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Q & A: How does the SSA determine what my functional limitations are?

In this 10th Q & A post, I discuss how the SSA determines what your functional limitations are.

Question:

How exactly does the SSA determine the effects of a claimant’s symptoms on his or her ability to function in the workplace?

My answer:

As you know, symptoms arising from your condition can severely affect your daily functioning. But in the SSA’s eyes, merely stating that you have symptoms that interfere with your abilities is not enough to win approval. The SSA, in deciding your claim, has to go a step deeper to determine how your symptoms effect your functioning. In doing this, the SSA will consider the following:

  • How the symptom affects the daily activities of the claimant; a claimant’s ability to function; his/her limitations as a result of the symptom
  • Location, duration, frequency and intensity of the pain or other symptom
  • Side effects of any medication being taken, as well as the type of medication and the dosage taken
  • Treatments, outside of medication, for the relief of pain or other symptoms
  • Avenues which a claimant uses or has used to relieve pain or other symptoms

A good lawyer should also be able to draw conclusions about what functional limitations arise from your symptoms. Without being able to translate your medical symptoms into work limitations, I can say that you will have a tough time winning your claim. Work limitations are the bread and butter of a winning case.

One last point about extracting functional limitations from your symptoms: It is important that physicians note in a claimant’s medical records how any symptom experienced by the claimant affects his/her ability to function on a day-by-day basis. This supportive documentation will only substantiate an individual’s disability claim and leave little to no room for misinterpretation about how your symptoms affect your functioning.

Q & A: How much and what kind of information has to be present in my medical records?

Throughout my Q & A Series, I have discussed the importance of medical records many, many times. Hopefully you are starting to get the idea that you can’t win a disability claim without good medical evidence to back up your claim! Now, I’d like to address one last question about what kind of information should be contained within the records that you submit with your claim for disability.

Question:

I recently applied for disability and was denied. Now, I am in the appeals process and want to make sure that the medical records I submit contain the right information.  How much and what kind of information is needed in my medical reports? If my medical reports are too vague, can this hurt me?

My answer:

As mentioned in other posts, until you are afforded a hearing in your case, medical records are all you have. Your documents represent you. They tell your story – a story that needs to fully represent your medical condition. When medical records are vague and/or critical test results are missing, either one or two things could happen. First, your case or hearing can be prolonged until such time as the needed tests have been completed and the record supplemented, or 2) You will receive an additional denial. As a claimant, you do not want either of these two things to happen. This process already takes long enough without additional delays and denials.

Although we often assume that medical reports submitted by our treating physicians have all of the required information, it is critical that claimants know what the SSA is expecting to ensure that their medical records are complete and/or provide the necessary information. If you receive copies of your medical records, take the time to review them and see what types of records are being given to the SSA. Again, continued delay and/or the receiving a second denial should be no one’s objective.

Medical reports, meeting the SSA guidelines, should consist of six primary pieces:

Medical history

Clinical findings (results of ALL physical and/or mental status examinations)

Diagnoses

Laboratory findings (blood pressure, x-rays, urinalysis, CBC, etc.)

Treatment prescribed with response and prognosis; and

Physician’s statement or form providing his/her opinion as to those things a claimant remains able to do despite his/her impairment.

This statement or form should include an analysis of an individual’s ability to perform work-related activities such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling.

In instances where a mental impairment exists, the physician’s statement or form should describe the claimant’s ability to comprehend, carry out and remember instructions, as well as his/her ability to respond appropriately to supervision, coworkers, and work-related pressures consistent within a working environment.

Again, medical records are the cornerstone in any disability case.  Outside of the claimant’s physical presence during a hearing, medical records and the content that exist within these records are the most important factor in determining whether an individual receives disability benefits or not.

Q & A: Can I submit non-medical sources of evidence in my disability claim?

Hello and welcome to the 8th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I discuss how non-medical sources of evidence can be helpful in a disability claim.

Question:

Outside of doctors, licensed psychologists, licensed optometrists, hospitals, and clinics, are there additional evidence sources that I could submit information from that would help substantiate my disability claim?

My answer:

Yes, other additional sources may help show the extent of your impairment and how this affects your ability to function on a daily basis. Sources of this nature are as follows: previous employers, family members, pastors/rabbis, teachers, social workers, chiropractors, naturopaths, audiologists, and speech and language pathologists. Although I have not exhausted all of the possible sources for additional evidence, the above includes the more common ones.

If you are involved with or are seeing any of the above, and if they can attest to your inability to function in a work environment, then providing information from these sources would most likely aid in supporting your claim for disability. In my practice, my clients will often get employers or family members to write statements on their behalf which confirm that they are unable to work or perform even basic household duties. We will submit these signed statements as notarized affidavits to the Judge, and they will thus become part of your disability case file.  As long as they support the idea that you cannot hold down a job based on your illness(es), they will likely be helpful.

