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Social Security Eliminates “Treating Source” Rule – What does this Mean for You?

Effective March 27, 2017, Social Security has changed its long-standing policy about how it treats medical records and opinion evidence form your treating physician. Prior to March 27, 2017, evidence from your treating physicians would be given “controlling weight” by a Social Security adjudicator or judge.

Now, records and opinions from your long time treating doctors will be given no special weight. Instead, medical opinions from your treating doctor, consultative doctors and even non-examining medical consultants will be evaluated equally based on “persuasiveness.”

What does this change mean to you?

At first glance, this rule change seems to make no sense at all. Clearly a physician who has treated you for 10 years would have a more educated opinion about your capacity for work than a consultative doctor who met you once 2 years ago for 45 minutes, or a Social Security in house doctor who only knows you through his review of your medical records.

And, yes, there is a danger that a judge who has made up his mind not to approve your case will now have an easier time justifying a denial of your case. Continue reading →

Reaction to 60 Minutes Disability Segment: Truth or Fantasy?

what is state of Social Security disability systemThis past Sunday, 60 Minutes aired a segment called Disability USA, in which correspondent Steve Kroft reported on the “alarming state of the federal disability program” which has exploded in size and is about to run out of money.  Kroft interviewed Senator Tom Coburn (who is also a medical doctor), several current and former Social Security employees and former associate attorneys for a national law firm that advertises heavily [1. I have previously written and spoken about Senator Coburn’s efforts to expose fraud and inefficiency in the SSA disability program].

The gist of the story is that hundreds of thousands of able-bodied people have been approved for disability and are costing taxpayers millions of dollars.  Further, the story suggested that disability lawyers are culpable in the outsize growth of the disability program because they advertise heavily.  Further, there was an implication that at least some disability lawyers game the system with inappropriate and/or illegal relationships with doctors and judges.  Several of the judges and SSA employees interviewed opined that the disability program has devolved into a last resort unemployment program rather than one focused on people with serious disabilities.

I have no doubt that fair minded American taxpayers who have no experience with the disability program were and are appalled at a system which appears to be out of control and rife with fraud and manipulation. Continue reading →

Genitourinary Impariment Listing URL Updated

The Social Security Administration has changed the URL for Listing No. 6.00 – Genitourinary Impairments.   This is a change to the syntax of the Bluebook [1. http://www.ssa.gov/disability/professionals/bluebook].

Previously, the URL read as follows:

http://www.ssa.gov/disability/professionals/bluebook/6.00-Genito-Urinary-Adult.htm

This is now a dead link.

The updated link now reads:

http://www.ssa.gov/disability/professionals/bluebook/6.00-Genitourinary-Adult.htm

I am not sure why SSA decided to get rid of the dash between “genito” and “urinary” but it did.  If you had bookmarked the old link, now is the time to update it.

Free Resource for Disability Claimants: 10 Steps to Prepare for Your Social Security Disability Hearing

Gordon Gates e-book - prepare for your Social Security hearingMy colleague (and fellow Tulane Law School alumni!) Gordon Gates, a Social Security disability lawyer who practices in Maine and New Hampshire, recently wrote me to let me know about a free e-book that he has generously made available to you on his website.  Entitled “Ten Steps to Prepare for Your Social Security Disability Hearing,” this booklet is both an easy read and a valuable reminder about specific things you can do to improve your chances of winning a favorable decision.

Because the disability decision making process can take so long – 1 to 2 years in most places – it can be easy to forget what your lawyer may have advised you in a meeting 6 or 8 months ago.  Gordon’s book remedies this problem by setting out clearly and concisely 10 essential reminders about what you should keep in mind.

In my Atlanta law practice, I usually communicate with my clients by email more so than by phone and I have been sending out the link to Gordon’s free download on a regular basis.

Obviously, no book, no matter how good, will substitute for a supporting treating doctor and hundreds of pages of strong medical records.   However, if you and your attorney follow the advice set out in this helpful little book, you will greatly reduce your chances of being unprepared when you finally get your hearing date.   Again, the download is free and you will find the information contained within very useful.

