Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970′s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him.

After being denied at several more appeals levels the case eventually made it to the 1st Circuit Court of Appeals which found in Dr. Frusher’s favor.  Unfortunately, Dr. Frusher had passed away by the time of the Circuit Court’s ruling, but his wife continued the appeal.  His widow will receive past due benefits amounting to 30 years of past due benefits.  Congratulations to the Rhode Island law firm of Marasco & Nesselbush for its stellar work in this case.

What does this case mean to other claimants?

This case addresses the issue of reopening of claims.  In an SSDI claim, a claimant can reopen for any reason a prior claim if a second claim was filed within 1 year from the date of the notice that the prior claim was denied at the initial application.

Example:  Tom files Claim #1 on March 1, 2008, and it is denied July 12, 2008.  Tom does not appeal, but files a new claim on April 3, 2009.

Tom can move to reopen Claim #1 because it was filed within 1 year of July 12, 2008 (the date of Claim #1 denial).  Tom would have to show some reason to reopen (i.e. there was evidence in existence that was not considered by SSA in claim #1) but he would not have to show “good cause.”

If Tom filed Claim #2 on August 1, 2009, he could not move to reopen “for any reason” since Claim #2 was filed more than 1 year after the initial denial of Claim #1.

Tom could ask SSA to reopen Claim #1 within four (4) years of the initial denial if he can show “good cause” (the time limit is 2 years in an SSI case).  In my experience, Social Security judges consider “good cause” to be a very high standard and they rarely reopen on that basis.

The Frusher case is rare because Claim #1 was reopened well after the 4 year statute of limitation.   SSA does allow a claim to be reopened “at any time” in the case of fraud or similar fault.   The 1st Circuit found that Dr. Frusher’s failure to appeal was both not his fault (because of his mental illness) and that SSA acted wrongfully in denying him the opportunity to appeal.

What should you learn from all of this?

• when you file for disability benefits, you are generally better off pursuing your appeal as opposed to dropping your case and starting over
• if you do drop your appeal, or fail to appeal timely, generally it does not benefit you to wait to reapply
• if you are confused about your insured status for SSDI or about your appeal rights, contact a lawyer sooner rather than later

One of the points Geri discusses really resonates with me.   She answers the question “I have back pain and cannot work so why do you recommend that I see a psychiatrist?”

Great question.

For years, my practice has been to add an allegation of depression and/or anxiety to every Social Security appeal I file.  In my view it would be extraordinary if anyone with a history of regular work would not be depressed and anxious if he/she:

• no longer has a regular work routine
• experiences financial pressure because of lack of income
• feels a sense of worthlessness because he/she can no longer contribute (this is especially true for men)
• recognizes that he/she will not be able to engage in social, athletic and recreational activities at pre-impairment levels
• has to deal with stress and anxiety inherent to anyone with chronic pain
• has to deal with disrupted and sometimes damaged family relationships
• has to deal with physical and emotional changes associated with strong pain medications
• experiences new medical issues associated with his/her chronic medical condition (i.e., obesity, constipation, high cholesterol, etc.)

As a disability claimant, you may not even realize the impact your back condition has had on your life.  As attorneys, we look at you as a whole person to understand more fully why you can no longer work.   Not only will such a more expansive view of your damaged health benefit your case, it may help you better understand what you are going through as well.

Jonathan,
First, I want to thank you for putting valuable information about the SSDI process online. I was diagnosed with MS in 1993. I recently left work on an early disability retirement after a 24 year career with the State of ABC.  My question is this – if I have MS and my medical records document cognitive dysfunction, isn’t it feasible that I would be approved with my initial application to SS? Although I did very well in the beginning of the journey, as I have gotten older, (I’m only 44), my disease has started progressing over the last few years. Will the fact that I have taken an early disability retirement from the state weigh favorably towards my case?

