October 5, 2014 by Ted Smith

The Problem with Weighing an Obesity Claim

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 Law.com.

September 8, 2014 by Ted Smith

Denial by SSA of Good Cause for Late Filing Appealable to Court

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.

February 23, 2014 by Ted Smith

Social Security Announces Expedited Disability Claim Process for Veterans

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.

January 27, 2014 by Ted Smith

Qualifying for Social Security Disability Benefits with a Gout Diagnosis

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.

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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

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

January 15, 2014 by Ted Smith

Can I Apply for Social Security Disability Benefits for Stress?

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.

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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.

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- Disability for Minor Children Under the Age of Eighteen
- Availability of Disability Benefits for Mental Health Concerns

January 11, 2014 by Ted Smith

Applying for Social Security Disability with a Bipolar Diagnosis

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.

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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

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January 7, 2014 by Ted Smith

Hearing Office Closings for Tuesday, January 7, 2014

The Office of Disability Adjudication and Review hearing offices (Social Security Hearing Offices) in Fort Wayne, Indianapolis and Valparaiso are closed. Hearings set for today will be rescheduled.

December 23, 2013 by Ted Smith

Applying for Social Security Disability Benefits with a Multiple Sclerosis Diagnosis

Multiple Sclerosis is an autoimmune disorder affecting the central nervous system, which includes the brain, spinal cord, and optic nerves. MS is a degenerative diseases meaning that, as time passes, the disease gets worse and worse. While every person's symptoms are different, the symptoms of MS are usually:


  • Problems concentrating and/or remembering certain things, depression, feelings of dread, etc.,

  • speech problems, including slurred speech,

  • difficulties chewing and swallowing food,

  • chronic fatigue,

  • loss of balance,

  • problems with walking and with general coordination,

  • tremors or weakness in the upper and lower extremities,

  • bowel and bladder problems, including constipation and frequent need to urinate,

  • vision problems, including double vision or even complete loss of vision, and

  • numbness, tingling or pain in the face, arms, or legs.

Due to the severity of the disease, the federal government has determined that those who suffer from MS and meet certain qualifications can obtain Social Security Disability benefits.

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Qualifying Based on an MS Diagnosis

Multiple Sclerosis has a specific listing under which applicants can apply. This means that there are predetermined criteria that applicant must meet in order to be found eligible for disability payments for their MS diagnosis.

Applicants must have been diagnosed with MS for 12 months and, in addition, must be able to meet one of the following:


  • Difficulty walking or using your hands because of significant impairments of at least two limbs. You may have partial paralysis of your limbs, tremors, or involuntary movements.

  • A severe decrease in vision that cannot be corrected with glasses.

  • An organic mental disorder causing memory loss, a decrease in IQ, or disturbance in mood, or

  • Severe fatigue and muscle weakness that is caused by the central nervous system as a result of MS.


Proving Eligibility Under the MS Listing

Applicants applying for Social Security Disability under the MS listing must generally submit proof of both diagnosis and treatment history. The more comprehensive and accurate a picture an applicant is able to create to the Administration, the more likely that applicant's application will be approved.

Also, because of the nature of MS, even if an applicant is initially denied, that same applicant may be able to apply again in the future and obtain benefits if their condition has worsened.

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Social Security Disability for Those Who Suffer from PTSD

December 13, 2013 by Ted Smith

Applying for Social Security Disability Payments for a Diabetes Diagnosis

If you suffer from diabetes, you know how difficult it can be to control your symptoms. In some cases, the symptoms become so extreme that they affect your ability to conduct the daily functions of life. The federal government understand that diabetes is a debilitating disease and, in certain circumstances, allows for those who suffer from diabetes to collect social security disability payments.

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The range of symptoms for an individual suffering from diabetes is wide. However, the following are all thought to be fairly common symptoms:

- Stroke
- Decreased ability to heal
- Depression
- Neuropathy
- Kidney damage
- Hearing loss
- High blood pressure and other cardiovascular problems
- Limb amputation
- Glaucoma
- Other vision problems
- Gum disease

While some who suffer from diabetes are able to control their symptoms with diet, exercise, and daily medication, not everyone is so lucky.

Collecting Disability with a Diabetes Diagnosis

Unfortunately, a diabetes diagnosis alone is generally not sufficient to qualify for disability payments. This means that, in order to qualify for disability payments, an applicant must either have fairly severe symptoms that restrict their ability to perform even the most menial of tasks or have another disease or disorder that has its own set of symptoms which limit the applicant’s ability to perform the tasks of a job.

This is a bit tricky. Diabetes alone will not qualify an applicant, but the symptoms may. In other words, if your diabetes causes severe depression, you may qualify under the depression listing.

Similarly, if an applicant’s diabetes does not qualify them alone, as above, the condition may go a long way towards qualifying the applicant if that applicant has other non-qualifying diseases or disorders. Under this qualification method, an applicant might have numerous less serious diseases or disorders that, when all combined, make it incredibly difficult for them to perform the necessary tasks of even a sedentary job.

Performing the Tasks of a Sedentary Job

When applying for disability, you may hear the phrase “sedentary job” fairly often. This is how the Social Security Administration assesses whether an applicant can still get a job, despite their disabilities. A sedentary job is a job that does not require physical activity, such as standing, walking, running, crouching, and other strenuous types of movement.

Typical sedentary jobs are: driving jobs, computer jobs, and quality control jobs.

Are You Considering Applying for Disability?

If you are thinking of applying for disability payments based on your diabetes diagnosis, you should contact an experienced Indiana disability attorney today. Although the forms can be filled out on your own, many first-time applicant make simple mistakes that can delay their application for up to a year. If you need help, contact Ted Smith attorney today at, 800-296-2290.

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December 4, 2013 by Ted Smith

Obesity and Social Security Disability

Obesity is a condition that affects millions of people across the United States. In short, obesity is defined as having excess body fat. Technically speaking, the threshold for what constitutes “obesity” is having a Body Mass Index of 40 or greater.

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People who suffer from obesity live restricted lives in many ways. For example, those with obesity may have difficulty with the following tasks:

- Manipulation of small objects;
- Even short periods of physical exertion;
- Travelling;
- Walking;
- Crouching;
- Standing for medium to long periods of time;
- Driving.

Many of these tasks are required in order to perform the necessary functions of many jobs. Therefore, sometimes, people suffering from obesity have a difficult time getting and holding jobs due to their disease.

Qualifying for Disability Benefits with an Obesity Diagnosis

Unfortunately, obesity is no longer listed as a qualifying disease under the Social Security Administration’s guidelines. However, that does not necessarily foreclose an applicant suffering from obesity from qualifying for social security disability benefits.

In order to qualify for disability with an obesity diagnosis, the applicant must prove that they cannot perform the necessary functions of even a sedentary job due to the effects of their disease. A sedentary job is one that requires little walking, jumping, crouching, or moving. In an eight-hour shift, a sedentary job would require no more than two hours of standing and only the occasional lifting of 10 pounds or less. Examples of sedentary jobs include: receptionists, packers, sorters, surveillance systems monitors, and dispatchers.

Must Applicants Only Consider Their Obesity when Applying?

The short answer is no. The Social Security Administration will consider the cumulative effects of any diseases and disorders an applicant is currently suffering from when determining whether that applicant is able to perform the tasks of a sedentary job. Therefore, it benefits the applicant to have a complete, documented history of all diseases and disorders, as well as their symptoms.

Are You Suffering From Obesity and Considering Applying for Social Security Disability?

If you are currently suffering from obesity or a combination of obesity and other diseases or disorders that adversely affect your ability to perform the necessary tasks of a job, you may qualify for social security disability. While the process can be completed on your own, it may behoove you to enlist the services of a qualified Indiana Disability attorney to assist you in the preparation of your application. Many applications are rejected for typographical and other errors that many first-time applicants are likely to make.

If you need assistance in applying for disability benefits or assistance in appealing a denial of your application for disability benefits, please contact Ted Smith attorney today at, 800-296-2290.


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November 28, 2013 by Ted Smith

Obtaining Disability Benefits for Respiratory Diseases and Disorders

Respiratory diseases are often associated with a difficulty breathing, shortness of breath, inability to exercise or maintain physical stress, and other problems with the lungs. If you have one of the following respiratory diseases or disorders, you know how difficult it can be on a day-to-day basis:

- Bronchitis
- Asthma
- Emphysema
- Tuberculosis
- Pneumonia
- Cystic Fibrosis
- Sleep Apnea
- Lung cancer
- Mesothelioma

The federal government understands that these conditions can interfere with your ability to obtain work and perform the necessary functions of a job. Therefore, in some situations, those who suffer from these respiratory diseases and disorders are eligible to collect Social Security Disability payments.

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How Do I Qualify For Disability Benefits for My Respiratory Disease or Disorder?

If you have a qualifying respiratory disease or disorder, you may qualify for disability benefits based on that disorder alone or in conjunction with other ailments you may have. The determining factor is how severely the disease or disorder affects your life and how long you have suffered from it.

To qualify on the basis of the disorder alone, the disorder will have to meet two criteria: severity and duration. Severity refers to how “bad” the symptoms of the disease are and how much they impact your daily life. If it is a mild case, the Social Security Administration may not grant disability benefits solely on that disorder. However, in more severe cases, the Administration may determine that it is sufficient in and of itself.

The next requirement is the duration requirement. Generally, a respiratory disease or disorder must have a document history in order to make an applicant eligible for disability benefits. Because of this, it is critically important that you keep a well documented history of the diagnosis and treatment of your respiratory disease or disorder.

Can I Qualify if I Have a Mild Case but also Suffer From Other Problems?

If you have a milder case of one of the above diseases or disorders, you may still be able to qualify if you have difficulty performing the necessary tasks of a job due to other illnesses or ailments you may have. For example, if you do not meet the severity or duration requirements under the Respiratory listing, but you still cannot perform the tasks of even a sedentary job due to your illness, the Social Security Administration may determine that you are eligible for benefits.

What Can I Do To Start the Application Process?

If you suffer from a respiratory disease or disorder and believe that you may qualify for Social Security Disability benefits, you should speak to an attorney immediately. The application process can be a long and confusing one. Contact attorney Ted Smith at Ted Smith Law today at, 800-296-2290.

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November 21, 2013 by Ted Smith

Disability for Cardiovascular System Diseases and Disorders

For people who suffer from cardiovascular diseases, getting and holding a steady job can be difficult, if not impossible. Often, the symptoms of cardiovascular diseases and disorders keep people stuck at home in pain. It is very common for people who suffer from circulatory diseases to have very little tolerance for exercise ,including movement of any kind.

The federal government understands how difficult fighting a cardiovascular disease can be, and make Social Security Disability benefits to those applicant who meet the criteria set forth in their guidelines.

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What Kinds of Cardiovascular Diseases Are Covered by Social Security?

The following diseases are the most common cardiovascular diseases that applicants receive Social Security disability payments for:

- Coronary Artery Disease: Coronary artery disease occurs when the arteries become clogged and narrowed restricting blood flow to the heart, a condition known as atherosclerosis.

- Congestive Heart Failure: Congestive heart failure is an aspect of heart disease where blood returning to the heart through the veins backs up, causing congestion in the tissues.

- Arteriosclerosis: Arteriosclerosis is a certain aspect of heart disease that occurs when fatty or calcium deposits in the artery walls cause them to thicken and create the arteries to harden.

- Aneurysm: An aneurysm is a bulge in one part of an artery that is caused by weakness in the wall of the blood vessel.

How Do You Obtain Benefits for Cardiovascular Diseases and Disorders?

Depending on which disease an applicant has, there is a corresponding set of requirements that must be met before the applicant will be found to be eligible for Social Security disability. Most of the requirements have two main aspects. First, there is a severity requirement. This is met if the symptoms the applicant suffers are sufficiently severe. While the Social Security Administration requires that the disease restrict the daily function of an applicant before that applicant can receive benefits, by no mean must an applicant be bed ridden.

The second requirement is the time-frame requirement. Generally speaking, the Administration will require that there be at least some treatment history showing that the applicant suffered from the disease for at least several months, if not longer. TO make sure that you have the best shot at getting you application approved on the first time, be sure to keep accurate and thorough records of your medical history.

Do You Suffer From a Cardiovascular Disease?

If you suffer from a cardiovascular disease of any kind and believe that you may qualify for disability payments you should contact Ted Smith attorney filling out the disability application. The application process can be confusing and tedious. Sometimes it’s best to have assistance. Contact Ted Smith Indiana disability attorney today at, 800-296-2290.

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November 9, 2013 by Ted Smith

What Disorders Qualify for Social Security Disability Benefits

The federal government provides disability payments to some citizens if they are disabled to the point where they cannot perform the necessary functions of a job. There is a very detailed and specific set of criteria the Social Security Administration uses to assess a candidate’s application.

