Another Reason You May Be Denied Your Social Security Disability Benefits
Most people who are turned down for Social Security Disability Benefits cannot believe that they were turned down when they applied for benefits. They do not realize that in Indiana approximately 65% will be turned down when they first apply. They just cannot believe the SSA would get such an important decision wrong.
When you apply for disability, your claim is sent to a state agency that SSA hires to made the medical determination of whether you are disabled. In many states this is called the Disability Determination Service, DDS, while in Indiana the current name is the Disability Determination Bureau, DDB. It is these State workers that decide your claim.
The National Association of Disability Examiners, NADE, describes itself as:
a professional association whose purpose is to promote the art and science of disability evaluation. The majority of our members work in the state Disability Determination Service (DDS) agencies where 15,000+ employees adjudicate claims for Social Security and/or Supplemental Security Income (SSI) disability benefits. As such, our members constitute the “front lines” of disability evaluation.
A recent issue of The NADE Advocate, Volume 26, Number 1, provides insight into why SSA may make the wrong decision in your case.
The growing complexity of the Social Security and SSI Disability Programs, coupled with the need to produce a huge volume of work, justifies even more the need for adequate resources in order to provide the service that the American public has come to expect and deserve from SSA. It takes an average of two years for a newly hired disability examiner to become fully trained and proficient to the point they can function independently and contribute to the process of making timely and accurate disability decisions. Thus, decisions not to replace productive personnel when they leave can take two or more years to correct even after new hires are made. NADE has long maintained that it is critical for SSA to be provided with the resources needed to hire and train new staff that can perform these duties. Low salaries, hiring restrictions and the stress of the job have contributed to high attrition (12.3%) in the DDSs. (Emphasis added)
Constantly having to replace 12.3% of the workforce and it taking two years before they can function independently, plus the stress of the job to get the work out fast, combined with low pay, may be a reason that DDB makes the wrong decision so many times.
The important point for you is that you should not be discouraged when your claim is turned down at the initial or reconsideration stages. With approximately 65% turned down on initial application and approximately 93% turned down at Reconsideration, you should take the steps necessary to increase your odds of winning. You will need an experienced attorney in Social Security claims to help you increase your odds in what NADE calls a “growing complexity of the Social Security and SSI Disability Programs.”
Unlike many attorneys, I will begin to help you with your case before your file your claim. Read When Should I Hire An Attorney For My Disability Case? for my reasons why. What are you doing to increase your odds of winning?
Indianapolis Social Security Disability Cases Appeal Processing Time Continues to Fall!
The processing time for appeals that go to hearing in Indianapolis continues to fall. At the end of November 2009, the average processing time from the Request for Hearing was 579 days. In June of 2008 it was 896 days and in April 2009 it was 738 days. As I noted in my June 12, 2009 post, a new hearing office is supposed to be up and running in Valparaiso, IN in September 2010. I would expect that once that office is open, SSA will reconfigure service areas of the different hearing offices so that all of the Indiana hearing offices will have shorter waiting times.
Social Security Compassionate Allowances Expanded For Disability
Michael J. Astrue, Commissioner of Social Security, announced that the agency is adding 38 more conditions to its list of Compassionate Allowances. This is the first expansion since the original list of 50 conditions – 25 rare diseases and 25 cancers – was announced in October 2008. The new conditions range from adult brain disorders to rare diseases that primarily affect children.
Compassionate Allowances are a way of quickly identifying diseases and other medical conditions that clearly qualify for Social Security and Supplemental Security Income disability benefits. It allows the agency to electronically target and make speedy decisions for the most obviously disabled individuals. In developing the expanded list of conditions, Social Security held public hearings and worked closely with the National Institutes of Health, the Alzheimer’s Association, the National Organization for Rare Disorders, and other groups.
“The diagnosis of Alzheimer’s indicates significant cognitive impairment that interferes with daily living activities, including the ability to work,” said Harry Johns, President and CEO of the Alzheimer’s Association. “Now, individuals who are dealing with the enormous challenges of Alzheimer’s won’t also have to endure the financial and emotional toll of a long disability decision process.”
