Indiana Social Security Disability Attorney Blog 

Articles Posted in Social Security Disability

food bank orange vintage seal isolated on white

In 2009, the US Congress waived the work requirements as part of the stimulus package passed under the law known as the 2009 American Recovery and Reinvestment Act.  The stimulus package, and its waiver, expired in 2015.  As a consequence, non-disabled, childless Hoosiers, from age 18 to 49 have been receiving letters from the Indiana Family and Social Services Administration informing them that their food stamp benefits are now limited to 3 months in a 36 month period.  This is a huge change for the folks who have been receiving food stamps since Indiana suspended the work requirement in 2009.


What happens to those Hoosiers, from age 18 to 49 who have applied for Social Security Disability, have been turned down, and are waiting for an appeal hearing?  The Welfare Reform law is meant to limit the availability of food stamps for young “abled bodied” adults.   Congress wrote into the Welfare Reform law that a disabled young adult is not an able bodied person and therefore not subject to the food stamp limitation of 3 months in a 36 month period.  However, to be a disabled young adult is to be actually receiving federal disability benefits.  A disabled young adult does not mean a person who is disabled and in the process of fighting for benefits.


Indiana authorities estimate that about 50,000 Hoosiers will receive termination letters on account of the law change.  What is not known is how many of the 50,000 are disabled but have not yet won their cases.  Indiana food banks will be utilized by the disabled young adults who are in the process of fighting for their benefits.  What makes this law change even more difficult for the disabled young adults who are waiting for an appeal is that the time for an appeal is sometimes more than 2 years.


The Social Security Administration has an agency rule which permits a disability appeal case to be considered “critical.”  This process is found under HALLEX I-2-1-40.  Once a case is considered “critical” that case is entitled to special processing.  Special processing means that if a hearing is needed, the hearing will be set on a priority basis.  The HALLEX reads that if: “the claimant is without food as is unable to obtain it,” then the case will be considered “critical.”


This brings us back to the issue of whether mere availability of a food bank in the local community is considered sufficient for a disabled young person to be able to obtain food and therefore be required to endure the long wait time for a hearing.  Perhaps the law should be that if a disabled young person is in the process of filing an appeal for disability then the food stamps should continue without treating him or her like an able bodied person.

Hidradenitis suppurativa is an absolutely terrible skin disease.  The cause of the disease is unknown.  It is a chronic condition, meaning that the disease lasts for a long time or recurs often instead of getting better.  This disease is a pus-like inflammation of the sweat glands.  The sweat glands involved are not all of the sweat glands on a person but just the “apocrine” sweat glands.  Those glands are located in the armpit area, the external genitalia and perianal area (to name a few).  The result of the blocked glands include: blackheads; bumps; lumps and sores.  The blackheads are the least of the problems which hidradenitis suppurativa causes.  The bumps can be painful and when enlarged can break open.  When the lumps break open, often they leak pus with an unpleasant oder.  The bumps may also be accompanied by itching, burning and sweating.  The lumps generally form under the skin and may become painful.  Sometime the lumps remain for years.  The sores are well, sores.  When active, the sores can ooze pus.

Hidradenitis suppurativa has no cure.  It is treated by conservative measures such as antibiotics along with other types of medications.  When all else fails, it can be treated with surgery during which the diseased tissue is removed and in its place healthy skin is grafted.

Hidradenitis suppurativa can interfere with a person’s ability to work.  This occurs mainly because of restrictions in the use of arms (caused by disease occurring under arms or in the folds of the breasts) and in the inability to sit for a long period of time (caused by the disease occurring in the external genitalia and perianal areas).  There is also a social isolation component of the disease caused by the appearance and oder of the bumps and sores.  The Social Security Administration acknowledges that hidradenitis suppurativa can be debilitating enough to serve as the basis for an award of federal disability.

Section 8.06 of the listed impairments (20 C.F.R. Pt. 404, Subpt. P, App. 1 – Listing of Impairments), lists hidradenitis suppurativa in its category of impairments for skin disorders which may qualify for disability benefits:

8.06 Hidradenitis suppurativa, with extensive skin lesions involving both axillae, both inguinal areas or the perineum that persist for at least 3 months despite continuing treatment as prescribed.

As is true with other conditions, diseases and injuries the fact of being diagnosed with hidradenitis suppurativa does not alone qualify a person for disability benefits.  The condition must not only exist but be judged to be severe.  So, in the case of hidradenitis suppurativa, the skin lesions caused by the disease must be extensive, involve the relevant areas (usually on both sides of the body) or the perineum and importantly persist for at least three months even after continuing treatment.