Here are my thoughts: the first question I would ask is “are you insured for Title II Social Security disability?”  In some states, employees do not contribute into the Social Security system- instead, they contribute to a state disability program.  For example, I sometimes get calls from teachers who may have worked for years, but who are not insured for Title II disability because their school system opted out of Social Security.  If you cannot tell from looking at an old paystub, I would advise you to contact your human resources office to confirm that you have been making payments into the Social Security system.    You can also call Social Security at 800-772-1213 to inquire as to whether you have been earning credits.  You can also request an earnings and benefit statement (Form 7004) from Social Security directly.

If you are not insured for Title II SSDI, then you might still be eligible for SSI, but that will depend on household income and the value of assets that you own.

Assuming you are eligible for Title II disability, your best chance at an early approval would be to request help from your treating doctor to show that you meet or equal the multiple sclerosis listing, which is found at  Listing 11.09.   When you read this listing, it does refer to cognitive issues by referring to Listing 12.02 which describes “organic mental disorders.”

I would print out the entire Multiple Sclerosis listing and the listings referenced in 11.09 and take the printout to your doctor’s office.  If your doctor or someone in his office is willing to write a narrative report describing your symptoms, course of treatment and state that your symptoms meet or equal what is contained in the listing, you greatly improve your chances at an early decision.  Your doctor should track the language of the listing as closely as possible, using the language of the listing wherever possible.   Further, since the disabling symptom you describe has to do with cognitive dysfunction, you may need to have a psychiatrist or a neuropsychologist evaluate you and write a narrative report that tracks Listing 12.02.

I take a similar approach when I am representing an MS client – although instead of a narrative report, I create a checklist for the doctor to complete and submit that to the Social Security judge along with copies of all medical records.  Often times, by the way, Social Security will provide the neuropsychological exam as a “consultative evaluation” that they pay for, however, if you can provide your own, you obviously  have more control of the process.

As far as whether your decision to take an early disability retirement will help, that is hard to say.  If you were required to meet certain criteria before you were allowed to take a disability retirement, then, yes, your status as a disability retiree might help a little, especially if there are medical reports and forms associated with this determination.   I would definitely submit those reports to the adjudicator, and I would write the adjudicator to advocate for an early approval based on the 11.09 and 12.02 listings.  I still think that an early favorable decision at the administrative level will turn on whether the adjudicator believes that you meet or equal a listing, so that is where I would focus my energy.

If you are not approved at the initial or reconsideration stages, please do not get discouraged as many deserving cases are turned down for what seem to be arbitrary reasons.

In other words, if a treating doctor is willing to go on record to say that his patient would likely need unscheduled breaks, or cannot use his left arm for reaching over shoulder level, or needs to extend his legs while sitting, those limitations can be used to argue that certain categories of jobs (or, better – all jobs) would not be possible for this particular claimant.

In my practice, I have created “functional capacity” forms that I either send to doctors or that I give to my clients to bring to their doctors.  A good form that contains numerous limitations can result in a favorable decision, even from a judge who does not approve a high percentage of cases.  As a wise old judge once told me “if you have a compelling functional capacity form, I usually have no choice but to approve that case.”

Now, we have the problem of physicians who do not want to spend the time filling out functional capacity forms.  Those that do may want $100, $200 or more to do so.  Sometimes it makes sense to pay for this service but sometimes it does not.  Perhaps you are not sure that your doctor will support you fully.  Perhaps the medical records from that doctor do not contain observations that offer a lot of support (this is not good, but a problem for another day).  What can you do?

Obviously the best option is to find a doctor who will support you.  My clients are often surprised to learn that some physicians simply do not believe in the concept of “disability.”  I remember engaging one such doctor at a dinner party a few years ago – he insisted that in his 20+ years of practice he had never met anyone who could not work some type of job.  I tried to explain to him that Social Security was considering work functioning over an extended period of time, meaning that a patient might be able to get through a week or two, but over the course of three or four months or longer, that person would not be a reliable worker.  This doctor could not seem to grasp this concept – and any patient of his who was seeking disability either through Social Security or from a private long term disability carrier would be in trouble.

