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Will a Fibromyalgia SSDI Case be Weakened if Depression is Also Diagnosed?

I have a relative that was just diagnosed with Fibromyalgia. She also has herniated discs in her neck and back. Her doctor wants her to see a psychiatrist as well. She has been out of work since March on medical leave and when she could not return, she was terminated.If she applies for social security and is found to also have anxiety or depression does that hinder her case?
–D

Jonathan Ginsberg responds: The quick answer to your question is "no, a diagnosis of anxiety or depression will not hurt your friend’s fibormyalgia Social Security case."

Fibromyalgia is a condition that I see more and more in my practice. It typically affects Type A, overachieving females and is characterized by all over body pain, digestive and balance issues, and pain moving all over the body.

Often it is associated with depression and anxiety – in fact, some physicians believe that there is a mental health component to fibromyalgia.

In pursuing her application for SSDI, I suspect that your friend will find that she will not get approved at the initial or reconsideration appeal levels, but will have to take her case to a judge. At the administrative levels (initial app and reconsideration), SSA employees are given very little latitude to exercise judgment – and fibromyalgia, almost by definition, is a disease of degrees.  Have her visit my SSDI lawyer referral panel when and if she would like to speak with a lawyer.

I find that the best fibromyalgia cases for SSDI purposes are ones that involve multiple conditions and depression/anxiety.

Where depression and anxiety can be a problem is in the long term disability insurance area – since most LTD policies cap benefits at 2 years if the underlying condition is mental health.

[tags] fibromyalgia and social security disability, depression and fibromyalgia [/tags]

No Social Security Taxes Withheld for 10 Years – Can She Still File for Disability?

I have a friend that doctor say’s that they are in a health condition to be able to get isbility…but the problem is they haven’t filed taxes for the last 10 years or so….would it be safe to try and apply for disbility anyway.
— Sharon

Jonathan Ginsberg responds:  Sharon, thanks for your question. If your friend has not filed taxes for the past 10+ years then she will not have credits applied to her Social Security account. Therefore, she will not be eligible for Title II SSDI.

If she has no credits for Title II, but meets the disability definition, she could apply for Title XVI SSI. Realize, however, that SSI is basically a welfare program. The maximum benefit is set by statute at around $600 per month. SSDI benefits, by contrast, are a percentage of what you have paid in and usually end up at $1,500 or more.

In addition, SSI benefits will be offset by any household income or even room and board support you get from another source. For example, if your friend’s spouse is working, his income would probably disqualify your friend from receiving benefits.

[tags] income credits and SSDI, SSI, failure to pay taxes and Social Security disability [/tags]

Heart Surgery and SSDI – Can I File if I am Out of Work for 1 Year?

Can I file for disability for 1 year if I had heart surgery?  I operate heavy equipment and I don’t know if I can take the jarring?
–Brenard

Jonathan Ginsberg responds:   You would be eligible for Social Security disability benefits if your heart condition – both before and after the surgery – left you unable to perform any type of work at all.  Note that this definition looks to more than whether you can or cannot return to operating heavy equipment.  Could you perform a simple, sit down, unskilled job.

Sometimes a client will say something like "there are no simple, unskilled jobs that I know about," or "I would not make enough money assembling circuit boards or taking tickets at a movie theatre."  My response – the question is whether you could perform one of these jobs.  How much you could earn, how you would find one of these jobs or how you could travel to the jobsite is irrelevant.

In a heart surgery case, I would look at the two or three months prior to the surgery to see if you were experiencing fatigue or pain that prevented you from performing work.  I would look at the months following the surgery to see if you had any complications and how long your rehabilitation lasted.  Ultimately, you would need a statement from your doctor saying that for a period of 12 consecutive months you were unable to perform any type of work.

Finally, in discussing your question, I assume that you are younger than 50 years old and that you have a high school or higher education.  There are some different rules for SSDI claimants 50 years old and older who have high school or less education.  For claimants in the 50+ age bracket with limited education, you can be found disabled even if you could perform some types of work.  The rules that apply in this situation are called the grid rules, and are discussed on another post of this blog.

[tags] heart problems and disability, unable to work for 1 year, 12 consecutive months, grid rules [/tags]

I Applied for Benefits Six Months Ago and Have Not Heard Anything – What Should I Do

I applied for SSDI in March, 2006 and I have not heard anything.  Should I call the office or just wait.  I don’t have a lawyer yet – this was my first time applying.
–Brenda

Jonathan Ginsberg responds:  Brenda, you did not say if you applied online or over the phone, but either way you should have received some acknowledgement from Social Security that your claim has been received and is being processed.  If you have heard absolutely nothing at all, I would definitely follow up both by phone (800-772-1213) and in writing to your local Social Security office.  Send your correspondence by certified mail, return receipt requested. 

