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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]

Hernia Patient Asks if Her Case is Strong

i have a medical max of no lifting, pushing, pulling of no more than 5lbs.  i have had multiple hernia operations.  i have worked in the capacity of housekeeping, nurses aide, and a ward secretary all of which i was hurt while working with a jackson pratt drain in,  pulled on a drawer that did not open and pulled apart my abdomen which resulted in another operation at ohio state university hospital.  i have had 7 previous operations.  the county in which i live has also deemed me disabled.  do i have a good case?
–Vicki

Jonathan Ginsberg responds:  Vicki, based on what you say, it would appear to me that you have a good case.  The issue in yours or any other disability case has to do with your capacity for work.  In your case, I think you would also have to satisfy the duration requirement – in other words, has your condition lasted 12 consecutive months or is it expected to last 12 months.

If your treating doctor is willing to go on record to say that your abdominal weakness is such that you are not likely to regain sufficient strength and stamina to perform even a simple, sit down job on a regular, reliable basis, then your case would be stronger.

I suspect that you may have received treatment from many doctors over the years.  I think that you would benefit if your records contain a clear summary of your medical history from one or two doctors who can address the physical activity limitations and will cooperate with your lawyer in completing a functional capacity form.

Finally, you want to approach your hearing with the attitude that you would work if you could.  Sometimes when claimants have been undergoing medical treatment for an extended period of time, they begin to think of themselves as "disabled."  Judges like to see claimants who are fighting the entire concept of disability and who have no desire to be classified as such.

[tags] hernia operations and disability, duration requirement in disability case, mental approach to disability case [/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]

Should I Apply for Disability if I Have Just Started to Miss Work?

I have a question about being able to work.  I recently started having headaches every day and have been seeing a doctor and having tests done. There is no way I can work under these circumstances.  What should I do?
–Richard

Jonathan Ginsberg responds:  Richard, I am sorry to hear about your situation.  Here are my thoughts.  I would advise you to go ahead and file a claim.  Social Security reps often will not accept a claim if you say that you are still working so when you file, I would choose a date that you "last worked" so that they will process the claim.

Realize, however, that if you continue to work – and Social Security records show on-going earnings – your claim will be denied on that basis without any consideration of the underlying medical problem.  I recommend that you apply as early as you can because the process can take so long.  The sooner you start, the sooner you would receive benefits.

The obvious problem – how do you survive for 12 to 24 months while SSA makes its decisions?

Next, I think that you need to work with your doctors to identify a firm diagnosis.  Chronic severe headaches can arise from many causes – migraines, high blood pressure, hormonal changes or other, more serious conditions.   Once you know what you are dealing with you will have a better idea if your condition is treatable or whether it will keep you from working for 12 consecutive months or longer.  Social Security, remember, only pays disability for cases where the medical condition will keep you out of work for 12 months or longer.

Finally, as you pursue treatment ask your doctor if he will support you in a claim for disability.  Some doctors don’t believe in the concept of disability and I have seen good cases derailed by uncompromising doctors.  If you know at the outset that your doctor will not help you, you can decide whether to stay with that physician or seek treatment elsewhere.

[tags] chronic headaches and disability, migraine headaches and social security, when to file a disability application [/tags]

How Does a Judge Resolve Unclear or Conflicting Medical Evidence in a Disability Hearing?

Mr. Ginsberg,
I am a dwm 45, no children, no criminal record, no drug/alcohol problems. I have been diagnosed to have Major Depression, Generalized Anxiety, Schizoid Personality Disorders. I have had 23 jobs in the last ten years with several gaps of unemployment. I have had two psychological tests with conflicting results but were all deemed valid/reliable. I just had my ALJ hearing two months ago and in addition to my ongoing psychiatry treatment for the past two yrs, has ordered a mental CE, waiting for the results and a final decision. My treating psychiatrist this month sent a letter to my disability judge stating that I am a ‘diagnostic puzzle’ and have tried all pharmacological agent groups with no success. He also stated that he has been treating me for the past two yrs. He suspects I have a pervasive developmental disorder. He concluded the letter by stating that there have been no signs of malingering and I have been very compliant.

After my hearing, my disability rep. told me that I have a 50/50 chance of winning. My question to you Mr. Ginsberg, is what does the ALJ do when there are conflicting test results but they are all reliable/valid? Does he flip a coin to make a decision?