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The primary way to qualify is to do so under one of fourteen “listings.” These listings are essentially different types or categories of diseases and disorders. The Social Security Administration has developed the following categories, or listings:

- Musculoskeletal disorders
- Mental disorders
- Neurological disorders
- Cardiovascular disorders
- Immune system disorders
- Special senses and speech disorders
- Respiratory system disorders
- Digestive system disorders
- Genitourinary disorders
- Skin disorders
- Endocrine disorders
- Hematological disorders
- Congenital disorders that affect multiple body systems
- Malignant neoplastic disorders

Each listing contains several different diseases and disorders. So, just because you do not see your specific disease in a listing does not necessarily mean that the disease or disorder is not benefit-eligible. For example, an applicant may qualify for benefits under the “Immune System Disorders” listing if they suffer from any of the following:

- Lupus
- Systemic Sclerosis
- Connective Tissue Disorder
- Inflammatory Arthritis
- HIV/AIDS (in certain cases)
- Immune Deficiency Disorders
- Psoriasis

In addition, each disease or disorder in a listing has a different set of criteria that an applicant must meet in order to qualify for disability payments. Generally, these criterion are related to the duration and severity of the disease or disorder. In some cases, there may be additional requirements as well.

In all cases, an applicant must have thorough documentation of the diagnosis and treatment history of their disease or disorder. If a diagnosis is missing and testing must be performed to prove that an applicant suffers to the extent required to be benefit eligible, testing must be conducted at the applicant’s expense. In other words, the Social Security Administration will not pay for testing to then prove benefit eligibility.

Considering Applying for Disability?

If you are suffering from an immune system disorder, or any other disease or disorder that prevents you from working, or makes it very difficult to do so, you may qualify for Social Security Disability benefits. To get a better understanding of the process, and see if your specific disease or disorder is covered, you should consult with an attorney.

For over 35 years, Attorney Ted Smith has represented many disabled persons seeking to obtain Social Security disability benefits. The disability application process can be complex and drawn out. It is best to have someone by your side who has done this before. Click here, or call 317-280-8863 today to schedule a free initial consultation.


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October 24, 2013 by Ted Smith

Disability Availability for Those Suffering from back Problems

Among all the disabilities out there, the Social Security Administration gets more applications based on back problems than any other disability listing. This is, in part, because of the prevalence of back problems among the US population. Obtaining disability benefits for back problems is not necessarily easy; the Social Security administration will not usually grant disability benefits to an applicant who is suffering from the normal back pains associated with getting older. However, the Administration may determine that benefits are appropriate for certain cases of:

- Spinal stenosis: Spinal stenosis is a narrowing of the open spaces within your spine, which can put pressure on your spinal cord and the nerves that travel through the spine. Spinal stenosis occurs most often in the neck and lower back.
- Nerve root compression: Nerve root dysfunction, which is usually secondary to chronic pressure or invasion of the root, causes a radicular syndrome of pain and segmental neurologic deficit.
- Herniated disk: A herniated disk refers to a problem with one of the rubbery cushions (disks) between the individual bones (vertebrae) that stack up to make your spine.
- Arachnoiditis: Arachnoiditis is a pain disorder caused by the inflammation of the arachnoid, one of the membranes that surrounds and protects the nerves of the spinal cord. It is characterized by severe stinging, burning pain, and neurological problems.

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Even if you do suffer from a qualifying disorder, you will still need to meet the severity requirement before the Social Security Administration will grant you disability benefits. In these cases, you will generally need to show that you cannot perform the necessary tasks of even a sedentary job that does not require you to walk, lift, run, sit, or push, etc.

Your case for disability benefits may be strengthened if combined with other related or unrelated disabilities. In these cases, the Administration will consider the applicant as a whole. So the more difficult time an applicant has performing the necessary functions of a job—for whatever reason—the more likely that the applicant will be approved.

Considering Applying for Disability?

If you are suffering from chronic back pain that is caused by one of the many chronic back-related diseases, you may qualify for Social Security Disability benefits. To get a better understanding of the process, and to determine if you may be a good candidate, you should consult with an experienced Indiana disability attorney.

Attorney Ted Smith has over 30 years experience as a practicing attorney and has the experience and familiarity with the social security system that you need to ensure you have a good shot at getting approved. The disability application process can be complex and drawn out. It is best to have someone by your side who has done this before. Click here, or call 317-280-8863 today to schedule a free initial consultation.


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Qualifying for Disability with an Epilepsy Diagnosis

Social Security Disability for Those Who Suffer from PTSD

October 19, 2013 by Ted Smith

Qualifying for Disability with an Epilepsy Diagnosis

Epilepsy is a chronic neurological disorder that is characterized primarily by seizures. Approximately 50 million people worldwide have been diagnosed with epilepsy, making it a more common disease than most people think.

While some people with epilepsy are able to control their disease and the resulting seizures with medication, not everyone is so fortunate. If you have epilepsy that interferes with your daily life, then you may be able to qualify for Social Security Disability for epilepsy.

There are two ways to qualify for disability benefits with an Epilepsy diagnosis. First, you may qualify under the Epilepsy listing that the Social Security Administration has created for both convulsive and non-convulsive Epilepsy. However, if you do not meet the criteria under the Epilepsy listing, you may be able to qualify under the medical-vocational allowance.

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Qualifying for Disability Benefits for Epilepsy under the Neurological Listing

Because Epilepsy is characterized mostly by the seizures that come along with the disease, the Social Security Administration looks to the frequency and severity of the seizures to determine whether to grant disability benefits.

For example, to qualify under convulsive Epilepsy listing, an applicant must have:
- at least one seizure a month, following at least three months of medication treatment,
AND
- the seizures are daytime seizures that involve convulsions or loss of consciousness,
OR
- nighttime episodes that result in symptoms that interfere with your daytime activities.

To qualify under the non-convulsive Epilepsy listing, an applicant must have:
- at least one seizure per week, in spite of at least three months of compliance with prescription medications,
AND
- the seizures significantly interfere with daily activities
OR
- cause you to display abnormal post-seizure behavior

If you do not qualify under this official Epilepsy listing, there may still be an option to qualify under what is called the medical-vocational allowance.

Qualifying under the Medical Vocational Allowance

This is what can be thought of as the “catch all” when it comes to disability listings. If an applicant does not fit into any of the specific listings created by the Social Security Administration, but still cannot hold gainful employment because of a disability or a combination of disabilities, that applicant can still receive benefits.

Keep in mind that, if you have a high school education and younger than 50, the Social Security Administration will assume you can perform at least sedentary work. This is a presumption than can be rebutted however.

Are You Suffering from Epilepsy?

If you are suffering from epilepsy that cannot be adequately controlled by medication and impacts your daily life, then you may qualify for disability benefits based on your condition. To find out more, you should contact an experienced Indiana disability attorney to get a free initial consultation and discuss the facts of your case more thoroughly.

Click here, or call 317-280-8863, to schedule a free initial consultation today.

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- Social Security Disability Benefits for Arthritis Sufferers

- Understanding Cystic Fibrosis & Social Security

October 11, 2013 by Ted Smith

Social Security Disability for Those Who Suffer from PTSD

Post-Traumatic Stress Disorder (PTSD) is an anxiety disorder that usually arises after an especially traumatic event, such as abuse, rape, first-hand combat, a natural disaster, the sudden death of a loved one, or even the quick onset of a medical condition, such as a heart attack. PTSD diagnoses have increased over the past several years as medical professionals become more aware of the triggering events and the related symptoms.

The symptoms of PTSD can be severe and debilitating, and may include:
- Flashbacks
- Bad dreams
- Frightening thoughts
- Feeling emotionally numb
- Strong feelings of guilt
- Losing interest in activities you used to enjoy
- Staying away from places or people that remind you of the event

Qualifying for Disability Based on a PTSD Diagnosis

Most who qualify for disability benefits based on their PTSD diagnosis do so under the anxiety listing. To qualify for disability benefits under the anxiety listing, you must suffer from disruptive flashbacks, nightmares, or memories that cause you “marked distress” on a regular basis.

Marked distress is not mere uncomfortableness, but a near inability to function due to the anxiety related symptoms of the disease. Proof of phobias, obsessive-compulsive disorder, and panic attacks usually help an applicant meet this criteria.

If you do not suffer from PTSD symptoms to this extent, you may still be able to qualify for disability benefits under the more general medical-vocational allowance. This means that you might not suffer the symptoms of PTSD to the extent that you qualify for benefits based on the disease itself, but you do suffer from a combination of symptoms that makes it difficult or impossible to perform the necessary tasks of a job.

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Applicants who qualify under the medical-vocational allowance usually have other diseases or disorders in addition to PTSD, such as generalized anxiety, depression, panic attacks, etc. Other problems that might prevent an applicant from work are:
- significant trouble sleeping that lasts more than a few weeks
- difficulty remembering more than simple series
- having a hard time concentrating on more than a simple task

Have You Been Diagnosed with PTSD?

If you have been diagnosed with depression, PTSD, or both, you may be entitled to Social Security Disability benefits for your debilitation condition. While the Social Security Administration does allow for benefits to be paid for these diseases, the process can be confusing and seemingly endless, especially if an applicant is denied on her first application.

To increase the chances that you are approved on your first application, contact an experienced Indiana Social Security attorney today. I have over 30 years of experience practicing law and know the ins and outs of the Social Security system. I have assisted clients file countless successful applications and have also successfully won appeals of initial denials.

Click here to contact me online, or call 1-800-296-2290.


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· Availability of Social Security Disability for Those With Digestive Disorders

· Can An Applicant Qualify for Disability Benefits Based on Obesity?

October 6, 2013 by Ted Smith

Down Syndrome and Social Security Disability

Down syndrome is a chromosomal based disorder that occurs during gestation. About 1 in 830 newborns have this disorder. Humans have 46 chromosomes in each cell that are divided into 23 pairs. A change in the chromosome 21 pair (from which each parent contributes) has been found to be the cause of many types of cancers and of Down syndrome. Down syndrome usually occurs when each cell has three copies of chromosome 21 rather than the normal two copies (a condition that is referred to as trisomy).

Fotolia_55273602_XS.jpg The impairments resulting from Down syndrome are both mental and physical. On the mental side, the chromosomal defect causes cognitive delays that result in a reduced intellectual functioning. The reduced functioning is mostly mild to moderate. On the physical side, the defect produces weak muscle tone in infancy and a characteristic facial appearance. According to the National Institutes of Health, about half of all affected children are born with a heart defect. Unfortunately, the defect does not stop there.

The cognitive delays may cause speech and language issues along with behavioral issues. As a person with the syndrome ages, his/her ability to think may decrease sooner than people who do not have this syndrome. For people who have Down syndrome, this decline in thinking ability could begin as early as age 50. A person with Down syndrome is also at greater risk to be afflicted with Alzheimer disease and this affliction may occur earlier in age as compared to those who do not have Down syndrome.

The Social Security Administration has listed Down syndrome as one of its Congenital Disorders that may qualify for Social Security Disability benefits. The requirement that must be met in order to qualify for this particular listing is that a person must have non-mosaic Down syndrome. This particular variant of Down syndrome must be proven by a laboratory test, called a karyotype analysis, showing that the person has non-mosaic Down syndrome. If this laboratory test does not establish Down syndrome, then the diagnosis of Down syndrome may be established by a physician indicating that the type of Down syndrome is consistent with prior karyotype analysis and that the person has distinctive facial or other physical features of Down syndrome. If there is no prior karyotype analysis, then a person may qualify for Social Security Disability benefits if there is a physician’s report stating that there is distinctive facial or other physical feature of Down syndrome and also that, in the physician’s opinion, there is evidence that the functioning is consistent with the diagnosis of Down syndrome.

It is important to note that even though this syndrome is devastating people with Down syndrome are valued and active community members. Today, the average life span of a person with Down syndrome is 60 years of age. This is significant because in the 1980’s the average lifespan of someone with Down syndrome was around 30 years old. In 1959, the average lifespan of an individual with Down syndrome was only 9 years old.

To find out what options you have, you should consult with an experienced disability attorney to discuss the repercussions that come along with the various decisions that confront you. Click here to contact a Ted Smith attorney or call 800-296-2290 to schedule a free consultation.

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September 30, 2013 by Ted Smith

Availability of Social Security Disability for Those With Digestive Disorders

The government understands that symptoms of severe digestive disorders can render an individual unable to work. For this reason, the Social Security Administration considers several digestive diseases as “qualifying disorders.” Those include:

- Inflammatory Bowel Disease (IBD)
- Chronic liver disease
- Gastrointestinal Hemorrhaging
- Short Bowel Syndrome
- Weight loss from digestive disorders
- Liver transplant

Fotolia_51261407_XS.jpgUlcerative colitis and Crohn’s disease are two somewhat common autoimmune disorders that can greatly affect an individual's way of life. They are under the broad umbrella of “inflammatory bowel disease.” The two diseases are somewhat similar, affecting different parts of the intestine. The symptoms can be severe, and may include:

- Diarrhea
- Pain and cramping in the stomach
- Ulcers
- Blood in the stool
- Reduced appetite resulting in severe weight loss
- Fever
- Fatigue
- Arthritis
- Eye inflammation
- Mouth sores
- Skin disorders
- Inflammation of the liver or bile ducts
- Delayed growth or sexual development, in children

Qualifying for Disability Benefits with IBD.

