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Posts from the ‘Medical Impairment’ Category

6
May

Social Security Disability and Third Party Verification

You only get paid benefits if you can prove that it is your medical impairment that prevents you from working. Many times people pursuing their Social Security Disability Benefits forget that Social Security wants to verify everything from a third party that Social Security considers reliable. They do not remember that if it is not verifiable by a third party that SSA considers reliable, then the fact does not exist. The third party that can verify your medical impairments and how they are affecting you on a particular day is your doctor.

Just because your doctor told you six months ago that there was nothing more the doctor could do for you – this is as good as it gets – does not mean that you can stop going to the doctor. If you do not have medical records (that third party verification) for those six months, the judge can say that there is no proof that your medical condition did not improve during that time or that it stayed the same, therefore you have not proved that your medical condition prevented you from working those six months. This could result in a complete loss of benefits. If you have seen the doctor in that time, then the medical records can document that you did not improve. Also, the doctor may document some facts that the doctor did not previously document. These facts may be what convince the judge that you can not work.

Another problem is that most doctors do not put in their medical records that they told you that this is as good as it gets. When you tell the judge that is what the doctor says, there is no way to verify this in the medical records. In preparing your case to win, you must assume that without third party verification of what you say that the judge will not believe you. Otherwise you are gambling that maybe you will be lucky and the judge will believe you. Why would you want to gamble on winning when you can continue to see the doctor and generate the third party evidence (medical records) that will show what your medical condition was?

5
Feb

What Is Your Level of Pain?

That is what the nurse was asking me recently as I lay in my hospital bed after my surgery. She wanted me to rate my pain from 0 to 10. I had pushed the button for the nurse and asked her for another morphine shot. I knew it was time to have it by the pain I was having, and by the doctor’s orders I could have had it sooner, but what number should I put on my pain?

I told the nurse that I hated the pain scale as I have had clients who had rated their pain at a number that the judge in their disability case thought was the wrong number for what they were describing. “What is a level 5, what is a level 8?” I asked. I was over-thinking this and the nurse just wanted to chart it, give me my shot, and move on. She agreed with me that the number was arbitrary, but that she needed to chart it. So I picked a number.

As I lay in my hospital bed, I could not help but think of the countless hearings I have been in where the judge has asked my clients to rate their pain. One judge said that a 10 was the worst pain you could imagine. What he did not say was that if you said a 10 he automatically disbelieved you as he believed that no one could be sitting there with a pain level of 10 (he never told them that to their faces). Other judges had no problem with a pain level 10.

I hate the pain scale because there is no way for us all to calibrate our measurements so that they are all the same. I have observed clients in great pain who state that their pain is a 6. I have had other clients who appeared to be in less pain that also said that their pain was a 6. So what is a level 6?

How did I want to compare the pain I had the two nights that I could not sleep from the pain to the pain that I had after surgery? There was a time I thought my pain might be a 10, but what about those I have seen who suffered more than I did those two nights I could not sleep? If delivering a baby is a pain level of 10, was my pain that bad? Since I am a man, I will obviously never know how my pain compares to the pain of childbirth.

So I started to answer the nurse the way I advise my clients to tell their medical providers about the pain. I started to describe the pain without putting a number on it. I started to give the nurse details about the pain. How it felt. Where it was. What aggravated it (at that point for me it was just shifting in the bed). What kind of pain it was ( by this I mean was it hot, cold, constant, throbbing, stabbing, electrifying ect.) How intense it was. She wrote down my description. Now a “real” description of my pain was recorded.

It is important to get a “real” description of your pain recorded into the medical records every time you visit your medical provider. This will allow the judge to read your descriptions and know how your pain was at the beginning of your disability and how the pain continued during all of the time that was disabled. If you only give a number, you and the judge may have different ideas as to what that means. The only way you could “both be on the same page” would be for you to calibrate with the judge your pain measurements on the same scale to discover that your 6 is his or her 8. The problem is that this can not happen until the hearing, and the judge will have already read the file and decided how bad your level 6 pain is. It may be hard for the judge to change his mind. If your full blown description of the pain is in your medical records, the judge will read that as he reads the file and decides how bad your pain is.

Your full blown description of the pain in your medical records is vital to your case.

13
Aug

What kind of ‘eye witness’ are you?

When will I ever learn? Upon return from my vacation, I started to get the sniffles. Sneezing. A summer cold, I thought. Coughing. I went to work on Monday and was determined to get started on getting caught up from being gone a week. Mid-afternoon I was really slowing down, but I pressed on, even though I wanted to go home and go to bed. Boy, I thought, I had really gone soft from that week of sleeping in. Stephanie, my paralegal, even told me I looked pale. I thought, oh, I don’t feel that bad—I will press on. I was glad I made it to 5:30 before I finally went home.