If you cannot change doctors, another option is to seek non-medical evidence.  A good source of such evidence are former co-workers and supervisors.  In many cases, I have submitted affidavits (sworn statements) from former co-workers or supervisors that spoke about my client’s slow pace of work, need to take frequent unscheduled breaks or other limitations.  I get these statements by asking my client to identify potential affidavit witnesses and to call these people to ask for their cooperation.  Next, I call the affidavit witness and talk to that person about my client’s limitations.   From these discussions, I will write up an affidavit which I will email or fax to the former co-worker for changes or corrections.  Assuming that the former co-worker is comfortable with the wording, I have that person sign the statement before a notary and send it back to me for submission.

Now, I don’t think that this type of evidence will overcome a hostile doctor, but it can tip the balance when the treating doctor is generally supportive but will not fill out a form.  It also works when the medical records come from public hospitals or the Veterans Administration hospital, or when medical treatment is limited.

Joel Ban

Attorney Joel Ban, a Utah lawyer who handles both Social Security disability and Veterans Disability claims recently posted a concise and informative article on his blog describing the similarities and differences between the two programs.  Joel points out that a VA disability rating of 70% or higher can help your Social Security claim – this confirms my experience that Social Security judges will give weight to VA disability findings.

Joel was kind enough to give me permission to reprint his article in its entirety, which I have done below.

This article is an overview of the highlights of the major topics for Veterans who have both Veterans Disability claims as well as Social Security Disability claims. A lot of Veterans may have both Social Security and Veterans Disability Claims going on either at the same time or may have received one benefit before applying for the other. VA compensation, aka service connected disability is not based on income so you can definitely receive VA compensation and Social Security Disability (SSDI) at the same time. There is also VA pension which is a needs based program, very similar to Supplemental Security Income (SSI). VA pension will be paid to Veterans if they have very little or no income and are disabled based on non service disabilities. It is possible to receive SSI and VA pension at the same time. Based on your circumstances its best to qualify for both VA compensation and Social Security Disability since they generally are the more generous benefits, however its important to be aware of these other needs based programs.

Major Differences between the Programs

Major differences between Social Security Disability and Veterans Disability is that you don’t need a total disability in order to be eligible for VA compensation. In fact, most Veterans who receive VA compensation do not receive a total disability rating. Veterans can receive a compensable rating as low as the 10% level and can have a rating as low as 0%. In many cases it makes sense to go for a 0% rating even though its not compensable. The reason for this is that it will mean that the Veteran at least has a service connected disability that will likely deteriorate into a more serious problem and later morph into a compensable disability. Many Veterans have trouble proving service connection but with a 0% rating the Veteran will have already crossed this hurdle. Social Security Disability, conversely does not compensate claimants based on a partial loss of employability. You are either disabled or not disabled under this program.

Another major difference between the two programs is the treating physician rule. In Social Security law once it has been established that a claimant’s physician is a “treating physician” that medical professional’s opinion is given deference. This can be the difference between winning and losing a SSD claim. However, in VA law it can be difficult to get a treating physician to give a positive opinion, especially if the Doctor works for the VA, but even if they do the opinion is not given deferential weight since the VA may consider that physician biased and is not given any special weight. See White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001). This case explained that the treating physician rule conflicts with an important VA principle that decisions be based on the entire file so as not to give any particular evidence extra weight.

Does getting benefits in one Program help get Benefits under the other?

So the question becomes does having one benefit make one’s case for the other any better? Overall, the answer is yes, but it depends. If you are the recipient of a very high VA rating (70% or higher) than your chances for success on your Social Security Disability claim are quite high. This is because another federal agency has already found that you are either incapable of work or you are at a level where full time work would be very difficult. One advantage many Veterans with high disability ratings is that while VA only considers service connected disabilities the SSA will consider all impairments whether they are service related or not.