Of course, even if the condition is not severe enough to meet or equal Listing 8.06, it may still support an award of disability if it prevents a person from performing his/her past relevant work and the restrictions from the condition eliminates so many other jobs that there are not substantial number of jobs in several regions throughout the country that the person can perform.

"100% Expert" Cachet (bleu)The Social Security Administration’s HALLEX I-2-5-48 contains a bare bones description of a vocational expert:

VEs are vocational professionals who provide impartial expert opinion during the hearings process on claims under title II and title XVI of the Social Security Act or claims for Black Lung Benefits by either testifying at hearings or providing written responses to interrogatories.

A VE is a person skilled in several areas of job placement.  He/she will have at least a college diploma.  His/her carrier normally will be centered on assisting placing people in jobs.  Sometimes, but not always, the people who a vocational expert places will have one or more “disabilities,” but not enough disabilities to keep that person from being employed at some job.  For that reason, a VE is knowledgeable of the requirements of various jobs which exist in and around the area where the expert has an office.

Typically, a VE will be asked to testify at a disability hearing before an administrative law judge in several areas.  First, the VE will be asked to classify your past work (work done in the last 15 years) according to the jobs listed in the Dictionary of Occupational Titles (DOT).  The DOT was last published in 1991 but the government still uses it as a valuable source to learn about the various physical and mental requirements of jobs performed in the nation.  The reason that the administrative law judge needs to know about those requirements is because you are saying, by having applied for disability, that you are no longer able to perform one or more of the requirements of your past jobs.  The VE will also be asked to identify whether you can perform those past jobs if you have certain work limitations.  Those limitations will be given to the VE by the administrative law judge.  The VE may be asked whether you can perform other work with certain limitations.  If the VE does identify jobs that you can perform even though you have certain limitations, the VE will asked to offer an opinion about the number of jobs which exist either in the nation, the state in which you live or in certain regions in the country.  If the VE testifies that there are no jobs which will accommodate the restrictions imposed upon you due to your disability, you should be found to be disabled for federal Social Security purposes.  If the VE testifies that there are “a few jobs” or “many jobs” which fit the restrictions, then the administrative law judge will have to determine whether those jobs exist in significant numbers in several regions throughout the country.  That determination by the administrative law judge will ultimately result in whether your claim is won or lost.

Some believe that the VE is the person who decides whether you are disabled.  That of course is not true.  It is the administrative law judge who decides that the question of disability.    

The consensus in the country is that unless Congress acts to rebalance the Disability Insurance Trust Fund, there will be a short fall starting in mid 2016.  The belief is that this shortfall will cause the government to pay about  80 percent of the monthly disability benefit to those who are entitled.  Why is there a shortfall?  Experts say that is is largely due to changes in the American population and the retirement age.

imageShortfalls, for various reasons, have occurred in the past.  Each time a short fall has arisen, Congress has stepped in to “reallocate” the various trust funds so that disabled Americans who have been declared qualified to receive disability benefits continue to receive those benefits.  This reallocation is “normal” for the federal government.  Basically, what is reallocated is the Social Security payroll tax income dealing with old-age benefits or the Old-Age and Survivors Insurance (OASI) and the Disability Insurance Trust Fund.  Notability, the reallocations, of which there have been 11 since 1968, run in both directions.  That is sometimes the Disability Insurance Trust Fund has been reallocated to transfer money to the OASI and sometimes the OASI has been reallocated to transfer money to the Disability Insurance Trust Fund.  The thought about this reallocation is that if allowed, both the OASI and the Disability Insurance Trust Fund would be stable until about 2033.  This time period would give Congress enough time to work out a sensible plan to continue funding both trust funds.

This is year is different.  Congress passed, in early January, House Resolution 5. This resolution is a procedural rule which stops any reallocation unless there has been either benefit cuts or tax increases or both which improve the solvency of both funds.  The trouble is that this goal is nearly impossible to reach.  No politician will vote to cut benefits and the GOP controlled House will not vote to increase taxes.  As a consequence, there will be no reallocation.

The mood in some corners of Congress is anti-disability recipients.  Instead of the government paying those Americans who have worked hard all of their lives, paid into the “system” and earned the right to be considered for disability payments, they are now being painted with the “hate brush” of being lazy, work-shy and worse malingerers.  Congress’ war cry is that the disability system is broken.  They are attempting to pit the retirees against the disabled.  As usual for Congress, facts are in short supply.

