Not All Head Injuries Carry the Same Significance

Scientists who study concussions and their aftermath have determined that not all head injuries are the same.  Medical researchers in Europe studying brain injury in unhelmeted soccer players report that It turns out that a head trauma from an angular blow causes significantly more damage than a straight on blow to the head.  It turns out that an angular blow causes twisting of the brain stem and more tearing of delicate nerve fibers.   ¹

The Studies

There have also been a number of studies in this country looking at the impact of head injuries arising from motorcycle accidents. Attorney Michael Ehline, ² who writes extensively about negligence issues involving two and three wheel vehicles such as motorcycles and all terrain vehicles, has this to say about concussions and long term brain injury:

“Even if you wear a helmet, don’t think you’re safe from a head or brain injury. When a rider is thrown from his or her bike, and slammed into an inanimate object, or onto the pavement, aside from the injuries to the torso, neck, spine, arms and legs, the G-Forces alone can cause the brain to slam against the inside of your skull. If you see birds, or notice vertigo and memory loss after a spill on a bike, a likely reason for this is a TBI, or MTBI (read more here.) A concussion is actually a brain injury. One way to know if you have one is to have another person shine a light into your eyes.

If the pupils do not enlarge and collapse as they normally would as part of normal dilation, that is a sure sign. A head injury that is delayed in seeking treatment, could even result in death. Don’t forget there could be swelling, or bleeding on the brain that needs to be relieved by a doctor. So the single most important thing a rider can do (besides having an excellent and aggressive tort attorney), is to get to the emergency room, by hook or by crook.  Make it happen. We have a list of things to do at the web address I gave Jonathan Ginsberg – I encourage you to check that out. ³

View a Helpful Video About Brain Injuries

Social Security Disability and Head Injuries

In the context of Social Security disability, Administrative Law Judges recognize the seriousness of closed head injuries arising from all types of brain injuries – from an accidental knock in the head to an industrial work injuries to a fall from a ladder. No matter what the cause, a significant brain injury – even from a one time event, can result in disabling symptoms.

There are basically two ways to win a Social Security disability claim if you are experiencing post-concussive or post-TBI symptoms. Social Security Listing 11.00 describes a variety of neurological conditions including epilepsy, Parkinsonian symptoms or cerebral trauma. If your case is “listing level” we focus mostly on the medical record as the Social Security Administration accepts that certain types of brain injury which clearly documented by a CT scan, MRI or other objective testing are inherently disabling.

If the objective evidence is not conclusive and your case does not exactly fit a listing, you can still win using a second argument called the functional capacity argument. In this type of presentation, we present evidence of both brain trauma and evidence that you suffer with debilitating symptoms. Evidence about your symptoms can come from a variety of sources including:

• medical records
• medical reports from your doctor
• your testimony
• testimony from a witness (a relative, friend or former co-worker)

The type of symptoms that are often the most effective to present to a Social Security judge include:

• constant and chronic headaches
• short term memory loss
• fatigue
• balance issues
• nausea
• medication side effects
• poor concentration
• slow pace of activities
• anger management issues
• poor ability to structure a workday
• poor ability to make simple decisions

Learning More From a Real Lawyer

If you or someone you know has experienced a bad concussion or is experiencing symptoms that interfere with work, I am happy to speak with that person about Social Security disability.

The post Disabling Traumatic Brain Injuries Can Arise from a Single Concussion appeared first on Social Security Disability Blog.

One effort has been to tighten up eligibility standards.   Claimant’s representatives throughout the country are reporting that ALJ approval rates are down.   When cases are approved, judges are including directives in their decisions for SSA to review approved the approved claimant for medical improvement in one year or three years.

SSA has increased and will continue to increase the number of continuing disability reviews for approved claimants.  For years, the CDR program was basically ignored by Social Security – as a result only a very tiny percentage of approved claimants were ever removed from the payment rolls and there was no inquiry into improved medical status.   This is changing and I am starting to receive calls from my old clients asking about these continuing reviews.