Because of the similarity between a VA finding of unemployability and what it means to be disabled under the social security disability program, it is the rule in four circuits that such VA disability ratings are entitled to “great weight.” See McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984); and De Loatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983). One circuit court has said that VA disability ratings were entitled to “substantial weight.” Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985). SSR 06-3p says that the decision and the evidence used to make the decision “may provide insight into the individual’s mental and physical impairment(s) and show the degree of disability determined by these agencies based on their rules.

Unfortunately, if you are disabled under SSA rules, the VA may not give this decision as much weight since its not usually clear whether this decision is based on service connected or non service disabilities. Most Veterans have a wide array of both types of disabilities and so the VA will be quick to attribute total disability to a host of non service disabilities. They usually are required to make specific findings on what disabilities prevent employability. In this case it may become important for a Veteran to hire a Vocational Expert to support their total disability claim so they can specifically attribute unemployability to service related disabilities. However, it is definitely recommended that the VA be provided with the entire SSD file and decision even though the VA has a duty to request it since this could provide key evidence for your VA claim. Brown v. Derwinski, 2 Vet. App. 444, 448 (1992); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992); see also Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

Other Important Things to Know

In the Veterans Disability program although as mentioned above a Social Security Disability decision is given no special deference the VA will be required to consider SSD records. Under 38 C.F.R. § 3.159(c) the VA lists the Social Security Administration as one of the agencies from which they are required to obtain relevant records. See Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996) (“As part of the Secretary’s obligation to review a thorough and complete record, VA is required to obtain evidence from the Social Security Administration, including any decisions by the administrative law judge, and give that evidence appropriate consideration and weight;” citing Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). The SSD file is especially critical in VA claims for total disability for individual unemployability. Since both situations require consideration of whether the claimant or Veteran can work the SSD file is especially relevant. Under the VA Duty to Assist the VA will have violated that duty when they fail to request the SSD file. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (VA violated the duty to assist by failing to obtain Social Security records when it had actual notice that vet was receiving Social Security benefits).

A Social Security claims for survivor benefits based on the death of a Veteran also constitutes a VA claim for death benefits. They are said to be received by the VA at the same time they are received by the SSA.

The first program is called the “compassionate allowance” program, and it identifies specific diseases that produce work activity limitations that meet SSA’s definition of disability – in other words, if someone has one of these medical conditions, they would not be able to engage in substantial gainful activity and the symptoms will last 12 consecutive months or result in death.  I discussed the compassionate allowance program in a previous blog post, and you can review the diagnoses on the list by clicking on the link.

The second and newer program is called the Quick Disability Determination (QDD) program.   This program uses a computer program to analyze the electronic claim files to identify “cases where there is a high likelihood that the claimant is disabled” so that a claims representative within Social Security can approve a case without the need to review the claim with a medical or psychological consultant.  In a regular claim adjudication the claims rep, or “Adjudicator” must get a medical or psychological consultant to sign off on an approval, a process that takes time and can yield inconsistent results.

The QDD program only applies to adult claims at this point – not child SSI cases.

At this point SSA has not released any information about the computer program it uses to evaluate electronic claims or what information therein will trigger a QDD.   However, the presence of this program would suggest to me that a claimant with a significant medical problem would benefit from taking actions to insure that his medical file is as complete as possible as early as possible.   Specifically I would:

• make sure that the names, addresses and phone numbers of treating physicians and hospitals is accurate and readable on the application forms
• alert treating physicians that SSA will be contacting them for medical records
• provide treating doctors with a copy of SSA’s “blue book” of disabling medical conditions so that your records will contain wording that tracks SSA’s requirements
• providing the Adjudicator with accurate and up to date medication lists
• clearly identify on SSA’s disability reports the specific symptoms that prevent you from engaging in competitive work

I want my client to understand the hearing procedure so he can focus on what he needs to say.  The less uncertainty about the process – the better.