If an applicant has IBD, they will need to prove that the disease is severe enough to warrant disability payments. To do so, there are two approaches. First, an applicant can show, by endoscopy or biopsy:
- Obstruction of stenotic areas in the small intestine or colon with proximal dilatation, requiring hospitalization, occurring on at least two occasions at least 60 days apart within a consecutive 6-month period.

Alternatively, an applicant can show he suffers from two of the following:

- Anemia;
- Serum albumin of 3.0 g/dL or less;
- Clinically documented tender abdominal mass palpable on physical examination with abdominal pain or cramping;
- Perineal disease;
- Involuntary weight loss of at least 10 percent; and
- Need for supplemental daily enteral nutrition

As you can see, the documentation requirement is strict and will not be waived for any applicant. All applicants must present medical evidence of the required findings to be eligible for disability payments.

If you do not suffer from one of the listed diseases above, that does not necessarily mean that you are ineligible for disability payments for you digestive diseases. For example, if an applicant can show that an unlisted disease, such as IBS or Celiac disease, interferes with their life to such an extent that they cannot perform the required tasks of a job, they may be eligible for disability payments.

Do You Suffer From a Digestive Disease?

If you suffer from a digestive disease and believe that you may qualify for disability payments you should contact an experienced disability attorney to assist you in filling out the disability application. The application process can be confusing and tedious, and it’s best to have the assistance of someone who knows the ins and outs of the social security disability system. Contact an experienced Indiana disability attorney today at, 800-296-2290.

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September 29, 2013 by Ted Smith

Can An Applicant Qualify for Disability Benefits Based on Obesity?

Obesity is medically defined as having excess fatty tissue somewhere on the body. The unofficial calculation is that anyone with a Body Mass Index (BMI) over 30 is considered obese. Those with a BMI over 40 are considered “morbidly obese.”

BMI is a rather simple calculation and only considers an individual’s height and weight. Therefore, it is not a perfect proxy for obesity. For example, an bodybuilder might have a BMI over 30 because of their muscle density (muscle weighs more than fat). But as a general rule for the rest of us, a BMI over 30 should raise at least some level concern.

Until 1999 obese applicants could qualify for Social Security Disability based solely on the fact that they were obese. However, that has changed, and there are now additional requirements that obese applicants must meet in order to qualify for social security disability payments.

There are still a few ways to qualify for disability based on obesity. First, an applicant’s obesity may cause other conditions that do qualify on their own. For example, heart disease is a disability that can qualify an applicant for disability payments. If an applicant’s obesity results in heart disease, that person may qualify for benefits based not on their obesity but on their heart disease.

An applicant can also qualify for obesity if their obesity causes limitations that are equal to the limitations of another listing. For example, if an applicant has major joint dysfunction because their weight places too much stress on a weight-bearing joint, that applicant might qualify for benefits based on that fact.

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Both of the above routes to qualification require that an applicant’s obesity “cause” another disability. But even if an applicant’s disability doesn’t cause a related disorder, obesity might be so limiting that it prevents them performing even sedentary work. Under this method the Social Security Administration will assess an applicant's Residual Function Capacity (RFC). RFC is basically an individual’s ability to perform the basic tasks of a job. So if an applicant’s obesity makes it difficult to walk, kneel, or manipulate small objects, they will be found unfit for jobs that require those activities. However, under this method, an applicant might be denied disability because they can do work that they are able to complete, such as sedentary work.

With that said, an applicant’s other conditions may place limits on sedentary work. The Administration will look a the applicant as a whole, considering all conditions and how they affect the applicant’s ability to perform the necessary functions of a job.

If you are disabled and considering applying for disability benefits, you should consider hiring an experienced disability attorney to help you with the application process. The process can be confusing and the assistance of someone familiar with the ins and outs will prove to be invaluable. Click here to contact a local Indiana disability attorney.

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Understanding Cystic Fibrosis & Social Security

September 19, 2013 by Ted Smith

Disability Availability for Applicants Suffering from Diabetes

Diabetes is a serious metabolic disease that makes the body unable to produce enough insulin, resulting in heightened glucose levels in the blood. Diabetes can often be treated with a combination of diet, exercise, and medication. However, in some severe cases, and especially cases in older sufferers, the disease cannot be as effectively controlled.

When diabetes is uncontrolled, a number of serious complications may arise, such as:

- Neuropathy
- Kidney damage
- Glaucoma
- Other vision problems
- Gum disease
- Hearing loss
- High blood pressure and other cardiovascular problems
- Limb amputation
- Stroke
- Decreased ability to heal
- Depression

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Although sufferers used to be able to qualify for Social Security disability benefits based on their diabetes diagnosis alone, that is no longer the case. However, that is not necessarily the end of the road for those suffering from diabetes.

Qualifying for Disability Based on a Related a Complication

As mentioned above, diabetes is not a qualifying disability, but the complications caused by diabetes might qualify an individual for disability benefits. This is a bit of a tricky nuance, but think of it this way: the applicant qualifies for disability not based off of a diabetes diagnosis, but off of the complication caused by the diabetes. In other words, while an applicant cannot qualify for disability benefits solely with a diabetes diagnosis, that same applicant might qualify by listing the symptoms, or complications, of diabetes.

Keep in mind that the Social Security Administration will conduct a thorough review of all claims filed. Therefore, if an applicant’s complications arose because he failed to follow the advice of his physician, that applicant might not qualify for disability benefits.

Qualifying for Disability Without a Qualifying Complication

Now, you might be asking, what if someone’s diabetes is extremely limiting, but they do not suffer from any of the diagnosed complications listed above. There is still an avenue for approval in the RFC or Residual Functioning Capacity. The RFC is a computation made by the Social Security Administration that gauges how well an individual can function in a given job position; in either a medium, light, or sedentary work.

If the Administration determines that you cannot perform the functions of a job, due to you diabetes, you may still be eligible for disability benefits. Keep in mind, the RFC also considers age, previous work experience, and education. Because of this, the Social Security Administration often determines that those workers aged less than 55 years can perform the necessary tasks of at least a sedentary job.

If you are disabled and considering filing an application for Social Security disability benefits, you might consider also contacting an experienced disability attorney. By hiring an experienced social security attorney, you ensure that you have someone to help you navigate the process and avoid the common pitfalls of many first time applicants. Click here to contact a local Indiana disability attorney.

Photo Credit: Jill A. Brown via Compfight cc

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September 6, 2013 by Ted Smith

Understanding Depression and Social Security Disability

When most people think of Social Security Disability, they may think of physical injuries, rendering a person incapable of performing the physical demands of a job. However, disability payments are also available to those suffering from mental health issues as well as physical handicaps. For example, applicants with depression can qualify for Social Security Disability when the symptoms are extreme and affect their daily lives. In fact, depression, accompanied by severe fatigue and decreased energy levels, is one of the leading causes of disability in the United States.

While the causes of depression are unknown, the symptoms are not. According to the National Institute of Mental Health, often people suffering from depression experience one or more of the following symptoms:

· Feeling sad or "empty"
· Feeling hopeless, irritable, anxious, or guilty
· Loss of interest in favorite activities
· Feeling very tired
· Not being able to concentrate or remember details
· Not being able to sleep, or sleeping too much
· Overeating, or not wanting to eat at all
· Thoughts of suicide, suicide attempts
· Aches or pains, headaches, cramps, or digestive problems.

To qualify for disability benefits for depression an applicant will need to provide proof of the diagnosis and show a history of symptoms.

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What Is Required to Obtain Disability Benefits for Depression?

Applicants can qualify for disability benefits two different ways. The first option is to qualify under the “Depression” listing. In order or qualify this way, an applicant must be able to show that he suffers from four of the following symptoms:

· lack of interest or pleasure in most activities
· decreased energy
· poor appetite or overeating
· insomnia or oversleeping
· difficulty concentrating or thinking
· lack of physical movement
· feelings of worthlessness or guilt
· paranoia, delusions, or hallucinations
· suicidal thoughts

In addition to four of the above symptoms, an applicant must show the have serious difficulty with one of the following:

· activities of daily living
· social functioning
· focusing
· repeated, extended periods of worsening symptoms

The above method is certainly one way to qualify for disability based on a depression diagnosis. However, most claimants who obtain disability benefits based on a depression diagnosis, qualify under what is called the “medical-vocational allowance.”

Under this approach, the Administration looks at the applicants overall situation and determines their ability to complete the requirements of an unskilled job. For example, can the applicant sit, stand, lift, and/or walk well enough to perform the functions of even a low-skilled job? Most successful applicants suffer from other diseases and disorders in addition to their depression diagnosis, or have severe, debilitating depression. This is because, under this method, the Administration considers the totality of the applicant’s condition; the more documented disorders, or the worse their symptoms, the more likely the applicant will be found to be disabled.

If you suffer from depression and are considering applying for disability benefits, consider enlisting the help of an experienced social security attorney. With their help, you will better be able to navigate the complex Social Security system and increases your chances of a first-time approval.

Photo Credit: Pink Sherbet Photography via Compfight cc

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September 1, 2013 by Ted Smith

Social Security Disability Benefits for Arthritis Sufferers

Arthritis is a common and debilitating disease that affects the joints of our body. Sufferers of arthritis often have difficulty completing many physical tasks, such as sitting, lifting, walking, grabbing, pushing, pulling, and even standing for extended periods of time. In many cases, arthritis becomes so severe that someone may not be able to complete the necessary functions of their job.

For this exact reason, arthritis is among the many diseases and disorders that can qualify an individual for social security disability benefits. However, the federal government requires that the arthritis significantly affect an individual and their ability to work before they are eligible for benefits. To be eligible for benefits for arthritis, an individual must fit into one of several categories.

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Qualifying for Benefits Based on Back Problems Due to Arthritis

An osteo-arthritis sufferer may be eligible for benefits if they can show one of the following back-related issues:

- Inflammation of the arachnoid membrane
- Narrowing of the spinal canal
- Compression of the spinal nerve root

Qualifying for Benefits Based on Joint Dysfunction Due to Arthritis

In some cases where an arthritis sufferer does not have a spinal disorder, they can still qualify for disability benefits based on sever joint dysfunction. To qualify under this category, there must be an obvious deformity in the joint due to osteo-arthritis, and it must be medically documented (with an MRI or a similar imaging procedure). An applicant must also show that there is a history of joint pain and an accompanying loss of motion. Generally, to qualify, the joint must be in the hip, knee, ankle, shoulder, elbow, wrist, or both hands.

Qualifying for Benefits if Neither of the Above Are Satisfied

If an applicant cannot show that they fit into either of the above categories, they still may be able to qualify for benefits based on a reduced “residual functional capacity.” This is basically a catch-all for those who do not fit into one of the above categories, but still have debilitating arthritis. In these cases, an applicant can show that he cannot perform the required functions of a job by indicating that he is unable to stand or walk long enough to complete even a sedentary job.

Are You Suffering from Osteo-Arthritis?

If you are suffering from osteo-arthritis and have noticed that it has become increasingly difficult to work, or have had to leave your job because of these difficulties, you may be entitled to disability benefits. To find out if you are entitled to these benefits the best thing to do is to contact an experienced disability attorney who can escort you through the often complex and time-consuming process. Click here to contact an experienced Indiana disability attorney who can discuss the facts of your case and help you determine your best course of action.

Photo Credit: _Ricky via Compfight cc

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August 31, 2013 by Ted Smith

Understanding Cystic Fibrosis & Social Security

Almost everyone has gotten a cold and learned how it can cause difficulties in breathing. The body makes a great amount of mucus to flush dust and germs out of the lungs. For most of us, a cold is only uncomfortable for a short time, but for those with cystic fibrosis, it is a daily struggle to breath. The mucus caused by cystic fibrosis is thick and sticky. “If you have cystic fibrosis, your mucus becomes thick and sticky. It builds up in your lungs and block your airways. builds up and causes problems in many of the body’s organs, especially the lungs and the pancreas.” According to the National Institutes of Health, National Heart, Lung and Blood Institute, "the build up of mucus makes it easy for bacteria to grow." Not only does this build up lead to lung infections, if can also lead to digestive issues (malnutrition) because the mucus can block the ducts of the pancreas which creates enzymes that help food digest int he intestines.

The Cause and Diagnosis

Cystic fibrosis is an inherited disease. Both parents must be carriers of the faulty gene for the child to develop cystic fibrosis. All states test for cystic fibrosis during newborn screenings. The screening includes a type of blood test which looks for the gene associated with cystic fibrosis (the CFTR gene). That blood test also demonstrates whether the infant's pancreas is working properly. If the blood test indicates the presence of cystic fibrosis, the physician may order a sweat test to confirm the diagnosis of cystic fibrosis. Other tests my include a chest x-ray; a lung function test and or a sputum culture.

(See What is Cystic Fibrosis? by the National Institutes of Health for an overview.)