The truth is that the vast majority of disability recipients do not want to be on disability, they would rather be working.  The truth is that vast majority of disability recipients have had to fight “tooth and toenail” for the disability benefits that they have been awarded.  The truth is that the system is not broken (only about 41 per cent of those who apply are eventually awarded benefits).  The truth is that reallocation would not harm or endanger either fund.





Before August 24, 1999, deciding an obesity claim was pretty easy for the Social Security Administration. The weight, height and gender of the claimant was insert into a table and if the claimant was over the weight listed then disability would be awarded. On August 24, 1999, it all changed. (See Obesity, Respiratory Illnesses and Social Security Disability Benefits Posted on this blog on December 2, 2011). The Commissioner published a final rule on that date which became effective on October 25, 1999. This rule deleted listing 9.09 from the Listings of Impairments. The reason that the listing was deleted was because, in the Commissioner’s opinion, the weight/height/gender classification “did not represent a degree of functional limitation that would prevent an individual from engaging in any gainful activity.” (See SSR 02-01p.)

Fotolia_61918810_XS.jpgWith this change, the Social Security Administration no longer had an objective method for determining whether the disease of obesity was disabling. In its place, the Commissioner suggested that obesity can adversely effect the musculoskeletal, respiratory, and cardiovascular body systems. As a consequence, the Commissioner placed language in each of those listing categories to insure that the disability evaluators would remember to consider the disease of obesity when also considering those body systems. So, the charge from the Commissioner is that “adjudicators must consider any additional and cumulative effects of obesity.”

There are 2 problems with the new evaluation method for obesity. First, the consultative medical examiners, to whom the Social Security disability applicant is sent to for a physical evaluation, do not, other than noting the weight, consider how the person’s obesity affects the muscle skeletal, respiratory or cardiovascular body systems. There is just nothing in the consultant of reports addressing those issues. The fact that there is nothing in those reports does not mean that the obesity is having “no effect” or “minimal effect”. It’s just not considered by the examiner.

The second problem with this new evaluation method for obesity is that the disability evaluators employ boilerplate language in their decisions basically indicating that they have considered the effects of obesity. Normally, there is little if any discussion by the disability evaluators concerning the degree of effect which the disease of obesity has on those particular systems.

On September 12, 2012 the Commissioner issued SSR 02-01p for the purpose of providing guidance to disability evaluators when they evaluate the effects of obesity. This Ruling does provide some helpful examples of how obesity may be considered in the disability evaluation process. For example, this ability may actually “meet” a listing of impairment at 12.05 (C) as an impairment imposing an additional and significant work-related limitation of function. Obesity, according to the Commissioner, can also be considered to “equal” listing 1.0 by substituting an inability to effectually ambulate due to a joint problem with due to obesity. There are a few more examples offered by the Commissioner.

The problem however remains that the disease of obesity remains a second-tier type of disease within the disability evaluation process. It is a disease which is under evaluated by medical doctors and poorly understood by disability evaluators. That is why it is very important for attorneys who represent Social Security claimants to assist in fully developing the record when the disease of obesity is an impairment. For more information on obesity and Social Security disability, please visit Ted Smith

Fotolia_17088261_XS.jpgThe Social Security Disability program rules are very clear in cases where a claimant missed the 60 day deadline in which to request a hearing: the claimant must show “good cause” in order to be allowed to file a late appeal. “Good cause” is defined by regulation at 20 CFR § 404.911 and 404.933(c). These regulations basically say that the Agency will consider each case on its own merits as to why a deadline was missed. The regulations also include some examples of good cause such as a death or serious illness in the claimant’s immediate family, records were destroyed, the Agency itself caused a missed deadline or “unusual or unavoidable circumstances exist”.

Interestingly, even if the local SSA office (or “field office” as it is known in SSA speak) where the late claim is filed makes an initial determination that “good cause” exists for the late filing that is not the last word. After the filed office has processed the paper work the case is sent to ODAR for a hearing. Under the program rules, the ALJ is entitled to make the final call on whether “good cause” existed. SSA does not require the ALJ offer a hearing before he/she makes a determination as to whether “good cause” is the reason for the late filing. If the ALJ determines that “good cause” did not exist, then that is the end of the case and there is no appeal to the Federal District Court. In other words, there is no judicial review regarding whether the ALJ’s determination of no “good cause” was based no substantial evidence. No judicial review was the law at least under the thirty-four year old case of Watters v. Harris, 656 F.2d 234 (7th Cir. 1980). The reason for no judicial review was premised on the fact that since there was no “oral” hearing the courts did not have subject matter jurisdiction.

