Social security hearing representation

I've written before that if a claimant attends a social security hearing minus a representative, there's at least a fair chance that the administrative law judge will advise that individual to accept a rescheduled hearing date in order that they may find representation to assist them with their case.

However, I was speaking to a social security field office employee who told me that, in his opinion, most disability judges do not actually do this. What led this field office worker to conclude this? According to him, the fact that so many applicants for SSD and SSI go to hearings without a representative and do not get rescheduled hearing dates.

This, of course, begs the question, Why would an administrative law judge not advise someone who arrives at a hearing by themselves...to find representation and return at a later date? This is supposition, but I can only assume that, in such a case, either the judge is not overly concerned regarding the claimant's best interests, or that the judge at one time did this, but has now begun to view all claimants who make this mistake as one and the same. In other words, "if they really think that its such a good idea, let them represent themselves". As I said, this is supposition on my part.

Of course, as a practical matter it's never a wise idea to try something like this. A disability claimant who who arrives at a disability hearing will typically not know anything about the decision history of their own social security disability or SSI case. And most likely, they will not have reviewed their own social security disability file in any meaningful way, will not know why their application for disability was denied, why their first appeal, the request for reconsideration, was turned down, and will definitely not know what equates to sufficient preparation for a social security hearing in order to avoid having their claim turned down once more.

Other things an unrepresented claimant may not consider doing are: A) pointing out that the classification of their past relevant work may not be correct, based on the actual duties they performed, and B) contending that their functional limitations are actually greater than was determined by the state disability processing agency.

Then, of course, there is the aspect of hearing preparation. This involves not only knowing what is in the social security disability file and what it means, but also how to add to it and strengthen it. Strengthening it may involve developing an argument for a disability approval on the basis of meeting a listing in the social security administration's blue book. It may involve getting more documentation of the claimant's condition and the limitations that result from it, including statements from a treating physician, and sending them in to the administrative law judge hearing the case. It may also involve, in a children's case, successfully obtaining questionaires from a child's teacher, an individual who can provide statements as to a child's ability to engage in age-appropriate behaviors or not.

In actuality, there is relatively little that the average unrepresented claimant will know how to do to regarding the presentation of their claim at a hearing. And for this reason, it's helpful for disability judges to point out to claimants the fact that representation, provided by a disability attorney or a non-attorney disability representative is an option that is open to them, and one that they should consider.









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Filing For Disability for Stress

There is no listing in the social security disability list of impairments titled "stress" or "nerves", but you see these allegations listed frequently on applications for disability. In some cases, the individuals who list these conditions are actively receiving treatment for an anxiety disorder such as agoraphobia or panic attacks, or PTSD from a mental health professional such as a psychologist or psychiatrist. In other instances, an individual will simply receive a prescription for an anti-anxiety medication from their family internist. And, in other cases, the claimant will never have had mental health treatment of any kind whatsoever (its certainly debatable as to whether or not receiving a prescription from a general practitioner qualifies as "mental health treatment", but this would be using the loosest definition possible).

What happens if you list "stress" on a disability application? Well, the same thing that happens to every disability application in terms of the way it is evaluated and, therefore, the rest of this post will describe the general process for evaluating a disability claim. In a later post, however, we address how the social security administration concerns itself with anxiety-related disorders.

In a very basic sense, Social Security views all mental impairments in the same light when it comes to qualifying for disability benefits. By this I mean, Social Security considers any medically determinable mental or physical impairment to be a disability if it has prevented you from working at a substantial gainful activity level for twelve months, or you expect to be unable to work for twelve months, or your condition is expected to end in death.

If you are filing a disability claim based upon stress, it is important for you to have a history of medical treatment for your stress problem. Generally, it is helpful to your disability claim to have at least a twelve month history of mental health treatment for your stress condition. However, even if you do not have twelve months of mental health treatment it is important to have some kind of medical treatment for your stress condition within the past ninety days.

Social Security considers treatment notes to be current if they are ninety days old or less. If you have no treatment for your stress problems or your treatment is not current, you will most likely be scheduled for a consultative mental health examination to ascertain your current mental status.

Social Security disability examiners will consider treatment notes from hospitals and treating mental and medical heath professionals, as well as the results of objective testing when making a Social Security medical disability decision, so be sure to provide Social Security with any treatment you have had for stress when you file your initial disability claim.