SSA has also put more focus on its work incentive programs such as the ticket to work program.   SSA has commissioned a website called ChooseWork.net, which contains extensive information about return to work incentives.  In partnership with Cornell University, SSA participates in monthly interactive webinars that explain in great detail how these work incentives operate.   The webinars are also recorded and available 24 hours a day.   You can register for a forthcoming free webinar here.

The Ticket to Work program allows approved claimants to continue receiving their monthly benefits while they try to work.  This means that you will not be cut off if you accept a job.

I have always advised my clients that they will earn more money and feel more personal satisfaction working as opposed to collecting benefits with a label of “disabled.”  Obviously not all claimants with serious medical problems will be able to rejoin the workforce but for some claimants, access to Medicare and financial resources to seek medical treatment will result in a favorable improvement in their lives.

I encourage you to educate yourself about SSA’s work incentive programs and to consider participating if your medical condition warrants.

The post New Information Available About Social Security’s Work Incentive Programs appeared first on Social Security Disability Blog.

The poster on LinkedIn reported that she represented a claimant who was a non-custodial parent who owed several thousand dollars in past due benefits.  The child support collection office (state not named) had apparently contracted with a private collection agency.  The collection agency notified Social Security about the child support lien and the minute that the past due benefit award was issued, it was grabbed by the collection agency.  Child support claims are one of the few types of claims that can garnish SSDI (but not SSI) benefits – see the federal statute here.

One of my colleagues, attorney Erin Schmidt from Cleveland, Ohio added a very salient point to this discussion.  Collection agencies do not account for auxiliary benefits.  Since auxiliary benefits (which can amount to 25% of a disabled claimant’s monthly benefit amount and are paid in addition to the claimant’s benefit), a favorable decision could result in the payment of thousands of dollars to the auxiliary.

If the auxiliary (via the non-custodial parent) is receiving both the auxiliary payment and the entire past due payment for the actual claimant, it is very possible that the custodial parent could end up being overpaid.

Erin further points out that a disabled non-custodial parent could save himself a great deal of aggravation by filing a motion to modify child support payments and request that auxiliary benefits be counted towards his child support obligation and should offset that obligation dollar for dollar.  Do not assume, by the way, that auxiliary benefits automatically reduce the non-custodial parent’s child support obligations – in some states, this offset is given automatically, while in other states no offset is presumed.  The safest course of action is to get a state court order that specifically permits an offset.

Further the non-custodial parent could request that any Social Security disability funds awarded should be paid into the state court registry rather than being released directly to the non-custodial parent.  This could avoid the problem of trying to get overpaid funds back from a custodial parent.

The takeaway from all of this – if you owe child support and are applying for disability, please tell your lawyer.  Taking proactive action could save you a lot of pain in the future as you avoid overpaying a child support recovery office or the custodial parent.

The post Your Lump Sum Payment for Past Due Benefits may be at Risk from Child Support Collection Companies appeared first on Social Security Disability Blog.

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.

The post Genitourinary Impariment Listing URL Updated appeared first on Social Security Disability Blog.

This is a very unsettled time in the world of Social Security disability and there are forces in play that you as the claimant and me as the claimant’s attorney cannot control.

On one hand, we have a President and Congress who are intent on expanding our nation’s social safety net.  Whatever your political leanings, there can be no doubt that the federal government has committed itself to spend trillions of dollars in various social programs.   Politicians of both parties assure us that Social Security and Medicare are sacred and that we will not balance our budget on the backs of seniors and the poor.

At the same time, Congress regularly holds hearings to identify instances where disability claimants have defrauded the system, or where judges have approved 99% of cases brought before them.  I recently highlighted the efforts by Oklahoma Senator Tom Coburn to crack down on fraud and inefficiency in the disability decision making process.  You can view that video here.

The press regularly reports that the disability trust fund will run out of money in 2016 “unless something is done.”  Here is an example of one such article from the Washington Post.

