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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 →

Q & A: Who is responsible for calling upon and compensating the Medical Expert witness?

Hello and welcome to the 4th 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 asked about the Medical Expert witness (ME).

Question:

I have a disability hearing scheduled for next month in my Multiple Sclerosis disability case. As I have been unable to work for over a year, I have limited financial resources. I have read that an Administrative Law Judge often solicits the testimony of a medical expert on complex medical issues. Here are my questions: Who is responsible for assuring that the medical expert testifies at my Social Security disability hearing? And who compensates the medical expert? Is there any responsibility on my part?

My answer:

This is a great question and one I have not actually been asked. You are correct that Judges (ALJs) often seek the testimony of medical expert witnesses (MEs) in complex medical situations like yours.  Since ALJ’s have no direct communication with medical professionals and are not medicallyMedical Expert Witness trained, testimony from medical experts provide ALJ’s with a more complete and detailed understanding of your medical and/or mental situation prior to his/her issuance of an opinion in your matter.

Here’s how it works: Each hearing office maintains a roster of medical experts who routinely testify as expert witnesses in disability hearings. If you spend enough time at any one Social Security hearing office, then you will likely start to notice the familiar faces of some of these medical experts, many of which are retired doctors who have a wealth of medical knowledge that can be used to help the judge make a well-informed decision.

Since the ALJ is the individual that solicits the expert’s opinion, the SSA incurs the costs of paying the medical expert. So in answer to your question, you are not responsible for compensating the ME. It is all taken care of by the SSA.

Also, since you are pursuing a Multiple Sclerosis disability claim, I would like to tell you and any one else interested that I have been working on a website dedicated solely to the topic of Multiple Sclerosis and Social Security Disability. Because I have seen a lot of MS disability claims over the years, I figured I would  share some tips and knowledge on the subject. Please visit the site by clicking on the link, and be sure to let me know what you think!

Q & A: What is the Definition of “Medically Determinable”?

Hello and welcome to the 3rd 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 will discuss the term “medically determinable,” another one of those unique Social Security terms that people often have questions about.

Question:

I understand that in order to qualify for Social Security Disability benefits, my condition must be a medically determinable physical or mental impairment.  Can you explain exactly what a medically determinable physical or mental impairment is?

My answer:

The terminology or “lingo” used by the Social Security Administration is often confusing.  A medically determinable physical or mental impairment is an impairment that results from anatomical, physiological or psychological abnormalities which can be determined by medically acceptable clinical and laboratory diagnostic techniques.  In essence, a physical or mental impairment must be substantiated by medical evidence consisting or signs, symptoms and laboratory findings.   An applicant’s statement of symptoms alone is not enough to meet the requirements of a “medically determinable physical or mental impairment.”  In a nutshell: There must be medical evidence that substantiates the symptoms experienced.  For example, if you are experiencing debilitating migraine headaches, you need to have medical tests done in order to establish the root cause of the headaches.  Your saying alone that you have migraine headaches is not enough.

I cannot over emphasize the need for specialized medical and mental relatedMRI evidence test(s) in determining an individual’s impairment.  Although general physicians are skilled doctors and deserve all the accolades available, Social Security Disability applicants must seek, in addition to the opinions of a general physician, the opinions/diagnoses of specialists when making application for disability.  These specialized opinions are critical in order for an applicant to be awarded disability. Let’s quickly take the above example of someone suffering from debilitating migraine headaches. In their case, it would be wise to seek the opinion of a headache specialist or neurologist while pursuing their claim. On my migraine headaches and disability website, I posted an entire article about the benefit of seeking specialized treatment while pursuing a disability claim, which can be accessed by clicking on the link.

I understand that most applicants are unable to shoulder the costs of seeing a specialist and that most government-assisted programs do not cover these types of costs.  I encourage applicants to solicit the financial help of family members as well as explore other available means so that they are able to see a physician specializing in their medical condition.

Q & A: What is required for a child to qualify for benefits?

Last week I started a Q & A series designed to cover some more elusive topics related to Social Security Disability claims. In part 2 of this series, which follows, I briefly discuss the requirements that have to be met in order for children to qualify for Social Security Disability.

Question:

What are the requirements for a disabled child to qualify for Social Security disability Child SSIbenefits?

