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

Post from: Social Security Disability Blog

Diabetes and Social Security Disability Case Study Posted

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.

Initial 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.

Assuming that you are denied at initial and reconsideration, the wait for a hearing date can be long, very long.  Depending on where you live the wait can reach two to three years.  Steve did not say where he lives – Social Security does publish statistics about the wait times for each disability hearing office.

As far as the substance of Steve's claim, it appears that he is having a great deal of trouble keeping his blood sugar under control despite both his diet and his medicine.  I would advise Steve to bring a copy of listing 9.08 to his doctor and to enlist his doctor's support in the form of a narrative report stating that he meets the listing and that his capacity to sit, stand, concentrate, get through a workday without interruption and to avoid excessive absences has been significantly impaired by the diabetes.  You can read more about the case strategies I use in diabetes claims by clicking on the link.

At some point, Steve is going to have to make the decision to stop working and to start the disability process.  Obviously the intend of the disability laws is that Steve should wait until working become impossible, as opposed to highly uncomfortable.

Finally, I would also point out that if Steve stops working, files for disability and is turned down at initial and reconsideration, he could try to return to work.  Work attempts of three months or less are considered "unsuccessful work attempts" and can actually help a claimant by demonstrating his desire to work.  Those unsuccessful work attempts can also add money to the family's budget – not an ideal solution but perhaps a way to deal with the many months of delay when waiting for a hearing date.

Post from: Social Security Disability Blog

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

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

Over 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.

My client had very little money and had last seen a doctor almost 2 years previously.   In addition to the older medical records, there was a consultative examination report from February, 2008 that supported my argument.  My client turned 50 in October, 2007.

At the beginning of the hearing, I advised the judge that we were prepared to amend our onset date to my client's 50th birthday in October, 2007.

I just received the decision and what did the judge do?  He issued a partially favorable decision, approving my client as of February, 2008 – the date of her consultative examination.   I think that any reasonable observer would recognize that my client's condition did not change between October and February.  The net result is only 2 months of past due benefits – but that means about $1,500 to my client.

In my view, the judge's actions were absurd and perhaps a little mean spirited.  During the hearing he made it known that he was not happy with the claimant's pack a day smoking habit (he noted that if she saved the money she spent on smoking she could afford to visit her doctor).

The point here is that when you don't find a way to go to your doctor, or enlist the help of a treating doctor to identify your work limitations, you may find that your judge will pick a date later than the onset date you alleged.  In fact, I know many judges who will always choose onset dates that correspond with a particular medical report.

I think that tying an onset date to the date of a medical report can be a logical choice but such a practice should not be applied mechanically as it was in this case.

You need to be aware of this tendency and make every effort to develop a thorough and convincing medical evidence file so you won't be subject to what could be the arbitrary choices of your judge.

Post from: Social Security Disability Blog

Onset Dates, Consultative Exams and Cynical Judges

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 being one that either meets or equals the diabetes listing, or I would use an argument that her functional capacity for work has been so impaired by her diabetes and complications that she would not be a reliable worker.

In my experience, because Social Security judges see so many instances of diabetes it is very difficult to win a "listing" argument unless the retinopathy or neuropathy has become extremely severe and irreversible.  I have won a few diabetes listing cases but only when my client is a "brittle diabetic" who cannot keep his blood sugar under control with insulin or even an insulin pump.

Jane's hemorrhage suggests that the retinopathy has become severe, but I would not assume that the hemorrhage alone is sufficient to win a listing argument.

Based on what you write, I am thinking that a "functional capacity" argument would give her the best odds for winning.  Functional capacity arguments look to reliability factors – such as the need to take unscheduled breaks, missed time from work, the need for unscheduled bathroom breaks, loss of capacity concentrate and focus, etc.   If you can find a treating doctor to support her claim by filling out a functional capacity checklist that identifies significant work activity limitations, she has a good argument.

I think that her long and consistent work history works in her favor as does her perseverence in fighting through uncomfortable symptoms.

Post from: Social Security Disability Blog

What Factors Does Social Security Consider in a Diabetes Disability Case

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.

Technorati Tags: case strategy, herniated discs, diabetes, Social Security disability, SSDI

Post from: Social Security Disability Blog

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

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

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