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I Have Multiple Medical Problems – Should I Focus on All of Them? Just One?

I have more than one disability, should I focus  just one or provide  info  on all to help my case? Fibromyalgia, heart problems, sleep apnea and extreme fatigue, and bi-polar depression.
–Darlene

Jonathan Ginsberg responds:  Darlene – good question.  At the initial and reconsideration stages, your claim will be reviewed by an Adjudicator who works for your State of residence under a contract with the Social Security Administration.  Adjudicators work hard, but they are not trained or paid to serve as judges.  They are equivalent to an insuarnce claims adjustor.

Multiple medical problems will make it difficult for an adjudicator to decide your claim favorably.  Therefore, I would suggest that you focus on one problem and try to find a doctor who will support your claim that this one serious problem rises to a listing level.  I would mention and include the other problems but I would focus on the one issue that seems most serious.

Note that fibromyalgia by definition is not a listing level problem because there is no listing for fibromyalgia.  Read more about the Social Security listings here.

If your case is denied at the initial and recon stages, and you go before a judge, you will most likely have a lawyer to help develop a strategy.  In my practice I tend to focus on one or two primary problems as I have found this approach works best.

Lawyer Claims He Withdrew But I Did not Know About it and Missed a Deadline

What do you do when the attorney you hired did not file your appeal on time and did not notify you until the last minute.  He says that he sent a letter out but I never got it.  Now I have to reapply all over again.
–Barbara

Jonathan Ginsberg responds:  Barbara, at the very least it would appear that there was a lack of communication between you and your lawyer.  As you know, Social Security gives you only sixty days to file an appeal after the date on your denial notice.  You have also learned from this experience that lawyers do not have to go through any formal process to withdraw from representation.  Unlike state or federal court, where a lawyer has to file a motion to withdraw, a Social Security lawyer need only send you a letter and send the Social Security Administration a letter and his representation is over.

In your situation you might want to file the appeal anyway and ask that it be accepted for "good cause."  Include a letter with your appeal stating that there was a communication mix-up with your lawyer and request that your late filed claim be accepted.  At the same time go ahead and start a new application.

For others reading this, take heed that you should ask your lawyer to send you a copy of any appeals filed so that you will know what is going on.  Further, keep track of your appeal deadlines.  If you don’t have a copy of a filed appeal in hand as you approach the appeal deadline, and you can’t get hold of your lawyer or someone in his office, go ahead and file your own appeal paperwork – if you lawyer is not communicating with you he will have to straighten out any duplicate filings.

Fibromyalgia Argument Accepted by Court of Appeals After 10 Years of Appeals

Despite a general acceptance in the medical literature that fibromyalgia is a real illness that can be disabling, there are still judges out there who refuse to accept that this chronic pain condition exists.   There are no "objective" tests that can be run for fibromyalgia – its existence can be inferred by symptoms such as generalized body pain, tender points, poor sleep, fatigue, digestive issues, balance problems, anxiety and depression.

Social Security judges are often cynical since every person they see claims to be disabled.  For this reason, some Social Security judges have decided that fibromyalgia is not a real condition and they will deny fibromyalgia claims based on the absence of objective evidence in the form of diagnostic reports like MRI’s, CT scans and x-rays and the absence of organ damage.

Recently a fibromyalgia claimant in Cleveland, Ohio appealed a denial and won at the federal district court level.  You can read this opinion – Rogers v. Commissioner of Social Security, 486 F.3d 234 (6th Cir. 2007).  This decision is interesting at several levels.  First, look at the amount of time involved in appeals.  The claimant first applied for SSI benefits on May 21, 1998.   A hearing was held in December, 1999 and she was denied by the ALJ in January, 2000.  The claimant appealed to the Appeals Council and won – the case was sent back to the same judge for a second hearing.

The second hearing was held on November 15, 2002.  On November 23, 2003 (a full year after the hearing) the ALJ again denied the case on the grounds that there was no objective evidence to support the fibromyalgia claim. 

The claimant appealed to Appeals Council again, but was denied.  She then appealed to the district court where the ALJ’s decision was affirmed by a federal Magistrate Judge on August 30, 2005.  The claimant then appealed to the 6th Circuit Court of Appeals.