Never underestimate the value of a resource. As a rule, it is better to over submit medical documentation than to have not submitted enough. Always make sure that you have provided a list of these type resources to your attorney and/or representative. Your attorney will know the value of a particular resource. Remember, up until the end of the disability process, you are not able to meet one on one with the judge. Your medical records are your ‘voice’ per se, and they tell your story up until such time as you are afforded a hearing in your case.

Q & A: What medical sources are considered acceptable by the SSA?

Hello and welcome to the 7th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I discuss what types of medical providers are deemed as “acceptable medical sources” by the Social Security Administration.

Question:

I recently applied for SSDI, and I want to make sure that the medical records I am providing to the SSA are from “acceptable medical sources.” Can you explain in detail what the SSA views as an acceptable medical source?

My answer:

The SSA considers an “acceptable medical source” to be any licensed physician (this includes D.O.s – Doctors of Osteopathic Medicine), licensed or certified psychologists, licensed optometrists, hospitals, clinics, and other health facilities where a claimant has been treated.

Remember, as has been previously mentioned on this blog, claimants are highly encouraged to see a physician/specialist who focuses primarily on their specific impairment. In a previous post about the importance of seeking specialized medical treatment,  for example, an individual suffering from migraine headaches and blurred vision was advised to see a headache specialist or neurologist who could substantiate their claim.

While general physicians are very knowledgeable and skilled (and are deemed to be an appropriate medical source by the SSA), I typically encourage my clients to try and see a specialist whose practice concentrates primarily on their particular impairment. These specialists will have the proper credentials, testing methods, and treatment plans for you, and your seeking their help will only serve to make your claim more credible in the eyes of the SSA.

I would like to address one last question I sometimes get from people suffering from a physical impairment like back  or neck pain. Many such claimants will see a chiropractor instead of, say, a spine specialist. Not to take away from the benefits chiropractors provide, but in my experience chiropractic records are not nearly as useful in a disability claim as compared to records from orthopedic and spine specialists or even those of D.O.s. If you are seeing a chiropractor, my best advice is to also seek a diagnosis or opinion from another type of medical source, so that you will be satisfying the SSA’s “acceptable medical source” requirements.

Immigrant gets prison time for stealing from the SSA

This past November, Mohammad Husseini was sentenced to six months prison time and ordered to pay back the $111,000 he “stole” from the Social Security Administration. The behind bars59-year-old immigrant from Afghanistan, who became a U.S. citizen in 1978, had been fraudulently receiving Social Security Disability benefits since 1999.

In 1990, Husseini suffered a work-related injury and applied for and received Social Security disability payments, court documents said. Of course, as is always the case when one is approved for benefits, Husseini had to agree to notify the SSA if he again obtained employment at a later date. However, when Husseini got a job in 1999 working for Catholic Charities, he decided he’d take another route.

Instead of using his own Social Security number, he simply gave the charity organization his brother’s Social Security number. This way, his earnings would not be reported to the government, and he could thus continue receiving the Social Security Disability payments despite his work status. Husseini didn’t report his change of work status until April of 2006, after he had already fraudulently collected approximately $111,000 in disability payments.

When Husseini’s case was brought to court, prosecutors sought a swift and severe penalty for his fraudulent actions. The Judge overseeing the case apparently sided with the prosecutors, and Husseini was thus sentenced to jail time and ordered to pay back the money.

Let this be a lesson to anyone who is on disability and then returns to work. Always be sure to report your back to work status if you end up gaining employment while on Social Security Disability!

Q & A: How important is it for me to keep my Social Security file up to date with new medical records?

Hello and welcome to the 6th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I discuss the importance of keeping your disability case file up to date with new medical records as your claim progresses.

Question:

I recently applied for disability. Outside of the medical information that I provided in the initial application, how important is it that I continue to supplement my file while awaiting for a decision?

My answer:

Medical evidence is critical in determining whether an individual will receive disability or not. You, the claimant, and/or your representative are charged with the responsibility of providing medical evidence that substantiates your claim for disability and/or proves the nature and severity of your impairment. In some cases, the SSA will help claimants obtain medical reports if the claimant has given the SSA prior permission to do so.

A word of caution: in my opinion it is better for you to provide the medical records to the SSA instead of having them request them. By doing so, not only will you have proof that you provided the SSA with your most current medical records, but you will also be able to review what documents the SSA has and is evaluating. In either case, though, there are advantages and disadvantages. For example, if you or your attorney end up requesting the medical records, there may be a cost, so be prepared.