Social Security may also consider A) information provided by a third party (generally the person you listed on your initial disability application as a person who was aware of your disabling condition and how it has affected your daily life) and B) the information you provided as to how your condition affects your ability to perform routine daily activities including but not limited to work activity.

It is possible to win disability on the basis of stress, or any medically determinable impairment,---if you have objective medical evidence that supports your allegation that you have a severe impairment that causes you to be unable to perform substantial work activity.

Another way of putting it is that if you are able to prove that your residual functional capacity (what you are able to due in spite of your stress condition) is so restrictive that it prevents you from doing work that you have done in the past, or suitable other forms of work, you will most likely be awarded disability benefits.





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How Do You Pass a Social Security Mental Exam?

I was recently asked this question so I thought I would address it here. There is no pat answer to this question. Consultative mental examinations (CE appointments) are often used if an individual has no current mental health treatment notes or no record of mental health treatment at all. As you might imagine, these types of examinations are typically a poor substitute for a documented history from a mental health professional with whom you have a longitudinal history of treatment.

However, if you are asked to attend a consultative mental health examination (a mental CE), you should remember that it is unlikely that you can fool the mental health examiner who administers the examination.

I only mention this because it has been the case, now and then, (probably a somewhat rare occurrence), that an applicant for disability benefits has tried to answer questions in such a way that the outcome of an examination or testing might be affected. I remember one specific individual for whom, on three separate occasions, the psychologist indicated in the CE (consultative exam) report that the results of the intelligence testing could not be considered valid as the claimant clearly gave less than his best effort.

Why was the claimant given "three shots" at testing? Because the claimant's educational history and medical record documentation pointed to a lifelong history of impaired cognitive function---something that might have been adequately substantiated by testing had the claimant not tried to "game the system".

It is simply a good rule of thumb to be truthful and give any mental health testing (IQ testing, memory scales, etc) your best effort.

As a disability examiner, I saw the reports generated by consultative physicians and psychologists. These reports, at times, contained references that an individual had not given their best performance or were even malingering (faking).

If you genuinely have a mental health impairment that prevents you from working at a substantial gainful work activity level and you have a consultative examination, give your best effort with no consideration as to the outcome of the testing. Because if a consultative physician or mental health professional suspects that you are not giving an honest portrayal of the limitations caused by your mental condition, your claim stands a good likelihood of being denied. And once there is a notation of malingering in your disability case file, it will be hard to win your disability claim if you have to use the Social Security disability appeal process.

So in conclusion, there is no sure way to "pass a Social Security mental health examination" in this sense. Claimants would simply better serve their disability claim by appropriately answering any questions asked of them during their mental consultative examination.






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General Practitioners Need To Know About Hydrocephalus

Spina Bifida is a condition that arises from the spinal column not closing properly in the fetus during the first month of pregnancy. It is estimated that over 70,000 people currently have spina bifida in the United States, and nearly 80 percent of children born with this defect also have hydrocephalus, known as ‘water on the brain’. Unfortunately, ‘water on the brain’ or accumulating fluid on the brain may eventually cause mental retardation and convulsions.

Since Ireland has the second highest rates of spina bifida in the world, a recent education forum was put on by the Irish Association for Spina Bifida and Hydrocephalus (IASBH). Unfortunately, the IASBH found some unsettling news: there were no general practitioners present to be educated about spina bifida and subsequent hydrocephalus. Members of IASBH expressed dissatisfaction with the fact that many general practitioners and other healthcare professionals are very unknowledgeable about treatments. At the forum, one of the foremost experts in the field talked about the latest news and treatments.

When faced with hydrocephalus, a shunting device is usually used to drain cerebrospinal fluid. Unfortunately, malfunctions of these devices can and do occur. When this happens patients have about four hours to get treatment. Without the help and knowledge of general practitioners, this could be a huge issue. It was stated at the forum that neurosurgical resources are low, and general practitioners must educate themselves in order to help when shunting devices do malfunction.





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What is the Difference between Social Security and SSI Disability?

The Social Security Administration handles two disability programs: Social Security disability and Supplemental Security Income disability. The medical determination process is the same for both disability programs. You file a disability claim with Social Security and it is sent to a state disability agency for a medical determination.

Disability examiners use the same Disability Evaluation Under Social Security handbook to make both SSI and SSD medical decisions. This handbook is known as the “bluebook” and it contains general information, evidentiary requirements, and a listing of impairments. There are fourteen adult impairment body system listings that contain the disability evaluation criteria for each body system.