More on Compassionate Allowances and Quick Determinations

Compassionate allowances and quick disability determinationsOn October 13, 2010, SSA announced new rules effective on November 12, 2010 that will allow SSA personnel to fast track disability claims.   Now there are two programs that will allow SSA personnel to quickly approve cases there the medical evidence for disability is overwhelming.

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. Continue reading →

The WRONG Answers to the Question: “Why Can’t You Work”

As I have discussed extensively on this blog and on my web sites, the ultimate question in any Social Security disability case boils down to this – would you be able to perform reliably a simple, entry-level job 8 hours a day, 5 days a week?

This question concerns itself with your capacity to perform work or work-like activities.  Other factors like the job prospects in your town, your transportation issues, etc. are not relevant.  As I tell my clients – imagine that a chaueffer driven limo will pick you up each morning and take you home each night – can you reliably fulfill the demands of an entry level job?

lose-win

Far too often, disability claimants hurt their chances greatly by giving the “wrong” answer to this ultimate question.   In a future post I’ll print out some examples of “good” answers to this question but today I want to focus on the wrong way to answer.

My colleague, Dallas disability attorney Stan Denman has graciously allowed me to reprint his take on this topic, which I think should be essential reading for all disability claimants and their lawyers.   As a claimant you must take the time to understand how the disability process works and what the judge needs to hear.   If you get the answer to this “ultimate” question wrong, you will not be approved.

Here are Stan’s Five “Case Killers,” in no particular order:

Top Five Bad Answers to Question: WHY CAN’T YOU WORK?

In no particular order of “badness”, here are the top five”case killing” responses to the Administrative Law Judge Question: “Why can’t you work?”

1. “I can’t find a job. No one will hire me with my medical background”
The ALJ wants to know why you think you can’t work. Implicit in this answer is a belief by the claimant that she can work, and that the problem is not being able to get a job. Social Security Disability benefits are intended to protect workers who cannot work due to a mental or physical condition. There are not intended to address the difficulites of finding a job.

2. “My long-term disability insurance company told me to file for social security disability”

This can be an easy mistake to make. Again, the ALJ wantsto know why you think you cannot work. Most long-term disability carriers require those that are on claim for long-term disability benefits to file for social security disability, because the insurance company can reduce the monthly benefit they pay in the amount of the social security disability benefit. So it is true that most LTD recepients may file at the suggestion of their insurance company. But this answer makes you look like the insurance company is leading you around by the nose, motivated not by a belief that you are in fact disabled but rather simply going along with the insurance company. Continue reading →

What “Theories of Disability” Work to Win Cases?

As a large federal bureaucracy, the Social Security Administration has a dizzying array of procedures and forms that it uses to process disability cases.   Social Security procedure manuals require disability adjudicators and judges to use something called a “sequential evaluation process” to evaluate every disability case.   In case you are interested, the five steps of the process are as follows:

  1. Are You Working?
  2. Is Your Condition “Severe”
  3. Does Your Condition Meet a Listing?
  4. Can You Perform Your Past Relevant Work?
  5. Can You Perform Any Work

Hundreds of words have been written about each step of this process and the Appeals Council and District Courts produce voluminous written opinions that explain what each of these words mean and how they should be applied.
As a busy attorney dealing with disability cases on a day to day basis, I don’t have the time or patience to deal with the minutia of Social Security jurisprudence. I worry about what it takes to win.

With apologies to the drafters of Social Security’s POMS – Programs Operation Manual System, it has been my experience that there are 3 ways to win a case:

  1. Meet a listing
  2. Prove that your functional capacity for work (i.e. Residual Functional Capacity) is less than sedentary
  3. Meet a grid rule

You can read more about how I apply these three “theories of disability” in a back case by clicking on the link.

In my experience about 15 of cases that end up at hearings are decided under a listing theory and about 15% are grid rule cases.  That leaves approximately 70% of the cases that I try as RFC cases.  Note that my percentages may be similar or different that what you might experience where you live.