In Atlanta, which is my primary area of  practice, we have two live hearing offices and one video hearing location.   Between these hearing offices, there are around 20 judges that I see on a fairly regular basis and a few more that I see less frequently.  While every judge has his or her own style of conducting hearings, I have noticed one trend – judges seem to be relying more on me (the attorney) to ask the direct examination questions.   This may not be the case in every hearing office or every attorney, but this is what I am seeing.

In my view, having control of the questioning is a positive development because I can better prepare my client for his hearing.   I know what I will want to ask, and here are the areas of questioning that I cover.   In any case, whether I ask the questions or the judge asks the questions, there is certain information that every claimant should know and be able to discuss clearly and accurately – there is no reason to be surprised by any of this:

Personal background

• state your full legal name and social security number
• state your mailing address
• how tall and you and how much do you weigh?
• how far did you go in school and have you had any education or vocational training beyond high school?

Work background

• are you now working?
• have you tried to work since your onset date?
• describe your unsuccessful work attempt(s) – who was the employer, what did you try to do, how long were you able to stay and why were you unable to remain on that job?
• identify the last job you worked prior to your onset date – what were your job duties and what were your dates of employment?  why did you leave this job?
• what was the job before that – what were your job duties and dates of employment.  Why did you leave this job?
• going in date order, identify your past work going back for the past 15 years

Medical issues

• the medical record suggests that you have been diagnosed with __________ how does this condition/disease affect your capacity to work?
• how long have you had this disease/condition?
• when did it start and how has it progressed?
• if you were going to describe __________ to someone who was not familiar with this disease/condition, how would you explain what it is like to live with it?

Specific activity limitations (if applicable)

• how long can you stand before you have to sit down?
• how long of a break must you take before you can stand/walk again?
• how long or how far can you walk?
• how long can you sit before you have to stand up and move around
• if you had a job that required standing and walking and you could take a break every ___ minutes, how many minutes or hours total during an 8 hour workday could you stand and/or walk?
• if you had a job that required sitting and you could take a break every ___ minutes, how many minutes or hours total during an 8 hour workday could you sit?
• how much can you lift on a frequent basis – frequent meaning at least 2/3 of a workday?
• how much can you lift occasionally – occasionally meaning up to 1/3 of a workday?
• how much can you carry on a frequent basis – frequent meaning at least 2/3 of a workday?
• how much can you carry occasionally – occasionally meaning up to 1/3 of a workday
• are you able to bend, crawl or stoop?
• can you safely climb ladders, ropes or scaffolds?
• do you have any balance or other issues that would prevent you from working at unprotected heights?
• do you have any need to take unscheduled bathroom breaks? if so, why and how often?

Activity limitations arising from non-physical problems (i.e. mental health or pain)

• do you have any need to take other unscheduled breaks (i.e. crying spells)?  if so, how often?
• do you have any trouble getting dressed, or dealing with personal hygiene?
• do you have any issues getting along with family, friends, co-workers or supervisors?  If so, please describe these problems?
• do you have any memory problems
• do you have any problems with concentration
• do you experience pain – if so, where in your body?   when your pain is at its worst, how bad is it (use scale of 1-10)  how often is your pain at that high level?  do you experience  pain at a lower level?  how often?  does this lower level pain interfere with activities
• are there activities/hobbies that you used to enjoy that you can no longer do?

Drug and alcohol use (if applicable)

• the record indicates that you have had some trouble with alcohol use/marijuana use/street drug use.  is that still a problem?  when was the last time you used?  what type of program did you attend to address this problem?

This is not intended to serve as a list of every question that you may be asked.   However, at a minimum, you should be able to answer the above questions.  There is no excuse, for example, if you are surprised by the question:  “how far can you walk?”  The wrong answer is “I have never really thought about it – I just don’t know.”  The right type of answer is “I can walk to my mailbox, which is about 20 yards.  Because of the pain in my back, I have to stop and lean against a wall for about 5 minutes before I can walk back.  I always walk with a cane because I am unsteady on my feet.”