Next day I struggled on. Boy, is this cold annoying, I thought. On Wednesday morning, at about 10:30 (if I had looked at my watch I could tell you the exact time), both my ears suddenly ‘closed off’ and both suddenly began to hurt with that pain you get when you have a cold and fly on a jet. Ah, I thought, I will just take some decongestant when I go home tonight, and my ears should open up on their own soon. By 2:30 PM, I could not take the pain anymore and finally went home to take some decongestant. I waited for my ears to open and the pain to go away. At 1 AM, when I still could not fall asleep due to the pain, I finally wised up and took some Tylenol.

Next morning I thought the pain had gone away and debated about calling the doctor. I finally decided to let him take a look. I continued to work from home. At my appointment that afternoon, he found that both my ears did “look bad.” Double ear infections. Antibiotics were prescribed.

Did I stay home and rest the next day? No. Stubborn me, I went to work for a while, until I finally recognized that I was worthless. Did I stay home on Monday to get well? Nope. I thought I was doing so much better. I could work. Stephanie commented that I looked tired. I finally went home. I will not bore you with the details of how I continued to go into work when I should have stayed home and gotten well because I did not realize how sick I was.

I should have known better. Stephanie has worked for me for several years. She knows me. When she told me I looked pale, I should have remembered that the last time she commented about how I looked pale, I finally went to the doctor to discover I had severe bronchitis/walking pneumonia and was sick for three weeks. When Stephanie tells me I look pale, I should know that means ‘you need to see a doctor immediately because you are really sick.’ I did not get the hint. But both times, I did not want to believe that I was that sick, I did not think I felt that sick, and it never registered to me how sick I really was. I thought I was capable of doing much more than I could.

I see this all the time. My disabled clients want to believe that they can do more than they really can. I remember the man who came in with his family. They had finally gotten him to come in and begin to think about applying for his Social Security Disability. He and his wife sat in the first row and his grown kids were in the second row. I asked him to tell me what he could still do. While he was telling me, his kids were shaking their heads “NO!” until one finally said: “Dad, you have not been able to do that for three years.” He turned around and looked at his child. The other ones all shook their heads in agreement. Dad, like me, did not think he was that bad off and it had never registered with him what he could not do. Both of us were not good ‘eye witnesses’ about ourselves. We needed those that really knew us to tell us the truth about how we really were. Neither of us invited the assessment. We just assumed that we knew what we could do. Neither of us decoded the hints that were given to us.

I advise client’s to invite their loved ones to give them an honest, blunt, no holds barred assessment of what they can and can not do. Pick a good day when you can take it, and give them permission to tell you what they see. Go to your doctor and find out what he or she really thinks you can do. Evaluate what they say. Test it out. You may find out that like me, you are a really bad ‘eye witness’ for yourself when you do not have this information.

When you talk to Social Security about your medical conditions, you want to tell the truth, the whole truth, and nothing but the truth. Don’t be a bad witness for yourself. Test your assessment against what your family and your doctor sees. See if you need to ‘wake up and smell the coffee’ like I needed to. Don’t let you fool yourself into thinking you can do more or less than you can. Take the steps to become a good witness for yourself by figuring out what you used to be able to do before your medical impairments and what you can do now.

15
Jul

SGA – Substantial Gainful Activity- Presumptive Amounts

At Step One of the Five Step Sequential Analysis , Social Security determines if you are engaged in Substantial Gainful Activity (SGA). When you work for someone else and are not self-employed, SSA usually uses a “rule of thumb” to determine if someone is engaged in SGA. According to this “rule of thumb” if you earn a certain dollar amount or less, you are usually not considered to be engaged in Substantial Gainful Activity. Read moreRead more

9
Jul

The Whole Truth

Sometimes claimants forget that in the questions that Social Security asks, they are always really asking: “how does your medical impairment keep you from working?”

Social Security asks a lot of questions about what you do during the day. These types of questions are about your activities of daily living. The idea is that if Social Security asks you what you do day in and day out and learns what you do, they can then figure out if your medical impairment would prevent you from working.

So, what does Social Security conclude if you state that you go out to eat several times a month? This depends upon what your medical impairments are.  Assume you cannot work due to back pain. You cannot stand for more than 15 minutes at a time before you have to sit down for 15 minutes. You cannot sit for more than 30 minutes before you have to stand or lie down. Can you guess what conclusions Social Security is likely to jump to about your ability to work because you go out to eat?