As any disability attorney will tell you, the current commissioner of Social Security has sent the word down that too many cases are being approved and that judges with “excessive” pay rates will be reviewed and possibly dismissed.  Statistically, the approval rate at hearings nationally has gone from around 60% to less than 40% of the past 18 months.  This is not a coincidence.

What, then, is going on?

In my view the Social Security disability claimants have become the straw man of Congressional budgetary politics.  In any program as large as SSA, there will be fraud and mismanagement.  And given the subjective nature of disability adjudication, there will be some claimants who fool even cynical judges.

It is easy for everyone to feel anger and disgust at video sting operations showing approved claimants who are in fact able bodied men and women capable of climbing on roofs, playing sports or working for cash.

Unlike Social Security retirement beneficiaries who rely on organizations like the AARP to lobby for their interests, there is no AARP for disability claimants.  Even lawyer interest groups like the American Bar Association or the American Trial Lawyers Association pay very little attention to Social Security disability.  Why?  The money is not significant enough.   Tort reform is a hot button issue for trial lawyers because a big negligence case can generate tens of thousands or even millions of dollars in attorneys fees.  Attorneys fees in SSDI cases are capped at $6,000.

It is far easier for Members of Congress to pump money into federal programs that impact large numbers of motivated voters, while slicing funds from a disability program that is perceived by politicians and the general public as inherently corrupt, out of control and mismanaged.

At the same time, evidence of unfair treatment by Social Security towards deserving claimants barely makes a ripple on the national consciousness and certainly does not show up in Congressional subcommittee reports.  Were you aware, for example, that Social Security just settled a class action lawsuit was filed in 2011 alleging that 5 Queens, New York disability judges regularly ignored evidence to wrongfully deny thousands of New York City area claimants at hearings. Under the terms of this settlement, the previously denied claimants will get new hearings – although the judges responsible for the wrongful conduct will not lose their jobs.

Unfortunately I do not foresee any significant changes to either the prevailing attitude about Social Security disability or to SSA’s capacity to impose meaningful reform on the system.

What, then, are you – the honest, unfortunate and legitimate claimant – supposed to do?  There are some action steps you and your lawyer can pursue.  I’ll tackle that in my next blog post.

Read more:

Reuters article about proposed settlement in Padro v. Astrue

Read Senator Tom Coburn Congressional report – click here

Padro v. Astrue – website published by plaintiff American Association for Disability Policy Reform

The post Absence of Political Influence Costs Social Security Disability Claimants appeared first on Social Security Disability Blog.

I'm 41 yrs old and have been suffering for many years with narcolepsy and fibromyalgia.  My sleep disorder actually falls between narcolepsy and idiopathic hypersomnolence.  My family and myself are falling apart because of my disabilities. I've applied for disability in the past and was denied. I'm applying again and wanting to ask you how do i go about applying to prove my disability since its been denied in the past?  How much weight does testimonials from family and friends carry?  How much weight does a signed letter from my doctor saying, i can't work/drive its unsafe, carry?

I am not surprised that you have had a difficult time with Social Security.  As you probably know, Social Security defines disability in terms of your capacity to work a simple, entry-level type of job.  Basically you have to prove that the symptoms of your medical condition or conditions are so intrusive, that you cannot work at any job, full time.

As the person claiming disability you have to prove that you are unable to work – you do this by submitting medical records, and, even better, a functional capacity form completed by your doctor that identifies specific activity limitations.

The judge considering your case then has to accept your argument and your doctor’s conclusions about your capacity to work.

Some medical conditions lend themselves more than others to work capacity limitations.  Specifically medical conditions in which severity can be evaluated with objective testing are more readily approved.  Examples include

• MRI scans (for spinal disc problems)
• CT scans (for neurological issues)
• pulmonary function testing (for breathing and cardiac diseases)
• heart pumping capacity testing (ejection fraction calculations for heart diseases)
• liver function testing (for liver diseases)

Other medical conditions are well known to be progressive, degenerative and debilitating, such as

• multiple sclerosis
• muscular dystrophy
• lupus
• Type I diabetes

Then there are those conditions that are difficult or impossible to measure, or they rely on subjective reporting by the patient.  Narcolepsy, fibromyalgia and idiopathic hypersomnolence would fit into this category.