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Treatment

Even though there is no cure for cystic fibrosis, there are a number of treatments which can lessen the symptoms. These treatments include pulmonary rehabilitation, exercise, different medicines, oxygen therapy and nutritional therapy. Because cystic fibrosis can also cause a special kind of diabetes, that will be treated too.

Social Security Disability

The Commissioner of Social Security has "listed" cystic fibrosis as a disease which can cause disability. Social Security has taken notice that cystic fibrosis "is a disorder that affects either the respiratory or digestive body systems or both and is responsible for a wide and variable spectrum of clinical manifestations and complications." In order to qualify for Social Security Disability on account of cystic fibrosis, a person must first satisfy the Commissioner that the correct diagnosis has been made and second, prove that the cystic fibrosis is at such a severe stage that it causes certain restrictions which Social Security believes are incompatible with work.

The diagnosis must be made by a sweat test. Once the diagnosis has been confirmed in that way, the disease must be accompanied by the presence of chronic obstructive pulmonary disease, or insufficiency of the exocrine pancreatic function, meconium ileus or a positive family history. Regarding the pulmonary part of cystic fibrosis, it must be evaluated under 3.04 of the listing. Regarding the nonpulmonary aspect fo the disease, which is the digestive portion that must be evaluated under section 5.00 of the listings.

Even if the listing part of the analysis is not meet, it still is possible to qualify for Social Security disability benefits if your physician has restricted you from doing what normal workers do in the work place.

If you would like to discuss your Social Security Disability case, give me a call, Indianapolis Attorney Ted Smith, 317 280-8863 or just complete the contact form and I will call you!

Continue reading "Understanding Cystic Fibrosis & Social Security" »

August 23, 2013 by Ted Smith

Thinking About Applying for Social Security? Here are Four Things To Prepare For...

Social Security disability benefits are available for those people who are unable to perform the basic requirements of a job. It does not matter if you were born with a disability or the disability occured later in life. Benefits may also be available if you suffered an accident that has kept you from working. The bottom line is that the Social Security Disability program is designed to help those who cannot work because of a disability, whether that be physical or mental.

If you have suffered a physical or mental impairment that has rendered you unable to work, and you are considering filing for social security disability for the first time, there are definitely some things you should know before beginning the process. be-prepared.jpg

1) Prepare to be patient. The process can take awhile. The Social Security Administration requires at least a five month waiting period. Successful applicants waiting more than five months will have their benefits paid retroactively back through the day after that five month waiting period. So, if it takes eleven months to get approved, an applicant will be eligible for six months of back paid benefits. Successful applicants should be prepared to wait up to a year or so for their benefits to begin.

2) Prepare your paperwork. Make sure you have all documentation in order. This includes diagnosis and treatment history. The Social Security Administration will diligently review all provided information to determine if an applicant is eligible for benefits. This means the more organized you are, the better your chances of getting your application approved. The Administration will also look at how long, how severe, and how constant the disability is, so prepare to have answers to these questions ready.

3) Prepare to be honest and careful. When filling out the application, be sure to read everything carefully and answer truthfully. Even the smallest mistakes can delay the application process significantly and the Administration will be verifying your claimed symptoms with your medical records. Even though it seems like a simple process that can be completed quickly, make sure to take your time; you wouldn’t want a small mistake now to cause a several month long delay in the processing of your application.

4) Prepare to hire legal help. These days, many people are enlisting the assistance of an attorney well versed in Social Security Disability law to assist them in the application process. This is advisable because the process can be a confusing one, going on for months (and even longer if the first application is denied and the applicant wishes to appeal).

If you are considering applying for Social Security Disability, give me a call to discuss the possibility of applying. I have over thirty years experience and fight hard for my clients every day. Click here to contact me at either my Indianapolis or Anderson office.

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August 4, 2013 by Ted Smith

The Future of Social Security and Potential Solutions to Extend Its Life

We have all heard the talk of how the Social Security program is insolvent and can not be supported at its current level as the Baby Boomers begin entering into retirement. But this oversimplifies the matter a bit. The reality is, there are two kinds of social security benefits: those paid out to retired persons, and those paid out to disabled persons. Workers who pay into “Social Security” pay into both of these two different “funds.” money.jpg

In 1994, the Social Security Disability Insurance Trust Fund (this is where Social Security disability benefits are taken from) was on the brink of exhaustion. The solution Congress came up with was to adjust the ratio of how incoming funds were dispersed. So, more money was put into the Disability Trust and less into the Retirement trust. This naturally extended the life of the Disability trust (at the expense of the Retirement trust). But this obviously cannot go on forever. That plan essentially just shifts money from one trust to the other. It doesn’t change how much money in total is going the program as a whole.

The Social Security Disability Insurance Trust Fund is again in dire straits and, by some estimates, will be exhausted by 2016 if nothing is done. Congress could do the same thing it did back in 1994 and shift the amount of incoming money into each of the funds, but that has already been done. So there will likely need to be new solutions.

One solution is what been called the “Chained CPI,” or Consumer Price Index. Each year, social security benefits increase slightly due to inflation, the concept that this year’s money can’t buy as much as it could last year. The Chained CPI approach would take into account the probable reality that, when prices rise, people buy cheaper goods. Currently the inflation adjustment assumes people continue to buy the same price and quality of goods. This would have the effect of decreasing recipients benefits.

Another alternative has been dubbed the “scrap the cap” solution. This would eliminate that cap on social security contributions. Currently, all workers contribute to social security up to the point where they make about $113k. Any money made in addition to that amount will not have social security taxes taken out. “Scrap the cap” does exactly what it sounds like, it gets rid of that cap on social security contributions and requires all earnings to have social security tax taken out. A middle ground might be to raise the cap but not get rid of it entirely. For example, if the cap were raised from $113K to $215K the gap could be filled. This solution would keep benefit amounts the same.

If you have suffered an injury and can not work, you might be eligible for social security disability payments. I am an experienced disability attorney and have the passion and know how to ensure you have the best shot at obtaining the benefits you deserve. Give me a call to set up an appointment.

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July 24, 2013 by Ted Smith

Social Security Disability Wait Times and First-Time Approval Rates

Government bureaucracies are not often heralded for their efficiency or accuracy. The Social Security Administration is no different. This is not necessarily due to any one person or department doing something wrong; it’s more a function of the massive number of applications the Administration receives and the in-depth consideration each receives. calendar.png

For example, in 2012, the Social Security Administration reports that 2.8 million applications were received for disability benefits. Most of these applications are filed by disabled workers. However, a small portion are filed by widow(ers) and adult children, both of which can qualify for disability benefits under certain circumstances.

With so many applications, one might wonder how the Social Security Administration handles them all. The answer, unfortunately, is “slowly.” For example, the Administration reports that, for June 2013, the average wait times in Indiana’s biggest cities were as follows:

· Fort Wayne: 9 months
· Indianapolis: 11 months
· Evansville: 14 months

These wait times represent the amount of time between the date when an applicant requests a hearing and the date of the actual hearing. As you can see, in some cases applicants must wait over a year before getting a hearing. Despite this reality, the Administration considers five months to be the standard “wait time.” (Note that a successful applicant is eligible for back pay after this five-month period. For example, if you end up waiting for eleven months for your application to be approved, you would be eligible for six months of back pay.)

On one hand this makes the wait not seem so bad; it might take a long time, but you get back pay for any wait over five months. But keep in mind, during that time you do not know that you will be approved. The truth is that most applicants will not be approved on their first time through the system.

Of the 2.8 million applicants for disability, less than 800,000 were approved on initial review. These applicants then had to get back in line and wait either for reconsideration of their application, or for an appeal to an administrative law judge. Many denied applications are approved in one of the several appeals processes. For example, in 2008, about two-thirds of applicants who were denied and chose to appeal ended up getting approved. However, there are certainly cases of worthy applicants waiting years before they were finally approved for disability benefits.

The bottom line is that applying for disability benefits can be a lengthy and stressful process. Applicants should do everything they can to make sure they have all their ducks in a row before submitting their final application. Often, this will mean securing the assistance of an experienced disability attorney; someone who knows how the disability system works and how to effectively navigate it. Please, give me a call if you are applying for disability benefits, I have over thirty years experience as an attorney and am extremely familiar with the process.

See Related Blog Posts:

- Disability for Minor Children Under the Age of Eighteen
- Availability of Disability Benefits for Mental Health Concerns

July 16, 2013 by Ted Smith

An Introduction to Federal Disability Benefits, Continued…

Last week, I wrote a post introducing readers to the federal government disability program, and several of the more common types of benefits available to disabled workers. This week I am going to explain the disability application process from a birds-eye view. Subsequent posts will get into more detail about the process. Please note, however, that nothing in this post is intended to be legal advice. If you are interested in obtaining legal advice, please contact us to make an appointment to talk about your case. approved.jpg

First, an applicant must fill out a disability benefit application. The application itself is not too complex or time consuming. However, it should be filled out with precision because the slightest error and the application will likely be denied.

Once complete, applications are sent to the Social Security Administration (SSA) field office, where they undergo an initial determination that the applicant meets the most basic requirements (age, employment status, Social Security coverage, etc.). From here, the SSA forwards the application to the Division of Disability Determinations (DDD). The DDD conducts a more in-depth, extensive investigation into the specific facts of the applicant’s case.

Specifically, the DDD will get in touch with treating doctors, hospitals, and clinics and ask the following questions:

What medical condition does the applicant have?
When did the medical condition begin?
How has medical condition limited the applicant’s activities?
What have the applicant’s medical tests shown?
What treatment has the applicant received?

At the conclusion of this process, the DDD may have enough information to make a decision if an applicant is eligible for disability benefits. However, if these questions cannot be adequately answered through existing records, or additional verification is required, the DDD will ask that an applicant go through additional testing, conducted at the government’s expense.

Once the DDD has all the relevant information it needs to make the decision, it looks to five factors to make its decision:

1. Is the applicant working?
2. Is the applicant’s medical condition severe?
3. Is the applicant’s medical condition on the DDS’s “listing of impairments”?
4. Can the applicant do the work s/he did before?
5. Can the applicant do any other type of work?

Eventually, the DDD makes a determination and the application is then forwarded back to the SSA, where, if the applicant is qualified, a final benefits determination is made. If the applicant is denied benefits, they are entitled to appeal that ruling.

A 2012 report by the Congressional Budget Office found that 61% of first-time applications were denied. Of those who were initially denied, about half appealed the Administration’s ruling. Roughly half of those applicants who appealed obtained a favorable result on appeal, either on reconsideration or on appeal in front of an Administrative Law Judge.

To increase the chances that a first-time application is granted, there are several things an applicant can do. Maintaining good employment and medical records is crucial. Additionally, hiring an experienced disability attorney will help ensure that the application is properly filled out and submitted.

See Related Blog Posts:
- Disability for Minor Children Under the Age of Eighteen
- Expanded Disability Eligibility? New Diagnostic Manual Broadens the Definition of Many Mental Health Issues

July 13, 2013 by Ted Smith

Back to the Basics: An Introduction to Federal Disability Benefits

Most have heard of the words “disability benefits.” But did you known that there are different types of benefits available, depending on the specific circumstances of the individual? This will be the first in a series of posts intended to familiarize the reader with the different types of disability benefits offered by the federal government. This post will briefly go over who can get disability benefits and the two different kinds of benefits for disabled workers.

Who Can Get Disability Benefits?

The government offers disability benefits to two basic groups of people, disabled workers and those who rely on a disabled worker for support. Both the spouse and the children of a disabled worker can be eligible for disability benefits under certain circumstances. Not all spouses will qualify, however. To qualify, a spouse must either be over the age of 62 or be responsible for the care of a child, 16 years old or younger. Children 18 years and younger (19 if the child is enrolled in high school) are eligible. Adult disabled children under the age of 22 can also qualify as a child.

The Two Types of Disability Benefits: SSD and SSI

There are two types of benefits for disabled workers, Social Security Disability (SSD benefits) and Supplemental Security Income (SSI benefits). SSD benefits are available to workers who contributed to the Social Security program throughout the course of their career. SSD benefits are calculated based on the amount the worker contributed during their lifetime, and only last for as long as the worker is “insured.” The exact formula to determine how long a worker is insured is complex, but generally speaking, the longer a worker has contributed to Social Security, the longer that worker will be eligible to receive SSD benefits.

Those workers who remain disabled after their insured status runs its course, as well as those who did not pay into Social Security in the first place, may still be eligible for SSI benefits. In order to be eligible for SSI benefits, a worker must have limited income and resources and be a United States citizen currently living in the United States. SSI benefits are calculated based on need, and vary in amount up to the federal maximum, which in 2013 is $710 for an individual or $1066 for a couple. Most states also offer a supplement in addition to this amount. Unlike SSD benefits, SSI benefits are ongoing and are available for as long as the worker is disabled.

If you or a loved one suffer from a disability that prevents you from remaining in the workforce, and you think you might qualify for disability benefits, give me a call. I have been representing the disabled for over 30 years and can help you navigate what can often be a confusing and intimidating process. The fact is that most disability applications are denied on their first submission. Increase your chances of approval by having someone with experience on your side.

