I save hearing decisions in the cases I try.  Fortunately I usually choose decent cases and I don't have too many unfavorables, but not every case turns out to be a winner.  Interestingly, when looking at the unfavorables as a group, certain trends emerged.  Perhaps the most common thread had to do with gaps and inconsistence in medical treatment.

Here is the actual wording from one such decision in a case involving a woman with depression and anxiety:

Although the claimant's anxiety is severe, she has had no significant amount of mental health treatment.  Even though she has been in the Atlanta area, she has had no psychiatric treatment.  Had she obtained treatment, her anxiety would not be severe.  Her husband is working, so there is no apparent reason she could not seek mental health treatment if she chooses to do so.

In this particular case, the medical record was not particularly strong and the claimant's treating doctor was unwilling to provide us with a completed functional capacity form.  I find it interesting that the judge would focus on what was not there, rather than what was there.  Could there be legitimate reasons why an individual would not seek mental health treatment?  Is it fair to assume that the husband's insurance would cover psychological or psychiatric treatment, or that the deductibles would be affordable?

I think that the lesson to learn from cases like this relates to the need for every claimant to build a "paper trail" of medical treatment records.  Judges expect you to see your doctor regularly and to seek specialized help when necessary.  If you don't have a lot of money,you need to explore all options – local emergency rooms, public hospitals, free clinics.  I think that the days are over when a claimant can win a hearing with a medical record that is less than an inch thick.

I am certain that there are many deserving claimants out there who truly are disabled, but who will be denied because the medical record is sparse.  This may not be fair, but this is how the system works.

Post from: Social Security Disability Blog

How Gaps in Medical Treatment Can Result in an Unfavorable Decision

–Mike

Jonathan Ginsberg responds: Mike, I think that Social Security expects claimants to pursue all reasonable courses of treatment.  This does not extend to invasive procedures (such as surgery), or therapy that involves powerful medications or treatments.  In my view, therefore, your refusal to continue with ECT treatments because of undesireable side effects would not be held against you.

I recall having this discussion with one of the judges in my local hearing office.  He gave me an example using his wife as an example.   The judge revealed to me that his wife had a bad case of hemorrhoids, which could be easily treated with a 30 minute outpatient procedure.  He indicated that if his wife was appearing before him claiming disability arising from pain associated with those hemorrhoids, he would want to know why she had not sought out such a readily available cure.

I think that this judge raised an interesting issue.  I think that a judge would be reversed by the Appeals Council if he denied a claim because a claimant refused open heart surgery or a spinal fusion because it is entirely reasonable to decline treatment that carries with it a risk of permanent damage or death.  I think that ECT treatments fall into this category.

On the other hand, I think that a judge would be justified in denying a claim for visual impairment if the claimant refused to wear glasses.

What about those cases where a claimant has moral or religious grounds to refuse treatment.  Would a diabetic who refuses insulin on religous grounds or because of a fear of needles get approved?  Would that hemorrhoid patient be denied because she feared any type of surgery, no matter how minor?

Judges are human beings and they expect that claimants will make a real effort to improve their health and rejoin the workforce.  Judges sense when claimants are trying to avoid work, so, in general, if you have refused treatment, I think you need to be prepared to give a legitimate reason why.

I also think that if you refuse treatment, you should not expect to stay at home waiting for your check.  Judges expect you to seek out whatever treatment you can handle and that you can afford.   In Mike's case, I think he is justified in refusing ECT because of the side effects, but I also think that he needs to continue with whatever other treatment has been prescribed – therapy, medications (if applicable), etc.  Even if some of those alternatives don't seem to be effective, it is important to build an on-going, long term medical treatment record.

Post from: Social Security Disability Blog

Will Social Security Penalize Me if I Refuse Electroconvulsive Treatment?

I did pay into social security from 1982 to 1989 but from 1988 to 2005 was in the school system that did not pay in.  We did pay in to medicare, etc. however. 

Am I eligible for any benefits?
–Jeff

Jonathan Ginsberg responds:  Jeff, you will need to find out if you are eligible for Title II SSDI.   Eligibility is based on what you have paid into the system.  You will need to show sufficient earnings credits in 20 out of the 40 calendar quarters prior to your disability onset date.  I discuss the Social Security earnings credit requirements here.

You can also call Social Security at 800-772-1213 to ask about your date of eligibility for SSDI and your date last insured for SSDI.  Be aware – sometimes the information given by the SSA operators is not up to date.

You can also request your earnings statement by completing SSA form 7004, which you can download here.

If you have enough earnings, you will then need medical support from a treating doctor or mental health professional that your condition is severe enough to prevent you from performing any type of work.

If you do not have enough credit hours, you can still apply for SSI, but in an SSI case your monthly benefit is capped and your household income and assets may offset your monthly SSI benefit.

Technorati Tags: earnings requirement for SSDI, SSI vs. SSDI

Post from: Social Security Disability Blog

My Work History Has Not Been Consistent – Can I Still Claim SSDI Benefits?

Jonathan Ginsberg responds:  Daniel, thanks for your question.  It certainly sounds like you would have some significant problems trying to work, but I am not certain that a vocational rehab evaluation would be enough to win a Social Security disability case.  Certainly these evaluations would serve as evidence, but I think you would need support from one or more doctors or mental health professionals like your psychiatrist or phycologist..

You also don't say how old you are – generally younger claimants have a more difficult time winning disability.

The bottom line – your vocational rehab assessments are good evidence and a judge would certainly consider those conclusions.  If this was a case I was handling, however, I would want more evidence, and medical evidence in particular.

