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Category Archives for Back problems and disability

Is it Enough to Simply Show the Judge You have an Obvious, Disabling Condition?

What if you’re 26 but have Scoliosis mixed with Osteoporscoliosisosis? My back looks like the hunchback of notre dame. My doctor even told me I’d never be able to work a regular job, but that’s been since highschool and my backs got worse. Can I not show the judge how bad my back hunches over? Because clearly they can see I’m disabled if they just saw my back.

Jonathan’s response: I think you should not rely on showing the judge how bad your back hunches over. Your chances of winning disability are much greater if your medical record and opinion evidence from your doctors addresses how your scoliosis and osteoporosis impact your capacity for work.

First, keep in mind that Social Security is not scheduling live hearings at this point. We may go back to in person hearings at some point in 2021 but there will be a backlog and you are likely to wait a very long time to actually appear before a judge. Currently, all SSD hearings are being conducted by telephone. Some judges are starting to hear cases using video (you, as the claimant, would be appearing using your smart phone) but I suspect that the severity of your medical issues would not come through on video like it would in a live hearing. Continue reading →

Why You Should Avoid Using Labels at Your Social Security Disability Hearing

Most people applying for Social Security disability have some sort of firm diagnosis. For example, if you have back problems, your doctor may have shown you an MRI report documenting a herniated or bulging disc. If you have heart issues you may have been diagnosed with congestive heart failure or coronary artery disease. And if you struggle with mental health problems, you may have been diagnosed as being bi-polar, or having PTSD, or anxiety disorder.

When you get to your hearing, however, you should not rely on these labels as you explain to the judge why you contend that you no longer have the capacity for “substantial gainful activity” (i.e., work).

First, understand that many times the label used by one doctor might be different than that used by another. In my practice, for example, I frequently represent clients with mental health issues who have been diagnosed with depression, anxiety, PTSD, and/or bi-polar disorder – all by different physicians or psychologists. One medical provider may choose the label “depression” while a second doctor may choose the label “bi-polar.”

Similarly, I have seen multiple doctors read the same MRI report and come to different conclusions. One doctor may see a herniation, while another may see a bulge or an extrusion. Continue reading →

How Attorneys Identify Winning Back Pain Social security Disability Cases

by Jonathan Ginsberg and Erin Schmidt

You probably would not be surprised to discover that the most common impairment cited by Social Security disability applicants involves back pain. Because disability adjudicators and judges see so many back pain cases, you cannot simply walk into a disability hearing and testify that your back really hurts and that you cannot lift very much, walk very far, or sit very long, and expect to win.

Instead, Social Security disability judges expect to see evidence in the form of diagnostic test results (such as an MRI or CT scan), treatment notes from one or more physicians – ideally specialists – dating back months or years, evidence that conservative treatment like physical therapy or epidural injections have failed, and evidence that you are either a surgical candidate or that you have been referred for long term pain management.

In addition to evidence related to your back pain, Social Security judges look at evidence about other conditions such as depression, anxiety, diabetes, heart problems, and non-medical factors like your age, education, and work history.

Because so many folks have questions about back pain disability cases, I thought it would be helpful to describe the types of musculoskeletal pain cases that are getting approved at the end of 2017 and into 2018, and which types of cases are not being approved. Continue reading →

Hearing Strategies for Claimants with Multiple Medical Problems

multiple medical problems and social security disabilityGreg writes:  “I have seen many if not all of your YouTube videos and have to say you probably are the best disability lawyer on there. My case is rather unusual in the sense that I do not have one injury, I have three. I have a bad back, one herniated disk that causes a lot of pain for me and three bulging disks that are bad in their own right. My right hip is bad and needs replacement, I am on year 6 since it’s discovery. I also have two feet that have chronic pain from bad plantar fasciitis that have both been operated on with little to no success.”

“How on earth do I and my lawyers tackle this in a manner in which I can get approved ??? Should I have my primary doctor do a functional test on me for all three injuries or have each specialist do a functional test on each injury? Secondly is an MRI going to sway a judge more than an X-ray when these days X-ray specialists write their findings and send it to the treating doctors themselves.”

“Any advice would be much appreciated, and keep up your great work with helping us needy and injured.”

–Thanks, Greg

Greg, here are my thoughts. First, thanks for the kind words about my YouTube channel. I do put a lot of effort into creating these videos and I appreciate your positive feedback.

As far as your medical issues are concerned, I would defer to your lawyer who obviously can review and assess your medical problems. Speaking generally, however, my experience has been that it would likely be an uphill battle to base your disability case on planar faciitis since that condition is usually not totally disabling. It can eliminate categories of jobs that require more than minimal standing and walking but probably not sitting jobs. Continue reading →

Obesity and SSDI

The American Medical Association recently released a report [1. The AMA has recently designated obesity as a disease.] officially recognizing obesity as a disease.

With one in three Americans falling in the obese or super-obese BMI spectrum, the AMA hopes that by defining morbid obesity [2. The  University of Rochester Medical Center defines morbid obesity as follows:  if a person is 100 pounds over his/her ideal body weight, has a BMI of 40 or more, or 35 or more and experiencing obesity-related health conditions, such as high blood pressure or diabetes.] as a disease the medical community will implement more aggressive efforts to combat this debilitating condition (and the ancillary diseases associated with it) and prompt insurance companies to pay for treatments, counseling, and medication reimbursements.

What does this mean in the context of Social Security Disability?

