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Category Archives for Pain and disability

Stong Case Undermined by Simple Problem (Maybe)

Weakness Word on Breaking Weak Chain LinksI tried an interesting case this week that illustrates the importance of presenting a complete case to your judge.

My case involved a man in his early thirties with a significant hip problem.  He had been born with a bone deformity in his hip that was surgically repaired during his childhood and he was able to work a variety of physically demanding jobs during his 20’s.

By age 30, however, he was experiencing severe hip pain such that he could not drive a truck or perform his job.  He met with a surgeon and underwent hip replacement surgery.  I should note that surgeons rarely recommend hip replacement surgery for individuals younger than 50 because artificial hips rarely last more than 15 years and current medical technology does not allow for more than two hip replacement over one’s lifetime. Continue reading →

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

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

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.

Should I Apply for Disability if I Have Just Started to Miss Work?

I have a question about being able to work.  I recently started having headaches every day and have been seeing a doctor and having tests done. There is no way I can work under these circumstances.  What should I do?
–Richard

Jonathan Ginsberg responds:  Richard, I am sorry to hear about your situation.  Here are my thoughts.  I would advise you to go ahead and file a claim.  Social Security reps often will not accept a claim if you say that you are still working so when you file, I would choose a date that you "last worked" so that they will process the claim.

Realize, however, that if you continue to work – and Social Security records show on-going earnings – your claim will be denied on that basis without any consideration of the underlying medical problem.  I recommend that you apply as early as you can because the process can take so long.  The sooner you start, the sooner you would receive benefits.

The obvious problem – how do you survive for 12 to 24 months while SSA makes its decisions?

Next, I think that you need to work with your doctors to identify a firm diagnosis.  Chronic severe headaches can arise from many causes – migraines, high blood pressure, hormonal changes or other, more serious conditions.   Once you know what you are dealing with you will have a better idea if your condition is treatable or whether it will keep you from working for 12 consecutive months or longer.  Social Security, remember, only pays disability for cases where the medical condition will keep you out of work for 12 months or longer.

Finally, as you pursue treatment ask your doctor if he will support you in a claim for disability.  Some doctors don’t believe in the concept of disability and I have seen good cases derailed by uncompromising doctors.  If you know at the outset that your doctor will not help you, you can decide whether to stay with that physician or seek treatment elsewhere.

[tags] chronic headaches and disability, migraine headaches and social security, when to file a disability application [/tags]

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