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Category Archives for Strategies for winning

Strategy for Winning a Seizure Disorder Case

Jonathan, I have an appeals hearing on 1/30/08 with an ALJ. I have multiple medical problems, the worst of them being a seizure disorder. I take medicine and have not had a grand mal seizure since 11/10/06, but continue to have petit mal seizures several times a week, sometimes everyday. I also have rheumatoid arthritis in my right wrist & a dropfoot which now is effecting my knee & hip. What is the best wat to present my case?
Mark

Jonathan Ginsberg responds:  Mark, last week I appeared before a judge with a client who had a seizure problem.  In her case, she was producing micro tumors that were releasing hormones that triggered seizures.   There is no treatment or cure for her condition.

The medical expert present at the hearing stated that she met Listing 11.03, which basically says that an individual is disabled if he has petit mal seizures at least once a week for a minimum 3 months duration despite prescribed medical treatment.  What you describe sounds similar, at least in a general sense.

It would seem to me that the seizure issue you describe might be a strong argument for you.  If you can enlist the help of a treating doctor to describe these seizures and to support your claim that these seizures leave you tired, disoriented, incapable of on-going concentration and focus that would help.

In a similar vein, if you can get a treating doctor to identify specific activity limitations (lifting, carrying, walking, standing, sitting) arising from your rheumatoid arthritis, that would help eliminate many categories of possible employment.

Obviously, without reviewing your medical record specifically I have no way of knowing whether your doctors support you or how the medical record addresses the severity of your problems, so my suggestions should be taken as general advice only.  I do hope this helps you get a sense about how your case could be analyzed.

Two Disability Claims Pending and Nothing is Happening – What Can I Do?

My husband has Osteonecrosis (AVN), it is death of bone condition in both shoulders and both hips.  We initially hired an attorney in April 2003, claim was denied and it is in the Hearing Stage in Virginia.  We had to reopen a new claim in 2006.  We attached all information needed, even information from the National Assn of Osteonecrosis (this is a relatively new condition).  The claim filed in 2006 was denied once, but to date no other information.  We just called our attorneys office this week.  They are constantly saying in both claims "things are the same", nothing has changed.  Can you please help us?  Our medical bills are piling up. Prescriptions are expensive, etc.
–D

Jonathan Ginsberg responds:  D, there is no simple answer to your question.  It appears that you have two claims in process – an appeal to the Appeals Council (the Appeals Council is located in Falls Church, VA, which is what I assume you mean by "the Hearing Stage in Virginia") and a 2006 claim filed in Georgia, where you now live.

Claim #1 will cover the time period from alleged onset through the date of the first administrative law judge hearing and Claim #2 will cover the time period from the day after your administrative law judge hearing and on-going.

Here are a couple of observations:

1)  Social Security claims take a long time.  The two Atlanta hearing offices are the slowest in the country – it can take two years or longer between the time you request a hearing and the time a hearing is scheduled.  Your attorney has no control over this.  It is not fair, it is not right, but this the current situation in the Social Security Administration.

Let me also say that there is an effort by SSA to deal with these delays – they are increasingly using video hearings from a National Hearing Center to reduce the backlog – see this press release from SSA.

2) With regard to the case at the Appeals Council.  If you have a case at the Appeals Council or in Federal Court, expect to wait and wait and wait.  You could be looking at five years or longer.  Recognize that at the Appeals Counsel or federal court, the judges are looking at possible errors of law or analysis by the hearing judge.  Appellate judge rarely substitute their decision for the decision of the ALJ.  Instead, they are looking for situations where the hearing judge used the wrong standard or the wrong analysis.  Usually a successful appeal concludes with the appellate judge sending the case back to the ALJ for a new hearing to be decided under the correct standard.

3) My guess is that your claim #2 will be decided much sooner than claim #1 and that any money to be paid will be paid in claim #2 long before payment in claim #1.

57 Year Old Arthritis Patient Wonders if She Would Qualify for Disability

I am 57 I have been a RN for the past 30 yrs.  I have auto immune arthritis which is severe in my SI joints graded 3+ bilaterally.  I also arthritis in my hands, wrist, elbows, shoulders, knees, feet and ankles.  Along with DMII, IBS, Bilateral Carpal Tunnel, Bilateral Heel Spurs. My dominant hand is now becoming weak and painful to the point, I am having to learn how to redo ADL’s with my non dominant hand.  I can’t sit, stand or lay or long periods of time, I rarely sleep more than 3 hours at a time due to numbness or pain in a joint. I just recently stopped working.

Where would I fit on the Grid, or do I have to suck up the pain and continue to try and work. I only have enough reserves to last me 7-8 months. Thanks for your opinion.
–C

Jonathan Ginsberg responds:  C, thank you for your question.  I am not so sure that the grids would apply here.  Firstly the grids only apply when there is an exertional (physical) impairment.  Here you have both exertional and non-exertional (pain) impairments.   It would appear to me that pain is such a major part of your claim that you could not argue that your limitations are purely exertional.

Second, and most important, the grids factor in education and transferrable skills.  Look at the grid tables.  Even at age 57, an individual limited to sedentary (sit down) work is “not disabled” if she has transferrable skills or more than a high school education.

I think that a better argument would be a straight “residual functional capacity” argument.  Please also take a look at my Arthritis and Disability article on my Georgia Social Security disability web site.  I would focus on reliability issues and limited capacity to get through a workday in any form of competitive employment.

Your 30 year work history also gives you tremendous credibility.  You always want to approach your SSDI claim with the attitude that “I would work if I could, but I can’t” and not an attitude of “entitlement.”

Based on what you write, it appears to me that you have a good case.  You need to enlist your treating doctors for support but I would be surprised if you did not get approved.

Can a Rare Medical Condition Like Dupuytren’s Disease Qualify Me for Disability?

I recently responded to a question on Yahoo Answers about a disease called Dupuytren’s Disease.  Dupuytren’s is a disease of the connective tissue in the palm of the hand.  The tissue becomes rigid and immobile, causing the patient’s hands to become fixed in a bent condition.

The person asking the question wanted to know if Dupuytren’s would qualify a claimant for Social Security disability.  My response was that it might depending on how severe the condition was and whether the claimant had one or more treating doctors who would help by completing a functional capacity form.

The question itself was phrased as follows: "is Dupuytrens considered a disability under the Social Security Administration?"  As I typed out my answer it occured to me that the person posting the question was asking the wrong question.  Social Security disability is not "about" any particular disease or condition.  Further, the issue is not whether Social Security recognizes a particular condition, the correct question is "how does my medical condition limit my capacity to perform work like activities."  I have been involved in cases where the medical record is quite vague – sometimes different doctors do not agree on the diagnosis and sometimes the doctor will acknowledge that there are is no test that can be run to definitively document a disease or condition.

Therefore, if you have a rare or unusual disease like Dupuytren’s Disease, you may very well qualify for Social Security disability.  You and your lawyer may need to educate your judge about the condition and you will definitely need support from your doctor.   The important point here is identify the main issue in your Social Security claim and to create a theory of your case that will convince a judge that despite your best efforts, you simply cannot work.

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.

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.

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.

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]

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]

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