In addition to this disability guidebook, disability examiners use your work history and questionnaires completed by yourself and your third party contact (generally the contact person you listed on your initial disability application) to make their medical determination.

If your SSI and/or SSD claim is denied, the disability appeal process is also the same.

So now what are the differences between Social Security disability and Supplemental Security Income disability? Well as you may have ascertained, the difference in the programs involve non-disability criteria.

For instance, Social Security disability is based upon insured status, which is earned through work activity. Each year, you can potentially earn four quarters of coverage toward insured status for both Social Security disability and retirement. The amount of quarters need for insured status depends upon your age when you became disabled.

If you are insured for Social Security disability, there is a monetary benefit payable to you and potentially your dependents. Conversely, Supplemental Security Income disability is based upon need and just like any other need based program there are income and resource limits. If you are a single individual you are allowed to have two thousand dollars in resources.

Resources might include vehicles, boats, land, homes, retirement funds, trust funds, 401ks, bank balances, and so forth. You are allowed to have the home and land you live on and one vehicle excluded (generally the highest vehicle). If you are a couple the resource limit is three thousand dollars.

Additionally, there are income limits established for this program. Income limits depend upon the type of income involved (work earnings, unemployment, short term disability, long term disability, veteran’s benefits, etc) and household members. Income levels can vary depending upon the family situation.

In summary, both Social Security disability programs go through the same medical evaluation process and appeal process, but eligibility is dependent upon different non-disability criteria.





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Minimally Invasive Surgery For Mitral Valve Prolapse

Mitral valve prolapse is a valvular heart disease marked by an improperly functioning heart valve. When a patient is faced with this issue it is most often met with open heart surgery. Open heart surgery means a large cut (and scar) down the middle of the chest, cutting through muscle and bone, risk of infection and long recovery times. It is not ideal. Fortunately, doctors at Sacred Heart Hospital are now getting heart-valve repair with an advanced and less invasive technique. The stay in the hospital is smaller, recovery time is quicker and less painful, and the scar is very small.

This new technique for heart-valve surgery is radically different than open heart surgery, but is showing the same, positive results. It involves a mere two-inch incision on the right side of the chest, between the ribs. This small incision does not involve cutting into any muscle or bone, and therefore decreases the risk of infection. On top of this, doctors are saying that the small incision actually makes it easier for the surgeon to see and treat the leaking heart valve than a huge, open chest method. The mitral valve faces the right shoulder blade, therefore the small incision is the perfect spot to reach the valve easily.





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Social Security Looks at Disability to Be Totally Disabling

Social Security defines disability in a fairly straightforward way. Basically, as the inability of an individual to perform substantial work activity for twelve months.

This can be measured in terms of a 12 month period that has already occurred, or social security can project, based on available medical and vocational evidence, that an individual will be unable to perform substantial gainful work activity (this activity is measured by SGA, a gross monthly earnings amount set by Social Security which changes annually) for twelve months due to a medically determinable mental and/or physical impairment. The definition also includes the prospect that an individual’s impairment may be expected to result in death.

Social Security considers an individual's state of disability to be a state of total disability. This means that an individual who is approved for benefits is considered to be unable, given their medical condition and vocational profile, to perform any kind of substantial work activity.

The SSA definition of disability quite obviously precludes immediate short term disability benefits. Short term disability and partial disability are concepts that fall completely outside of the social security administration's view of benefit eligibility based on disability.

Additionally, Social Security disability has a five month waiting period for which they never pay disability benefits. In fact, an individual may have to wait months or even years to be approved for disability benefits if they've been denied on an initial claim and have to avail themselves of the Social Security disability appeals process.

At the risk of being redundant, Social Security disability is also not a percentage disability program like veterans benefits. There are no partial Social Security disability benefits, because if an individual has an impairment that is not totally disabling, they are considered to possess the ability to perform some type of work that is available in the general economy.

Strictly speaking, Social Security disability is a disability program that is based upon an individual’s residual functional capacity (what an individual is able to do in spite of the limitations imposed upon them by their disabling condition or conditions). Thus, if an individual’s residual functional capacity is not so severely restricted as to preclude all substantial work activity, their disability claim will be denied.





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The Da Vinci Robot and mitral valve prolapse, lung surgery, kidney disorders, etc

In 2000 a special robot was approved by the FDA for use in surgery. The robot is called the da Vinci robot and was first used for laparoscopic abdominal procedures, including severe heartburn and to help remove the gallbladder. Since then, the da Vinci robot has become increasingly popular for a whole host of other surgeries including cardiothoracic surgery, which is used to treat mitral valve prolapse.

