The December, 2006 issue of the NOSSCR Forum newsletter contained an interesting article about how a disability attorney might want to develop an approach in a multiple sclerosis claim. NOSSCR, by the way, is a national advocacy and education organization for Social Security claimant’s representatives.
Multiple scleroris is a debilitating disease of the central nervous system in which the myelin sheaths that protect nerve fibers is lost and replaced by scar tissue. Symptoms of MS include poor balance and staggering, blurred or double vision, pain and altered sensations such as pins and needles or "electric shock," and cognitive impairment.
MS symptoms develop over time and sometimes an MS patient will experience periods of remission. This "waxing and waning" of symptoms can be problematic in a Social Security case because Social Security looks for a specific onset date for a claimant’s disability. The NOSSCR Forum article referenced the Anderson case from Michigan. In this case, Ms. Anderson experienced her first debilitating episode of MS in April, 1998, and thereafter had minor episodes. Her next major flare-up occurred in February, 2003. Ms. Anderson stopped working after her April, 1998 episode.
Unfortunately, Ms. Anderson’s insured status for Title II Disability expired in December, 2001. She applied for SSDI in September, 2002 alleging an April, 1998 onset date. The ALJ (Administrative Law Judge) denied the case on the grounds that Ms. Anderson’s condition improved sufficiently after April, 1998 to allow her to return to work. Ms. Anderson appealed and won at the federal magistrate court level, but SSA appealed. The case eventually found its way to the Federal District Court. Fortunately, Ms. Anderson was represented by an experienced SSDI appellate lawyer, Clifford Weisberg.
The Federal District Court sided with Ms. Anderson in concluding that the ALJ erred in placing undue reliance upon the "brief and temporary interruption of the plaintiff’s progressively disabling condition." The ALJ erred in relying on the claimant’s activities during periods of remission as evidence of her ability to perform competitive work.
The Federal District Court judge reasoned that MS is a disease that requires what is known as a "longitudinal" evaluation. Evidence of the 2003 serious flare-up, though occuring after the date that Ms. Anderson was last insured for Title II, was relevant in that this flare-up was relevant to understanding the nature of the disease. In other words, the Federal Judge concluded that once the claimant demonstrated that her disease was progressive (two severe flare-ups within four years), the remission period should be seen as a temporary exception to the disease and not evidence of a claimant’s ability to work ongoing.
Generally, Social Security judges do not look too closely at medical evidence for treatment after the claimant’s date last insured for Title II – in cases involving progressive diseases like MS, this newer evidence should be given a longer look.
I think that decisions like the Anderson case will be important in any number of cases involving progressive diseases, including MS, AIDS, Hepititis, muscular dystrophy and Parkinsons’ Disease. Judges will have less discretion in pushing back the starting date for benefits because of a brief remission period.
[tags] multiple scleroris and social security disability, MS and disability, onset date, Anderson v. Commissioner of Social Security, Clifford Weisberg, progressive diseases and SSDI [/tags]