In addition to the medical records that already exist in your file, it is IMPORTANT that you continue to supplement your file EACH TIME that you visit a doctor, specialist, counselor, etc. Remember, even if you receive aupdate your medical records denial on your application, continue to supplement your record while you go through the appeals process. A good practice is always to request a copy of your medical records immediately at the conclusion of your doctor’s visit. Politely explain that you are in the process of applying for disability and that you need your medical records in order to supplement your file. Some individuals request their medical records once a month if they visit the same doctor weekly or bi-weekly. When receiving your medical records from any source, always make at least two (2) copies. This will allow your representative to have a copy to work from as well as provide you with an additional copy. By having an extra copy available, you will prevent incurring additional costs in the event that you need copies later.

If I Stop Working and File for Disability, How Do I Know that my Money Won’t Run Out Before my Case is Approved?

I have written extensively on this blog about the claim processing delays that continue to plague Social Security disability.  I suspect that there are a lot of folks out there who are suffering and struggling trying to stay at work, perhaps at the expense of their health, because they are concerned that if they stop working, they will run out of savings before their case is decided.  I recently received the following question from a gentleman named Steve who is fighting diabetes and diabetic complications and who finds himself with this quandary:

I am a 43 year old diabetic. I was diagnosed 7 years ago and progressed quickly from pills to insulin injections and have now been on an insulin pump for 3 years.  I have neuropathy in both legs, heart disease, and many other diabetic problems, because of high blood sugar.  I am at an ideal weight of 170 Lbs. and 5′ 9″ height and have always been active and try to eat healthy.   I take 40-50 units of insulin each day, but my A1C readings are still 10+. I am no longer able to perform my work assignments.  My employer (25years)had even allowed me to change to an office job but I am still not able to sit for over an hour without my legs hurting and I have had many hypo (low-sugar) episodes at work which scared everyone.  My doctor’s have suggested that I quit so that I can concentrate on this disease before it kills me, but the stories of possible delays in SSDI have really concerned me and my family.  I have enough money saved to survive for a year, but that is it.  Do you think someone like me would qualify for SSDI benefits, and what would a potential wait be?

Here are my thoughts: I think that Steve has very good reason to be concerned.  When you apply for benefits, there are two times when you are likely to be approved – at the initial application stage, which will be within four to six months after application, or at the hearing stage, which could be two to three years after application.

diabetes1Initial application approvals are almost always arise in cases that meet a listing.  Steve is a diabetic and the applicable listing is at Listing 9.08. State Agency adjudicators will approve diabetes cases on the listings but they will expect the medical records to document as many of the following complications:

  • long standing neuropathy (numbness in extremities)
  • long standing retinopathy (vision issues)
  • blood sugar readings at 200 or higher over an extended period of time despite increasing dosages of insulin
  • organ damage (documented by abnormal lab readings)
  • frequent urination
  • sexual dysfunction
  • statement or checklist from treating doctor that condition equals 9.08

In my view, you need to aggressively argue to the adjudicator that your case meets a listing – do not assume that the adjudicator will figure it out.

If your case is denied at the initial application stage, it is very unlikely that a different adjudicator will approve it at reconsideration.  Statistics I have seen suggest that no more than 10 to 15% of cases are approved at the reconsideration appeal level. Continue reading →

Q & A: What Rules Govern the Confidentiality of MY Medical Records?

Hello and welcome to the 5th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I answer a question regarding the confidentiality of a Social Security Disability claimant’s medical records.

Question:

I recently received a denial following my initial disability application. I would like to review all of the evidence, both medical and other, that was considered in determining my claim. Is this a possibility? Further, is this information available to the public for review and dissemination? In essence, what rules govern confidentiality of SSA disability records?

My answer:

To begin with, I am here to tell you that you can feel at ease about your SSA records. Any information that was provided by you, as well as any additional information obtained by the SSA that is part of your claim, is protected under the Privacy Act, one of two separate and distinct laws that govern Federal agencies.

Under the Freedom of Information Act (FOIA), Federal agencies are required to provide the public with access to their files and records. However, this particular Act (FOIA) is not applicable to records maintained by the SSA. The second law, the Privacy Act, governs records such as medical evidence and other supporting documents retained by the SSA during your claim. The Privacy Act permits you only or your designated representative the opportunity to examine all records pertaining to you. This means that youConfidential SSA Records may request to review all the medical documentation or other evidence that was used to evaluate your claim for disability. While you and/or your representative are provided with this opportunity, members of the public are not. Simply stated, your information is not available to the public for any type of review or dissemination.

It is important to note, however, that the SSA does reserve the right to determine whether the release of information could potentially have an adverse effect on you. If it is determined that the potential negative effects outweigh any probative value, the information requested will only be released to your authorized representative, that individual you designated in your initial application or later in writing. This is rare, however, and only applies in extreme circumstances.

One final note: Now that the SSA has converted most it’s disability case files into electronic format, it is likely that you will be sent a CD containing your information/records once you request access to your records.  Here at my Social Security CDpractice, we receive CDs containing our clients’ case files a few weeks or months prior to the hearing. We are now able to see everything in our clients’ files just by referring to the CD, and this is saving us from having to finger through large files to find what we need! Hopefully you will find this convenient as well, in the event that you end up requesting that SSA furnish you with your claim records.