Just because obesity has garnered much more attention as a debilitating disease by various members of the medical community, don’t assume SSDI will follow suit.  Currently obesity is not listed in the Social Security Administration’s Listing of Impairments, or database of diseases that will automatically qualify a claimant to receive disability benefits. Continue reading →

Understanding the Social Security Disability “System”

My colleague, San Francisco California Social Security disability attorney Geri Kahn, publishes an interesting and thoughtful Social Security disability blog that I read regularly.   This past April, she published a post that should be required reading for all disability applicants.  Entitled “Four Misconceptions About the Social Security System,” Geri succinctly discusses several issues that lead to a great deal of frustration for both claimants and their attorneys.

One of the points Geri discusses really resonates with me.   She answers the question “I have back pain and cannot work so why do you recommend that I see a psychiatrist?”

Great question.

chronic pain, depression and disabilityFor years, my practice has been to add an allegation of depression and/or anxiety to every Social Security appeal I file.  In my view it would be extraordinary if anyone with a history of regular work would not be depressed and anxious if he/she:

  • no longer has a regular work routine
  • experiences financial pressure because of lack of income
  • feels a sense of worthlessness because he/she can no longer contribute (this is especially true for men)
  • recognizes that he/she will not be able to engage in social, athletic and recreational activities at pre-impairment levels
  • has to deal with stress and anxiety inherent to anyone with chronic pain
  • has to deal with disrupted and sometimes damaged family relationships
  • has to deal with physical and emotional changes associated with strong pain medications
  • experiences new medical issues associated with his/her chronic medical condition (i.e., obesity, constipation, high cholesterol, etc.)

As a disability claimant, you may not even realize the impact your back condition has had on your life.  As attorneys, we look at you as a whole person to understand more fully why you can no longer work.   Not only will such a more expansive view of your damaged health benefit your case, it may help you better understand what you are going through as well.

Q & A: What medical sources are considered acceptable by the SSA?

Hello and welcome to the 7th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I discuss what types of medical providers are deemed as “acceptable medical sources” by the Social Security Administration.

Question:

I recently applied for SSDI, and I want to make sure that the medical records I am providing to the SSA are from “acceptable medical sources.” Can you explain in detail what the SSA views as an acceptable medical source?

My answer:

The SSA considers an “acceptable medical source” to be any licensed physician (this includes D.O.s – Doctors of Osteopathic Medicine), licensed or certified psychologists, licensed optometrists, hospitals, clinics, and other health facilities where a claimant has been treated.

Remember, as has been previously mentioned on this blog, claimants are highly encouraged to see a physician/specialist who focuses primarily on their specific impairment. In a previous post about the importance of seeking specialized medical treatment,  for example, an individual suffering from migraine headaches and blurred vision was advised to see a headache specialist or neurologist who could substantiate their claim.

While general physicians are very knowledgeable and skilled (and are deemed to be an appropriate medical source by the SSA), I typically encourage my clients to try and see a specialist whose practice concentrates primarily on their particular impairment. These specialists will have the proper credentials, testing methods, and treatment plans for you, and your seeking their help will only serve to make your claim more credible in the eyes of the SSA.

I would like to address one last question I sometimes get from people suffering from a physical impairment like back  or neck pain. Many such claimants will see a chiropractor instead of, say, a spine specialist. Not to take away from the benefits chiropractors provide, but in my experience chiropractic records are not nearly as useful in a disability claim as compared to records from orthopedic and spine specialists or even those of D.O.s. If you are seeing a chiropractor, my best advice is to also seek a diagnosis or opinion from another type of medical source, so that you will be satisfying the SSA’s “acceptable medical source” requirements.

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.

54 Year Old With Multiple Medical Problems – What Strategy Will Work Best at a Hearing

Hi, i am waiting to see a judge ,my lawyer say’s it should be between now an aujust which would be 16 mths.since i filed appeal. I am 53 ,wil be 54 in oct.I Have type 2 diabetes insulin dependent twice daily,high blood pressure,diabetic neuropathy,osteoarthritis in knees an hands,herniated dics in neck that causes both arms to go numb at anytime.I have medical records to back -up all conditions.My meds are humlin-r an humlin-n insulin twice aday,lisinopril 20mg,1 tablet once daily.My pain management doc. treats me for neuropathy and herniated dics,an arthritis with,5mgs methadone 1tablet 4xaday an neurotin 600mgs 4xaday.I will be treated by him from know on.He supports my claim.Wanted to know do i have a good chance at getting my dis.I have excellent work history for the last 8 yrs. says my lawyer.My family doc. knows i am filing dis . but do not know if her office will let her write a letter,her pa asked me was i filing disability an she was in the exam room also, don’t know what that ment.At any rate my pain management doctor will support me.Are my chances good?

Jonathan Ginsberg responds: Based on what you have written, I think you have a strong case.  What I would want to know relates to the specific symptoms that arise from your varoius medical conditions.  Ultimately the issue in your case will be: which condition or conditions creates limitations that would most impact you in a simple, sit-down type of job.

For example, your diabetes may create periodic vision problems and periodic numbness in your hands and feet.  Your herniated discs may limit you to four hours total sitting during a day and might require you to lie down for 30 minutes every three hours.  Your pain and/or your medications may cause a significant interference with your ability to concentrate. 

Hopefully, you can see that I am focusing on limitations that would impact you if you tried to work a simple job.  Remember, Social Security is mainly about work capacity.

Best of luck to you.

[tags] case strategy, herniated discs, diabetes, Social Security disability, SSDI [/tags]

 

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