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Category Archives for Strategies for winning

Functional Capacity Evaluations: Helpful or Hurtful?

Social Security FCEHere is a question I received from a blog reader:

I have been told I should qualify for disability because of my permanent restrictions set by my FCE. I was put in a light category. What do you think?

Here is my response:

First, let’s clarify what a functional capacity evaluation is and why it is important to Social Security.  Functional capacity evaluations (abbreviated FCE) are a set of tests and evalautions designed to objectively determine your capacity to perform the physical demands of work [1. Here is Wikipedia’s definition of an FCE].  A physical FCE will categorize you as:

  • able to perform heavy work
  • able to perform medium work
  • able to perform light work
  • able to perform sedentary work
  • unable to perform sedentary work

Social Security has defined each of these terms – click here for the definitions.

An FCE can be preformed by a rehabilitation supplier, a physical therapist or a physician.  A formal FCE may involve one or two days of testing along with interpretation by a trained health care provider.  An informal FCE may involve a checklist form completed by your doctor. Continue reading →

Obesity and SSDI

The American Medical Association recently released a report [1. The AMA has recently designated obesity as a disease.] officially recognizing obesity as a disease.

With one in three Americans falling in the obese or super-obese BMI spectrum, the AMA hopes that by defining morbid obesity [2. The  University of Rochester Medical Center defines morbid obesity as follows:  if a person is 100 pounds over his/her ideal body weight, has a BMI of 40 or more, or 35 or more and experiencing obesity-related health conditions, such as high blood pressure or diabetes.] as a disease the medical community will implement more aggressive efforts to combat this debilitating condition (and the ancillary diseases associated with it) and prompt insurance companies to pay for treatments, counseling, and medication reimbursements.

What does this mean in the context of Social Security Disability?

Just because obesity has garnered much more attention as a debilitating disease by various members of the medical community, don’t assume SSDI will follow suit.  Currently obesity is not listed in the Social Security Administration’s Listing of Impairments, or database of diseases that will automatically qualify a claimant to receive disability benefits. Continue reading →

How do I Win for a Medical Condition that Cannot be Seen on a Diagnostic Test

fibromyalgia difficult to diagnoseI get a lot of questions about fibromyalgia and other medical conditions that rely on subjective reporting by patients.  These cases are definitely getting more difficult to win.  Here is a question sent to me by a blog reader that describes an increasingly typical situation:

I'm 41 yrs old and have been suffering for many years with narcolepsy and fibromyalgia.  My sleep disorder actually falls between narcolepsy and idiopathic hypersomnolence.  My family and myself are falling apart because of my disabilities. I've applied for disability in the past and was denied. I'm applying again and wanting to ask you how do i go about applying to prove my disability since its been denied in the past?  How much weight does testimonials from family and friends carry?  How much weight does a signed letter from my doctor saying, i can't work/drive its unsafe, carry?

I am not surprised that you have had a difficult time with Social Security.  As you probably know, Social Security defines disability in terms of your capacity to work a simple, entry-level type of job.  Basically you have to prove that the symptoms of your medical condition or conditions are so intrusive, that you cannot work at any job, full time.

As the person claiming disability you have to prove that you are unable to work – you do this by submitting medical records, and, even better, a functional capacity form completed by your doctor that identifies specific activity limitations.

Continue reading →

Will I Win my Case? I have been Waiting a Long Time and I am Scared

advice about Social Security disability case

Every month, I receive requests for my opinion from concerned and anxious disability applicants about whether a case is good enough to win.   Usually a hearing has been scheduled and the claimant is looking for some reassurance.

The question below is a good example of this type of question.   I am happy to help my blog readers any way I can but I hope you can understand that I can't intelligently answer questions like these because I have no way of knowing what is contained in the medical record.  Further, it would not be appropriate to offer legal advice on a blog, especially to a person who has a lawyer.  I would point out that in my view, a claimant's testimony is less and less important relative to the medical record documents in one's case file.

I am going in December with my attorney for my first meeting with a judge. I have degenerative disc disease, fibromyalgia, arthritis in hands, sleep about 3 hours a night, can't lift anything above 10 pounds, severe low back pain for past four years I have not worked. Can't sit or stand for over 15 to 20 minutes at a time my back has stabbing, burning pain and sometimes runs down back of legs. My right hand will now go to sleep when ever it want to. I have had 17 facet shots under an x-ray machine and probably 35 x rays that show nothing. What is your opinion on this case will I win 100 percent and since I waited 2 years without work before I filed is there maybe a possible way to figure out what I may end up with to live off of? Anything you can tell me will be much appreciated. Is there any books that I can read to help me with this? It is very scary. I was also turned down 3 times by 3 different doctors when I did have insurance to get an MRI which I think I really need in this case.