See Related Blog Posts:
- Disability for Minor Children Under the Age of Eighteen
- Availability of Disability Benefits for Mental Health Concerns

July 4, 2013 by Ted Smith

Availability of Disability Benefits for Mental Health Concerns

Most people know that the state and federal governments provide disability payments to those in need on a temporary or even permanent basis. It could be to a construction worker who broke both his legs after falling from scaffolding a few stories up...or perhaps to a machine worker who maimed her hand by getting it caught in a piece of heavy machinery. But what may be less well known is that many individuals suffering from mental health issues may qualify for disability as well.

For instance, those suffering from bipolar (manic-depressive) disorder, anxiety, or autism can, under certain circumstances, all qualify for disability benefits.

Applicants Must Meet Strict Criteria
Mental health disorders are generally not evident merely by looking at someone. Therefore, before determining that someone is eligible for disability benefits, the government requires certain proof of the mental disorder and its effect on the individual’s ability to perform the routine functions of daily life. The required proof can and often does vary between disorders, but there are a few general principles that hold true across the board.

mental%20health.jpgIt is important to keep a well-documented history of the disease. This includes both the diagnosis and treatment history. The government official reviewing your application will be looking to see how long you have had the disease and how long you have been receiving treatment for it (as well as whether there are gaps in treatment). For example, some disorders require that the individual be suffering from the symptoms for at least two years. Additionally, if there are gaps in treatment it may indicate to the reviewer that the condition is not as serious as it may be in reality.

Aside from the diagnosis and treatment history, applicants must also show how the disease affects their day-to-day life. For example, someone seeking disability benefits for anxiety will need to show not just that they have been diagnosed and treated for the disorder, but also that it has a profound impact on their daily life. This can partially be proven through showing a restricted ability to socialize or concentrate. Such documentation most often requires ongoing communications with the diagnosing and treating physicians.

The Social Security Administration has a very strict and specific set of requirements to obtain benefits and denies about 70% of first-time applicants. But, that is not necessarily the end of the road; applicants can appeal the Administration’s decision or even re-apply. Hiring a lawyer to assist in the process is one way to increase the chances of receiving benefits on the first go-around.

Continue reading "Availability of Disability Benefits for Mental Health Concerns" »

June 27, 2013 by Ted Smith

Disability for Minor Children Under the Age of Eighteen

You are probably familiar with Social Security Income Disability (SSID), or at least the concept that those aged 65 or older, or those who are blind or disabled, can qualify for disability benefits from the state and/or federal government. But what you may not know is that minor children can also qualify for disability benefits if they suffer from a qualifying disability. Often, these benefits will be provided to the child’s parent or caretaker because the child is unable to care for himself due to age or disabled status.

ADA%20%28Keoni%20Cabral%29.jpgAs is the case with adults, a child’s disability eligibility and potential benefit amount is determined by a number of factors. These factors include the child’s medical condition, the child’s income (if any), and the family’s income. Once an application is sent to the Social Security Administration it generally takes up to three to five months for the Administration to review and process the disability request. Certain disabilities, however, are eligible for the immediate payment of benefits.

What Happens When a Disabled Child Turns Eighteen Years Old?
All recipients of disability benefits must undergo an occasional Continuing Disability Review to ensure that they still qualify for the benefits they are receiving. This review must be conducted at least once every three years. However, at age 18, every minor receiving disability benefits must have a Continuing Disability Review conducted to determine whether they are entitled to ongoing benefits as an adult.

As you might imagine, just because someone qualifies for disability benefits as a minor does not necessarily mean that they will receive those same benefits as an adult. This is because the Social Security Administration has a one set of criteria to determine benefit eligibility for adults, and another set of criteria for minors. For example, a diagnosis of ADHD (Attention Deficit Hyperactive Disorder) frequently qualifies a minor for disability benefits. However, adults with an ADHD diagnosis rarely qualify for disability benefits unless they have an additional, more serious disability. This means that, upon turning 18, it is possible someone might lose the disability benefits they have been accustomed to receiving.

Do You Have a Special-Needs Child?
Do you have a child with special needs that might be eligible disability benefits? Do you have a child who is currently receiving disability benefits but will be turning 18 soon? If the answer to either question is yes, then give me a call. I have been practicing law for thirty-six years and have come to know the ins and outs of the disability process. The application process for disability benefits can be an intimidating and frightening task, often taking close to a year to complete. I can help you with this difficult and complicated process.

See Related Blog Posts:
- Social Security Disability Changes for 2013
- Expanded Disability Eligibility? New Diagnostic Manual Broadens the Definition of Many Mental Illnesses

June 19, 2013 by Ted Smith

Expanded Disability Eligibility? New Diagnostic Manual Broadens the Definition of Many Mental Illnesses

The American Psychiatric Association’s “Diagnostic and Statistical Manual on Mental Disorder” (DSM) is considered the “bible” among mental-health professionals. The purpose of the DSM is to provide a standard set of criteria on which to base diagnoses, so there is consistency across the country regarding mental-illness diagnoses. The manual also determines what the type and duration of care individuals with specific illnesses require. Doctors, insurance companies, schools, and government agencies all look to the DSM for a variety of purposes.

dsm-5.jpgThe DSM, as important as is it, is not updated all that often. The last substantive change to the diagnosis criteria was in 1994, with the DSM-IV. However, just last month, the long-awaited fifth version of the DSM was released, the DSM-V. Chief among the differences between the DSM-IV and the DSM-V is the treatment and definition of many mental health issues.

The new version of the DSM is said to broaden the definition for many mental health issues. For example, there were some big changes to the clinical definition of ADHD. It used to be that a child must be 12 to be diagnosed with ADHD; now children as young as 7 may be diagnosed. Also, those over the age of 17 need only meet 5 criteria rather than the 6 that were required before. There were also significant changes to the clinical diagnosis for depression and autism, making the diagnosis process more nuanced and adding sub-categories that were previously unavailable.

The DSM-V also presents a new set of terminology. The term “mental retardation,” which was used in the DSM-IV, has fallen out of favor and has been replaced with the term “intellectual disability.” Another example is what used to be called “stuttering.” Now, that condition is labeled “childhood-onset fluency disorder.”

The DSM-V is not without its critics. Some take issue with the “creation” of new diagnosis not found in previous editions. For instance, “binge eating,” “hoarding disorder,” and “hyper sexual disorder,” all have clinical definitions in the DSM-V. Others argue that the DSM-V over diagnoses, especially in regard to mental diseases among children. However, some suggest that the “over diagnosis” issue is more of a problem with the diagnosing doctor than with the DSM definitions. Regardless, the DSM writers were not unaware of the over diagnosis problem and took some measures to prevent it. For instance, by including the new disorder, “disruptive mood dysregulation disorder,” the DSM writers hope to prevent children from incorrectly being diagnosed with bipolar disorder, a diagnosis that might come with both social stigma and unneeded medication.

Note that not all disorders listed in the DSM will make an individual eligible for disability benefits. However, depending on the disorder and its severity, you might qualify for some level of benefits. If you suffer from a mental-health disorder and think you may qualify for disability benefits, contact me Indiana disability law attorney. I can help you determine if you are in fact eligible and, if you are, help you navigate your way through the system.

See Related Blog Posts:
- Social Security Disability Changes for 2013
- Cost-of-Living Increase Means Higher Disability Payments for 2013

June 11, 2013 by Ted Smith

Drugs and Alcohol Regulation Redux

Fotolia_48777038_XS.jpgOn March 22, 2013, SSA’s new policy interpretation ruling [SSR 13-2p] became effective. This ruling replaced a 31 year old ruling SSR 82-60. The new SSR was based on not only SSA’s existing literature but also on information from medical and legal experts along with the Substance Abuse and Mental Health Services Administration. It is a complex and comprehensive ruling.

The new SSR beings with the acknowledgement that under, 42 U.S.C. 423(d)(2)(c), of the Social Security Act, a claimant “shall not be considered to be disabled. . . if alcoholism or drug addiction would. . . be a contributing factor material to the Commissioner’s determination that the individual is disabled.” 42 C.F. R. § 404.1535 addresses how the Commissioner will determine whether a claimant’s drug and alcoholism is a contributing factor material to the determination of disability.

Interestingly, the new ruling includes two mental disorders, that are considered, substance-induced disorders. These two disorders are substance-induced persisting dementia and substance-induced persisting amnestic disorder. When a claimant has symptoms from either of these 2 substance-induced disorders, the model for assessing materiality for drug and alcohol is employed.

The model of analysis created under the new ruling is a sequential evaluation type model. The steps to the sequential analysis are 6:

1. Does the claimant have drug addiction and alcoholism (DAA)? If no, them DAA is not material. If a DAA exists, then onto step 2.
2. Is the claimant disabled considering all impairments, including DAA? If no, then there is no DAA for which to determine materiality for DAA. If yes, then onto step 3.
3. Is DAA the only impairment? If yes, then there is a denial, if no then onto step 4.
4. Is the other impairment disabling by itself while the claimant is dependent upon abusing drug or alcohol? If no, then DAA will be found to be material and the claim will be denied. If yes, the onto step 5.
5. Does the DAA cause or affect the claimant’s medically determinable impairments? If no then DAA is not material and the claim will be allowed. If yes BUT the other impairment is irreversible or could not prove to the point of non disability, then DAA is not material. If yes, but DAA could be material then onto step 6.
6. Would the other impairment improve to the point of nondisability in the absence of DAA? If no then DAA is not material and an allowance should be made of the claim. If yes, then DAA is material and the claim will be denied.

In a case where the claimant has a co-occurring mental disorder the person deciding the claim must decide whether that co-occurring mental disorder will improve in the absence of DAA. The Commissioner expressly prohibits the decider to rely exclusively upon medical expertise and the nature of a claimant’s mental disorder. Rather, the Commissioner may purchase a CE to help establish whether a claimant who had no treating source records in addition to DAA.

Finally, the Commissioner has indicated in the new ruling that use of drugs or alcohol does not in itself establish the existence of a medically determinable Substance Use Disorder. For example, a DWUI arrest, a third party report or a self-reported drug or alcohol use does not establish DAA. The reason is these pieces of evidence are not from an acceptable medical source.

In addition to objective medical evidence needed to establish the claimant has DAA, there must also be evidence that establishes a maladaptive pattern of substance use along with the other requirements of Substance Use Disorder as set out in the DSM.

May 31, 2013 by Ted Smith

Federal Court Review of Failure to Prove "Good Cause" for late filing

Fotolia_49348662_XS.jpgDoes a Federal District Court have jurisdiction to review a decision of an Administrative Law Judge’s (ALJ) failure to find “good cause” and thereby allow a late filing for a request for hearing? The answer is generally no. 20 C.F.R. § 404.911 requires that a claimant who files late must show that he/she had “good cause” for missing the filing deadline. Good cause may include such matters as the claimant being seriously ill and therefore not have the ability to contact SSA himself or through a friend or relative; death or serious injury in the claimant’s immediate family; important records destroyed by fire or other accidental cause; could not find the information to support your claim within the time required despite trying very hard; the claimant was given incorrect information about when and how to request a hearing; unusual or unavoidable circumstances that showed the claimant could not have known of the need to timely file or which prevented him from timely filing. These are only a few examples.

If good cause is found, then the claim for disability benefits can proceed as normal. However, if “good cause” is not found, then the claim will be dismissed. If the claim is not found the claim will be dismissed. Even if the local SSA office finds that “good cause” exists, an ALJ may override that decision and decide that good cause was not shown and dismiss the claim.

If the claim is dismissed by the ALJ, the claimant may appeal that decision to the Appeals Council. If the Appeals Council decides that the ALJ did not error in dismissing the case, generally the case ends at that point. The Federal District Court, which had the legal authority to review a decision of the Commissioner regarding disability benefits, may only review those cases after there has been an evidentiary hearing on the merits of the claim. Watters v. Sec. of Health and Human Servs., 656 F.2d 234, 236 (7th Cir.1980) (emphasis added); see also Johnson v. Sullivan, 936 F.2d 974, 975 (7th Cir.1991) (emphasis added) (quoting Califano V. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).

Consequently, case law has been developed which suggests that a Federal Court does not have the jurisdiction to review SSA’s determination not to extend the period for appeal is not subject to judicial review under § 405(g).

That said there are other legal theories that could be employed to legally invoke a Federal District Court’s jurisdiction to review a case in which an ALJ determined that good cause was not shown. These theories include a due process argument and an argument under theory of mandamus. These theories, while potentially viable are predicated upon a very unique set of facts.

March 30, 2013 by Ted Smith

Social Security Administration Did Not Meet Its Goal for Quicker Hearing Decisions

Fotolia_48412966_XS.jpgThe Social Security Administration recently issued its Summary of Performance & Financial Information Fiscal Year 2012. In that Summary, SSA wrote that its #1 Strategic Goal was to "Deliver Quality Disability Decisions and Services". In order to reach that goal, SSA identified 3 strategic objectives: 1.) minimize the average wait time from hearing request to decision; 2.) eliminate the oldest remained pending hearing requests; 3.) minimize the average processing time for initial disability claims; and 4.) achieve a target percentage of the quick disability cases. While these 4 goals are important, the one goal which impacts the disabled the most is the wait time for hearings and final decisions.