There is no doubt that any one of these three conditions could produce symptoms that would substantially interfere with your capacity to perform simple, enty-level work.  The problem is that the judge has no way of evaluating the severity of your symptoms.

• The judge can listen to your testimony, but that is obviously self-serving and a Social Security judge will need more than your statements about the severity of your condition.
• The judge can look at medial treatment records produced by your doctor, but most medical notes do not focus on work capacity – they focus on your complaints, the doctor’s treatment decisions and whether or not various treatment options have worked.
• The judge can look at a functional capacity form that identifies specific work activity limitations.  This is your most powerful tool, but it must be supported by treatment notes.  Note that a functional capacity form is more than a statement from your doctor stating that you are disabled.  A functional capacity form (which will be drafted by your lawyer), identifies your ability to perform a variety of activities relevant to work.  These could be physical – such as an evaluation about how much you can lift or whether you can use foot controls, or non-exertional – such as an opinion about whether you experience pain at a level that interferes with your capacity to maintain attention and concentration up to 2/3 of the day.  Most functional capacity questionnaires contain 25 to 30 questions that address multiple issues relating to your reliability.

When I am representing a client with one or more of these hard to measure medical conditions, I know that I will be facing an uphill battle.  In order to give myself the best chance at winning I will want to see:

• records of on-going medical treatment – showing that my client is seeking a cure
• one or more functional capacity forms completed by treating doctors, ideally medical specialists – and these forms must show reliability limitations such as a need for excessive breaks during the workday
• clear and specific testimony from my client about his/her limitations – no “I can’t stand very long and I can’t lift very much.”  I will need specifics
• evidence of unsuccessful work attempts – when a disability claimant tries and fails to return to work, that work attempt enhances the claimant’s credibility
• evidence of a long work history – here, too, a person who has worked continuously for many years will have more credibility than someone with a spotty work record
• adherence to and compliance with the treating doctor’s treatment regimen

As far as letters of support from friends and family, those won't hurt, but your judge will not give these statements much weight either.  Your friends and family are not disinterested, objective sources so the judge will give these statements minimal credit.

I have definitely noted that Social Security judges are far less likely than before to approve claims for medical conditions that cannot be directly observed.  These cases are still viable but the evidentiary requirements have gone way up.

The post How do I Win for a Medical Condition that Cannot be Seen on a Diagnostic Test appeared first on Social Security Disability Blog.

Every month, I receive requests for my opinion from concerned and anxious disability applicants about whether a case is good enough to win.   Usually a hearing has been scheduled and the claimant is looking for some reassurance.

The question below is a good example of this type of question.   I am happy to help my blog readers any way I can but I hope you can understand that I can't intelligently answer questions like these because I have no way of knowing what is contained in the medical record.  Further, it would not be appropriate to offer legal advice on a blog, especially to a person who has a lawyer.  I would point out that in my view, a claimant's testimony is less and less important relative to the medical record documents in one's case file.

I am going in December with my attorney for my first meeting with a judge. I have degenerative disc disease, fibromyalgia, arthritis in hands, sleep about 3 hours a night, can't lift anything above 10 pounds, severe low back pain for past four years I have not worked. Can't sit or stand for over 15 to 20 minutes at a time my back has stabbing, burning pain and sometimes runs down back of legs. My right hand will now go to sleep when ever it want to. I have had 17 facet shots under an x-ray machine and probably 35 x rays that show nothing. What is your opinion on this case will I win 100 percent and since I waited 2 years without work before I filed is there maybe a possible way to figure out what I may end up with to live off of? Anything you can tell me will be much appreciated. Is there any books that I can read to help me with this? It is very scary. I was also turned down 3 times by 3 different doctors when I did have insurance to get an MRI which I think I really need in this case.

