Call Today: 1-800-890-2262

Category Archives for Mental illness and disability

How to Win Your PTSD Social Security Disability Case

Why does Social Security make it so difficult to qualify for SSDI benefits due to PTSD and what do you really need to win?

I have represented hundreds of clients in PTSD cases – some are military veterans who served our country in Iraq, Afghanistan, Bosnia and many other places. Their PTSD often arises from seeing bombs explode nearby, seeing fellow soldiers or civilians killed by roadside bombs, or sometimes just living for months under unrelenting stress, never knowing from one minute to the next whether your life will be at risk.

Other PTSD cases arise from sexual abuse, physical abuse, and emotional abuse from childhood or from a previous relationship or even a toxic work environment.

Still other PTSD cases arise from severe emotional trauma like losing a child or a spouse to violence or an accident.

How could SSA deny any of these cases? Continue reading →

What You Need to Win a Mental Health Disability Case if You Treat at the VA

Can you win Social Security disability benefits based on a mental health issue like PTSD, anxiety, depression or bipolar disorder if the only records in your case file are VA (Veterans Administration) medical notes?

My experience over the past few years has been that you can win Social Security disability for mental health claims using VA records but it is becoming increasingly difficult to win benefits with only VA records. This is true even in the case of veterans who have a 100% service connected VA disability rating.

VA Disability Ratings Are Not Binding on Social Security

I have always found it odd that a VA disability determination is not binding at all on the Social Security Administration. VA disability is different from Social Security in that the VA system issues ratings in percentages whereas Social Security is “all or nothing.” You can have a 70% VA rating but there is no equivalent in Social Security – either you are 100% disabled or you are not disabled at all.

You may be frustrated and disappointed that your 100% VA disability rating is not binding in any way on Social Security in disability determinations.’

I fully understand the frustration of military veterans who are struggling with PTSD, depression, anxiety and perhaps a variety of physical problems who cannot understand why they have to go through another disability adjudication process after they have fought the VA for months or years. Continue reading →

Why You Should Avoid Using Labels at Your Social Security Disability Hearing

Most people applying for Social Security disability have some sort of firm diagnosis. For example, if you have back problems, your doctor may have shown you an MRI report documenting a herniated or bulging disc. If you have heart issues you may have been diagnosed with congestive heart failure or coronary artery disease. And if you struggle with mental health problems, you may have been diagnosed as being bi-polar, or having PTSD, or anxiety disorder.

When you get to your hearing, however, you should not rely on these labels as you explain to the judge why you contend that you no longer have the capacity for “substantial gainful activity” (i.e., work).

First, understand that many times the label used by one doctor might be different than that used by another. In my practice, for example, I frequently represent clients with mental health issues who have been diagnosed with depression, anxiety, PTSD, and/or bi-polar disorder – all by different physicians or psychologists. One medical provider may choose the label “depression” while a second doctor may choose the label “bi-polar.”

Similarly, I have seen multiple doctors read the same MRI report and come to different conclusions. One doctor may see a herniation, while another may see a bulge or an extrusion. Continue reading →

My Step by Step Analysis of a Mental Health Disability Claim

Recently a young man wrote me to ask my opinion about whether he qualifies for some form of Social Security disability. In his very thoughtful email he asks a number of questions that I suspect a lot of folks are wondering about.

After practicing in this area of law for 20+ years I can generally sense fairly quickly whether someone has a viable case.  In my last blog post I discussed what I look for generally in a mental health disability claim.  So now I thought I would explain – step by step – how I analyze potential client inquiries using this case as an example.

Obviously I will not use this gentleman’s real name and I will change the facts a little to preserve his anonymity. Continue reading →

Military Vet Approved for VA Disability, But Denied Social Security Disability

WXIA TV in Atlanta recently ran a story about a 53 year old U.S. Navy veteran who was approved for VA benefits but denied for Social Security.  Retired Navy vet Daniel Norfleat from Covington, Georgia was deemed 90% disabled and unemployable by the VA for PTSD, a heart attack, a stroke and knee surgeries.  Mr. Norfleat applied for Social Security disability and was approved, but SSA changed his onset date.

Norfleat appealed and his case went before a Social Security administrative law judge.  The ALJ not only refused to change the onset date but she reversed the finding of disability entirely and ruled that Mr. Norfleat has the capacity to work at a full time  job.  This despite opinions to the contrary from 15 different doctors and prescriptions for 24 pills a day for pain, depression and insomnia.