The 6th Circuit decision was issued on May 24, 2007 reversing the ALJ and remanding back to the ALJ level for yet another hearing, but with guidance that the claimant’s fibromyalgia complaints ought to be given credence, despite the absence of objective evidence.  Presumably Ms. Rogers has or will have a third hearing soon – perhaps after 10 years she will get her SSI.

The Rogers case can serve as a useful blueprint for lawyers and claimants who face judges who are unable or unwilling to recognize the functional limitations caused by fibromyalgia.  When reading this decision I was struck by the overwhelming nature of the evidence that supported Ms. Rogers’ claim.  She had extensive medical records from treating doctors.  She had functional capacity forms completed by treating doctors.  The symptoms she described are entirely consistent with fibromyalgia.  Yet, she was denied because the judge could not see any problems on an x-ray.

Hopefully, you will not face a 10 year battle in an effort to prove that your fibromyalgia is real.  Hopefully an understanding of why some judges deny these cases and a reference to cases like the Rogers case will help you avoid delay and get your benefits at your initial hearing.

How Do I Calculate My Portion of the Past Due Benefits?

how much do you recive from ss for 19 months backpay after your lawyer are paid?
–Etta

Jonathan Ginsberg responds:  Etta, the calculation is as follows:

  • create a column for each year that you are eligible for past due benefits
  • find out how much you get per month for each month of past due eligibility
  • add up the columns

Assuming you entered into a fee agreement with your lawyer, his fee will be 25% of past due benefits up to $5,300.  You get the rest less any deductions for Medicare or similar program.

Note that SSA increases your monthly benefit every year for something called "cost of living" so your monthly benefit for 2006 will be less than your benefit for 2007.

Will Social Security Accept Records and Conclusions of a Homeopathic Provider?

I have been suffering from Hypertension, muliple pain syndromes (Fibromyalgia, Multi-Lateral Cervical Stenosis, Degenerative Disk Disease, Femoral and Ulnar neuropathies, Migraines, Sciatica, Bursitus, Osteoarthritis) and Clinical (including SAD) Depression.  I went through to a Depression Group and saw a Psychotherapist AND a 9-week Chronic Pain Management Course through my HMO last year.  I’ve been on LOADS of drugs, 5 Steroid Epidural injections/year and had so many bad drug reactions I went off a large number of them.  Over the past 3 months I have suffered 7 deaths of folks close to me and the Depression, which I thought might have lifted came roaring back.  I’m hypersensitive to all these drugs, which make me worse, so 3 mos. ago decided to try Osteopathy and Homeopathy.  It’s helped, but the Depression/Anxiety got so bad I decided to return to Prozac.  The Osteopath can’t treat me on that drug so I stopped and am trying a homeopathic treatment.  QUESTION:  I still take pharmacueticals for many things (pain, sleep, Hypertension, etc.), but am taking LOTS of homeopathic remedies now.  Will the SSD Administration honor my Doctor of Osteopathy’s report on my Depression and Pain syndromes?  I am resuming traditional Psychotherapy and Group concurrently.  I don’t want to give up this last hope to feel better, but need the finanancial assistance offered folks like me.  Thanks so much!

–Sue

Jonathan Ginsberg responds: Sue, thanks for your question.  It sounds like you have been through quite a bit.  I believe that Social Security will consider your homeopathic treatment as "non-standard."  As such, an administrative law judge may assign the homeopathic osteopath’s reports less value.

Social Security has extensive rules about how judges are supposed to evaulate evidence – how much weight should the judge give a particular medical report.  For example, the reports and conclusions of a treating physician are to be given more weight than the conclusions of a doctor that you saw one time.  This is why, by the way, that I encourage my clients with no insurance and limited financial resources to see a doctor regularly, even if "regularly" means once a year.  That on-going relationship can help move that doctor into the category of "regular treating physician."

Non-standard practitioners are given very little weight by Social Security.  Chiropratctors, for example, are considered non-standard medical providers.  That is not to say that your chiropractor’s records will not be read and considered part of your record.  However, a judge will not base his decision on the records and conclusions of a chiropractor.

