennings was able to process 10x as many cases as he did, none of this would change. Nothing in the AJC article suggested that Judge Jennings rate of productivity was any less than any of his colleagues.

I also wonder if the ALJ considering this issue took the time to speak to any of the lawyers that appeared before Judge Jennings. In my experience, Judge Jennings was always prepared for hearings and his processing time for issuing decisions was no different than any of the other Atlanta North judges. As an aside, Judge Jennings was considered to be more on the conservative side when it came to approving cases, so I am not writing this out of self interest. However, he was never arbitrary and his approach was always consistent, meaning that going in to a case I pretty much knew what I needed to present my case. In cases that he granted, Judge Jennings would frequently include specific direction to Social Security to review a claim in two or three years. I think he felt a responsibility to the taxpayers to insure that anyone who would be collecting benefits truly deserved them.

Finally, as noted above, Judge Jennings “other” job was as a lawyer for the Army. This was known to everyone at Atlanta North – I remember one occasion in particular, when Judge Jennings had to postpone hearings because he had an active duty deployment. Here, then, we have an individual serving his country in a time of war who is being unfairly singed out as the reason for a backlog problem that is, in truth, the result of widespread and systematic inefficiency.

Is Notice of a Video Hearing by an Out-of-State-Judge a Good or Bad Thing?

What does it mean if you hear from Social Security that your case file is being sent to an out-of-state judge for a hearing? Is that good news or bad news? A reader named Vicki asked just that:

my chart was sent elsewhere for a video hearing. does that mean they really think that i am not disabled? my chart is being sent to another state. i am unable to access the grid rules. thank you, vicki

Jonathan Ginsberg’s response: Vicki, I would not read anything at all into learning that SSA has sent your file to an out-of-state judge for a hearing. Over the past few years, Social Security has undertaken several innovative steps to address the hearing backlog that exists in hearing offices across the nation. Perhaps the most visible of these programs has been the introduction of video hearings to the decision making process.

In a video hearing, you and your lawyer appear at your local hearing office. The judge, who may be located hundreds or thousands of miles away, appears by video camera. The hearing reporter and expert witnesses may be local or they may be with the judge. You can see the judge on a large television screen and he can see you.

In addition to sending files to judges in hearing offices elsewhere in the country, SSA has set up a national video hearing center in Virginia. I suspect that once SSA gets the current backlog reduced down to manageable proportions, they will send files to the national center rather than to judges in various ODAR hearing offices. For right now, however, video hearings may be held before judges located in random hearing offices or they may be held in the national hearing center.

Personally, I have had good results with the video hearings I have tried. At first I was a little concerned about the idea of appearing before a judge who could not interact with my client in person. However, that has not been a problem. I don’t know what criteria are being used to select the judges who get the video hearings but so far, the judges I have seen have been reasonable.

Vicki’s final question was about the grid rules, which are accessible by clicking on the link.