The CD format for managing medical records is intended as a stopgap until SSA manages to establish a secure online system that attorneys and perhaps even claimants can use to access their claims files online.  Currently Social Security judges have access to records online but not attorneys.   In my view the CD format is probably less secure than the old paper format because claimants, attorneys and even Social Security personnel tend to get sloppy about leaving CD’s lying around.  Almost every time I appear at a hearing office, I will see CD’s containing someone else’s personal medical records, Social Security numbers and Social Security claims file lying around.  If your file is on on CD, make sure to verify after your hearing your lawyer removes the CD from the hearing room computer.

Happy Friday, be sure to tune in next week for Installment 6 of my Q & A Series.

Millions receive incorrect notice from Social Security concerning benefit payment dates

First of all, I want to say happy 2010 to everyone. 2009 was another year that went by super fast, and I think part of that has to do with the heavy number of hearings we had this past year. In trying to cure the Social Security backlog, Social Security had disability attorneys like me attending hearings it seems just about every week. Although we expect a busy year in 2010, I am sure it cannot possibly rival 2009!

To start off 2010, here’s some news of the most recent Social Security blooper: Close to six million social security recipients thought they had received a very

Doh!
Doh!

special holiday bonus from no other than the Social Security Administration.  Notices received reflected that payments in January 2010 were coming one week earlier than they had in previous years.  This was great news and definitely a welcomed notice for the millions of individuals that require these payments in order to live day-to-day.  However, as quick as these notices came, a corrected notice followed.

The individuals affected are those beneficiaries who normally receive their benefits on the second, third or fourth Wednesday of each month.  In the notices mailed, erroneous information indicated payments would be received one week earlier than the date people were accustomed to receiving their benefits.  All additional information in these notices was correct.

To rectify this matter, the Social Security Administration issued a letter explaining the mistake to all beneficiaries affected.  In a statement issued by Michael J. Astrue, Commissioner of Social Security, he stated,

We apologize for the inconvenience and confusion these incorrect notices will cause.  The problem was caused by an unfortunate human error.  We are correcting the misinformation as quickly as possible, and we are reviewing our processes closely to prevent this type of mistake from happening in the future.  People receiving Social Security benefits in January 2010 should know that their payment will arrive on the same payment day that it has arrived in the past.

As least the Social Security Administration has openly admitted their mistake, has taken swift action to rectify the current problem, and is enacting procedures to prevent any future ones. If you are one of the claimants affected by this mistake, just know that your Social Security payments will continue as normal.

Social Media (Twitter, Facebook, MySpace): Friend or Foe?

Back in July, I posted a blog about how Facebook can potentially damage your Social Security Disability claim if information contained in your profile contradicts your disability claim and somehow gets in the wrong hands. But since there are many social media sites out there, I would like to elaborate on this topic so as to provide more comprehensive advice on the topic of whether social media is a friend or foe.

Never before in the history of technology has there been such an array of sources available for an individual to stay in contact with friends and family social mediafar and near.  One feature of social media sites like Twitter and Facebook that attracts millions of users per day is their short learning curve.  The simplicity of these sites coupled with the fact that these mediums are free to the public attracts record amounts of new signees daily, and there appears to be no signs of a recession in sight.  Although these type mediums are great tools in which to stay in contact or reunite with high school friends and distant family, a danger lurks within, which most users are either not aware of or simply take for granted.  A mistake concerning privacy control on either of these social network sites could be the deciding factor on whether a disability applicant will receive benefits or not.

Facebook, Twitter and MySpace share the same premise for social contact; however, these social forums differ in their rules and regulations.  Most of these sites are in real-time with postings denoting both a date and time for each post.  For instance, the popular sites of Facebook and MySpace provide its users with the ability to post an indefinite supply of pictures and comments to a user’s network or followers, while its rival, Twitter is limited to micro blogs, those postings confined to only 140 characters. Creating messages under such a restricted limit often causes posts of only quick thoughts.  Although most Twitter users voice frustration on being restricted to the mere 140 characters (spaces included), 140 characters unwisely utilized by “Jane Doe,” the social security applicant, could lead to irreparable harm and the demise of her disability application.  To show how a simple post on Twitter can go from fun to disaster with the click of button (less than two seconds), let us take a brief look at a sample tweet.  “Went on our family vacation, enjoyed synchronized swimming class at the hotel’s pool and walking around Disney World.  Great time!”  Although not a proper sentence, common to the Twitter world, this 116 character long tweet is the precursor for an impending disaster.  Yes, as a post, it sufficiently allowed followers to learn and have a glimpse of her recent travel; in the social security world, however, it could be considered a costly mistake. Continue reading →

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