As far as whether a particular person will win or not, here is what I would say:

  • do you have support from a treating doctor in the form of a functional capacity evaluation or a narrative report describing activity limitations.   Social Security judges are trying to decide whether you have the capacity to perform a simple, entry-level, "warm body" job – has your doctor identified specific areas of functioning where your reliability is less than acceptable.  If you do not have this type of support from a treating doctor, you are going to have an uphill battle.
  • have you been treating regularly with one or more doctors and are there medical reports and diagnostic reports (such as MRI's, CT scans, etc.) in your file that document your compliance with treatment and lack of success with treatment?
  • is there any evidence in the file to suggest that you are malingering or drug seeking? – these can seriously damage your case
  • assuming you are represented by counsel, what does your attorney think?  Can he explain to you the argument he intends to present to the judge and does he feel that the evidence describes serious limitations that impact your reliability at a job?
  • ask your attorney to tell you the truth – if your case is weak, is there anything you can do to make it stronger?   Obviously, you will win if the judge accepts everything you say about your pain, discomfort, physical and mental limitations – the question: does the medical evidence support what you say?

SSDI Claimants Can Expect to be Asked About Unemployment Benefits

tough ALJ questionsOver the past several months, I have noted that my SSDI clients are regularly being asked by judges if they have filed for unemployment benefits.  This question used to come up occasionally in the past, but now my clients are almost always asked if they have filed or are receiving unemployment.

The issue is this: when you file for state unemployment, you must assert that you are ready, willing and able to work.  In the past, I would counsel my client to answer the judge’s question by stating that “I am willing and anxious to try to work and I would put forward my best effort to perform any job.  I don’t know if my medical condition would allow me to perform reliably but I would certainly try.”

Given that Social Security’s stated policy is to encourage people with disabilities to return to work, I do not see a huge inconsistency in a claimant who is applying for both unemployment and SSDI.

However, as is the case with part time work, Social Security tends to view things in an “either-or” fashion.  You are disabled or you are not, and there seems to be no middle ground. Continue reading →

Use a Cane? Get a Prescription

walking cane and SSDIThis year, I have represented three clients who use a cane either all of the time or most of the time but whose use of this assistive device was discounted by the judge because the cane was not prescribed by a physician.

The issue in your Social Security disability case is whether you can perform even a simple, entry-level type of job.  Our goal, therefore, involves identifying specific limitations that would impact your ability to perform work.

If you cannot walk without a cane or walker, it stands to reason that you would not be able to perform jobs requiring:

  • more than very occasional standing
  • more than occasional walking
  • balancing
  • climbing ladders, ropes or scaffolds
  • kneeling, bending and stooping
  • crouching and crawling

Further your need for a walking cane would support allegations of pain and other activity limitations (such as lifting and carrying) associated with back or knee injuries.

In short, if the judge accepts that you need a cane to walk, he will eliminate from consideration all jobs except sedentary (sit down) types of jobs.

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Appeals Court Awards Claimant 30 Years Worth of Past Due Benefits

Frusher Social Security appealA federal circuit court of appeals has awarded a widow 30 years worth of past due benefits on her late husband’s claim.  The case involved the claim of Dr. Richard Frusher, a Rhode Island resident who applied for benefits based on mental illness in 1975.

Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970’s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him. Continue reading →

Understanding the Social Security Disability “System”

My colleague, San Francisco California Social Security disability attorney Geri Kahn, publishes an interesting and thoughtful Social Security disability blog that I read regularly.   This past April, she published a post that should be required reading for all disability applicants.  Entitled “Four Misconceptions About the Social Security System,” Geri succinctly discusses several issues that lead to a great deal of frustration for both claimants and their attorneys.

One of the points Geri discusses really resonates with me.   She answers the question “I have back pain and cannot work so why do you recommend that I see a psychiatrist?”

