October 2, 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.

Heart Disease Case Study Posted

I invite you to visit my Georgia Social Security disability web site to read my latest heart disease disability case study report about a case I tried last week on behalf of a client with a longstanding cardiac disease complicated by decreased kidney function and diabetes.  Like many of the cardiac disease cases that I try, there were three viable theories of disability that could apply: (1) a listing argument; (2) a functional capacity argument and (3) a grid rule argument.

stethoscope and medical report 2I presented all three to our judge, and the judge decided to approve based on….(you’ll have to read the case study to find out).

Not surprisingly the judge looked very favorably on my client’s long, consistent work history.  The judge even put on the record his opinion that my client would never have stopped working but for his medical issues.  As I note in the case study, the medical record in this file was a little sparse – but a solid work history can go along way to greatly enhance a claimant’s credibility.

One of the arguments I had at the ready (although I did not have to use it) was the “frequent restroom break” problem associated with a drug called Lasix, that helps clear fluid from the bodies of patients with congestive heart failure.  Many of my clients are surprised to learn that I often win cases on the work performance problem of needing to go to the restroom several times an hour.   Although excess restroom breaks don’t sound like a medical issue, the practical import of this problem is excess missed time from work.

I Have Multiple Medical Problems – Should I Focus on All of Them? Just One?

I have more than one disability, should I focus  just one or provide  info  on all to help my case? Fibromyalgia, heart problems, sleep apnea and extreme fatigue, and bi-polar depression.
–Darlene

Jonathan Ginsberg responds:  Darlene – good question.  At the initial and reconsideration stages, your claim will be reviewed by an Adjudicator who works for your State of residence under a contract with the Social Security Administration.  Adjudicators work hard, but they are not trained or paid to serve as judges.  They are equivalent to an insuarnce claims adjustor.

Multiple medical problems will make it difficult for an adjudicator to decide your claim favorably.  Therefore, I would suggest that you focus on one problem and try to find a doctor who will support your claim that this one serious problem rises to a listing level.  I would mention and include the other problems but I would focus on the one issue that seems most serious.

Note that fibromyalgia by definition is not a listing level problem because there is no listing for fibromyalgia.  Read more about the Social Security listings here.

If your case is denied at the initial and recon stages, and you go before a judge, you will most likely have a lawyer to help develop a strategy.  In my practice I tend to focus on one or two primary problems as I have found this approach works best.

Claim Approved “On the Record” With Amended Onset Date – Should I Appeal the Changed Onset?

Jonathan, I was recently approved for ssd by the ALJ. I had my 3 heart attacks, the last on May 5, 2005.   At that time I became disabled to work. This has been my Doctors statement all along. Like a lot of people trying to get ssd, my financial situation got serious. I filed for an "on the record review" and after 6 months recieved a full favorable decision.

However they moved my onset date to Jan. 1 2006 and did not explain why. I had worked the first 3 months of the 05 and made about 26,000 dollars. When I applied thru the Hospital that took care of me, they also applied  for Medicade and SSI.

Now I cannot get an answer from the SSI people if they are going to pay me for the months of Jan-May ’05. It seems to me to be ploy to keep me from appealing the AJL decision until the 60days are over and then deny me the SSI benefits. Can you give me your 2cents worth on what you have seen the SSA do to people in this situation?

–Bob

Jonathan Ginsberg responds:  Bob, a couple of thoughts occur to me.  First, when you say that someone at the hearing office changed your onset date, you need to make sure that you are not confusing the "five month waiting period" with a changed onset date.  In a Title II disability case, you do not get paid for the first five full months of disability.  In your case, if the onset was May 5, then you would not get paid DIB benefits for the remainder of May, June, July, August, September, or October of 2005.   Your first check would be for November, 2005.

If your onset was moved to January 1, 2006, then you would not get paid until June, 2006 as the five month waiting period would start in January.

A claimant can, by the way, get paid SSI during that five month waiting period – although, remember, SSI is an income and resource dependent program – if your spouse works or if you have any sort of significant resource, you may not be eligible for SSI at all.

Let’s assume that someone in the AJL’s office identified this case as an on-the-record candidate and did, in fact, change your onset date from May 5, 2005 to January 1, 2006.  Often this happens because the staff attorney at the ODAR (Office of Disability and Review) did not see specific evidence in your record that your condition was "disabling" until January 1, 2006.  Some judges (and by association their staff) will not assume anything into a record.  Logically, if a person has a third heart attack, a reasonable person would assume that the patient was not particularly healthy between the time of heart attack #1 and #3.  However, if the medical record does not specifically talk about activity limitations until the time of #3, then some judges will conclude that the patient’s condition did not get really bad until heart attack #3.  It is silly and ridiculous, but it happens.

You can appeal a favorable decision but the risk is that a hearing judge might reverse the decision entirely.  Obviously, if you do appeal, you will want to get a narrative report or a form filled out by one or more treating doctors to support your May 5 onset date.

By accepting the amended onset date, you are giving up six months of benefits.   You have to decide if the risk of an outright reversal and the time and energy investment is worth the risk.  Generally I am not inclined to appeal a partially favorable decision but I have had clients do so.