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.
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.
Substantial Gainful Activity Amount For 2010 SSA Disability
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. In 2010, for non-blind individuals, the amount is $1,000 per month. Currently, the amount is $980 per month. For blind individuals, the 2010 amount is $1,600 per month, which is the same amount used in 2009. I previously posted the amounts back to the year 2000, which you can see by clicking here.
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.
Most People Still Turned Down on Initial Social Security Disability Benefits Application in Indiana
The report for Fiscal Year 2008 is out on the Initial and Reconsideration denial rates for Indiana. 63.8% of the Initial Applications for disability benefits were denied and at the Reconsideration level 93.2% were denied. These levels have not changed much since last year.
Most people tell me that they have heard that ‘everyone gets turned down twice,’ but they always think it will not happen to them. With odds like these, year after year, you have to know the rules . You need to know when to hire an attorney to represent you.
Star Trek and Social Security Disability In Indianapolis
The new Star Trek movie is out. As I have not seen it yet, I can not tell you what you can learn about Social Security Disability hearings in Indianapolis from the new movie. I did learn a great deal about Social Security Disability hearings from the original TV show. Click here to find out what you can learn about Social Security Disability hearings from the original Star Trek.
More of the Priorities of Social Security and the Proposed Budget
As noted yesterday, with the recently released statement of Michael J. Astrue, Commissioner of Social Security, commending the President’s Fiscal Year 2010 Budget Request, SSA posted a link to a document that spoke about the priorities of SSA and the proposed budget. Here are some more statements of interest:
“SSA is responsible for the Nation’s two primary Federal disability programs: Disability Insurance and Supplemental Security Income. Over the last 5 years, our disability workloads have grown significantly, and this trend will accelerate as baby boomers reach their most disability-prone years. We cannot lose sight of the fact that this longer-term increase in disability claims is coming, regardless of when the American economy begins to recover.
The time is now, despite the challenges of the economic downturn and the hearings backlog, to modernize the disability process to avoid future backlogs and provide applicants with speedy decisions. Technological improvements alone cannot remedy the issues in the disability process. We must revise the policy and medical guidance at the core of the program to align with medical technology and knowledge. A modernized disability process will help us to better serve the public and fulfill our obligation to provide a fair process to the American people. The following initiatives form the core of our disability modernization program in FY 2010:
Improve Occupational Information for Making Disability Determinations and Decisions
SSA is working on the development of a new occupational information system that will replace the out-of-date Dictionary of Occupational Titles (DOT) used in SSA’s disability determination process. The DOT was originally created by the Department of Labor (DOL) and has become a cornerstone of our disability policy. We rely on the descriptions of work in the DOT to determine whether individuals can do their usual work or any other work in the U.S. economy. However, DOL has not updated the DOT since 1991 and has no plans to do so. DOL’s replacement for the DOT, O*NET, does not serve SSA’s purposes. It is critical that we base disability determinations on current job information.
SSA awarded contracts in 2008 for the use and evaluation of updated occupational information. In December 2008, Commissioner Astrue established the Occupational Information Development Advisory Panel to provide advice and recommendations on plans to replace the DOT. The panel advises SSA on the creation of an occupational information system for disability programs and adjudicative needs. Specifically, the panel will advise on medical and vocational analysis, occupational analysis, data collection, use of occupational information, and other areas. The panel had its first meeting in February 2009 and has three more meetings scheduled this year.
SSA will continue its efforts to replace the DOT in FY 2010, when the agency will begin identifying the physical and mental abilities and skill levels that occupations require, developing the means of gathering occupational information, and researching assessment of residual functional capacity.
Update Medical Listings
SSA uses the Listings of Impairments to describe impairments considered severe enough to prevent an individual from working and earning above a defined level. The listings are a critical factor in our disability determination process; however, we have not updated some listings in decades. We are working to expand the listings to include rare disease and permanently disabling conditions. We are also working to update all of our existing listings by the end of FY 2010. We have also developed a long-term schedule to ensure that in the future we update all listings, as needed, but at least every 5-7 years. Updated listings allow disability examiners and SSA adjudicators to identify eligible applicants early in the disability determination process and result in improved disability decisions.”
All of this sounds good in the abstract. However, ONET was going to replace the DOT for disability hearings until it was determined it would not actually work in a disability hearing. Listings have been updated and some old listings have been completely removed because the listing was supposed to be covered by the new listing; however, the ALJ’s and Medical Experts do not always understand this. SAA has rolled out other plans that were supposed to help but only made things worse. Time will tell if these “improvements” actually improve things in the real world.
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?
