by Jonathan Ginsberg and Erin Schmidt
You probably would not be surprised to discover that the most common impairment cited by Social Security disability applicants involves back pain. Because disability adjudicators and judges see so many back pain cases, you cannot simply walk into a disability hearing and testify that your back really hurts and that you cannot lift very much, walk very far, or sit very long, and expect to win.
Instead, Social Security disability judges expect to see evidence in the form of diagnostic test results (such as an MRI or CT scan), treatment notes from one or more physicians – ideally specialists – dating back months or years, evidence that conservative treatment like physical therapy or epidural injections have failed, and evidence that you are either a surgical candidate or that you have been referred for long term pain management.
In addition to evidence related to your back pain, Social Security judges look at evidence about other conditions such as depression, anxiety, diabetes, heart problems, and non-medical factors like your age, education, and work history.
Because so many folks have questions about back pain disability cases, I thought it would be helpful to describe the types of musculoskeletal pain cases that are getting approved at the end of 2017 and into 2018, and which types of cases are not being approved. Continue reading →
WXIA TV in Atlanta recently ran a story about a 53 year old U.S. Navy veteran who was approved for VA benefits but denied for Social Security. Retired Navy vet Daniel Norfleat from Covington, Georgia was deemed 90% disabled and unemployable by the VA for PTSD, a heart attack, a stroke and knee surgeries. Mr. Norfleat applied for Social Security disability and was approved, but SSA changed his onset date.
Norfleat appealed and his case went before a Social Security administrative law judge. The ALJ not only refused to change the onset date but she reversed the finding of disability entirely and ruled that Mr. Norfleat has the capacity to work at a full time job. This despite opinions to the contrary from 15 different doctors and prescriptions for 24 pills a day for pain, depression and insomnia.
Under new rules released by Social Security, their judge no longer has to explain why she disagrees with the VA’s decision. These new rules also provide that Social Security no longer has to give controlling weight to opinions about employability issued by treating physicians. See my video here about these new evidentiary rules. Continue reading →
Over the last few months, I have represented ten different clients claiming disability based on irritable bowel or inflammatory bowel diseases and every one of these cases was approved. My experience has been that disability judges recognize how IBS or IBD can significantly impact your ability get through a workday and thus preclude reliable work.
Since the main issue in any SSDI or SSI claim asks whether you have the capacity to reliably perform even a simple, entry-level job, medical issues that impact reliability will be considered disabling.
In irritable bowel or inflammatory bowel diseases like Crohn’s disease, ulcerative colitis, schistosomiasis, and amebic colitis cause work performance problems such as:
- need to take frequent unscheduled restroom breaks
- unscheduled time away from work station to use the restroomneed for a work station near and always open restroom
- gastric pain that interferes with attention and concentration
- excessive missed days from work due to symptoms
- medication side effects
Continue reading →
Is it really easier to win a World Series ring than to win Social Security disability benefits? Atlanta’s Fox 5 reports on the sad case of former Yankees second baseman Brian Doyle who has been denied twice by Social Security despite a bout with leukemia and a serious case of Parkinson’s Disease.
Atlanta’s Fox-5 recently reported a story about Mr. Doyle who has been waiting months and months for a hearing with a Social Security judge despite battling leukemia, two neck fusions and a diagnosis of Parkinson’s Disease.
With all of the chatter by political types about “rampant fraud” and abuse, the reality is that deserving claimants like Brian Doyle continue to suffer because of Social Security’s delays and inefficiencies.
And there is no guarantee that Mr. Doyle will be approved. Approval rates in the downtown Atlanta hearing office range from less than 20% to over 65% so whether this obviously disabled gentleman gets approved will rely as much on the luck of the judicial lottery as his medical records. Mr. Doyle is represented in his case by a very capable lawyer, my good friend Greg Rogers, so hopefully this deserving claimant will get some good news soon.
Link to the Fox 5 story
Greg writes: “I have seen many if not all of your YouTube videos and have to say you probably are the best disability lawyer on there. My case is rather unusual in the sense that I do not have one injury, I have three. I have a bad back, one herniated disk that causes a lot of pain for me and three bulging disks that are bad in their own right. My right hip is bad and needs replacement, I am on year 6 since it’s discovery. I also have two feet that have chronic pain from bad plantar fasciitis that have both been operated on with little to no success.”