If, however, your claim was acknowledged, but you just have not received a decision, then I would be less worried as initial application reviews often take six months or longer.  I see nothing wrong with calling Social Security to ask about the status of your case – although do not expect that your call will speed up the process.

With regard to getting a lawyer involved, I would certainly wait until you receive your initial denial notice.  Many people choose to retain counsel to file the reconsideration appeal, although some give recon a shot on their own and wait until the recon denial before hiring a lawyer.   If you choose to proceed on your own, take a look at my Disability Answer Guide book.  If you are more inclined to get a lawyer, I have set up a disability case review form where you can get your case reviewed by me or by one of the lawyers on my panel.

[tags] initial application, SSDI claim, request for reconsideration, initial denial, Disability Answer Guide [/tags]

Back Injuries and SSDI – How do I Win?

If you must take pain medicine on a daily basis, is this taken into consideration?  My disc in my back L-5 and my neck are damaged also my sciatic nerve causes alot of spasms and pain.  I was turned down in 2005 and got frustrated and did
not appeal why do they make it so hard.  My doctor listed as disabled for at least a year now after a head and neck injury the still denied me what do i have to do to get thru to these people?
–Michael

Jonathan Ginsberg responds:  Michael, side effects of medications are a factor that should be taken into consideration by Social Security.  As you may know, there are two ways to win a disability case – you can either meet a listing or you can argue that your functional capacity for work has been so reduced that you would not be a reliable worker at any type of job – even a simple, sit-down, unskilled, entry level type of job.

When arguing functional capacity, medication side effects can create "non-exertional" impairments such as poor concentration, fatigue, and unusually slow pace.  In addition, some medications can cause drowsiness or stomach upset.

Frequently, well-intentioned doctors may not know how to help you.   That is where an experienced Social Security disability lawyer comes into play.  An attorney’s job is to help the doctor translate your medical problems into very specific work limitations and to obtain evidence from the doctor that explains why you would not be a reliable employee.  Most disability lawyers use "functional capacity" checklist forms – this is probably what you need.

If you have not already done so, you should reapply.  If you reapply within 1 year of your initial denial, you can ask for a "reopening" of your prior application for any reason.  Beyond one year, it is more difficult but not impossible.

Best of luck to you.

[tags] back injury and disability, failure to appeal social security denial, residual functional capacity, meeting a listing [/tags]

“I Won My Client’s Disability Case but He Will Not Get Any Money”

This morning, I tried and won a disability case, but my client will not receive any past due benefits and I won’t get paid either.   What happened?  

What happened here is that my client failed to tell me about a job where he worked full time for over two years.  His work was as a courier for a large delivery company.  In his mind, it was not a “real” job because all he was doing was driving.  He neglected to reference this job at all on my new client questionnaire.  In fact, the first time I learned anything at all about the courier work was a week before the hearing when we met for a pre-hearing conference.  Even then, he told me that his work was “part time” and that he only managed to last a few days.

At the hearing, however, his recollection improved and he testified to the judge that he had worked as a courier for over two years and he did not stop until six months after his 62nd birthday.  Since my client elected to receive early retirement Social Security benefits, he will not be eligible for Social Security disability benfefits after his 62nd birthday.  I had expected to argue for a “closed period” of time – from the date that he stopped working his last “regular” job until his 62nd birthday.  Instead, I expect that the judge will find him disabled, but with an onset date of 6 months past his 62nd birthday.  This means that my client will not recover any disability benefits at all – either past due or on-going and I just wasted several hours of my time working for free.

The point of all this is not to rag on my client.  He is a nice man and I think he honestly did not think that his courier job was a “real job.”  I would, however, encourage any disability claimant to learn from this experience.  Any job that you have had – even if it was part time or a job that was outside your career field – must be discussed with your lawyer.  Similarly you need to be completely and totally forthcoming to your lawyer about sensitive subjects like drug and alcohol use, arrests, and personal medical problems.  You cannot assume that any information about your past work or about your medical condition is not relevant to your case.

