Will Social Security Penalize Me if I Refuse Electroconvulsive Treatment?

In Dec. 13, 2007 you responded to my question on your Social Security Disability podcast about non compliance and electroconvulsive therapy (ECT). I had tried numerous antidepressant medications with no success. I was desperate for answers and sought out a new psychiatrist who specializes in electroconvulsive therapy. After he conducted my fourth of six ECT treatments. I started experiencing a very weird scary state of mind, almost like I was seeing things in a dreamlike state of mind. I stopped at the fourth ECT for this reason. Its hard to describe such feelings in words but it was a very eery scary feeling. How will Social Security view my situation?

–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.

Skilled Worker With Circulation and Respiratory Problems Considers Disability

Hi. Last year I had a stint and have been on medication since. My employer is eliminating my position (a technical, computer related job) in order to force me to retire. I have circulation issues in my legs and breathing issues and bruise extensively . Do I have any chance of qualifying for disability?

Jonathan Ginsberg responds: Here is how I would analyze your situation. Based on what you have written, I would develop two different theories of disabiltiy. Theory one would ask whether you meet a listing. If you look at the adult listings, Listing 4.00 (Cardiovascular System) and Listing 3.00 (Respiratory System) would seem to hold the most promise. If you look at Listing 4.00, there are sublistings for Chronic Venous Insufficiency (4.11) and Peripheral Arterial Disease (4.12). I would discuss with your cardiologist whether or not your condition rises to listing level.

Similarly, you could look at the sublistings for respiratory problems. My concern here is that the respiratory listings look to specific breathing tests and the resulting measurements. My experience has been that breathing issues need to be pretty severe to meet a respiratory listing.

Theory two would be to argue that your functional capacity for work has been so reduced by your multiple medical problems that you would not be able to sustain competitive work as a result of these problems. Generally, when arguing for disability based on functional capacity, you implicitly acknowledge that your condition does not rise to listing level severity, but you contend that the overall impact of your conditions, side effects of medications, associated fatigue and depression – all taken as a whole – leave you unable to work.

In order to win a functional capacity argument, you will need help from a treating physician who would be willing to go on record (by completing a functional capacity form) about the specific limitations arising from your condtion.

Without knowing anything about the severity of your condition or what the medical records say, I would not be in a position to evaluate your case, but assuming that you have medical support and that your job reliability and attendance would be a problem, I think you would have a reasonable agrument for disability.

One final thought – the Americans With Disabilities Act (the ADA) requires larger employers to make "reasonable accomodations" for individuals with disabilities. Here, you imply that your employer is not willing to take these steps. Therefore, it might be worth a call to an employment attorney to evaluate the viability of an ADA claim.

Strategy for Winning a Seizure Disorder Case

Jonathan
January 28, 2008

Jonathan, I have an appeals hearing on 1/30/08 with an ALJ. I have multiple medical problems, the worst of them being a seizure disorder. I take medicine and have not had a grand mal seizure since 11/10/06, but continue to have petit mal seizures several times a week, sometimes everyday. I also have rheumatoid arthritis in my right wrist & a dropfoot which now is effecting my knee & hip. What is the best wat to present my case?
Mark

Jonathan Ginsberg responds: Mark, last week I appeared before a judge with a client who had a seizure problem. In her case, she was producing micro tumors that were releasing hormones that triggered seizures. There is no treatment or cure for her condition.

The medical expert present at the hearing stated that she met Listing 11.03, which basically says that an individual is disabled if he has petit mal seizures at least once a week for a minimum 3 months duration despite prescribed medical treatment. What you describe sounds similar, at least in a general sense.

It would seem to me that the seizure issue you describe might be a strong argument for you. If you can enlist the help of a treating doctor to describe these seizures and to support your claim that these seizures leave you tired, disoriented, incapable of on-going concentration and focus that would help.

In a similar vein, if you can get a treating doctor to identify specific activity limitations (lifting, carrying, walking, standing, sitting) arising from your rheumatoid arthritis, that would help eliminate many categories of possible employment.

Obviously, without reviewing your medical record specifically I have no way of knowing whether your doctors support you or how the medical record addresses the severity of your problems, so my suggestions should be taken as general advice only. I do hope this helps you get a sense about how your case could be analyzed.

Two Disability Claims Pending and Nothing is Happening – What Can I Do?

Jonathan
December 28, 2007

My husband has Osteonecrosis (AVN), it is death of bone condition in both shoulders and both hips. We initially hired an attorney in April 2003, claim was denied and it is in the Hearing Stage in Virginia. We had to reopen a new claim in 2006. We attached all information needed, even information from the National Assn of Osteonecrosis (this is a relatively new condition). The claim filed in 2006 was denied once, but to date no other information. We just called our attorneys office this week. They are constantly saying in both claims "things are the same", nothing has changed. Can you please help us? Our medical bills are piling up. Prescriptions are expensive, etc.
–D

Jonathan Ginsberg responds: D, there is no simple answer to your question. It appears that you have two claims in process – an appeal to the Appeals Council (the Appeals Council is located in Falls Church, VA, which is what I assume you mean by "the Hearing Stage in Virginia") and a 2006 claim filed in Georgia, where you now live.

Claim #1 will cover the time period from alleged onset through the date of the first administrative law judge hearing and Claim #2 will cover the time period from the day after your administrative law judge hearing and on-going.

Here are a couple of observations:

1) Social Security claims take a long time. The two Atlanta hearing offices are the slowest in the country – it can take two years or longer between the time you request a hearing and the time a hearing is scheduled. Your attorney has no control over this. It is not fair, it is not right, but this the current situation in the Social Security Administration.