Quicker Hearings.
By far, the biggest surprise for the disabled is to learn that the wait for a hearing decision can be close to or over 1 year from the date a request for a hearing (instead of the date on which the initial application was filed) was filed. In 2012, the average wait time from asking for a hearing to actually having a decision was 362 days or just 3 days short of 1 year.

To better understand this number, a perspective of years past is helpful. In 2008, the time to get a decision was 509 days. In 2009, the time was reduced to 472 days. In 2010, the time was reduced further to 390 days. In 2011, the time to get a disability hearing decision was reduced further to 345 days. The target goal in 2012 was to reduce to the time in which to obtain a decision after a hearing at the ODAR to 321 days. This goal was not met. Instead the number of days for receipt of a hearing decision was increased from 345 to 362.

The Social Security Administration has offered several reasons for the increase. One reason the Agency suggested is due "significant increases" in hearing requests over the past 2 years. A second reason was attributed to the inability of SSA to hire 74 more ALJs has had been scheduled. A third reason was a lack of budget resources which limited opening new offices for ALJ at eight new locations. (Those 8 news offices were to have been in Alabama, California, Indiana, Michigan, Minnesota, Montana, New York and Texas.)

The average processing time, for the period between September 29, 2012 and February 22, 2013, for the Indianapolis ODAR was 347 days or 2 days longer than the national average in 2011. This means that the Indianapolis ODAR ranks 63 out of 165 ODAR hearing offices for the February 2013 period. At the end of this period, the Indianapolis ODAR had 7,222 cases pending.

The fastest processing time for cases at ODAR during the February 2013 period was the Shreveport ODAR which was 236 days. The slowest ODAR during the same period was the St. Louis ORDAR which took 499 to complete its cases.


January 3, 2013 by Ted Smith

Social Security Commissioner Announces New Compassionate Allowances Conditions

Fotolia_46640923_XS.jpgLess than a month ago, the Commissioner of Social Security announced the addition of 35 Compassionate Allowances conditions. I discussed the concept of the Commissioner's Compassionate Allowances in my blog post on February 25, 2009 "Social Security Compassionate Allowances Means Quick Determinations in Some Cases". At that time, there were 50 conditions on the list. Now, with the addition of the newest 35, the Compassionate Allowances list has grown to 200. A person with one of the 200 conditions may be fast tracked so that their cases can be decided in dayy.

These new conditions include: Adult Non-Hodgkin Lymphoma; Adult Onset Huntington Disease; Allan-Herndon-Dudley Syndrome; Alveolar Soft Part Sarcoma; Aplastic Anemia; Beta Thalassemia Major; Bilateral Optic Atrophy- Infantile;
Caudal Regression Syndrome – Types III and IV; Child T-Cell Lymphoblastic Lymphoma;
Congenital Lymphedema; DeSanctis Cacchione Syndrome; Dravet Syndrome; Endometrial Stromal Sarcoma; Erdheim Chester Disease; Fatal Familial Insomnia;
Fryns Syndrome; Fulminant Giant Cell Myocrditis; Hepatopulmonary Syndrome;
Hepatorenal Syndrome; Jervell and Lange-Nielsen Syndrome; Leiomyosarcoma; Malignant Gastrointestinal Stromal Tumor; Malignant Germ Cell Tumor; MECP 2 Duplication Syndrome; Menkes Disease - Classic or Infantile Onset Form; NFU-1; Mitochondrial Disease; Non-Ketotic Hyperglycinemia; Peritoneal Mucinous Carcinomatosis; Phelan- McDermid Syndrome; Retinopathy of Prematurity - Stage V;
Roberts Syndrome; Severe Combined Immunodeficiency - Childhood; Sinonasal Cancer
Transplant Coronary Artery Vasculopathy;Usher Syndrome - Type I.

January 2, 2013 by Ted Smith

ODAR Hearing Offices in Indiana Are Improving Processing Times

Fotolia_40631178_XS.jpg
There are 165 hearing offices in the United States called ODAR [Office of Disability Adjudication and Review] hearing offices. The ODAR hearing offices are "were disability claimants appear before an independent judge (called an "Administrative Law Judge") to appeal a denial by the Social Security Administration of an application for disability benefits. Over the past several years, the wait to get a hearing and a decision from the ODAR has been close to two years. When the Social Security Administration has measured the speed at which the various ODARs have resolved their cases, the Indiana ODARs have come in at or close to the bottom of all the ODARs in the nation.

The wait has been the subject of public outcry and and Congressional Hearings. As a consequence, the Social Security Administration has implemented several measures to shorten the time at the ODAR. Those improvement measures seems to be working. The latest Social Security Administration review of ODARs nationwide, shows that the Indianapolis ODAR is now 61st in the nation [tied with Detroit] with a 336 day processing time, Ft. Wayne ODAR is 77th with a 349 day processing time, Evansville ODAR is 120th with a 384 day processing time and Valparaiso ODAR is 125th with a 391 day processing time.

The quickest ODAR is Shreveport with a 234 day processing time. The slowest ODAR office is St. Louis with a 485 day processing time.

January 1, 2013 by Ted Smith

Social Security Disability Changes for 2013

Fotolia_40889729_XS.jpgAs 2013 makes its entrance a number of federal legislative changes affecting disability recipients will take effect. Included among those changes are the thresholds for what is considered "substantial gainful activity", the maximum amount allowed for a worker retiring at full retirement age, the SSI federal payment standard and the estimated average monthly Social Security Benefits payable in January 2013.

Thresholds for "substantial gainful activity": As might be recalled, "substantial gainful activity" is "work activity that is both substantial and gainful". 20 C.F.R. 404.1572. In 2012, disability claimants working and grossing more than $1,010 a month (if non-blind) or $1,690 a month (if blind) were considered to engaged in substantial gainful activity. Those amounts have increased slightly for 2013. In 2013, disability claimants earning more than $1,040 a month (if non-blind) or $1,740 a month (if blind) are considered to be engaged in substantial gainful activity.

Maximum amount allowed for a worker retiring at full retirement age: in 2012, this maximum amount was $2,513. For 2013, this amount was increased slightly by $20 to $2,533.

The SSI federal payment standard: The standard SSI payment for 2012 was $698 a month for an individual and $1,048 for a couple. For 2013, the individual payment is $710 a month and for a couple $1,066 a month.

Estimated average monthly Disability Social Security Benefits: In 2012, the estimated average monthly Social Security Benefits was $1,113 for a disabled worker and $1,887 for a disabled worker, spouse and one or more children. In 2013, the Benefit will be $1,132 for individual disabled workers a month and $1,919 a month for a disabled worker, spouse and one or more children.

November 24, 2012 by Ted Smith

Cost-of-Living Increase Means Higher Disability Payments for 2013

Recently, the Social Security Administration announced in the Federal Register [http://tinyurl.com/bs4rqtw] that there will be a 1.7% increase in Social Security Fotolia_34037270_XS.jpgpayments effective December 2012. The reason for the increase is due to an increase in the cost-of-living (COLA). Because of this increase, benefits for Social Security disability recipients will increase for 2013. The maximum benefit amount for monthly benefits in 2013 under the SSI program will be $710 for an eligible individual and $1,066 for an eligible individual with an eligible spouse. The maximum benefit amount for monthly benefits in 2013 under the Title II, SSDI program with be $1,132 for a disabled worker and $1,919 for a disabled worker, spouse, and one or more children (with the maximum monthly benefit topping out at $2,533 a month).

As a result of the COLA, the substantial gainful activity earning threshold has increased from $1,010 to $1,040 a month for non-blind workers. Fro blind workers the substantial gainful activity threshold has increased from $1,690 to $1,740.

Up until 1975, by enactment, determined what increases should be applied to Social Security Disability benefits. Beginning in 1975, Congress determined that Social Security Disability benefits should be adjusted by the COLA. Between 1975 and 2012, Social Security Disability benefits have been increased every year with the exception of 2009 and 2010. In those years, there was no increase.

November 16, 2012 by Ted Smith

New Office Hours for Social Security Admistration District Offices

Effective November 19, 2012 the local Social Security District offices will all close at 3 pm until future notice. These new hours have been made to allow the claims representatives to finish there daily cases without the need to stay after hours.

Fotolia_12087014_XS.jpgStarting January 2, 2013, the local offices will close at noon on Wednesdays. So, as of that date, the hours will be 9-3 on Monday, Tuesday, Thursday and Friday and 9-noon on Wednesday.

The hours for the national toll free number for the Social Security Administration (800-772-1213) remains the same, 7 am to 7 pm Monday thru Friday.

August 31, 2012 by Ted Smith

SSA Disability and The Concept of Employability

An injury to an arm or hand seem commonplace. Hunting accidents, car crashes, slip and falls are a few examples of how arms and hands can become injured. Without question, the loss of the use of a hand or in arm may serve as the basis for a disability award. But what makes a person disabled? The loss of the use of the arm? The pain caused by the injury to the arm? Or is the fact that no employer would hire a person who has no real use of an arm?

Fotolia_37111426_XS.jpgThis question was answered in the case of Odle v. Secretary of Health and Human Services, 788 F.2d 1158 (6th Cir. 1985). Joe Odle claimed he was entitled to disability benefits because he had arthritis in his left arm along with the serious tendon injury in that same arm (Joe had injured his left arm while lifting heavy boxes from a pallet to a tractor-trailer). When splinting did not relieve his pain, a doctor performed exploratory surgery, which revealed extensive problems with his left wrist. A series of treatments by the doctor left Joe with limited use of his left hand and arm due to severe pain. Joe testified that since the tractor accident he has experienced continuous pain in his left shoulder, arm, and hand, saying that his hand “tingles all the time.”

Joe was able to prove that he was incapable of performing his past relevant work as a truck driver. He also proved through a vocational psychologist that he was basically unemployable because he only had the function of one arm. However, there was another vocational expert who testified at the hearing and identified several specific jobs that Joe could perform with the use of only one arm. The expert said that the claimant could work as a clerk for a self-service station, self-parking lot, or drug store, or as an unarmed guard or doorkeeper.

The ALJ decided that the proper framework within which to decide Joe's case was not whether Joe was “employable” but rather considering Joe's residual functional capacity and his age, education and past work experience, Joe can perform any other jobs that exist in significant numbers in the national economy. The point here is that there is a difference between “employability” and the ability to do work. The Social Security Disability program focuses on the ability to do work and not whether someone is employable. Social Security Ruling 87-11c adopted this concept.

August 19, 2012 by Ted Smith

Why Its Important That We Have Have a Social Security Disability Program

The ability to receive Social Security Disability benefits says something about all of us:

"The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped." Hubert Humphrey (38th Vice President of U.S. 1965-1969)

July 30, 2012 by Ted Smith

Disability Benefits for Non-Citizens

While many of those who receive Social Security Disability benefits are American citizens, disabled non-citizens who meet certain qualifications may be eligible for the exact same benefits. If you are a permanent resident and have paid taxes into the Social Security system for the specified number of years or a non-citizen veteran of the U.S. military then you too might be eligible for disability benefits.

Fotolia_37173234_XS.jpgBesides being a veteran or active duty member of the armed services, the Social Security Administration (SSA) says that those lawfully admitted for permanent residence under the Immigration and Nationality Act (INA) with a total of 40 credits of work in the United States are eligible to receive benefits. It is important to note that a spouse’s work hours may also count towards this number.

When you apply for disability, you must prove your non-citizen status. Non-citizens who have served in the U.S. armed forces also may need to give us proof of military service. The SSA says that the following documents will be required when applying for disability benefits:

• For non-citizens - a current Form I-94 or I-551 from the Department of Homeland Security (DHS) or an order from an immigration judge withholding deportation or granting asylum; or
• For those in the military - U.S. military discharge papers (DD Form 214) showing honorable discharge not based on your noncitizen status.

As with all things involving the federal government, there are exceptions to exceptions. Even if you meet all the other requirements to receive disability benefits, if you are part of the unfortunate few from some select countries you will not be able to receive SSD benefits. These countries are Cuba and North Korea.

It is important to note that being a citizen means more than just being born in one of the 50 states. You can apply for Social Security disability benefits as a citizen and have a few less hurdles to jump through if you have a valid birth certificate from any of the following places:

• The United States;
• Puerto Rico;
• Guam;
• U.S. Virgin Islands;
• American Samoa;
• Swain’s Island; or
• Northern Mariana Islands.


Continue reading "Disability Benefits for Non-Citizens" »

June 26, 2012 by Ted Smith

Autism and Social Security Disability

Section 12 of the Social Security Administration’s Listing of Impairments discusses mental disorders. One such mental disorder that falls under the heading is autism. Autism is a neurodevelopmental disorder that affects communication and social interaction skills. According to the National Institutes of Health, autism is thought to exist at birth and is usually recognized by at least three years of age, though earlier diagnoses are possible. Symptoms can present themselves in young children and these including lack of attentiveness, not smiling, laughing, or making noise as much as infants without the disorder. Children with autism also exhibit less eye contact than others and engage in repetitive or limited behavior.