–Mike
 
Jonathan Ginsberg responds:  Mike, thank you for your question.  Your case illustrates why judges have a very difficult job.  I like to say that the word "judge" is both a noun and a verb.  The best judges look at the evidence but they also observe and listen to the claimant.   Not every claimant falls into a net category.
 
Some judges are better at this task than others.  I know some judges who will deny any case where there is conflicting or confusing evidence, while there are others who take a holistic approach to judging and they try to picture you (the claimant) trying to get through an 8 hour workday, five days a week.  Fortunately most judges try to do the right thing and will look at you as a whole person, rather than as the human manifestation of a large paper file.
 
This is also a case where a functional capacity evaluation might be appropriate.  As I regularly point out on this blog and elsewhere, Social Security disability is about your capacity to function in a work environment.  To that extent a neat and clean diagnosis is not essential.  Even if your treating psychiatrist cannot label your condition, he should be able to comment about limitations that arise from your mental health condition as a whole.  Assuming that reliability, attendance, interaction with co-workers, supervisors and the public would be impaired, he could offer an opinion that would help a judge assign an appropriate vocational profile.
 
You might also think about searching for a psychiatrist or psychologist who can be more definitive in his/her diagnosis.  There is no question that judges prefer a solid diagnosis and it may be that your case is too complex for your current physician and/or therapist.
 
If you lose, you have the right to appeal as well as to file a new application.  If your current medical record turns out to be insufficient to win your case, you and your lawyer might think about how to build a stronger record for the next attempt.
 
Good luck and let me know how it turns out.
 
[tags] functional capacity evaluation, conflicting evidence, diagnostic puzzle [/tags]
 

Survivor of Traumatic Brain Injury Considers Applying for Disability 35 Years After Accident

In 1972 at age16 I sustained head injuries from a motorboat propeller resulting in lobectomy to my right frontal and parietal lobes. I was left with epilepsy, which has been controlled with medication from ’81 to 2004 when I had 2 seizures after I was let go from my last place of employment. The main reason I was given was a lack of flexibility. I turned 50 on July 17th. I didn’t go to a neurologist as I couldn’t afford to pay a doctor to tell me I had an accident. My medical records consist of my annual check-up so I could continue to get my medication and initial surgical procedure. As I have aged my attention span has shortened as well as my focusing ability. Am I facing too large of an ordeal?

Karl

Jonathan Ginsberg responds:  Karl, thanks for your question.  I think that your case would turn on whether a treating nuerologist would be willing to fill out a functional capacity form that identifies specific work activity limitations.  On one hand, you have been able to overcome your injury with medication for over twenty years.  A judge would therefore want to know what has changed.

I think it is entirely plausible that neurological damage such as that which you describe could get worse over the years, but, again, what you and I think doesn’t really  matter – what does the doctor say.

This is probably a case where a neuropsychological evaluation would be appropriate.  I understand from what you write that finances are an issue – unfortunately I think that is you want to have a realistic chance at winning, you will need help from a treating doctor.

Finally, don’t forget that your "insurability" for Title II Disability will run out approximately four to five years after you stop working (this is called your "date last insured").  When you apply for Disability make sure to find out your date last insured and use the earliest possible onset date – such as your last day of work.

[tags] Traumatic brain injury, neurological injury and social security disability, date last insured, functional capacity, residual functional capacity [/tags]

54 Year Old With Multiple Medical Problems – What Strategy Will Work Best at a Hearing

Hi, i am waiting to see a judge ,my lawyer say’s it should be between now an aujust which would be 16 mths.since i filed appeal. I am 53 ,wil be 54 in oct.I Have type 2 diabetes insulin dependent twice daily,high blood pressure,diabetic neuropathy,osteoarthritis in knees an hands,herniated dics in neck that causes both arms to go numb at anytime.I have medical records to back -up all conditions.My meds are humlin-r an humlin-n insulin twice aday,lisinopril 20mg,1 tablet once daily.My pain management doc. treats me for neuropathy and herniated dics,an arthritis with,5mgs methadone 1tablet 4xaday an neurotin 600mgs 4xaday.I will be treated by him from know on.He supports my claim.Wanted to know do i have a good chance at getting my dis.I have excellent work history for the last 8 yrs. says my lawyer.My family doc. knows i am filing dis . but do not know if her office will let her write a letter,her pa asked me was i filing disability an she was in the exam room also, don’t know what that ment.At any rate my pain management doctor will support me.Are my chances good?