“This truly innovative program will provide invaluable assistance and support to patients and families coping with severely disabling rare diseases,” said Peter L. Saltonstall, President and CEO of the National Organization for Rare Disorders (NORD). “On behalf of those patients and families, I want to thank Commissioner Astrue and his enthusiastic team for creating and now expanding a program that will have a direct impact on the quality of life of thousands of individuals.”
“The initiative not only assists those whose applications are quickly processed, but also assists those whose applications need more time and attention from SSA adjudicators,” said Marty Ford, Co-Chair, Social Security Task Force, Consortium for Citizens with Disabilities. “We are pleased to see today’s expansion and look forward to working with Commissioner Astrue on further expansion of this decision-making tool and other ways to expedite determinations and decisions for disability claims.”
“We will continue to hold hearings and look for other diseases and conditions that can be added to our list of Compassionate Allowances,” Commissioner Astrue said. “There can be no higher priority than getting disability benefits quickly to those Americans with these severe and life-threatening conditions.”
Social Security will begin electronically identifying these 38 new conditions March 1.
New Compassionate Allowance Conditions
- Alstrom Syndrome
- Amegakaryocytic Thrombocytopenia
- Ataxia Spinocerebellar
- Ataxia Telangiectasia
- Batten Disease
- Bilateral Retinoblastoma
- Cri du Chat Syndrome
- Degos Disease
- Early-Onset Alzheimer’s Disease
- Edwards Syndrome
- Fibrodysplasia Ossificans Progressiva
- Fukuyama Congenital Muscular Dystrophy
- Glutaric Acidemia Type II
- Hemophagocytic Lymphohistiocytosis (HLH), Familial Type
- Hurler Syndrome, Type IH
- Hunter Syndrome, Type II
- Idiopathic Pulmonary Fibrosis
- Junctional Epidermolysis Bullosa, Lethal Type
- Late Infantile Neuronal Ceroid Lipofuscinoses
- Leigh’s Disease
- Maple Syrup Urine Disease
- Merosin Deficient Congenital Muscular Dystrophy
- Mixed Dementia
- Mucosal Malignant Melanoma
- Neonatal Adrenoleukodystrophy
- Neuronal Ceroid Lipofuscinoses, Infantile Type
- Niemann-Pick Type C
- Patau Syndrome
- Primary Progressive Aphasia
- Progressive Multifocal Leukoencephalopathy
- Sanfilippo Syndrome
- Subacute Sclerosis Panencephalitis
- Tay Sachs Disease
- Thanatophoric Dysplasia, Type 1
- Ullrich Congenital Muscular Dystrophy
- Walker Warburg Syndrome
- Wolman Disease
- Zellweger Syndrome
Here is the list of the previously announced conditions.
Social Security Disability and Computer Usage
There are rumors that an administrative law judge stated in a seminar that he went on line and researched to see if the claimant had job applications pending during the claim. The speculation is that the ALJ is using on-line research skills to see if current resumes are being posted by the claimants. Why would this be important to the ALJ?
When you apply for Social Security Disability, you are stating that you cannot do an 8 hour a day job 5 days a week. If you have posted your resume seeking work, some might conclude that you really think you can work. The old adage “you cannot have your cake and eat it too” comes to mind. Some will conclude that you really are not disabled and you are only using the Social Security Disability system to provide you a means of support while you are looking for work. After all, if you cannot work, why would you be posting your resume seeking work?
Perhaps you posted a resume on line shortly before you became disabled. Have you forgotten about it? Did you remember to remove it from the site when you became unable to work? Even if you did, can it still be retrieved from the web?
Much has also been made in the news media about potential employers looking at social media sites such as Facebook and MySpace to see what they can learn. If someone might research you, what might they learn about you at these sites? If you participate in an online chat group, how might your comments be misconstrued? Also, if you are posting all the time, what might that say about your computer skills and your ability to concentrate? Do not assume that the postings are private because it is a disease support group web site. Who knows, your ALJ may actually belong to the support group and be reading about you.
There used to be an ALJ in Indianapolis that would state that he got on the SSA system the day before the hearing and personally ran the earnings records to see what it showed. He would then ask the claimant pointed questions about the latest findings. You need to be prepared to answer the ALJ’s questions about what the internet reveals about you. You may hear the ALJ begin a question with “I see on the web that…..”