You will face the same issues with a homeopathic practitioner.  If there are records in your file from an accepted source (like a medical doctor), those records will be accepted over the conclusions of your osteopath.  Furthermore, you may find that some judges are outright hostile towards homeopathy and they could find that you are being non-compliant with recommended treatment.

My purpose here is not to rail against homeopathy or chiropractic.  I just want you to understand that at this point Social Security does recognize the legitimacy of these types of treatment and that you could jeopardize your case if you base it on this type of non-traditional care.  So, if possible, maintain your contact with and treatment by more traditional health care providers.

Will Hepatitis C, Chemotherapy and Back Pain Support My Claim for Disability?

i am asking if i might be eligable due to back injury and hepatits c treatment i will be on chemotherapy for 1 year and am unable to work

–J.B.

Jonathan Ginsberg responds:  J.B.  thanks for your question.  I chose your question because you raise two important issues:

Firstly, eligibility for disability is not really a function of your diagnosis.  The correct question to ask – how severe is your condition and how does it impact your ability to work.  There are basically three ways to win a Social Security disability case – you can meet a listing, you can show that your capacity for work has been reduced to less than competitive full time work, or you can meet a grid rule.

Success or failure in your case can depend on choosing the appropriate theory to proceed under.   This is what disability lawyers do – we analyze the evidence and work with you to decide which argument for disability holds the most promise.   Then we obtain evidence and tailor a presentation to support that theory.

Secondly, you make the point that you will be on chemotherapy for a year.   Clearly the side effects of chemotherapy will impact your work capacity but you need more.  Simply being a chemotherapy patient does not make you disabled.  Instead I would want to know if the side effects that you experience are severe enough to interfere with your capacity for work, and, if so, for what time period.

Your case may be one in which there are several theories of disability: chemotherapy side effects, back pain and associated physical limitations, pain in general, weakness and a compromised immune system from the Hep C.  Again, I would focus on the specific work limitations that arise from each of these conditions and I would develop a unified theory to argue that individually or in combination these conditions prevent you from performing any type of competitive work.

Can I Work After My ALJ Hearing But Before A Decision is Issued?

An attorney named John wrote me with the following question.  The email address he used was not valid so I decided to answer his question on my blog.  The question:

I have a client who would like to know if he can work while waiting for his SSDI benefits to be approved?

Here is my response:  John, I think that any work would be evaluated under the 9 month trial work period rules (see https://ssdanswers.com/how-much-can-i-earn-and-still-collect-ssdi/ ).   However, I think that working carries some risk.  The Judge can look at a current earnings record and if he/she sees work activity that could result in a second hearing or, even worse, lead a judge to deny.

SSA sees things in black and white.  I am therefore not a fan of work prior to the issuance of a decision.  I have  a case right now in which I won but the SSA investigation office found evidence of work and the decision has been reversed and the case remanded for another hearing.  I think that I will have an uphill battle in that case.

Claim Approved “On the Record” With Amended Onset Date – Should I Appeal the Changed Onset?

Jonathan, I was recently approved for ssd by the ALJ. I had my 3 heart attacks, the last on May 5, 2005.   At that time I became disabled to work. This has been my Doctors statement all along. Like a lot of people trying to get ssd, my financial situation got serious. I filed for an "on the record review" and after 6 months recieved a full favorable decision.

However they moved my onset date to Jan. 1 2006 and did not explain why. I had worked the first 3 months of the 05 and made about 26,000 dollars. When I applied thru the Hospital that took care of me, they also applied  for Medicade and SSI.

Now I cannot get an answer from the SSI people if they are going to pay me for the months of Jan-May ’05. It seems to me to be ploy to keep me from appealing the AJL decision until the 60days are over and then deny me the SSI benefits. Can you give me your 2cents worth on what you have seen the SSA do to people in this situation?