As far as whether a particular person will win or not, here is what I would say:

• do you have support from a treating doctor in the form of a functional capacity evaluation or a narrative report describing activity limitations.   Social Security judges are trying to decide whether you have the capacity to perform a simple, entry-level, "warm body" job – has your doctor identified specific areas of functioning where your reliability is less than acceptable.  If you do not have this type of support from a treating doctor, you are going to have an uphill battle.
• have you been treating regularly with one or more doctors and are there medical reports and diagnostic reports (such as MRI's, CT scans, etc.) in your file that document your compliance with treatment and lack of success with treatment?
• is there any evidence in the file to suggest that you are malingering or drug seeking? – these can seriously damage your case
• assuming you are represented by counsel, what does your attorney think?  Can he explain to you the argument he intends to present to the judge and does he feel that the evidence describes serious limitations that impact your reliability at a job?
• ask your attorney to tell you the truth – if your case is weak, is there anything you can do to make it stronger?   Obviously, you will win if the judge accepts everything you say about your pain, discomfort, physical and mental limitations – the question: does the medical evidence support what you say?

The post Will I Win my Case? I have been Waiting a Long Time and I am Scared appeared first on Social Security Disability Blog.

It is my understanding that the purpose of this particular change was to prevent “judge shopping” whereby a lawyer might tell his client to move rather than appear at a hearing before a judge who rarely grants cases.  It seems to me that claimants and the entire disability adjudication system benefit more by having their lawyers better prepared than SSA benefits from rare instances of judge manipulation.

Another change I have noticed involves SSA directives discouraging judges from announcing their decisions.  In years past, judges would sometimes announce favorable decisions in cases where the evidence was clear.  Now, judges rarely announce their decisions directly even if all of the evidence and testimony points towards a favorable decision.

From my clients’ perspectives, of course, this mystery is extremely frustrating.  Imagine waiting 2 years to get a hearing, then to discover that it may be another 6 weeks before a decision is announced.

Can we derive any clues from the vocational witness’ testimony?  Unfortunately, I would have to answer in the negative.  Vocational witnesses appear to answer hypothetical questions from the judge about a claimant’s work capacity.   I document numerous examples of these hypothetical questions in the case write-ups you can read at the Case Strategies section of my web site.  The judge will pose a question like this:

Assume a hypothetical person who is the same age as the claimant, with the same work history and education.  Assume further that I find that this hypothetical person can perform the physical requirements of light work, but with the following limitations:

• this person can only occasionally climb stairs
• this person could not perform overhead lifting with the dominant right hand
• this person should only need to grip occasionally
• this person can climb ladders, ropes and scaffolds occasionally
• this person should not perform work at unprotected heights
• this person should not work around dangerous machinery

Based on these limitations, could such a person perform the claimant’s past work?

Could such a person perform any other job in the local or regional economy?

Most judges will ask several questions of the vocational witness, some of which will elicit a list of jobs that a hypothetical person could do, while other questions will elicit (the desired response, from our perspective) the response that there are no jobs that a person with these restrictions can perform.

In addition to the judge’s questions, I will also ask questions, and usually my questions are designed to include significant limitations such that the response “no jobs” is given.

Obviously, most judges make their decision about whether or not to approve a case, then they create questions to fit their conclusions.  Nevertheless the judge may still ask a question that produces the response “no jobs.”

The point here – even if you hear the response “no jobs” from one or more of the judge’s questions or from my questions, it does not mean that your case will be approved.  I have been involved in cases where the judge asked five hypothetical questions and the VE identified jobs in four out of the five, and we won.  Unfortunately VE testimony rarely generates reliable clues -  you are going to have to wait a few more weeks to learn the outcome of your case.

The post Can Vocational Witness Testimony Predict the Outcome of Your Hearing? appeared first on Social Security Disability Blog.

The issue is this: when you file for state unemployment, you must assert that you are ready, willing and able to work.  In the past, I would counsel my client to answer the judge’s question by stating that “I am willing and anxious to try to work and I would put forward my best effort to perform any job.  I don’t know if my medical condition would allow me to perform reliably but I would certainly try.”