Social Security Sending Corrected Benefit Notices
The Social Security Administration earlier this month mailed notices that contained incorrect January 2010 payment dates. Read more
ICLEF asks Tom S. Ebbinghouse to Teach Lawyers about Social Security Disability
The Indiana Continuing Legal Education Forum (ICLEF) has asked that I speak at the “Entitlements Planning” seminar on December 17th. I will be teaching other lawyers about Social Security Disability. The purpose of ICLEF is to advance and promote the administration of justice and understanding of the law through the institution, supervision, implementation, coordination and administration of a program of continuing legal education for the use and benefit of members of the legal profession. The directors of the Indiana Bar Foundation, which is associated with the Indiana State Bar Association, incorporated ICLEF as in independent non-profit corporation in 1964. The Co-sponsors are the Indiana Bar Foundation, the Indiana State Bar Association, the Indiana University School of Law, Notre Dame Law School and Valparaiso University School of Law. You can read the list of seminars that I have Chaired and/or made a presentation to teach lawyers about Social Security Disability here.
Happy Thanksgiving
Best wishes for a Happy Thanksgiving. Today is “the” day that we stop, count our blessings, and give thanks for them.
I encourage my disabled clients to stop and celebrate the blessings in their life on a regular basis. It is easy to get mired down in the negative things that are going on in our lives. This is especially true when you are ill and disabled. You never thought that you would not be able at this point in your life to do the “normal” things that are now impossible to do. It is very easy to only focus on the things in your life that you have lost. This “stinkin’ thinking”, as Zig Zigler calls it, will eventually pull us down. If you are ill and disabled, please stop on a weekly basis to count your blessings and give thanks for them. By focusing on the “good” in your life, it will be just a little bit easier to continue to in your daily life. Even if you can not have the Thanksgiving Day you would like today, look for the good and you will find something that you can give thanks about. It will be good medicine for you.
Why Your Nurse Pratitioner May Make Your Social Security Disability Case Sick
More and more of my clients have seen a Nurse Practitioner for their medical care. Some like the Nurse Practitioner so much that they no longer actually see the doctor or their return appointments just keep being made with the Nurse Practitioner. The Nurse Practitioner is giving them great care, so why should they care if they see a Nurse Practitioner instead of a doctor?
Social Security divides medical sources into two categories: “acceptable medical sources” and other health care providers who are not “acceptable medical sources”. Nurse Practitioners are in the category of other health care providers who are not “acceptable medical sources”.
In Social Security Ruling 06-03, SSA explains that it makes the distinction for three reasons: First, SSA needs evidence from “acceptable medical sources” to establish the existence of a medically determinable impairment. Second, only “acceptable medical sources” can give SSA medical opinions. Third, only “acceptable medical sources” can be considered treating sources whose medical opinions may be entitled to controlling weight.
This means that the medical evidence from a Nurse Practitioner can not establish your medical impairment at Step 2 of the Sequential Evaluation. You must establish your medical impairment in order to win your benefits.
This means that if all of your treatment is by a Nurse Practitioner, then you have no one who can give SSA a medical opinion about how your medical impairments restrict what you can do.
In a card game, a King beats a Jack. Social Security does not even treat a Nurse Practitioner as a Jack–more like a low card. This is not good for your case!
Social Security Disability Compassionate Allowances
In October 2008, Social Security launched Compassionate Allowances to expedite the processing of disability claims for applicants with medical conditions so severe that their conditions by definition meet Social Security’s standards. According to Social Security, the idea is to fast track those cases for quick processing.
On July 29,2009, Commissioner Astrue was joined by Marie A. Bernard, M.D., Deputy Director of the National Institute on Aging, National Institutes of Health, and other Social Security officials, to hear testimony from some of the nation’s leading experts on early-onset Alzheimer’s disease and related dementias about possible methods for identifying and implementing Compassionate Allowances for people with early-onset Alzheimer’s. Early-onset Alzheimer’s and related dementia has not yet been added to the list.