Fotolia_23861959_XS.jpgCurrent guidelines indicate that diagnosis of autism is proper when a patient shows at least six symptoms. Two of the symptoms ought to be linked to social interaction impairment, while one must be a communication impairment, and another one must be a restricted or repetitive behavior impairment. Communication impairment signs include a lack of responsiveness or strange gestures. Restrictive behavior can include purposeless movement as well as compulsive behavior such as rearranging objects and needing to control the physical environment. Ritual behavior is also a typical symptom of autism; people often need to do things the same way and at the same time everyday.

The Social Security Administration recognizes that the disorder rises to the level of severity necessary to receive disability benefits when a doctor finds that an individual has the following:

1. Deficits in reciprocal social interaction;
2. Deficits in communication and imagination; and
3. A restricted repertoire of activities and interests (not needed for Asperger's syndrome).

Before benefits will be awarded to an individual the Administration says that these deficiencies must cause serious limitations in at least two of the following areas:

1. Communicative/cognitive functioning;
2. Social functioning;
3. Personal functioning; and/or
4. Sustaining concentration.

The SSA says that cognitive and communicative functioning may be measured through the use of age appropriate standardized testing for language development. One such indication of limited cognitive function is an IQ score of 70 or less. Social functioning is defined by Social Security Administration as a person's ability to form and keep relationships. Personal functioning refers to the development of self-care skills. Examples of these include feeding oneself, personal hygiene, dressing and grooming. Concentration is, somewhat obviously, the ability to focus attention on a task, to stick with it, and to work at a pace that is reasonable for someone of the same age and circumstances. This area is measured both by observing the person and also measured by results obtained from standardized testing.

Continue reading "Autism and Social Security Disability" »

June 23, 2012 by Ted Smith

Chronic Fatigue Syndrome

According to the National Institutes of Health, chronic fatigue syndrome (CFS) is a condition that causes severe and ongoing tiredness that cannot be improved by simply resting and that does not result from another underlying disorder. The exact cause of the condition remains a mystery, but some have theorized that exposure to the Epstein-Barr virus might be to blame. Age, gender, prior illnesses, and stress are also believed to play a role. Symptoms of CFS can include sore throat, headache, low-grade fever, painful joints, memory or concentration problems, swollen glands, and generalized muscle weakness.

Fotolia_37459082_XS.jpgAccording to the Social Security Administration’s Fact Sheet, you must prove that the symptoms of your CFS prevent you from working in order to qualify for disability benefits. To make this determination, the SSA will use the medical evidence you have provided in support of your claim to evaluate whether your symptoms reach the level of severity necessary to qualify for disability.

The diagnosis of CFS requires that you experience at least four of the following symptoms for at least six months:

• memory or concentration problems that cause a serious reduction in you level of activity;
• frequent sore throats;
• tender lymph nodes in the neck or under the arm;
• muscle pain;
• pain in multiple joints without redness or swelling;
• headaches of a different magnitude then those that you had prior to the onset of CFS;
• sleep that never leaves you feeling refreshed; and
• a general feeling of being unwell that lasts at least 24 hours following a period of exertion.

Your medical records must contain documentation that satisfies the above criteria for a diagnosis of CFS and that shows these symptoms did not begin prior to the onset of your chronic fatigue. If your medical records show that the symptoms predate your CFS then your disability claim will likely be denied.

CFS can be an especially tricky disease to document clinically. Medical tests and lab tests don’t always capture the severity of the illness and just how badly the condition can impact a person’s quality of life. It is important to understand going into the process that the SSA will not approve a disability claim based on the description of symptoms alone, though how symptoms affect your daily life is considered in the decision.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com.

June 5, 2012 by Ted Smith

Skin Disorders – Dermatitis

According to the National Institutes of Health, dermatitis is a general term that describes an inflammation of the skin. Under this large umbrella there are different types of dermatitis, including seborrheic dermatitis and atopic dermatitis (eczema). Although the disorder can have many causes and occur in many forms, it usually involves swollen, reddened and itchy skin.

Each type of dermatitis has distinct signs and symptoms. Common signs and symptoms include: redness, swelling, itching and skin lesions. The Social Security Administration lists dermatitis among the skin disorders that may result from hereditary, congenital, or acquired pathological processes which can be covered under Social Security Disability. Specific forms of dermatitis mentioned by the Administration include psoriasis, dyshidrosis, atopic dermatitis, exfoliative dermatitis and allergic contact dermatitis.

Many factors are considered when deciding whether to approve coverage for the disorder. A full evaluation requires information regarding the onset, duration, frequency of flare-ups, and prognosis of your skin disorder; the location, size, and appearance of lesions. Depending on the specific variety of skin disorder, a history of exposure to toxins, allergens, or irritants, familial incidence, seasonal variation, stress factors, and your ability to function outside of a highly protective environment may be considered.

The SSA bases their assessment on the extent of skin lesions, the frequency of flare-ups, how symptoms (including pain) limit you, the extent of treatment for the disorder, and how any treatment affects you. Extensive is defined as those lesions that involve multiple body sites and result in serious limitation. Examples include lesions that interference with motion, lesions on the hands that impair your ability to do fine motor movements and lesions on your feet that hamper your ability to move.

Symptoms, especially pain, are additional important factors that can contribute to the severity of a skin disorder. The SSA also takes into consideration the effects of any medication, therapy, surgery, or any other form of treatment you receive when determining the severity of the disorder. Though skin disorders such as dermatitis frequently respond to treatment, some remedies can actually have side effects that by themselves result in limitations.

Finally, the SSA deems dermatitis disabling and will pass the duration requirement if it results in extensive skin lesions that persist for at least three (3) months despite continuing treatment.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com.

May 23, 2012 by Ted Smith

Statutory Blindness

Many of you have heard of the term “legally blind.” While you may know vaguely that it involves severe impediments to vision, most probably do not know what actually qualifies. The reason it is called “legally blind” is because there is a statutory definition of what qualifies a person as such. And, like many other disabilities, a diagnosis of legal, a.k.a. statutory, blindness will cause a person to be eligible for disability payments.

Legal blindness is defined in two sections of the Social Security Act: § 216(i)(B) (codified at 42 U.S.C. § 416(i)(B)) and § 1614(a)(2) (codified at 42 U.S.C. § 1382c(a)(2)). Both sections of the Act define “blindness” as:

central visual acuity of 20/200 or less in the better eye with the use of a correcting lens. An eye which is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees shall be considered for purposes of this paragraph as having a central visual acuity of 20/200 or less. (emphasis added)

To qualify for Social Security disability under blindness due to a lack of visual acuity, you will need to obtain a basic eye examination that provides measurements of your best-corrected visual acuity. Mere myopia is not enough to qualify a person for disability; otherwise over 32 million Americans over the age of 40 would be receiving benefits. Neither is mere visual impairment, defined as being capable of at best 20/40 vision even with corrective lenses, enough to qualify. To be legally blind, you need to prove that even with the best possible corrective lenses, your best eye can only achieve 20/200 visual acuity. In other words, even the good eye can only see an object sitting 20 feet away as clearly as someone with perfect 20/20 vision can see that same object if it were 200 feet away.

The other way to qualify for Social Security due to blindness is through a severely diminished visual field. A person with a healthy visual field can typically see at least 60 degrees in all direction without moving his eyes. Those who qualify for legal blindness due to loss of visual field cannot see more than 20 degrees in any direction. In other words, the person afflicted has almost completely lost his peripheral vision, something which is usually a symptom of an affliction such as glaucoma. A standard eye examination will reveal the extent of a person’s visual field.

(As a side note, in Indiana, the Bureau of Motor Vehicles states that to be eligible for a license, you must have a minimum of 20/40 visual acuity in at least one eye. The other eye can be virtually blind and you will still be allowed to drive).

Unlike many other bases for Social Security disability, documentation of the cause of the statutory blindness is not required, so long as it is something detectable with a basic eye examination. For blindness caused by abnormalities not readily observed from a standard eye examination, such as traumatic brain injury to the visual cortex, documentation of the source of the injury must be provided. Also unlike many other bases of disability, you do not need to prove that this blindness has been present for any particular length of time.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com.

May 17, 2012 by Ted Smith

What if your Social Security Disability claim is denied?

If you have filed a claim with the Social Security Administration and it was denied, there are a few options for how to move forward which is why it’s critical that you be familiar with the appeals process.

Fotolia_40396243_XS.jpgIf you do not agree with the Administration’s decision it’s important to remember that you can appeal, or ask the Administration to review your case again. As with everything related to the federal government there is a specific process to follow. If you want the Administration to review your case on appeal, you have to make a written request for an appeal within 60 days of receiving the Administration’s official letter denying your claim.

There are four levels of the Social Security appellate process. First is reconsideration, which involves a review of your case by someone who did not take part in the first review. New evidence will be admitted in the reconsideration phase in addition to all evidence that was part of the first round decision. It is not necessary that you be present during the reconsideration.

If after the reconsideration you are still not satisfied, you can move on to a second round of appellate review: a hearing before an administrative law judge (ALJ). The judge will serve as a completely neutral party and will not have been involved in either the first review or the reconsideration.

At the hearing, you will be able to call witnesses on your behalf and the ALJ will question all those who testify at the hearing. You can be represented at the hearing and, if you are, your representative will be permitted to question witnesses. After listening to all of the evidence and reviewing the previous decisions, the ALJ will make a decision and the SSA will send you the judge’s decision in writing.

The third step of appellate review is review by the Appeals Council. If the council believes that the ALJ made a correct decision, the Appeals Council will not review the case and the decision of the ALJ will stand. The Appeals Council can also choose to decide your case or to send it back to the ALJ for further review. You will be notified once the Appeals Council has made a decision.

The fourth and final level of review is to file a lawsuit in the federal district court. It will be handled like any other lawsuit. At every stage of the process, it is beneficial to have the benefit of counsel, but if you are going to appeal the decision of the Administration, you should definitely contact an experienced attorney. If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com.

April 30, 2012 by Ted Smith

Amyotrophic Lateral Sclerosis (ALS)

According to the National Institutes of Health, 20,000-30,000 adults are afflicted with amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease (named after its most famous sufferer). The disease is described as “rapidly progressive, invariably fatal neurological disease.” Usually sufferers of the disease will succumb within 3 to 5 years of diagnosis, though 10% of those afflicted have survived up to ten years. Most diagnoses occur in patients between the ages of 40 and 60, and men tend to suffer from the disease more than women.

Fotolia_34610252_XS.jpgFor people with a properly functional nervous system, voluntary movements are caused by the motor neurons of the brain relaying signals to the motor neurons of the spinal cord, which in turn relay the signals to the muscles. In sufferers of ALS, these motor neurons rapidly degenerate and die, essentially cutting off the part of the brain that controls voluntary movement from the rest of the body. If a person’s muscles do not receive the signals to move or perform other actions from the brain, they degenerate, or atrophy, from lack of use. Typically, the earliest symptoms of ALS include twitching or stiffness of muscles, random muscle weakness in the arms and legs, and slurred speech.

Eventually, those afflicted with the disease lose all strength in their muscles, therefore losing the ability to voluntarily move their extremities. Once the neurons connecting the brain to the diaphragm (the muscle beneath the lungs that controls breathing) degenerate, the sufferer will be required to go on a ventilator. Most deaths from ALS occur due to respiratory failure.

There is no one test that definitively diagnoses a person with ALS. Instead, those suspected of having the disease will undergo various tests, such as electrophysiological and neuroimaging studies. These tests serve to both confirm a physician’s initial diagnosis based on his observations of the patient’s symptoms, and to rule out possible other causes for the muscle weakness or stiffness that are hallmarks of early stage ALS.

The Social Security Administration recognizes that the current state of medical knowledge does not allow for one definitive test to confirm or deny an ALS diagnosis. The evidence required to qualify for disability for ALS includes “documentation of a clinically appropriate medical history, neurological findings consistent with the diagnosis of ALS, and the results of any electrophysiological and neuroimaging testing.”

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com.

April 16, 2012 by Ted Smith

Testing for Disability—Exercise Tests

Section 4.00 lists several cardiovascular ailments that could potentially qualify a person for disability. There are number of tests used to make such a determination. One such test that the Social Security Administration explains thoroughly is the exercise test.

Fotolia_18379377_XS.jpg Exercise tests are for the most part exactly what they sound like. They involve using machines commonly found in the local gym, such as treadmills and exercise bicycles, to measure how the cardiovascular system responds to physical activity. Such tests can tell doctors about both the severity of preexisting cardiovascular disease or allow these same doctors to measure recovery after a cardiac event such as a myocardial infarction (heart attack). The SSA requires that all exercise tests that it purchases follow acceptable protocols.