The da Vinci robot assists surgeons with surgical procedures. In fact, when using the da Vinci robot, surgeons aren’t present in the operating room when surgery in being performed. First, they insert a special camera and miniature surgical instruments inside the patient through small incisions. Then, they sit outside the operating room at a console equipped with a high definition 3-D camera that allows them to see what is taking place. They use rings to maneuver the instruments – much like a remote control.

The da Vinci robot is now used for prostatectomies, hysterectomies, cardiothoracic surgeries, treatment of kidney disorders and bladder cancer, as well as lung surgeries. Recently the robot was featured in a study to determine whether or not it could be useful for removing tumors around the larynx, oral cavity and throat. The study showed that the surgical robot was indeed helpful; nearly 81 percent of the patients in the study had successful surgeries that removed cancerous tumors.
The robot has helped to reduce the amount of ‘open surgeries’ that are needed and less invasive than most other options. The recovery time is much shorter – three days or less for most patients in the study.





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Social Security Disability and Functional Limitations

Many individuals who file for disability do so with the idea that they should qualify for disability because they are no longer able to perform the requirements of their last job. And to some extent, this assumption is correct. The inability to engage in one's past work is one requirement that must be fulfilled in order to receive disability benefits from the social security administration.

However, the social security definition of disability is a bit more detailed than that.

For one thing, when it comes to an applicant's past work, social security not only considers the most recent job that an applicant performed, but sometimes many, and sometimes even all, of the jobs the applicant performed within the last fifteen year period (known as the relevant period by social security). This is provided, of course, that the applicant performed the job long enough to become a relevant part of their vocational work profile.

Assuming that SSA makes the determination that an applicant for disability cannot return to their past work (meaning that a disability examiner or a disability judge has determined that the applicant cannot return to any of their jobs performed within the past 15 years), the determination must still be made as to whether or not a claimant can perform some type of other work.

Jobs that fall into the "other work" category include various jobs (none of which a claimant may necessarily have ever done) for which a claimant might be thought capable of transitioning to based on their age, education, level of work skills, and limitations, both physical and mental.

Limitations in functionality are a core consideration for both social security disability and SSI disability claims. This is because by comparing the physical and mental capabilities that a claimant still retains (this is a concept known as residual functional capacity, which simply means the functional capacity that a person still has remaining), the social security administration may do the following:

A) They can measure the individual's level of functionality against the requirements of their past jobs to determine if they can go back to one of those jobs

and

B) They can measure the the claimant's level of remaining function against the requirements of certain "other jobs" to determine if they actually have the capability to transition to one of those jobs.

Limitations in functionality (in other words, limitations in the ability to sit, stand, crouch, stoop, lift, hold, hear, see, smell, speak, remember, learn, get along with others, etc, etc, etc) make all the difference as to whether or not a person will be approved for disability or denied for disability benefits. And evidence of such limitations are exactly what disability examiners (at the initial disability claim and reconsideration appeal levels) are looking for.

Unfortunately, most physicians do not include in their notes very much in the way of statements regarding observed functional limitations. Why don't they?

The answer is probably as simple as this: they record the information they need, versus the kind of information that may be needed by others, potentially, at some point---including insurance companies, attorneys, and the social security administration.

Because doctors typically do not write their progress notes with the goal of indicating a patient's functionality (and if you think about it, this makes sense for them as doctors are doctors and are not therapists), it really becomes part and parcel of the job of a disability adjudicator (an administrative law judge or a disability examiner) to extrapolate a claimant's residual functional capacity from what can be gleaned and inferred from a reading of the medical records.

Of course, this is where the subjective nature of a social security disability or SSI disability claim really comes into play. Because what one disability decision maker may extrapolate (to extrapolate is to draw is to draw a conclusion from a series of known facts) may not necessarily be what another individual might extrapolate based on a reading of the medical records.

For this reason, of course, getting a medical source statement from a claimant's treating physician, either on an RFC (residual functional capacity) form or on a medical source statement (same thing, different name) can be paramount to winning a claim. Such a statement can effectively present a rationale to a decision-maker as to why a claimant should be approved or denied. And it does this by having the physician do, in fact, what none of his actual medical records did; that is, state what the claimant's level of function is. For example, a good RFC form may ask for an extensive amount of information regarding the following (but certainly not limited to the following):

A) Has the impairment (or impairments) lasted, or can be expected to last, 12 months?