Here is the list of the first 50 impairments — 25 rare diseases and 25 cancers included in Compassionate Allowances:
1. Acute Leukemia
2. Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
3. Alexander Disease (ALX) – Neonatal and Infantile
4. Amyotrophic Lateral Sclerosis (ALS)
5. Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
6. Astrocytoma – Grade III and IV
7. Bladder Cancer – with distant metastases or inoperable or unresectable
8. Bone Cancer – with distant metastases or inoperable or unresectable
9. Breast Cancer – with distant metastases or inoperable or unresectable
10. Canavan Disease (CD)
11. Cerebro Oculo Facio Skeletal (COFS) Syndrome
12. Chronic Myelogenous Leukemia (CML) – Blast Phase
13. Creutzfeldt-Jakob Disease (CJD) – Adult
14. Ependymoblastoma (Child Brain Tumor)
15. Esophageal Cancer
16. Farber’s Disease (FD) – Infantile
17. Friedreichs Ataxia (FRDA)
18. Frontotemporal Dementia (FTD), Picks Disease -Type A – Adult
19. Gallbladder Cancer
20. Gaucher Disease (GD) – Type 2
21. Glioblastoma Multiforme (Brain Tumor)
22. Head and Neck Cancers – with distant metastasis or inoperable or uresectable
23. Infantile Neuroaxonal Dystrophy (INAD)
24. Inflammatory Breast Cancer (IBC)
25. Kidney Cancer – inoperable or unresectable
26. Krabbe Disease (KD) – Infantile
27. Large Intestine Cancer – with distant metastasis or inoperable, unresectable or recurrent
28. Lesch-Nyhan Syndrome (LNS)
29. Liver Cancer
30. Mantle Cell Lymphoma (MCL)
31. Metachromatic Leukodystrophy (MLD) – Late Infantile
32. Niemann-Pick Disease (NPD) – Type A
33. Non-Small Cell Lung Cancer – with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
34. Ornithine Transcarbamylase (OTC) Deficiency
35. Osteogenesis Imperfecta (OI) – Type II
36. Ovarian Cancer – with distant metastases or inoperable or unresectable
37. Pancreatic Cancer
38. Peritoneal Mesothelioma
39. Pleural Mesothelioma
40. Pompe Disease – Infantile
41. Rett (RTT) Syndrome
42. Salivary Tumors
43. Sandhoff Disease
44. Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
45. Small Cell Lung Cancer
46. Small Intestine Cancer – with distant metastases or inoperable, unresectable or recurrent
47. Spinal Muscular Atrophy (SMA) – Types 0 And 1
48. Stomach Cancer – with distant metastases or inoperable, unresectable or recurrent
49. Thyroid Cancer
50. Ureter Cancer – with distant metastases or inoperable, unresectable or recurrent
Medical Diagnosis Alone Is Not Enough in Social Security Disability Case
I recently saw an article on the Social Security Disability Lawyer by attorney Gordon Gates about it not being the diagnosis but the severity of the impairment that is important. He states:
“When talking with Social Security disability claimants, I often hear a statement like “I can’t work because I have been diagnosed with bipolar disorder” (or degenerative disc disease, or fibromyalgia). The claimant makes the statement like the matter is settled. The reasoning seems to be: since there is a doctor’s diagnosis of my impairment, my disability claim should be granted.
Unfortunately, that reasoning is not at all correct. It is not the diagnosis of the impairment but the severity of the impairment that matters in a Social Security disability claim. And I explain this to clients every day.
The diagnosis is just the beginning. A good beginning to be sure, since the diagnosis satisfies the medically determinable requirement in a Social Security disability claim. But the important thing is the severity of your impairment. How much does it affect your functionality? How does it affect your ability to work? These are the important questions in a Social Security disability case.
What is missing from almost every denied Social Security disability claim is evidence establishing a claimant’s functional limitations. A medical diagnosis alone does not establish any functional limitations. And unfortunately, a patient’s medical records usually have little information regarding functional limitations (medical records are created and maintained for medical providers to track a patient’s medical care, not to establish disability).
So remember, it’s not the diagnosis but the severity of the impairment that matters. And a Social Security disability lawyer spends a great deal of time trying to obtain evidence – often a medical source statement – that will establish a claimant’s functional limitations.”
I am in complete agreement with Mr. Gates observations. I have the same conversations with people all the time. I remind people that they need to tell the whole truth about their inability to work. You really do need to know the rules of Social Security disability.