Technorati Tags: vocational rehabilitation, will I win my disability case?, marketable skills, psychiatrist

Post from: Social Security Disability Blog

Vocational Rehab Says I Have No Marketable Skills – Is That Enough to Win a Disability Case?

Mr. Ginsberg,
I am a dwm 45, no children, no criminal record, no drug/alcohol problems. I have been diagnosed to have Major Depression, Generalized Anxiety, Schizoid Personality Disorders. I have had 23 jobs in the last ten years with several gaps of unemployment. I have had two psychological tests with conflicting results but were all deemed valid/reliable. I just had my ALJ hearing two months ago and in addition to my ongoing psychiatry treatment for the past two yrs, has ordered a mental CE, waiting for the results and a final decision. My treating psychiatrist this month sent a letter to my disability judge stating that I am a 'diagnostic puzzle' and have tried all pharmacological agent groups with no success. He also stated that he has been treating me for the past two yrs. He suspects I have a pervasive developmental disorder. He concluded the letter by stating that there have been no signs of malingering and I have been very compliant.

After my hearing, my disability rep. told me that I have a 50/50 chance of winning. My question to you Mr. Ginsberg, is what does the ALJ do when there are conflicting test results but they are all reliable/valid? Does he flip a coin to make a decision?

Post from: Social Security Disability Blog

How Does a Judge Resolve Unclear or Conflicting Medical Evidence in a Disability Hearing?

Karl

Jonathan Ginsberg responds:  Karl, thanks for your question.  I think that your case would turn on whether a treating nuerologist would be willing to fill out a functional capacity form that identifies specific work activity limitations.  On one hand, you have been able to overcome your injury with medication for over twenty years.  A judge would therefore want to know what has changed.

I think it is entirely plausible that neurological damage such as that which you describe could get worse over the years, but, again, what you and I think doesn't really  matter – what does the doctor say.

This is probably a case where a neuropsychological evaluation would be appropriate.  I understand from what you write that finances are an issue – unfortunately I think that is you want to have a realistic chance at winning, you will need help from a treating doctor.

Finally, don't forget that your "insurability" for Title II Disability will run out approximately four to five years after you stop working (this is called your "date last insured").  When you apply for Disability make sure to find out your date last insured and use the earliest possible onset date – such as your last day of work.

Technorati Tags: Traumatic brain injury, neurological injury and social security disability, date last insured, functional capacity, residual functional capacity

Post from: Social Security Disability Blog

Survivor of Traumatic Brain Injury Considers Applying for Disability 35 Years After Accident

My client initially met with me in June of 2004 and he passed away in January of 2006 at age 60.  The hearing held today, therefore, covered a closed period of disability from his onset date (September, 2000) through the date of his death in January, 2006.  Although my client passed away, his claim for disability benefits remained active, with his wife being substituted as the claimant.

My client died of a heart attack, although cardiac problems were not the basis of his disability claim.  Instead, his claim for disability arose from mental health issues – severe depression, anxiety, panic disorder and bi-polar condition.  My client was a highly educated individual – and he had graduated from college and law school (although he never practiced law).  His past work was in the banking industry where he worked at a very high level position and was responsible for millions of dollars.

When I originally met with this gentleman he told me that he had been fighting symptoms of depression and panic for several years, but that by September, 2000, he had reached the point where he was unable to function.  After being fired from his last banking job, he had worked part time managing investments for a few relatives and close friends.

The medical record from the treating psychiatrist was fairly solid, and it showed regular, on-going treatment and high levels of powerful psychotropic medications.  The record also hinted at the occasional overuse of alcohol, although in my view the mental health problems existed independently of any alcohol issues.  As you  may know a claimant is prohibited from collecting disability benefits if the judge finds that alcohol abuse is a "material contributing factor" to a his disability.

I met with my client's widow a little over a week prior to the hearing and we practiced the questions she was likely to face.  I expected that the issue of alcohol use would be a primary focus of the judge.  The judge in this case, by the way, was a new judge so I was unable to describe in much detail exactly how the hearing would be conducted.

When we got to the hearing, I learned that the judge had requested a medical expert – in this case a psychiatrist – to appear and testify.  My experience with medical experts has generally been good although adverse testimony from a medical expert will pretty much spell doom for any case.

The judge started the hearing by questioning my client's widow about her observations regarding her husband's behavior.  I felt that as a witness, my client's widow was nervous and she almost seemed reluctant to speak badly of her late husband.  Although she hinted at several significant behaviorial problems, I felt like we needed to get some of those issues more clearly on the record.

Because she and I had spoken at length about specific incidents where my client had acted inappropriately or in a bizarre manner, I asked a few questions that were probably leading in nature.  Fortunately, my client's widow saw where I was headed with this and she clearly related several stories describing behavior that indicated a severe underlying mental health problem.

The medical expert testified that the psychiatric record was very comprehensive and entirely consistent with my client's testimony.  He also pointed out that the large number of medications my client was consuming would have significant work limitations.  He concluded by stating that he felt my client met the listing at 12.04 for bi-polar disorder.

The medical expert also took notice of my client's educational achievements and his work history.  In my mind the implication was clear – a highly educated and well compensated professional would not give up his career with the hope that he would recover Social Security benefits.s

The judge accepted the medical expert's testimony and issued a bench decision approving the claim.

I think that the factors that were extremely persuasive here included:

• my client's work and education background – helped establish credibility
• the medication list
• the record of consistent treatment – monthly visits to the psychiatrist since the onset date
• the witness' testimony regarding incidents of behavior inconsistent with competitive work

Post from: Social Security Disability Blog

How I Won a Disability Hearing for a Deceased Claimant