Let me also say that there is an effort by SSA to deal with these delays – they are increasingly using video hearings from a National Hearing Center to reduce the backlog – see this press release from SSA.

2) With regard to the case at the Appeals Council. If you have a case at the Appeals Council or in Federal Court, expect to wait and wait and wait. You could be looking at five years or longer. Recognize that at the Appeals Counsel or federal court, the judges are looking at possible errors of law or analysis by the hearing judge. Appellate judge rarely substitute their decision for the decision of the ALJ. Instead, they are looking for situations where the hearing judge used the wrong standard or the wrong analysis. Usually a successful appeal concludes with the appellate judge sending the case back to the ALJ for a new hearing to be decided under the correct standard.

3) My guess is that your claim #2 will be decided much sooner than claim #1 and that any money to be paid will be paid in claim #2 long before payment in claim #1.

57 Year Old Arthritis Patient Wonders if She Would Qualify for Disability

Jonathan
December 19, 2007

I am 57 I have been a RN for the past 30 yrs. I have auto immune arthritis which is severe in my SI joints graded 3+ bilaterally. I also arthritis in my hands, wrist, elbows, shoulders, knees, feet and ankles. Along with DMII, IBS, Bilateral Carpal Tunnel, Bilateral Heel Spurs. My dominant hand is now becoming weak and painful to the point, I am having to learn how to redo ADL’s with my non dominant hand. I can’t sit, stand or lay or long periods of time, I rarely sleep more than 3 hours at a time due to numbness or pain in a joint. I just recently stopped working.

Where would I fit on the Grid, or do I have to suck up the pain and continue to try and work. I only have enough reserves to last me 7-8 months. Thanks for your opinion.
–C

Jonathan Ginsberg responds: C, thank you for your question. I am not so sure that the grids would apply here. Firstly the grids only apply when there is an exertional (physical) impairment. Here you have both exertional and non-exertional (pain) impairments. It would appear to me that pain is such a major part of your claim that you could not argue that your limitations are purely exertional.

Second, and most important, the grids factor in education and transferrable skills. Look at the grid tables. Even at age 57, an individual limited to sedentary (sit down) work is “not disabled” if she has transferrable skills or more than a high school education.

I think that a better argument would be a straight “residual functional capacity” argument. Please also take a look at my Arthritis and Disability article on my Georgia Social Security disability web site. I would focus on reliability issues and limited capacity to get through a workday in any form of competitive employment.

Your 30 year work history also gives you tremendous credibility. You always want to approach your SSDI claim with the attitude that “I would work if I could, but I can’t” and not an attitude of “entitlement.”

Based on what you write, it appears to me that you have a good case. You need to enlist your treating doctors for support but I would be surprised if you did not get approved.

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

Jonathan
November 30, 2007

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.

Fibromyalgia Argument Accepted by Court of Appeals After 10 Years of Appeals

Jonathan
November 27, 2007

Despite a general acceptance in the medical literature that fibromyalgia is a real illness that can be disabling, there are still judges out there who refuse to accept that this chronic pain condition exists. There are no "objective" tests that can be run for fibromyalgia – its existence can be inferred by symptoms such as generalized body pain, tender points, poor sleep, fatigue, digestive issues, balance problems, anxiety and depression.

Social Security judges are often cynical since every person they see claims to be disabled. For this reason, some Social Security judges have decided that fibromyalgia is not a real condition and they will deny fibromyalgia claims based on the absence of objective evidence in the form of diagnostic reports like MRI’s, CT scans and x-rays and the absence of organ damage.

Recently a fibromyalgia claimant in Cleveland, Ohio appealed a denial and won at the federal district court level. You can read this opinion – Rogers v. Commissioner of Social Security, 486 F.3d 234 (6th Cir. 2007). This decision is interesting at several levels. First, look at the amount of time involved in appeals. The claimant first applied for SSI benefits on May 21, 1998. A hearing was held in December, 1999 and she was denied by the ALJ in January, 2000. The claimant appealed to the Appeals Council and won – the case was sent back to the same judge for a second hearing.

The second hearing was held on November 15, 2002. On November 23, 2003 (a full year after the hearing) the ALJ again denied the case on the grounds that there was no objective evidence to support the fibromyalgia claim.

The claimant appealed to Appeals Council again, but was denied. She then appealed to the district court where the ALJ’s decision was affirmed by a federal Magistrate Judge on August 30, 2005. The claimant then appealed to the 6th Circuit Court of Appeals.

The 6th Circuit decision was issued on May 24, 2007 reversing the ALJ and remanding back to the ALJ level for yet another hearing, but with guidance that the claimant’s fibromyalgia complaints ought to be given credence, despite the absence of objective evidence. Presumably Ms. Rogers has or will have a third hearing soon – perhaps after 10 years she will get her SSI.

The Rogers case can serve as a useful blueprint for lawyers and claimants who face judges who are unable or unwilling to recognize the functional limitations caused by fibromyalgia. When reading this decision I was struck by the overwhelming nature of the evidence that supported Ms. Rogers’ claim. She had extensive medical records from treating doctors. She had functional capacity forms completed by treating doctors. The symptoms she described are entirely consistent with fibromyalgia. Yet, she was denied because the judge could not see any problems on an x-ray.

Hopefully, you will not face a 10 year battle in an effort to prove that your fibromyalgia is real. Hopefully an understanding of why some judges deny these cases and a reference to cases like the Rogers case will help you avoid delay and get your benefits at your initial hearing.

Will Social Security Accept Records and Conclusions of a Homeopathic Provider?

Jonathan
November 21, 2007

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?

Jonathan
November 19, 2007

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.