Had this client been more forthcoming, he would have been able to avoid the disappointment of learning that his four years of waiting for a hearing have all been for naught and I would have been able to avoid wasting many hours of my time working on a case with no possibility of a positive outcome.
[tags] employment information in SSDI claim, omission of information in attorney client conversation [/tags]

Doctor’s Records Support Claimant 100% – Why Won’t SSA Grant the Case?

This is a question from a non-attorney claim’s rep:
My client’s claim was denied "no proof of 12 months disability proved etc etc, case in appeal status, 2 medical reports signed by doctor saying claimant could NEVER return towork, another saying "he is not suitable for any job"
and totally disabled since 2002, ALJ judge setting hearing requesting a vocational expert, and now requesting medical records prior to hearing, lastest medical record is 2 months ago stating unable to work in any job??

why the challenge of records? and disability is cancer, and numerous other factors, claimant is 61 and has paid into the system over 40 years, any opinion would be appreciated…….thanks arlene

Jonathan Ginsberg responds: Arlene, I think that the most likely scenario here is that no one at Social Security has bothered to read the claimant’s records. I cannot tell you how many times I have gone to a hearing where the claim should have been approved years before, but no one ever sat down to actually read the records.

At the State Agency level, the adjudicators are overworked and understaffed. If they do not see "magic words" (i.e. that the claimant meets a listing, or if there is any doubt in their minds, they will simply stamp "denied" and pass the file on down the line.

Often what you will find in these cases is a judge who apologizes on behalf of the Social Security Administration for bringing your client in and for making the claimant wait so long for benefits.

Recognize that some judges like to see the claimant face to face and some judges feel as if they have a personal stake in keeping SSA’s money in Ft. Knox. Hopefully that is not what is going on here, but you should be prepared to present your case regardless.

Two other possibilities come to mind. First, is there any issue as to the onset date of the disability? If your client was working part time or if the medical record does not support the alleged onset date the judge may be prepared to grant the case, but may want to amend the onset.

Along those lines, realize that SSA looks at the 10 years prior to disability onset to decide if a claimant is insured. His 40 years of work is only relevant to retirement Social Security. Is it possible that his insurability for Title II has run out?

Another question – are there any records that do not support the claimant, such as records that mention malingering or records that refer to alcohol or drug use. That might be a reason why the judge wants to eyeball the claimant.

Finally, realize that medical records often do not address vocational issues – and work capacity is what Social Security disability is all about. Be prepared to prove your case – conclusory statements from a doctor that the claimant is "unable to work in any job" may not be enough. I like to use functional capacity forms to identify the specific work activities that the claimant cannot perform.

Hope this helps – Jonathan
Ask me for a free case review

Stroke and Kidney Cancer – Does He Qualify?

I had a stroke in Oct of 2004 and received priviate disability until ealier this summer. I then took a ‘lump sum’ pay out with the intention of starting a new business that would allow me to work at home and make a living. This disability company was making ‘noises’ that once they started looking into may case, that after 2 years, I could lose everything. So I took the buy out.

Here’s the problem – I took the money and paid off bills and invested in a business (new one) which is not close to being ready to support. Yet I I was diagnosed with kidney cancer and just had my kidney removed last week. I’m no longer battling the depression, stroke remenents (visual and balance problems) but now I have diabetes type 2 becauase of my last of being able to exercise…and now this. No one will give me a straight answer about the chronic pain from my stroke (whether is will go away) but that chronic pain on my left side, visual issues, balances problems and now kideny problems…do I quality for disability?
–Chris

Jonathan Ginsberg responds: Chris, I think you have a good argument for disability. There are two issues that come to mind:

1) a Social Security judge will want to know if there was some period of time when you invested in the new business when you thought that you were in a position to work. Notwithstanding your concerns about the LTD carrier cutting you off, is it reasonable to assume that had the kidney cancer not arisen you would have been able to pursue this new venture. I don’t know the answer, but that is a question you will likely face.

This question is relevant because it affects your onset date. Might there also be an argument that you have a closed period of disability (from the time of your stroke until the time that you began work on the new business) and currently (assuming that your kidney problems in combination with your other issues leave you unable to work).

2) a second issue has to do with your insured status for Title II. As you may know, SSA looks at the last 10 years prior to onset to see if you have paid in to the system for 5 out of the last 10 years. When you stop working, you obviously stop contributing to your account. Eventually, your insured status runs out. I’m not clear about the dates involved here, but generally, I would think you would want to file for SSDI sooner rather than later and use the date of your stroke as the onset date.