Given that Social Security’s stated policy is to encourage people with disabilities to return to work, I do not see a huge inconsistency in a claimant who is applying for both unemployment and SSDI.

However, as is the case with part time work, Social Security tends to view things in an “either-or” fashion.  You are disabled or you are not, and there seems to be no middle ground.

Some judges take the position that if you say you are “ready, willing and able to work,” then by definition, you are not disabled.  Apparently if you accept unemployment compensation sign your name to a statement that asserts that you can work, then you must not be disabled.  Of course, you don’t automatically receive disability benefits if you do not apply for unemployment and sign a statement that you are not able to work.  And there remains no answer to the question of how you can feed and house yourself and your family during the 2+ years that Social Security takes to decide whether you are disabled.

I think that this renewed focus on unemployment compensation arises from the political realm.  Stories like this one refer to studies by academics which identify a correlation between disability applications and unemployment benefits.  In other words, many unemployed workers are less likely to apply for disability as long as they are receiving unemployment.  When unemployment runs out, they then apply for SSDI.  The conclusion of these academics:

while the Social Security disability insurance program was established to offer financial assistance for people no longer capable of working due to an injury or poor health, these days, an expanding group of applicants with manageable health impairments — or no impairments at all — have added to the already financially-strapped system.

So, at least for the forseeable future, SSDI claimants who have applied for and received unemployment benefits will find that their disability applications will be viewed with increased scrutiny, especially if they waited until their unemployment checks ran out before they applied.

The post SSDI Claimants Can Expect to be Asked About Unemployment Benefits appeared first on Social Security Disability Blog.

I STOPPED WORKING IN 2009 I KNOW THIS WILL BE MY ONSET DATE, MY QUESTION IS MY ONSET DATE OF 2009, HOW WILL THIS AFFECT ME WHEN I APPLY FOR SSI BENEFITS SOON, SINCE I DON’T HAVE AN EARLIER ONSET DATE. WILL SOCIAL SECURITY BACK PAY ME FOR 2009 IF I WIN MY DECISION.

Let’s first discuss the question of what is Robert’s onset date.  Generally, most claimants choose as their onset date the date that they last worked, and that is a reasonable choice.  However, your onset date should be the date that you became unable to work.  If, for example, Robert was laid off in May, 2009, and he suffered a major heart attack in October, 2009, the October date would be more appropriate.  In theory, you can choose an onset date prior to your last day of work, but doing so is an uphill battle and judges are reluctant to approve a claimant for disability for a time period when he was working full or close to full time.

Generally I advise my clients to choose the earliest possible onset date when their medical condition prevented full time work.  Your disability onset should be a date prior to the date that your SSDI insurance runs out.

Let’s assume that Robert stopped working in October, 2009 and that his medical records and medication condition were at a severe and disabling level at that time.  Will Robert get paid past due benefits starting in October, 2009.

If Robert has not filed for benefits yet (I am writing this in June, 2012), the answer is no.  In an SSDI case, you can only get paid for one year prior to the date of your application.  In an SSI case, you cannot go back at all – the date of your SSI application is the earliest you can get paid.

Further, in an SSDI case, you do not get paid for the first 5 full months of your disability – this is called the five month waiting period.  Click on this link from my website to learn more about the 5 month waiting period.

So, if Robert files for SSDI in June, 2012, alleging an onset date in October, 2009, the earliest he can get paid is June, 2011, which is one year prior to the date of his application.  If the judge finds that his disability began in October, 2009, the five month waiting period will include November, December, January, February and March, 2010.

If Robert is eligible only for SSI, then he can only get paid as of June, 2012, even if he is found disabled back to October, 2009.

You can modify your alleged onset date prior to your hearing but judges tend to be more receptive to moving the onset date forward rather than backwards.

If you are not sure about the date you should use as your onset date, call an experienced disability lawyer for advice.

The post Past Due Benefits Paid Up to One Year Prior to Application Date Only appeared first on Social Security Disability Blog.