My answer:

As with adults, there are two Social Security disability programs available to disabled children: SSI and SSDI. They differ according to the child’s age.

Program #1: SSI (Supplemental Security Income)

Under the Supplemental Security Income (SSI) program, a child from birth to age 18 may receive monthly payments based on disability or blindness if he/she meets the following two requirements:

  • He/She has an impairment or combination of impairments that meets the SSA’s definition of disability which is defined as a “medically determinable physical or mental impairment or combination of impairments that causes marked or severe functional limitations and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than twelve months.”
  • The income and resources of the parents and the disabled child are within the allowed limits.

Program #2: SSDI (Social Security Disability Insurance)

Under the Social Security Disability Insurance (SSDI) program, an adult child, which is understood as a person age 18 or older, may receive monthly benefits based on disability or blindness if he/she meets the requirements stated below:

  • He or she has an impairment or combination of impairments that meets the definition of disability as stated above;
  • The disability began before age 22; and
  • The adult child’s parent worked long enough to be insured under Social Security and is receiving retirement or disability benefits or is deceased.

It is important to note that a common thread to both of these programs is that the child at issue must not be doing any substantial work.

Q & A: Do I qualify for SSDI?

I have selected some questions that have recently been asked of me that I believe cover some more elusive topics related to Social Security Disability that I believe are worth discussing on this blog. This first topic, while not necessarily as elusive as the others – which I will post weekly as a Q & A series – is a good start since it involves a person who is just starting to explore the world of Social Security Disability. Someone with recent injuries poses the following Question:

I was recently in a car accident and required extensive surgery on my leg to replace several broken bones.  I currently require the assistance of either crutches or a walker in order to be mobile.

In addition, I have begun having problems with blurred vision and migraine type headaches.  I have an appointment with a specialist later this month to address these symptoms.

I have taken a twelve-week leave of absence from my job, which requires that I stand 95% of an 8-hour shift.  Do I qualify for Social Security disability?

My answer:

No, not yet.  The law that governs Social Security Disability defines disability as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairments which can be expected to result in death or which have lasted or are expected to last for a broken leg resulting from car accidentcontinuous period of not less than twelve months.”

As it stands, it is not conclusive that your medical conditions are expected to either result in your death or last for twelve months or more.  Because of this, you would not qualify for disability benefits at this time.  However, this is based solely on your broken leg as the chief medical condition.  Test results and medical opinions are still pending in regards to the blurred vision and headaches that you are currently experiencing.  It is important that you see a doctor (perhaps a neurologist) that specializes in headaches.  Depending upon his/her medical opinion, you may be eligible to apply for Social Security Disability – especially if it is determined that these conditions will continue indefinitely and continue to impair your work performance.

But if your headaches and blurred vision are only temporary problems associated with your recent leg injury, and it is determined that they will subside with time, then you will not meet Social Security’s firm requirements. A broken limb is typically not enough to keep you out of work for 12 months or more.

Social Security Disability Appeal Forms: What is SSA Really Trying to Ask

frustrationOne of the least discussed but perhaps most frustrating aspects of the Social Security disability process has to do with the forms that Social Security requires when you apply or appeal.  Over the years I have watched the forms evolve – and the trend is easy to detect:  Social Security’s forms never get shorter.   Instead they add questions which appear to ask for the same information again and again.

In fact, the redundancy and complicated nature of these forms led me to write a “how to” book about filling out these forms (my book is called the Disability Answer Guide and you can read more about it at www.disabilityforms.com.

The idea for my book came from a client who pointed out to me that when a person is depressed, has a limited education, is in pain, or is unable to concentrate, it can be very difficult to compose answers to a bunch of government forms that come with no instructions and seem to ask the same questions over and over.

This lament led me to the idea of a how to book where I could offer sample answers to the questions on the forms as well as a reasoned explanation from my perspective as to what information was really relevant to a  Social Security disability application and how to frame your answers to “speak SSA’s language.”

Not surprisingly I regularly receive questions about Social Security’s forms – here is an example of such a question from a person I’ll call “Neil:”

i dont know how to answer these medical question on the second part of socurity such as what your favorite hobbies, and what to do do from the time you get up and the time you go to bed

Here are my thoughts: First, I reproduced this question exactly as I received it.  I did so not to embarrass the writer but to highlight some of the problems inherent to the Social Security decision making system. Continue reading →

Who Collects Past Due Benefits if a Claimant Dies Before a Disability Decision is Issued

funeralsceneI recently received a call from a colleague about a situation that is all too common given the delays associated with the Social Security disability adjudication process – the death of a claimant prior to a final adjudication.

