August 30, 2014

Obesity and SSDI

Social Security disability listingsThe American Medical Association recently released a report 1 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 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. [Read more...]

  1. The AMA has recently designated obesity as a disease.
  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.

Diabetes and Social Security Disability Case Study Posted

This afternoon, I tried an SSDI case involving a 53 year old woman claiming disability based on diabetes and associated complications.  In reviewing the record it appears to me that my client had been diabetic for several years prior to her diagnosis and has most likely suffered permanent vision and nerve damage.  Unfortunately her medical care has been suboptimal and while she has been compliant with treatment the record does not contain enough for me to make an argument based on the listing at 9.08.  Instead I went with a functional capacity argument.

You can read the case study on my Georgia Social Security disability web site.

If I Stop Working and File for Disability, How Do I Know that my Money Won’t Run Out Before my Case is Approved?

I have written extensively on this blog about the claim processing delays that continue to plague Social Security disability.  I suspect that there are a lot of folks out there who are suffering and struggling trying to stay at work, perhaps at the expense of their health, because they are concerned that if they stop working, they will run out of savings before their case is decided.  I recently received the following question from a gentleman named Steve who is fighting diabetes and diabetic complications and who finds himself with this quandary:

I am a 43 year old diabetic. I was diagnosed 7 years ago and progressed quickly from pills to insulin injections and have now been on an insulin pump for 3 years.  I have neuropathy in both legs, heart disease, and many other diabetic problems, because of high blood sugar.  I am at an ideal weight of 170 Lbs. and 5′ 9″ height and have always been active and try to eat healthy.   I take 40-50 units of insulin each day, but my A1C readings are still 10+. I am no longer able to perform my work assignments.  My employer (25years)had even allowed me to change to an office job but I am still not able to sit for over an hour without my legs hurting and I have had many hypo (low-sugar) episodes at work which scared everyone.  My doctor’s have suggested that I quit so that I can concentrate on this disease before it kills me, but the stories of possible delays in SSDI have really concerned me and my family.  I have enough money saved to survive for a year, but that is it.  Do you think someone like me would qualify for SSDI benefits, and what would a potential wait be?

Here are my thoughts: I think that Steve has very good reason to be concerned.  When you apply for benefits, there are two times when you are likely to be approved – at the initial application stage, which will be within four to six months after application, or at the hearing stage, which could be two to three years after application.

diabetes1Initial application approvals are almost always arise in cases that meet a listing.  Steve is a diabetic and the applicable listing is at Listing 9.08. State Agency adjudicators will approve diabetes cases on the listings but they will expect the medical records to document as many of the following complications:

  • long standing neuropathy (numbness in extremities)
  • long standing retinopathy (vision issues)
  • blood sugar readings at 200 or higher over an extended period of time despite increasing dosages of insulin
  • organ damage (documented by abnormal lab readings)
  • frequent urination
  • sexual dysfunction
  • statement or checklist from treating doctor that condition equals 9.08

In my view, you need to aggressively argue to the adjudicator that your case meets a listing – do not assume that the adjudicator will figure it out.

If your case is denied at the initial application stage, it is very unlikely that a different adjudicator will approve it at reconsideration.  Statistics I have seen suggest that no more than 10 to 15% of cases are approved at the reconsideration appeal level. [Read more...]

Onset Dates, Consultative Exams and Cynical Judges

When you appear before a Social Security judge for a hearing, there are four possible outcomes:

  1. you will be approved
  2. you will be denied
  3. your case will be continued to another date for a supplemental hearing
  4. the judge will issue a “partially favorable” decision

GavelOver the past couple of years I have noticed an increase in the number of partially favorable decisions I am receiving.  I think this is because my clients, especially low income clients, do not have access to regular medical care and judges are using consultative exam reports to move the alleged onset dates.

Here is an example of what I mean:  a couple of weeks ago, I tried a case before a judge who is generally considered to be very reluctant to approve cases.  At the time of the hearing my client was a month shy of her 52nd birthday.  She had a 10th grade education and past work as a short order cook.  She alleged disability due to uncontrolled diabetes, numbness in her feet and hands, vision issues and pain.

She last worked 3 years previously, when she was 48 years old.