Jonathan Ginsberg responds: Based on what you have written, I think you have a strong case.  What I would want to know relates to the specific symptoms that arise from your varoius medical conditions.  Ultimately the issue in your case will be: which condition or conditions creates limitations that would most impact you in a simple, sit-down type of job.

For example, your diabetes may create periodic vision problems and periodic numbness in your hands and feet.  Your herniated discs may limit you to four hours total sitting during a day and might require you to lie down for 30 minutes every three hours.  Your pain and/or your medications may cause a significant interference with your ability to concentrate. 

Hopefully, you can see that I am focusing on limitations that would impact you if you tried to work a simple job.  Remember, Social Security is mainly about work capacity.

Best of luck to you.

[tags] case strategy, herniated discs, diabetes, Social Security disability, SSDI [/tags]

 

How I Won a Disability Hearing for a Deceased Claimant

With delays in the Social Security disability adjudication process taking as long as three years, it is inevitable that a claimant will pass away while waiting for a hearing.  Today, I tried a disability case for one of those individuals.

My client initially met with me in June of 2004 and he passed away in January of 2006 at age 60.  The hearing held today, therefore, covered a closed period of disability from his onset date (September, 2000) through the date of his death in January, 2006.  Although my client passed away, his claim for disability benefits remained active, with his wife being substituted as the claimant.

My client died of a heart attack, although cardiac problems were not the basis of his disability claim.  Instead, his claim for disability arose from mental health issues – severe depression, anxiety, panic disorder and bi-polar condition.  My client was a highly educated individual – and he had graduated from college and law school (although he never practiced law).  His past work was in the banking industry where he worked at a very high level position and was responsible for millions of dollars.

When I originally met with this gentleman he told me that he had been fighting symptoms of depression and panic for several years, but that by September, 2000, he had reached the point where he was unable to function.  After being fired from his last banking job, he had worked part time managing investments for a few relatives and close friends.

The medical record from the treating psychiatrist was fairly solid, and it showed regular, on-going treatment and high levels of powerful psychotropic medications.  The record also hinted at the occasional overuse of alcohol, although in my view the mental health problems existed independently of any alcohol issues.  As you  may know a claimant is prohibited from collecting disability benefits if the judge finds that alcohol abuse is a “material contributing factor” to a his disability.

I met with my client’s widow a little over a week prior to the hearing and we practiced the questions she was likely to face.  I expected that the issue of alcohol use would be a primary focus of the judge.  The judge in this case, by the way, was a new judge so I was unable to describe in much detail exactly how the hearing would be conducted.

When we got to the hearing, I learned that the judge had requested a medical expert – in this case a psychiatrist – to appear and testify.  My experience with medical experts has generally been good although adverse testimony from a medical expert will pretty much spell doom for any case.

The judge started the hearing by questioning my client’s widow about her observations regarding her husband’s behavior.  I felt that as a witness, my client’s widow was nervous and she almost seemed reluctant to speak badly of her late husband.  Although she hinted at several significant behaviorial problems, I felt like we needed to get some of those issues more clearly on the record.

Because she and I had spoken at length about specific incidents where my client had acted inappropriately or in a bizarre manner, I asked a few questions that were probably leading in nature.  Fortunately, my client’s widow saw where I was headed with this and she clearly related several stories describing behavior that indicated a severe underlying mental health problem.

The medical expert testified that the psychiatric record was very comprehensive and entirely consistent with my client’s testimony.  He also pointed out that the large number of medications my client was consuming would have significant work limitations.  He concluded by stating that he felt my client met the listing at 12.04 for bi-polar disorder.

The medical expert also took notice of my client’s educational achievements and his work history.  In my mind the implication was clear – a highly educated and well compensated professional would not give up his career with the hope that he would recover Social Security benefits.s

The judge accepted the medical expert’s testimony and issued a bench decision approving the claim.

I think that the factors that were extremely persuasive here included:

  • my client’s work and education background – helped establish credibility
  • the medication list
  • the record of consistent treatment – monthly visits to the psychiatrist since the onset date
  • the witness’ testimony regarding incidents of behavior inconsistent with competitive work
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