In my view, Social Security disability practice fits fairly neatly into this three theory box.  I use this approach in every case in my office and I am always able to fit the facts of any particular case into one, two or all three of these arguments.

For this reason, it was a little troublesome when I received the following email from one of my readers:

I have a lawyer handling my disability case. My problem is that she doesnt seem to know some of the disability language. For instance she didn’t know what a RFC form was. She wanted to know where I get this language from.I told her that i research disability on the internet andthats where I get a lot of information. She said there is no such thing and that my doctor will make a narrative report on me. Is there any such thing as an RFC form or is the language different now?

My answer to the reader is “no, Social Security has not changed its language.”  An RFC form is a checklist that Social Security personnel use to evaluate a claimant’s RFC.   Here is a copy of the RFC form that Social Security uses internally.  In my practice I edit this form to include a number of additional questions that I know will help me win my case.  You can find a copy of my practice form along with suggested responses in my book, the Disability Answer Guide.

Now, a narrative report will work but I think that an functional capacity form is a superior instrument in that it conforms to Social Security’s internal procedures and “speaks SSA’s language.”   Narrative reports – in which a doctor writes a letter that identifies specific limitations and diagnoses – is a document more often seen in personal injury or workers’ compensation cases.

I would like to give my reader’s attorney the benefit of the doubt – perhaps she is familiar with Form 4734 and doesn’t call it an “RFC form.”    I would suggest, however, that any claimant or attorney not familiar with the term “RFC” may want to take a few minutes to learn about this concept since it is frequently the basis of Social Security hearing decisions.

A brief, shameless plug:  I am teaching a course about building a Social Security disability practice at Solo Practice University.  If you are a lawyer looking to add Social Security or one of a number of specialties to your law practice I would strongly suggest that you take a look at the SPU web site and consider enrolling.

What is my “Date Last Insured?”

Back in January, I answered a question from a blog reader about Social Security disability credits.  That reader wondered why Social Security had advised her that she had “run out of credits.”

You earn credits based on earnings during the approximately 10 year period prior to filing for disability.  If you wait too file or if you allege disability as of a date where your credits have run out, you cannot recover disability benefits (you could recover SSI, but SSI benefits are usually lower than SSDI and SSI will be offset by household income or assets).

When you file for benefits, Social Security calculates something called your “date last insured.”  As long as the judge or adjudicator finds you disabled on or before your date last insured, you will receive disability benefits.  If you are found disabled after your date last insured, you will not qualify for SSDI benefits.

In my law practice, one of my first tasks with any new client is to determine that client’s date last insured.  I have learned the hard way that if I am successful in proving disability, but the onset date used by the judge is after the date last insured, my client won’t receive any benefits and I won’t get paid for my efforts.

My colleague Social Security lawyer Tomasz Stasiuk in Colorado, recently posted a very well written explanation of the date last insured issue.  Take a minute and read Tomasz’ post because it clearly discusses and explains the major issues related to your date last insured.

Free, Personalized Health Information Available on the Internet

I read an interesting article on the BBC News feed that spoke about a link between diabetes complications and a Vitamin B-1 (thiamine) deficiency.   According to the article, diabetics expel Vitamin B-1 from their bodies at a rate 15 times that of non-diabetics.  Thiamine apparently helps ward off common diabetic complications such as heart disease and eye problems.

Obviously, you should not attempt to treat yourself of starting taking vitamin supplements without first speaking to your doctor.  The point here is that if you are a diabetic or a patient afflicted with any other chronic condition, you should use the power of the Internet to learn about new developments and treatments – both in the United States as well as elsewhere in the world.

Google, Yahoo and numerous other free services allow you to subscribe to alert services whereby you can receive an email notificaiton if a news story appears that includes specific "key phrases" you choose.  You can and should also learn about RSS feeds – another way to keep up to date with information.   I use the Google Alert service to keep up with developments in the Social Security disability area among other topics. 

If you have a favorite trusted source for medical or health care information, please comment on this post – I’ll create a page on this blog with a repository of those links.

[tags] diabetes and thiamine deficiency, health care information on the Internet, Google Alerts, RSS feeds [/tags]

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