“How on earth do I and my lawyers tackle this in a manner in which I can get approved ??? Should I have my primary doctor do a functional test on me for all three injuries or have each specialist do a functional test on each injury? Secondly is an MRI going to sway a judge more than an X-ray when these days X-ray specialists write their findings and send it to the treating doctors themselves.”
“Any advice would be much appreciated, and keep up your great work with helping us needy and injured.”
Greg, here are my thoughts. First, thanks for the kind words about my YouTube channel. I do put a lot of effort into creating these videos and I appreciate your positive feedback.
As far as your medical issues are concerned, I would defer to your lawyer who obviously can review and assess your medical problems. Speaking generally, however, my experience has been that it would likely be an uphill battle to base your disability case on planar faciitis since that condition is usually not totally disabling. It can eliminate categories of jobs that require more than minimal standing and walking but probably not sitting jobs. Continue reading →
Social Security disability judges are increasingly reluctant to award benefits to fibromyalgia claimants unless these claims meet a certain profile. Let me tell you about this profile – what is currently working for me in disability hearings I try here in the Atlanta area hearing offices. Continue reading →
CNN is reporting that more than 100 New York City firefighters have been indicted in connection with disability fraud. These firefighters filed claims for disability under the World Trade Center Disability Law, a source of benefits available only to New York City employees injured as a result of their service on September 11, 2001.
According to CNN, these disability claimants were coached (the CNN article is silent as to who did the coaching) about how to behave to win benefits that can amount to $50,000 per year for total disability.
Investigators discovered, however, that some of these permanently injured claimants were, in fact, working – in one case, teaching martial arts – despite their claimed disability.
Presumably these dishonest, retired firefighters will face civil fines or perhaps criminal prosecution for their actions. Continue reading →
USA Today published a very interesting article on December 15, 2013 about a research which identifies a physiological cause for fibromyalgia. Currently, fibromyalgia is recognized as a medical “syndrome,” which means that it can be identified by symptoms, while the source of those symptoms remains unknown. In the case of fibromyalgia, the American College of Rheumatology has published guidelines for physicians to use for diagnostic purposes, although treatment options remain limited.
The USA Today story quotes neurologist Anne Louise Oaklander at the Massachusetts General Hospital in Boston. Dr. Oaklander has published two studies which show that at least half the cases of diagnosed fibromyalgia arise from small fiber neuopathy, in which patients get faulty signals from tiny nerves all over the body, thereby causing symptoms. Here is a direct link to Dr. Oaklander’s article.
Researchers at Albany Medical College published a paper showing that fibromyalgia patients have excessive nerve fibers lining the blood vessels of the skin. This excess of nerve fibers can lead to increased sensitivity to pain. Interestingly, women have more of these fibers than men, which is consistent with statistics which show more female fibro patients than male patients. Here is a link to the news release from Dr. Frank Rice who conducted the research at Albany Medical College, and who now leads a research team at a private company. Continue reading →
I 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 →
The American Medical Association recently released a report [1. The AMA has recently designated obesity as a disease.] officially recognizing obesity as a disease.
With one in three Americans falling in the obese or super-obese BMI spectrum, the AMA hopes that by defining morbid obesity [2. The University of Rochester Medical Center defines morbid obesity as follows: if a person is 100 pounds over his/her ideal body weight, has a BMI of 40 or more, or 35 or more and experiencing obesity-related health conditions, such as high blood pressure or diabetes.] as a disease the medical community will implement more aggressive efforts to combat this debilitating condition (and the ancillary diseases associated with it) and prompt insurance companies to pay for treatments, counseling, and medication reimbursements.
What does this mean in the context of Social Security Disability?
Just because obesity has garnered much more attention as a debilitating disease by various members of the medical community, don’t assume SSDI will follow suit. Currently obesity is not listed in the Social Security Administration’s Listing of Impairments, or database of diseases that will automatically qualify a claimant to receive disability benefits. Continue reading →