In reviewing this case, I saw it as a “grid rule” case.   Grid rule 201.10 provides that a 50 year old claimant with less than a high school education, semi-skilled work but no transferable skills who was limited to sedentary work due to an exertional limitation would qualify for disability. [Read more...]

What Factors Does Social Security Consider in a Diabetes Disability Case

Many Social Security disability claimants have been diagnosed with diabetes.  What does it take to win?  Here is a question I received from a reader of this blog:

Jane, my girlfriend of 25 years (54 yrs old) has been diagnosed with Type I Diabetes for 35 years. She has had a number of problems over the years (uncontrollable diarrhea, Retinopathy, Neuropathy) all of which were more or less under control until recently. She has suffered a massive hemorrhage in one of her eyes and is completely blind in one eye. The eye may be able to be helped by surgery but one thing is for certain it will never be as good as it was 3 weeks ago.  Jane has been employed as a land surveyor (self employed last 10 yrs) for 30 years and it is very difficult to carry on with the physical impairments brought on by diabetes.  Given her age I would very much like to get her on a government sponsored disability program so as to supplement my earnings while waiting for SS retirement to kick in at age 62. Do you think I have any chance of this? Given your experience which of the numerous symptoms of diabetes are the easiest to document for a SSDI claim?

Here are my thoughts: under Social Security’s definitions, Jane is “closely approaching advanced age” and has a skilled work background, and quite possibly transferrable skills.   Her educational background is not mentioned but I will assume that she has a college education.  As such, it is unlikely that any of the medical-vocational guidelines (the grid rules) will apply.

I would therefore analyze her case as [Read more...]

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]

 

Diabetic husband has been struggling for years – has hearing in a few weeks

my husband has juvielle diabetes, depression, numbness in feet, and he can’t do the same work he used to do he has to see a judge in a couple of weeks. He put off getting a lawyer. He has alot of mood swings and can’t hold any job he’s only been able to hold a job for 8 months or fewer and up to a year in the last 15/20 years. He has stomach problems by digesting his food. What do you think about him winning his case? Does he even have a chance by your opinion? –Angie

Jonathan Ginsberg responds: Angie, thanks for your email and I’m sorry to hear about your husband’s issues. Based on what you write, I think that he has a good chance at getting approved for benefits. Here are a couple of thoughts….

First, you need to find out if he is “insured” for Title II disability. As a rule, he needs to have 20 covered quarters out of the last 40 quarters. As there are 4 quarters in a year, that means he needs to have worked for 5 out of the last 10 years. The way the system works if he has earned around $3,000 in a calendar year, he gets credit for 4 quarters. You can find out if he has enough quarters for Title II disability by filling out a form 7004. It is important to know if he is covered because if he is not, he would only be eligible for SSI. And SSI can be offset by your earnings, assets and other factors.

Assuming he is covered, he needs to apply. That’s easy and free – call 800-772-1213. The next step is to build a winning case. Although he can hire a lawyer at any step in the process, in most cases there is not much a lawyer can do until SSA denies his claim. Some folks even wait until the second denial (reconsideration) before hiring a lawyer. I have written a book about winning at the initial and recon levels – see www.disabilityforms.com. My book and course explain how to fill out the forms using the terms and approach most attractive to Social Security.

My book is designed to help people at the initial and recon stages – if you have to request a hearing, I’d say you are better off with a lawyer. My disability lawyer referral link is here. If you hire a lawyer at this late date, your lawyer may (or may not) want to ask for a continuance to make sure that the file is updated.
The way you win is to find a treating doctor who will support your argument that your husband would not be a reliable worker because of unscheduled absences caused by any physical or mental health limitations. The technical term for this is “residual functional capacity.” In other words, what capacity for work remains after you take into account the limitations caused by his medical problems?

One word of caution – I have found that Social Security tends to see things in black and white. Part time work that generates income can confuse the issue – SSA often concludes that if you can work Job XYZ part time then you could probably work a less demanding Job ABC full time.

And finally, I think that your husband may be better off focusing on one of his conditions as the primary reason he cannot work. I have found that SSA is more receptive to a clear theory of disability based on one major problem than disability based on numerous problems.

–Jonathan