On August 4, 2014, the United States Court of Appeals for the Seventh Circuit reversed itself and ruled in the case of Boley v. Colvin, 2014 U.S. App. LEXIS 14989, 2014 WL 3810999 that a claimant’s denial of “good cause” to file late was in fact reviewable even if there had been no oral hearing. In Boley, Marilyn R. Boley has applied for Social Security disability benefits and was denied at the initial and reconsideration levels. She was presented by an attorney at the reconsideration level but SSA only sent notice of the reconsideration denial to her rather than to her and her attorney. Ms. Boley, who was preparing for a double mastectomy, assumed her attorney was going to handle the appeal for her. About nine months after the notice was sent to her, she discovered that no appeal had occurred. Ms. Boley’s attorney then filed a request for hearing. Even though SSA admitted that it had failed to send the notice to Ms. Boley’s attorney, it denied that she had “good cause” to file a late appeal so the ALJ denied her late appeal without a hearing. Ms. Boley then filed an appeal in the U. S. District court. The court, following Watters affirmed the denial. On appeal the U.S. Court of Appeals for the 7th Circuit found that “’hearing’ means a decision after whatever process the Social Security Administration itself elects to use”. As a consequence, the 7th Circuit found that Ms. Boley was entitled to judicial review of her claim that the agency mishandled her case. In making this ruling the 7th Circuit expressly overruled Watters. This case has national significance because this is the first judicial circuit to rule that a federal district court had the subject matter jurisdiction to hear a case from the agency when there was no “oral” hearing below.

The Commissioner of Social Security recently announced that beginning in mid-March 2014, Social Security disability claims filed by Veterans who have received a 100% permanent and total disability rating from the Veterans Administration will be expedited. According to the Commissioner “under the new process, Social Security will treat these veterans’ applications as high priority and issue expedited decisions, similar to the way the agency currently handles disability claims from Wounded Warriors.” Even though a veteran’s claim may be expedited, there is still no time limit for a claim to be processed and decided.

Fotolia_48297257_XS.jpgIn order to expedite the Social Security disability claim, the veteran must tell the Social Security Administration that he/she has a VA disability rating of 100% and show proof of that rating. Of course, the fact that a veteran has been awarded a 100% permanent and total disability rating from the VA does not necessarily mean that he/she will be awarded Social Security disability.

That said, SSR 06-03p requires that the VA’s finding of disability be considered as relevant evidence and given appropriate weight. The Ruling provides that “we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies (20 CFR 404.1512(b)(5) and 416.912(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.

These decisions, and the evidence used to make these decisions, 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. We will evaluate the opinion evidence from medical sources, as well as “non-medical sources” who have had contact with the individual in their professional capacity, used by other agencies, that are in our case record, in accordance with 20 CFR 404.1527, 416.927, Social Security Rulings 96-2p and 96-5p, and the applicable factors listed above in the section “Factors for Weighing Opinion Evidence.”
See also Allord v. Barnhardt, 455 F.3d 818,820 (7th Cir 2006) and Kessler v. Astrue, 2009 WL 3060220.

For more information about Social Security’s new program for Veterans, click here.

Gout is a type of arthritis that occurs when uric acid builds up in the blood and causes inflammation in the joints. Gout is generally a very painful disorder than can be both acute and chronic. Acute gout affects one area specifically, and is generally extremely painful and debilitating. Most often acute gout affects the big toe of those who suffer from the disease. In some cases of chronic gout, the joint becomes permanently inflamed and deformed.


Understanding that gout can be a debilitation condition, the federal government does allow for gout sufferers to qualify for Social Security Disability benefits in some situations. The most common way that applicants with gout qualify for Social Security Disability benefits is through the inflammatory arthritis listing.

Qualifying Under the Inflammatory Arthritis Listing for a Gout Diagnosis

Each Social Security listing lists several requirements that must be met before an individual can qualify for disability benefits. For inflammatory arthritis suffers, individuals must have been diagnosed by with gout, and must experience the chronic inflammation or ongoing deformity of either:

• At least one major weight-bearing joint, such as a knee, ankle, or hip, that results in an inability to walk well enough to perform day-to-day activities without assistance; or
• At least one major joint in each arm, (shoulder, wrist, or hand) that results in an inability to perform day-to-day tasks such as tying shoes, preparing meals, managing personal hygiene, holding a pen, or sorting papers.