In this case, my friend’s mother was married to a gentleman who had applied for benefits in the early 2000’s.  He had been denied at his first hearing, then appealed and ended up before a judge a second time for a second hearing.  Shortly after the second hearing (but before a decision was made) he passed away.

Because of the more then 7 year pendency of his claim the past due benefit amount was substantial – over $115,000.  The question – who gets the money.

According to Social Security law (Code of Federal Regulations, Title 20, Section 404.503(b)), the surviving spouse would be the primary beneficiary if she/he was living in the same household as the claimant at the time of death.  If the surviving spouse does not qualify, the surviving children collect.  If there are no children, the parents of the deceased collect.  If there are no parents, the surviving spouse who was not living with the claimant at the time of his death, and so forth.

Note that the funds do not go into the deceased claimant’s estate – they are payable directly to the spouse or other beneficiary.

I previously published a blog post about how I won a case for a deceased claimant.  Prior to proceeding I submitted form HA-539, a Notice Regarding Substitution of Party Upon Death of a Claimant.  Individuals eligible to receive benefits must complete and submit form SSA-1724, which is a form entitled Claim for Amounts Due in the Case of a Deceased Beneficiary.

Does It Matter Where I File My Application for Benefits if I Plan on Moving?

I recently received a question from a woman named Carol who wants to know if she should wait to file for benefits because she is planning on moving to a different state.  She writes:

I own a condo in central Florida.  My parents live in north Florida near the Georgia border.  I plan on moving to Macon, Georgia (Macon is about 100 miles south of Atlanta in the middle of the state).   Should I file now?  Should I file now and use my parent’s address?  Should I wait until I move to Macon to file?

Application for Social Security benefitsHere are my thoughts: I would advise you to file now and to use your current address as your home address.  If you are concerned that your mail may not get forwarded you can use your parent’s (permanent) address.  In general it is not a good idea to wait to file.  If you wait you may lose the right to claim some of your past due benefits, or in a worst case scenario, your coverage for Title II benefits could run out.  If you are not working, and expect to be out indefinitely, I generally advise potential clients to file sooner rather than later.

Now – what about the location where you would file?  At the initial and reconsideration level of appeal, your case will be processed by a State Agency adjudicator.  Adjudicators follow fairly rigid protocols and I have not seen any documentation to suggest that an adjudicator in one state is more or less likely to approve a claim than an adjudicator in another state.  Those statistics may exist but I have never seen then.

The initial and recon appeal will eat up between 6 months and a year, by which point you would presumably be in Macon.  When you move you would notify Social Security and your file may be transferred to a State Agency adjudication office nearer to where you live.  Then again, it might not be transferred.  I think it is certainly possible that filing an address change, thereby triggering Social Security to move your file could add to a delay in the processing of your case, but my experience has been that the State Agency adjudicators are expected to complete their evaluation within a set period of time.  I don’t know that having the file moved will significantly add to a delay.  This is especially the case now that Social Security disability files are electronic – physical files are no longer involved so transferring a case is an electronic process.

The biggest wildcard when you change venues will involve the hearing offices.  Some hearing offices house judges who approve very few cases.  Other hearing offices tend to trend more favorably to claimants.   On the other hand the tendencies of the specific judge assigned to your case are much more important than the hearing office statistics.  You can research statistics about the ratios of approval by specific judges.  Local lawyers who practice in a particular hearing office can also be a good source of advice.

Ultimately I don’t know that I would spend a lot of effort “judge shopping.”  If you have a good case with compelling medical evidence and support from a treating physician, you stand a good chance at winning, while weak evidence will not convince even a judge who tends to favor claimants.  Further, if you ask Social Security to change your hearing office venue at the last minute you will face  delay as hearing calendars are often filled months in advance.  If you hire one lawyer for location 1, then switch, you may end up paying more than 25% of your past due benefits as lawyer 2 will want to be  paid.

At the very least, if you are thinking about hiring a lawyer in central Florida, let  him or her know about your possible move – you want to make your case less complicated, rather than the other way around.

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