–Bob

Jonathan Ginsberg responds:  Bob, a couple of thoughts occur to me.  First, when you say that someone at the hearing office changed your onset date, you need to make sure that you are not confusing the "five month waiting period" with a changed onset date.  In a Title II disability case, you do not get paid for the first five full months of disability.  In your case, if the onset was May 5, then you would not get paid DIB benefits for the remainder of May, June, July, August, September, or October of 2005.   Your first check would be for November, 2005.

If your onset was moved to January 1, 2006, then you would not get paid until June, 2006 as the five month waiting period would start in January.

A claimant can, by the way, get paid SSI during that five month waiting period – although, remember, SSI is an income and resource dependent program – if your spouse works or if you have any sort of significant resource, you may not be eligible for SSI at all.

Let’s assume that someone in the AJL’s office identified this case as an on-the-record candidate and did, in fact, change your onset date from May 5, 2005 to January 1, 2006.  Often this happens because the staff attorney at the ODAR (Office of Disability and Review) did not see specific evidence in your record that your condition was "disabling" until January 1, 2006.  Some judges (and by association their staff) will not assume anything into a record.  Logically, if a person has a third heart attack, a reasonable person would assume that the patient was not particularly healthy between the time of heart attack #1 and #3.  However, if the medical record does not specifically talk about activity limitations until the time of #3, then some judges will conclude that the patient’s condition did not get really bad until heart attack #3.  It is silly and ridiculous, but it happens.

You can appeal a favorable decision but the risk is that a hearing judge might reverse the decision entirely.  Obviously, if you do appeal, you will want to get a narrative report or a form filled out by one or more treating doctors to support your May 5 onset date.

By accepting the amended onset date, you are giving up six months of benefits.   You have to decide if the risk of an outright reversal and the time and energy investment is worth the risk.  Generally I am not inclined to appeal a partially favorable decision but I have had clients do so.

What Kind of Medical Evidence is Needed in a Depression Disability Claim?

I see that a Social Security claim cannot be approved based only on self-reported symptoms – that there must be medical evidence such as tests.

What happens in the case of depression, where there are no tests? I have been in therapy for 10 years and taking antidepressant medication, but my
symptoms are pretty much all still self-reported.
–Deborah

Jonathan Ginsberg responds:  Deborah, thank you for your throughful question.  Firstly, please recognize that there are tests that can be used to evaluate depression.  Psychologists regularly use these tests to evaluate the symptoms, the severity and the legitimacy of a depression complaint.

Along these lines, you will need support from one or more treating physicians, psychologists or therapists to help you win a disability case.  Impairments in Social Security cases must be "medically determinable" and SSA expects to see on-going treatment and reports from a treating source that are consistent with your complaints.

In the case of a mental health complaint, SSA will usually send you out for a consultative psychological exam, but I would want more than one consultative exam if I was representing a claimant suffering with depression.

[tags] depression and social security, mental health disability [/tags]

My Work History Has Not Been Consistent – Can I Still Claim SSDI Benefits?

I was diagnosed last Thursday by my neurologist with post traumatic stress syndrome resulting from three MVA’s.  I have other related injuries and have tried to do several jobs, after a long career, and cannot do it.  Is there any relief for me?

I did pay into social security from 1982 to 1989 but from 1988 to 2005 was in the school system that did not pay in.  We did pay in to medicare, etc. however. 

Am I eligible for any benefits?
–Jeff

Jonathan Ginsberg responds:  Jeff, you will need to find out if you are eligible for Title II SSDI.   Eligibility is based on what you have paid into the system.  You will need to show sufficient earnings credits in 20 out of the 40 calendar quarters prior to your disability onset date.  I discuss the Social Security earnings credit requirements here.

You can also call Social Security at 800-772-1213 to ask about your date of eligibility for SSDI and your date last insured for SSDI.  Be aware – sometimes the information given by the SSA operators is not up to date.

You can also request your earnings statement by completing SSA form 7004, which you can download here.

If you have enough earnings, you will then need medical support from a treating doctor or mental health professional that your condition is severe enough to prevent you from performing any type of work.

If you do not have enough credit hours, you can still apply for SSI, but in an SSI case your monthly benefit is capped and your household income and assets may offset your monthly SSI benefit.

[tags] earnings requirement for SSDI, SSI vs. SSDI [/tags]

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