In addition to the above requirements, the Social Security Administration will check to make sure that an applicant meets the “durational requirement.” The durational requirement is simply whether the applicant has had the disorder for a long enough period of time that they can qualify for disability benefits. Generally this is one year.

Because gout can come and go, meeting the duration requirement with a gout diagnosis can be tricky. However, if you have had gout for less than one year, you can still apply and may get approved if the Social Security Administration determines that the gout is likely to persist in the future.

Photo Credit: Instant Vantage via Compfight cc

See Related Blog Posts:

Can I Apply for Social Security Disability Benefits for Stress?
Applying for Social Security Disability with a Bipolar Diagnosis

For many Americans, the pains of stress affect virtually every aspect of live, even blossoming into an illness that can hinder basic daily functions. And for those individuals, the Social Security Administration has set forth guidelines that present possible disability benefits for those suffering from near debilitating stress.

The Mental Health Disorder Listing
In order for an applicant to qualify for Social Security Disability benefits for stress, that applicant must do so under the “Mental Health” listing, meaning that the stress must be at the level of being a “mental health” disease or disorder.
To begin, an applicant must provide the Social Security Administration with a detailed medical history of the treatment he or she has received from physicians. In addition, the symptoms of the stress or anxiety should be within the last 90 days.
In the case of stress, the qualifying sub-listing would be anxiety. In order to qualify for benefits for an anxiety diagnosis, an applicant must show symptoms of one or more of the following:
1.) Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms:

a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning.
2.) A persistent irrational fear of a specific object, activity, or situation, which results in a compelling desire to avoid the dreaded object, activity, or situation; or
3.) Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or
4.) Recurrent obsessions or compulsions which are a source of marked distress; or
5.) Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress.
And either:

– Symptoms resulting in complete inability to function independently outside the area of one’s home; or
– Any two of the following:

o 1. Marked restriction of activities of daily living; or
o 2. Marked difficulties in maintaining social functioning; or
o 3. Marked difficulties in maintaining concentration, persistence, or pace; or
o 4. Repeated episodes of decompensation, each of extended duration.
See Related Blog Posts:
Disability for Minor Children Under the Age of Eighteen
Availability of Disability Benefits for Mental Health Concerns

Bipolar disorder—formerly called “manic-depressive disorder”—can be a debilitating disease that prevents sufferers from living normal lives. Its symptoms include severe mood swings, from states of mania to states of depression. Often times those who suffer from the disease find it difficult to get out of bed, are severely depressed, and sometimes develop suicidal thoughts.

Because the disease is so severe in some cases, the federal government has determined that, in some circumstances, those who suffer from bipolar disorder can qualify for Social Security Disability payments.
Qualifying for Disability with Bipolar Disorder
With more than 45 percent of successful applications claiming some kind of mental health disorder, the Social Security Administration understands how devastating mental health disorders can be. However, the Social Security Administration does require some substantial proof of the disease and also requires that the disease is of a certain severity before approving an application for disability benefits.
In the case of bipolar disorder, an applicant must show that he or she has a medically documented persistence, either continuous or intermittent, of one of the following:
– Depressive syndrome characterized by at least four of the following:
o Psychomotor agitation or retardation;
o Anhedonia or pervasive loss of interest in almost all activities;
o Appetite disturbance with change in weight;
o Thoughts of suicide;
o Hallucinations, delusions, or paranoid thinking;
o Sleep disturbance;
o Decreased energy;
o Feelings of guilt or worthlessness;
o Difficulty concentrating or thinking.
– Manic syndrome characterized by at least three of the following:
o Hyperactivity;
o Pressure of speech;
o Flight of ideas;
o Inflated self-esteem;
o Decreased need for sleep;
o Easy distractibility;
o Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes);
o Involvement in activities that have a high probability of painful consequences which are not recognized;
o Hallucinations, delusions, or paranoid thinking.
Applicants must also show least two of the following:
o Marked restriction of activities of daily living;
o Marked difficulties in maintaining concentration, persistence, or pace;
o Repeated episodes of decompensation, each of extended duration;
o Marked difficulties in maintaining social functioning.
Finally, there must be a medically documented history of a chronic affective disorder of at least two years duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
o Repeated episodes of decompensation, each of extended duration;
o Current history of one or more years of inability to function outside a highly supportive; living arrangement, with an indication of continued need for such an arrangement
o A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate
See Related Blog Posts:

Qualifying for Disability with an Epilepsy Diagnosis
Social Security Disability for Those Who Suffer from PTSD