When I go over these types of issues with my clients, they have no idea what the real question is that they are answering. Due to not knowing the real question, they do not tell all that they know that is relevant to the real question. Since they do not tell everything they know that is relevant to the real question, they actually end up in effect lying.  They are not telling the whole truth, only part of the truth. Do not misunderstand me, they are trying to tell the truth, but they do not understand the real question.  They are not telling all that they know which is critical to answering the real question. This partial truth-only part of the facts-is used by Social Security to reach conclusions about whether or not they are disabled. When they do not have all of the facts, how can Social Security make the right decision?

Some Administrative Law Judges will compare what the claimants says at the hearing with what they told SSA at the beginning of the process before the claimant understood what was really being asked.  If there is any variation, they conclude that the claimant is not being truthful.  Our clients want to tell the truth. We help them to tell the whole truth at the beginning of the process. We help them understand the question – the real issues in the questions that Social Security is going to ask them. Do you have someone with the experience needed to help you tell the whole truth?

7
Jul

Five Step Sequential Evaluation

Social Security uses a 5 step sequential evaluation process to decide your claim. Read moreRead more

3
Jul

Celebrate Our Liberty and Rights

us flag

I hope you have a fun and safe Fourth of July. It is a great time to celebrate our liberty and rights. The holiday is known as Independence Day because our forefathers had to fight for our liberty and rights. The government of that time (British) did not want to recognize the rights that we were claiming. It was only by our forefathers fighting hard and not giving up that we have our rights today.

No one man could do it by himself. Read moreRead more

30
Jun

Medical Impairment, Ability to Work, & Social Security Disability

I previously discussed Medical Impairments and Social Security Disability. Sometimes claimants forget that Social Security only pays disability benefits if you can prove that it is your medical impairment(s) that prevent you from working. SSA does not pay for bad attitudes (unless it is a diagnosed personality disorder that is rather severe), the factory closing, or ‘I just for some unknown reason can not work’. You have to prove that it is your medical impairment that prevents you from working.

When you are proving that it is your medical impairment that is keeping you from working, Read moreRead more

17
Jun

When Should I Hire An Attorney For My Disability Case?

I recently was the moderator of a panel discussion at the Indiana Continuing Legal Education Forum Social Security disability seminar “Persuasion at Social Security Hearings: Beyond the Mechanics at ODAR Hearings”. During another part of the seminar, an attorney was asked when he would begin representing clients in their Social Security Claim. He responded that he would not represent a claimant until they had been turned down at least once. I used to do it that way.

When I first started representing claimants in 1994, I also would not take a client until they had been turned down at least once. I reasoned that if someone could be approved on their initial application without an attorney, why not let them go ahead on their own and find out if their claim could be approved. They could save an attorney fee and it would not hurt their case if they did lose, so why not wait to see who really needed an attorney to help them?

But then I started to notice something. When people applied by themselves, they were making it harder to win their case by not having an attorney at the beginning to explain to them the rules of Social Security. They were unknowingly lowering the odds for success at that stage and at the appeal stages. They were not realizing that they were making strategic decisions that might ruin their claim before some administrative law judges. They did not have someone to help them figure out what was the relevant evidence that they needed to be sure they presented to Social Security. I figured out that I was wrong-people were hurting their case by not having an attorney at the beginning of their case.

Several years ago I decided that I had to start taking claimants as clients as soon as possible. Claimants needed to be represented before they filed their claim. If I made a claimant wait until they were turned down before I would represent them, their not knowing the rules put them at a disadvantage: bad evidence was created, good evidence was not brought forward, other strategic choices were being made that could not be undone, and good claims were being unnecessarily tainted with misinformation.

Do not wait to hire an attorney. Get competent help before you file so that the job will be done correctly from the beginning. Do not hope that the attorney can tear out the bad and re-do it. Do it right the first time. It can shorten the whole disability process. Get an attorney that will represent you from the beginning of your claim. Have someone on your side that knows the rules of Social Security and can explain them to you.

11
Jun

Medical Impairment and Social Security Disability

Social Security only pays benefits if you have a medical impairment that prevents you from working. The claimant has the burden of proof -that is a “lawyer way” of saying that you have to prove you have a medical impairment and you have to prove that the medical impairment is the reason you can not work.

The best proof of you having a medical impairment is the medical records that document a doctor diagnosing the impairment. When someone has something wrong and the doctors just can not figure out what it is, Read moreRead more

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