3) many LTD policies have a "reimbursement" provision in which you are obligated to repay the carrier if you recover SSDI benefits for the same time period for which you received LTD benefits. It may be moot if you settled, but you might want to look, just the same.

4) as far as your current status, I would think that your stroke related factors plus the kidney cancer should be enough to impact your capacity to function as a reliable employee. If you have any sort of support from your doctor, I think you should be approved.

Jonathan Ginsberg
Ask me for a free custom case review

[tags] cancer and disability, kidney cancer and social security disability, LTD offsets Social Security, stroke and SSDI [/tags]

Continuing Disability Reviews – What Are They and How Often Can I Expect One?

I periodically receive calls from disability claimants who are receiving benefits but who have been notified that their cases are being flagged for a "continuing disability review" (CDR).   In general, SSA has the right to review any SSDI or SSI case at any point to determine if the claimant still meets the requirements for disability.

As a practical matter, you can expect SSA to review your case once every three years or so.  If your condition is permanent in nature and not likely to improve, you may only get reviewed every ten years or not at all.  In addition, I have seen judges provide in their decisions that a particular case needs to be reviewed yearly – this might happen if the judge has concerns about alcohol or drug use, or if your condition is one that is likely to improve.

If SSA conducts one of these continuing reviews and they find that you are still disabled, you do not need to do anything, except to continue to treat with your doctor and to keep copies of your records in preparation for the next review.

If, however, SSA determines that your condition has improved and that you no longer meet the disability definition, you will receive a notice that  your benefits are being terminated, and that you have the right to appeal.  Unless you are prepared to forego benefits, you should file your appeal.

If you appeal the termination decision SSA will continue to pay you benefits while the appeal is being considered, however, if you end up losing, you could face a demand from SSA to repay these appeal period benefits.

If your appeal is denied, you have the right to request a hearing – the same type of Administrative Law Judge hearing that you may have participated in at the time your benefits were approved.  Be aware, however, that in a continuing disability review hearing, there are no "back benefits" available.  As such, you will most likely not be able to find a lawyer who will handle your case on a contingency.

This means that you will have to pay a lawyer to represent you at a hearing – your cost could be $1,000 to $5,000, depending on the complexity of your case.  Therefore, if you receive a CDR notice, you may want to set aside $200 to $300 per month into savings so that you will have funds to pay a lawyer.

It has been my experience that very few CDR claimants come to court with lawyers and I personally think that you are taking a big risk if you show up without representation.

[tags] continuing disability review, CDR, Social Security disability, SSDI benefit review, appeal of continuing review [/tags]

Arthritis and Fibromyalgia – Can She Win?

After reading through the messages here, I don’t feel real confident about my case. I suffer with depresssion and anxiety along with fibromyalgia.

I tried working about a year ago, but was unable to hold down a job becasue I could only work part time a day or two and then have to take two or three off to recuperate. I can’t walk around the block without severe pain in my lower back and legs, I can’t sit for more than a half an hour becuase of the pain in my back, knees, and legs. I don’t sleep well, so I have to nap everyday. I can’t clean the house. I am doing good to keep the laundry done and fix supper for the family. Up until last year when I trie dto work, i hadn’t worked for 3 years because of the problems.

I didn’t apply immediately because I was sure I would be able to go back to work. Unfortunately, I am not able to do that. I have been denied and have sent in the appeal. Do I even have a prayer to win this case?
–Brenda

Jonathan Ginsberg responds:  Brenda, I definitely think you should pursue your case – if your doctors will support you then I think you have a good argument that you meet Social Security’s definition of disability.

As I have discussed elsewhere on this blog, your work capacity is the "big picture" issue when it comes to winning your SSDI claim.  Here, you identify physical problems (knees, back and legs) as well as "non-exertional" limitations including pain, depression, anxiety and fibromyalgia.

What you need here is a treating doctor who is willing to go on record to support you.  I use forms called "functional capacity" forms to help the treating doctor translate your medical problems into specific work limitations.   I discussed functional capacity issues in a recent episode of my Social Security disability Internet radio program – you may want to give it a listen.

Although I often write about my concerns when a claimant is working part time, it looks like your part time work was not successful.  You do not say if you are still trying to work part time – if you are, that may not help your case.

Under separate cover, I will refer you to a capable lawyer in Indiana, where you live.  Give him a call and see if he might be interested in taking your case.  Best of luck to you and let me know what happens.

[tags] depression and SSDI, fibromyalgia and Social Security disability, functional capacity [/tags]

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