Great question.

chronic pain, depression and disabilityFor years, my practice has been to add an allegation of depression and/or anxiety to every Social Security appeal I file.  In my view it would be extraordinary if anyone with a history of regular work would not be depressed and anxious if he/she:

  • no longer has a regular work routine
  • experiences financial pressure because of lack of income
  • feels a sense of worthlessness because he/she can no longer contribute (this is especially true for men)
  • recognizes that he/she will not be able to engage in social, athletic and recreational activities at pre-impairment levels
  • has to deal with stress and anxiety inherent to anyone with chronic pain
  • has to deal with disrupted and sometimes damaged family relationships
  • has to deal with physical and emotional changes associated with strong pain medications
  • experiences new medical issues associated with his/her chronic medical condition (i.e., obesity, constipation, high cholesterol, etc.)

As a disability claimant, you may not even realize the impact your back condition has had on your life.  As attorneys, we look at you as a whole person to understand more fully why you can no longer work.   Not only will such a more expansive view of your damaged health benefit your case, it may help you better understand what you are going through as well.

Multiple Sclerosis Patient Seeks Strategy to Win SSDI Case Early

Here is a question I received from a multiple sclerosis patient who is preparing to apply for Social Security disability and is hoping to win her case early.

Jonathan,
First, I want to thank you for putting valuable information about the SSDI process online. I was diagnosed with MS in 1993. I recently left work on an early disability retirement after a 24 year career with the State of ABC.  My question is this – if I have MS and my medical records document cognitive dysfunction, isn’t it feasible that I would be approved with my initial application to SS? Although I did very well in the beginning of the journey, as I have gotten older, (I’m only 44), my disease has started progressing over the last few years. Will the fact that I have taken an early disability retirement from the state weigh favorably towards my case?

Here are my thoughts: the first question I would ask is “are you insured for Title II Social Security disability?”  In some states, employees do not contribute into the Social Security system- instead, they contribute to a state disability program.  For example, I sometimes get calls from teachers who may have worked for years, but who are not insured for Title II Cognitive dysfunction associated with multiple sclerosisdisability because their school system opted out of Social Security.  If you cannot tell from looking at an old paystub, I would advise you to contact your human resources office to confirm that you have been making payments into the Social Security system.    You can also call Social Security at 800-772-1213 to inquire as to whether you have been earning credits.  You can also request an earnings and benefit statement (Form 7004) from Social Security directly.

If you are not insured for Title II SSDI, then you might still be eligible for SSI, but that will depend on household income and the value of assets that you own.

Assuming you are eligible for Title II disability, your best chance at an early approval would be to request help from your treating doctor to show that you meet or equal the multiple sclerosis listing, which is found at  Listing 11.09.   When you read this listing, it does refer to cognitive issues by referring to Listing 12.02 which describes “organic mental disorders.”

I would print out the entire Multiple Sclerosis listing and the listings referenced in 11.09 and take the printout to your doctor’s office.  If your doctor or someone in his office is willing to write a narrative report describing your symptoms, course of treatment and state that your symptoms meet or equal what is contained in the listing, you greatly improve your chances at an early decision.  Your doctor should track the language of the listing as closely as possible, using the language of the listing wherever possible.   Further, since the disabling symptom you describe has to do with cognitive dysfunction, you may need to have a psychiatrist or a neuropsychologist evaluate you and write a narrative report that tracks Listing 12.02.

I take a similar approach when I am representing an MS client – although instead of a narrative report, I create a checklist for the doctor to complete and submit that to the Social Security judge along with copies of all medical records.  Often times, by the way, Social Security will provide the neuropsychological exam as a “consultative evaluation” that they pay for, however, if you can provide your own, you obviously  have more control of the process. Continue reading →

What To Do if your Doctor is Not Cooperative

doctor who will not cooperate with disability claimIf you haven’t already noticed, physicians are working harder for less money.  I expect this trend to continue, especially with the government getting more involved in setting prices for services.  In the Social Security disability world, we rely on doctors to provide medical records and to assist attorneys in identifying specific work limitations that limit patients.  These limitations often form the basis of a functional capacity argument for disability.

In other words, if a treating doctor is willing to go on record to say that his patient would likely need unscheduled breaks, or cannot use his left arm for reaching over shoulder level, or needs to extend his legs while sitting, those limitations can be used to argue that certain categories of jobs (or, better – all jobs) would not be possible for this particular claimant.

In my practice, I have created “functional capacity” forms that I either send to doctors or that I give to my clients to bring to their doctors.  A good form that contains numerous limitations can result in a favorable decision, even from a judge who does not approve a high percentage of cases.  As a wise old judge once told me “if you have a compelling functional capacity form, I usually have no choice but to approve that case.”

Continue reading →

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