My “big picture” point here is simple – you have to prepare for your hearing.  Judges are busy and they don’t have a lot of time.  Preliminary matters like your work background and education should not eat up valuable hearing time.  I have seen instances where a judge will not include a limitation in his hypothetical question to a vocational expert because the claimant (my client) was so vague about his symptoms.

Judges understand that your symptoms may not follow a rigid schedule – for example if you experience seizures, and the question is “how often do you experience major seizures?” the answer may be “as many as 4 in a bad month and at least 1 every month, but on average 2 bad seizures a month.”

As a rule, it is not a good idea to answer:

• I don’t really know
• it depends
• sometimes
• not very much
• not very far
• not too long
• its hard to say

Instead, discuss with your lawyer how to offer a truthful answer to an “it depends” situation.  The more specific you can be, the better your results will be.

Compassionate Allowances are a way of quickly identifying diseases and other medical conditions that clearly qualify for Social Security and Supplemental Security Income disability benefits.  It allows the agency to electronically target and make speedy decisions for the most obviously disabled individuals.

There are now 88 medical conditions that qualify for compassionate allowance.  About half of these conditions are forms of cancer, while the other have are made up of rare diseases, many of which affect children.  Among the more common conditions that now qualify for an early approval:

• early onset Alzheimer’s Disease
• mixed dementia
• idiopathic pulmonary fibrosis
• mucosal melanoma

A full list of all of the compassionate allowance conditions may be found by clicking on the link which will take you to Social Security’s internal Program Operations Manual System (POMS).

If you or a loved one are afflicted by any of the conditions described under the compassionate allowance program, it is very important that you make that fact known to the adjudicator who is assigned to your claim.  You should not assume that the state agency adjudicator is familiar with the compassionate allowance list.

Imagine you have a condition like migraine headaches, and you are trying to win disability benefits. Well, in this case, it may be difficult to prove something like migraines can prevent you from working. This is where the doctor comes in to save the day. If you are able to see some kind of migraine specialist or neurologist whose office notes from your visits illustrate the severity of your migraines, you are that much closer to winning your disability claim. This is why it is always recommended that you seek the services of a doctor who specializes in your condition, whatever that condition may be. A specialist’s notes may be seen by the SSA as even more credible and as stronger evidence backing up your claim.

Cardiologists, rheumatologists, neurologists and orthopedic surgeons are examples of those physicians who specialize in certain areas of medicine, and such specialty doctors should definitely be consulted with over the course of your claim. They can provide certain testing, are knowledgeable of certain procedures, and have the right skills to render a better diagnosis of your condition and judgment of how it impacts your ability to work. Having that firm diagnosis of a condition and backup from a doctor can prove so valuable in your case.

Another reason doctors play an important role in disability claims is probably because of the strict standards doctors operate under today. I read an interesting article in the Chattanooga Times Free Press, dated April 7, 2010, which is titled Doctors face board specialty ‘expiration dates’ and which discusses just how strict the standards are today for practicing doctors. The article states that prior to the 1990s, doctors who had received specialized training in certain areas were only required to obtain certification ONCE. There were no additional requirements for retesting. In essence, once a doctor was certified, he or she was certified for the duration of his or her practice. Now, however, doctors constantly face the requirement of having to take tests and participate in continuing education to renew their board certification.

This seems like good news for the disability claimant, not just because doctors are held to higher standards, but because the work and opinions of doctors are highly regarded by the SSA. Social Security Judges certainly seem to put a premium on quality medical records. But aside from that, just knowing our doctors’ skills are up to date is a reassuring factor.

To sum up, doctor support is very important in a disability claim, and this is especially the case when it comes to board-certified specialists. Their diagnoses and treatment plans not only can speed up a disability process, but also can assist in winning one as well.

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