Under new rules released by Social Security, their judge no longer has to explain why she disagrees with the VA’s decision.  These new rules also provide that Social Security no longer has to give controlling weight to opinions about employability issued by treating physicians.  See my video here about these new evidentiary rules. Continue reading →

Disabling Traumatic Brain Injuries Can Arise from a Single Concussion

Concussions have been in the news lately because stories about retired football players who are fighting cognitive loss, memory issues and severe depression that arises from brain injury. Athletes like football players and boxers often experience multiple concussions over many years, but damage to the brain can occur even after a single concussion.

Not All Head Injuries Carry the Same Significance

Scientists who study concussions and their aftermath have determined that not all head injuries are the same.  Medical researchers in Europe studying brain injury in unhelmeted soccer players report that It turns out that a head trauma from an angular blow causes significantly more damage than a straight on blow to the head.  It turns out that an angular blow causes twisting of the brain stem and more tearing of delicate nerve fibers.   [1. Click here to review the abstract to a report in the British Journal of Sports Medicine entitled “Brain loading in concussive head impacts: implications for injury prevention.”] Continue reading →

How Gaps in Medical Treatment Can Result in an Unfavorable Decision

Last week, I wrote a post describing a case that will be denied because of my client’s poorly worded testimony.  Today, I want to continue this theme and talk about a far more common basis for hearing denials – gaps in medical treatment or absence of medical treatment.

I save hearing decisions in the cases I try.  Fortunately I usually choose decent cases and I don’t have too many unfavorables, but not every case turns out to be a winner.  Interestingly, when looking at the unfavorables as a group, certain trends emerged.  Perhaps the most common thread had to do with gaps and inconsistence in medical treatment.

Here is the actual wording from one such decision in a case involving a woman with depression and anxiety:

Although the claimant’s anxiety is severe, she has had no significant amount of mental health treatment.  Even though she has been in the Atlanta area, she has had no psychiatric treatment.  Had she obtained treatment, her anxiety would not be severe.  Her husband is working, so there is no apparent reason she could not seek mental health treatment if she chooses to do so.

In this particular case, the medical record was not particularly strong and the claimant’s treating doctor was unwilling to provide us with a completed functional capacity form.  I find it interesting that the judge would focus on what was not there, rather than what was there.  Could there be legitimate reasons why an individual would not seek mental health treatment?  Is it fair to assume that the husband’s insurance would cover psychological or psychiatric treatment, or that the deductibles would be affordable?

I think that the lesson to learn from cases like this relates to the need for every claimant to build a “paper trail” of medical treatment records.  Judges expect you to see your doctor regularly and to seek specialized help when necessary.  If you don’t have a lot of money,you need to explore all options – local emergency rooms, public hospitals, free clinics.  I think that the days are over when a claimant can win a hearing with a medical record that is less than an inch thick.

I am certain that there are many deserving claimants out there who truly are disabled, but who will be denied because the medical record is sparse.  This may not be fair, but this is how the system works.

Will Social Security Penalize Me if I Refuse Electroconvulsive Treatment?

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

–Mike

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

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

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

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

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

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

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

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]

Vocational Rehab Says I Have No Marketable Skills – Is That Enough to Win a Disability Case?

I have been to vocational rehab and they ran some evaluationsand they found that i have no marketable skills and i am going to mental health and i am under a case manager and a phychiatrist. Can i win disability with those problems and i also have degenerative disc disease and scolosis  Can I win disability with those problems?
–Daniel

Jonathan Ginsberg responds:  Daniel, thanks for your question.  It certainly sounds like you would have some significant problems trying to work, but I am not certain that a vocational rehab evaluation would be enough to win a Social Security disability case.  Certainly these evaluations would serve as evidence, but I think you would need support from one or more doctors or mental health professionals like your psychiatrist or phycologist..

You also don’t say how old you are – generally younger claimants have a more difficult time winning disability.

The bottom line – your vocational rehab assessments are good evidence and a judge would certainly consider those conclusions.  If this was a case I was handling, however, I would want more evidence, and medical evidence in particular.

[tags] vocational rehabilitation, will I win my disability case?, marketable skills, psychiatrist [/tags]

Top