B) To what degree is the patient limited in the ability to deal with work stress.

C) How often is the patient's pain severe enough to interfere with attention and concentration?

D) Is the patient a malingerer?

E) Does the patient experience medication side effects that may have implications for working?

F) Does the patient experience pain and, if so, what is the nature, location, frequency, and severity of the pain?

These, of course, are just a few examples of the types of questions that might be asked of one's treating physician on a form of this type. A good form that is designed to obtain a detailed medical source statement from a doctor can easily have 20+ areas for the doctor to address. However, if the form is constructed in a check-off format, the form can still easily be completed by the physician in roughly ten to fifteen minutes, including the time it takes the doctor to pull and quickly review the patient's file.

The medical source statement / residual functional capacity form that is available from this site, www.disabilitysecrets.com may be obtained by visiting the home page, scrolling to the bottom, and clicking the download link for either the mental or physical RFC form.





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Is Pollution Linked to Liver Disease?

Digestive Disease Week was held in Chicago, IL this year from May 30th – June 4th, 2009. The world’s largest gathering of physicians and researchers in the fields of hepatology, endoscopy, gastroenterology, and gastrointestinal surgery was sponsored by the Society for Surgery of the Alimentary Tract, the American Association for the Study of Liver Diseases, the American Society for Gastrointestinal Endoscopy, and the American Gastroenterological Association Institute. During Digestive Week the findings of a new study done by researchers at the University of Louisville examining liver disease and pollution was shared with some interesting results.

The study used data from the National Health and Nutrition Examination Survey during the years of 2003-2004 to determine the connection between environmental pollutants and liver disease. The study looked at nearly 4,500 subjects with liver disease and also looked at over 110 common pollutants to see if they were present in the subjects. They found that many low-level pollutants, such as mercury and lead, were found in at least 60 percent of the subjects.

In the end, the researchers determined that one in three adults has liver disease in the United States, and that some of the cases of liver disease can be attributed to chronic low-level environmental pollution. This was after adjusting for obesity, viral hepatitis and alcoholism, all three of which present risk factors for liver disease.





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When Does Social Security Schedule a Psychiatric Exam?

Once a Social Security disability claim has been taken it is forwarded to a state disability agency for processing. Your disability claim is assigned to a disability examiner who has the responsibility of making a medical disability determination.

Disability examiners gather the medical evidence for the treatment sources that you provided at your initial disability application interview.

If the disability examiner receives your medical treatment information and finds that your treatment notes are not current (within the past three months), or there is no treatment for your alleged psychiatric condition, or the treatment information contained in file is insufficient for a medical decision, they may consider a consultative psychiatric exam to if you have a medically determinable psychiatric impairment.

Generally, Social Security will not unnecessarily schedule consultative examinations unless they feel they need more information for a medical decision.

But, however, if you have good current psychiatric treatment, Social Security will most likely not send you for a psychiatric examination.

If you did not allege a psychiatric impairment, but Social Security schedules your for a psychiatric examination, there was, most likely, some indication in your medical treatment notes, you activities of daily living questionnaires, or in your third party questionnaire (a questionnaire most often completed by the person you listed as a third party contact on your application) that you have some type of psychiatric impairment (i.e. depression, bipolar disorder,a learning disorder).

Social Security is obligated to address any indication of a mental condition even if you did not allege a mental impairment when you filed your claim for disability.






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Depression and its link to Pain

Chronic pain and depression are both serious health issues. A recent study set out to determine whether chronic pain and depression are linked in any way. The study was founded based on the estimation from doctors that nearly 30 to 50 percent of all people that suffer from chronic pain, also suffer from depression. The study was published in the Journal of the American Medical Association.

The study found that taking anti-depressants for depression can also have an effect on the level of pain patients experience. Researchers decided that when a patient is depressed the level of pain they feel is amplified. When taking anti-depressants, patients were able to get better results from their therapy sessions, reduce their levels of pain, and do more things that lift their mood and reduce pain in general.

Researchers found that when patients experience pain they are more likely to feel depressed because of the pain, and can even experience anxiety due to their inability to function normally, engage successfully in work, and keep their relationships and lives up to their normal level of functioning. Experiencing depression and anxiety along with the pain can make all facets of pain worse and increase the overall feeling of depression. Taking anti-depressants can help patients actively engage in pain management techniques and physical therapy.





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