One type of exercise test is the exercise tolerance test (ETT), which is used to determine whether a claimant qualifies for disability by virtue of having ischemic heart disease or chronic heart failure. Ischemic heart disease is when normal blood flow to the heart is inhibited due to one or more coronary arteries becoming constricted. When heart muscle tissue dies due to this impaired blood flow, the result is a heart attack. Chronic heart failure is when the heart is unable to provide the other body tissues with a sufficient amount of oxygenated blood. The SSA requires that all exercise tolerance tests have specifically documented parameters and be paced to the patient’s capabilities.

Another kind of exercise test is the Doppler test. The Doppler test uses ultrasound to measure blood flow in the legs while the patient is walking on a treadmill. When the SSA purchases a Doppler test, the patient must walk on a treadmill at a 12% slope going at least 2 miles per hour for up to five minutes. This test is primarily use do determine if a patient has peripheral vascular or peripheral arterial disease, though it is an acceptable test to determine if a patient suffers from chronic heart failure.

While an exercise test is useful for determining whether your cardiovascular disease is severe enough to qualify for disability, there are some circumstances under which a doctor will not perform it. They include factors such as:

(1) Unstable angina not previously stabilized by medical treatment.
(2) Uncontrolled cardiac arrhythmias causing symptoms or hemodynamic compromise.
(3) An implanted cardiac defibrillator.
(4) Hypertrophic cardiomyopathy with a systolic gradient of 50 mm Hg or greater.
(5) Other impairment affecting ability to use arms or legs

Other times, the purchase of an exercise test is delayed by three months to allow for “maximal, attainable restoration of functional capacity.” Reasons for a delay in purchasing such a test include acute myocardial infarctions and bypass surgeries.

Exercise tests, also called exercise tolerance tests (ETTs ) are specifically listed under the entries for ischemic heart disease and chronic heart failure.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com today.

April 10, 2012 by Ted Smith

The Mental Health Disability Series - Organic Medical Disorders

The Social Security Administration (SSA) has a broad category of mental impairments called “Organic Mental Disorders.” What makes “organic” mental disorders different from the Affective Disorders and Anxiety Disorders that have been discussed earlier on this blog?

Fotolia_30687889_XS.jpg“Organic Medical Disorders” as described in Listing 12.02 are “psychological or behavioral abnormalities associated with a dysfunction in the brain.” Specifically, they are mental ailments that can be traced to something amiss in the brain, detectable in laboratory tests such as MRIs. This is in contrast with “psychiatric disorders” which are diagnosed behaviorally. While the term “organic mental disorder” and its various permutations are virtually obsolete in the practice of psychiatry (including being removed from the DSM-IV), the SSA still uses the term when describing the category.

To prove that that one’s organic medical disorder is severe enough to merit disability, an applicant must demonstrate that certain requirements are present. List A the many ways the loss of “specific cognitive abilities” or “affective changes” characteristic of an organic mental disorder can manifest. They are:

1. Disorientation to time and place; or
2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or
3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional instability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or
7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., Luria-Nebraska, Halstead-Reitan, etc;

List B describes the effects of these manifestations, including:

1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;

List C refers to having a documented history of a chronic mental disorder. The history must date back at least two years, and cause more than a “minimal limitation of ability to do basic work activities.” In addition, an applicant must have one additional List C qualification such as:

1. Repeated episodes of decompensation, each of extended duration; or
2. 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; or
3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

To qualify for SSD under Listing 12.02, an applicant must show either:

1. One symptom from List A AND two symptoms from List B; OR
2. Fulfill all the requirements of List C.

Organic medical disorders have multiple causes. One major cause, especially in young people, is alcoholism and drug addiction. Other causes include repeated head trauma (i.e. being “punch drunk”) and old age. Strokes and Alzheimer’s disease are two of the major causes of organic brain disorders in the elderly.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com today

April 3, 2012 by Ted Smith

Social Security Disability - Lupus and other Autoimmune disorders

Section 14 of the Social Security Disability listings describe diseases of the immune system. The SSA organizes Immune System Disorders into three categories: autoimmune disorders, immune deficiency disorders that are not HIV, and HIV. An autoimmune disorder occurs when the body literally starts attacking itself. The immune system mistakes healthy tissues for hostile, rendering multiple body systems impaired. One of the most common autoimmune disorders is systemic lupus erythematosus (SLE), also known as “lupus.”
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SLE primarily strikes people between the ages of ten and fifty. Women are ten times more likely to be affected than men. African Americans and Asians are afflicted more often than those of other races.

SLE can affect any organ or body system. It is a chronic inflammatory disease that’s accompanied by constitutional symptoms such as severe fatigue, fever, malaise, and involuntary weight loss. Some sufferers of lupus develop severe chronic arthritis and extreme photosensitivity. Other complications resulting from SLE potentially include blood clots, anemia, fluid around the heart or lungs, and fluctuating cognition a.k.a. the “lupus fog.” The American College of Rheumatology lists eleven criteria—symptoms that commonly manifest in those with SLE. Having at least four of the eleven problems with no other explanation will often lead to a diagnosis of SLE. The SSA specifically cites the College’s criteria as a guide to proper diagnosis and documentation of SLE.
Systemic lupus erythematous can be demonstrated in the following ways:

A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).

OR

B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

While SLE is probably the most well known of the autoimmune disorders, several others are listed under Section 14 as potential qualifiers for SSD. They are:

• Systemic Vasculitis (14.03)—inflammation of the blood vessels
• Systemic Sclerosis (Scleroderma) (14.04)—thickening of the skin, often a manifestation of abnormalities in the heart, lungs, or kidneys
• Polymyositis and Dermatomyositis (14.05)—inflammation of the striated muscles
• Undifferentiated and Mixed Connective Tissue Disease(14.06)—a catchall for afflictions that have the features of several autoimmune disorders, but not enough to satisfy the criteria for any specific one.

To qualify for SSD with an autoimmune disorder, you will need to provide your medical history, a report of a physical examination, and reports of relevant laboratory findings. For lupus, blood tests, specifically the antinuclear antibody (ANA) test is considered the most important. Other autoimmune disorders may require medical imaging (MRIs, CAT scans, radionuclear bone scans, etc.) or tissue biopsies.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com today.

February 26, 2012 by Ted Smith

ANEMIA

It’s estimated that three million Americans suffer from anemia. That number is expected to increase as the population continues to age—almost 10% of people over sixty-five have some form of the disease.

Fotolia_3856181_XS.jpgRed blood cells are rich in a substance called hemoglobin, a protein that carries oxygen molecules to all other cells. In adults, hemoglobin-rich red blood cells comprise 35%-52% of a person’s blood; this percentage is known as the hematocrit level. Normal variations in the hematocrit level depend largely on factors such as gender and physical fitness. Anemia occurs when a person’s hematocrit levels drop too low, indicating that the red blood cells are not properly transporting oxygen to other parts of the body.

The American Society of Hematology traces anemia to two basic causes: anemia resulting from a too low amount of red blood cells and anemia resulting from red blood cells that do not function properly. Social Security has a section (Hematological Disorders, Section 7.00) that addresses both forms.

For anemia caused by low hematocrit levels, the key factors considered are “chronicity” and impairment. Chronicity is shown with evidence that the condition has persisted for at least three months. Such evidence can be shown by multiple (at least two) medically acceptable tests over a three month period—persistently 30% or less. Impairment is shown by proof that this low red blood cell count is actually affecting the proper functionality of other body systems. As the SSA website says, “a gradual reduction in red cell mass, even to very low values, is often well tolerated in individuals with a healthy cardiovascular system.” Impairment can be shown by either by an appropriate evaluation by a medical professional or documentation that the applicant needs blood transfusions on average of at least once every two months.

Sickle cell anemia falls into the second anemia category - anemia caused by malfunctioning red blood cells. Red blood cells are shaped like flexible discs, which allow them to travel through all blood vessels, including capillaries that are only one cell thick. Sickle cell anemia occurs when the red blood cell form more rigid C or “sickle shapes.” These abnormally shaped cells become stuck in the smaller blood vessels, blocking proper blood flow and causing immense pain. Sickle cell is an inherited trait with certain groups, such as African Americans, more likely to be carriers than others.

The sickle cell disease listing describes the evidence that must be shown to qualify for disability. The applicant must either show:
A. Documented painful (thrombotic) crises occurring at least three times during the 5 months prior to adjudication; or
B. Requiring extended hospitalization (beyond emergency care) at least three times during the 12 months prior to adjudication; or
C. Chronic, severe anemia with persistence of hematocrit of 26 percent or less; or
D. Evaluate the resulting impairment under the criteria for the affected body system.

Like with chronic anemia resulting from a persistently low hematocrit, the applicant must have documentation that this condition has recurred multiple times in a prescribed period.

If you think you may be entitled to Social Security Disability benefits and have questions, contact me at tsmith@tedsmithlaw.com attorney today.


December 2, 2011 by Ted Smith

Obesity, Respiratory Illnesses and Social Security Disabilty Benefits

Many people do not know that obesity is not a listed impairment under the Social Security Regulations. At one time, weight and height were considered in combination to be a reason for disability. However, on August 24, 1999, obesity was deleted from listing 9.09.

Now, SSR02-1p sets out how obesity must still be addressed within the listings. SSA recognizes that obesity has potential affects in causing or contributing to impairments in the respiratory system.

Fotolia_2302683_XS.JPG Even though obesity was deleted from the listings, SSA recognizes that obesity is a medically determinable impairment that is often associated with disturbance of the respiratory system, and disturbance of this system can be a major cause of disability in individuals with obesity. The combined effects of obesity with respiratory impairments can be greater than the effects of each of the impairments considered separately. Therefore, those deciding whether disability should be granted must consider any additional and cumulative effects of obesity.

December 1, 2011 by Ted Smith

3.6 % Increase in Social Security Beneifts To Occur Soon

The Social Security Administration recently announced that monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012.

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The 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011.

This increase is based on a cost of living adjustment or COLA. The specific formula for a COLA adjustment is based on the Consumer Price Index for Urban Wage Earners and Clerical Workers. The last COLA to effect Social Security benefits was in 2008.

October 20, 2011 by Ted Smith

Migraines and Social Security Disability

With regard to migraine headaches, SSA indicated in Q&A 09-036 that migraines cannot be considered a "medically determinable impairment” solely on a diagnosis in the evidence or on a claimant's reported symptoms. SSA requires that there must be clinical signs or laboratory findings to support a finding of migraine headaches.

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Consequently, a diagnosis of migraine headaches requires a detailed description from the physician of a typical headache event (intense headache with more than moderate pain and with associated migraine characteristics and phenomena) that includes a description of all associated phenomena; for example, premonitory symptoms, aura, duration, intensity, accompanied symptoms, and effects of treatment. SSA cautions that the diagnosis should be made only after the claimant's history and neurological and any other appropriate examinations rule out other possible disorders that could be causing the symptoms. Clinically accepted indicators of the diagnosis for migraines include: a headache event that lasts from 4 to 72 hours if untreated or unsuccessfully treated; along with two of the following: unilateral, pulsating (throbbing in parentheses quality; moderate (inhibits but does not wholly prevent usual activity in the premises or severe (prevents all activity) pain intensity, worsened by routine physical activity (or causing avoidance of activity). At least one of the following must occur during a headache: nausea, vomiting, photophobia or phonophobia.

October 19, 2011 by Ted Smith

Reflex Sympathetic Dystrophy and Social Security Disability

While reflex sympathetic dystrophy is not a listed impairment under the Listings of Impairments, SSA recognizes that it could be a condition that may result in disability. Social Security Ruling 03-02p suggests that reflex sympathetic dystrophy is a chronic pain syndrome most often resulting from trauma to a single extremity. It can also result from diseases, surgery, or injury affecting other parts of the body. Even a minor injury can trigger RSD. According to SSA, the most common acute clinical manifestations include complaints of intense pain and findings indicative of autonomic dysfunction at the site of the precipitating trauma. Later, spontaneously occurring pain may be associated with abnormalities in the affected region involving the skin, subcutaneous tissue, and bone. It is characteristic of this syndrome that the degree of pain reported is out of proportion to the severity of the injury sustained by the individual. When left untreated, the signs and symptoms of the disorder may worsen over time

Obviously, RDS must be diagnosed by a qualified treating physician. After a diagnosis has been made, it is important to establish what limitations result from this condition. If the limitations are serious, pervasive and long lasting, this condition can serve as a basis for disability.

July 28, 2011 by Ted Smith

SSA Changes Rules for Filing A Subsequent Application

Effective July 28, 2011, the Social Security Administration changed its policy regarding the filing of subsequent applications for disability benefits. In 1999, SSA had in place a procedure which allowed for the filing of a new application for Social Security Disability benefits even though a prior application was on file. Under this procedure, the new application was processed by the disability determination service. SSA noted that it has "seen an increase in the number of subsequent disability claims in recent years". As a consequence, SSA believes that some decisions have been inconsistent. SSA also believes that this duplicate filing has caused increased administrative costs and higher workloads.

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The new procedure does not allow for the filing of two claims for the same type of benefits pending at the same time. If the claimant wishes to file a new disability claim for the same matter and that same matter is pending at any level within the Social Security administrative system, then the claimant must either withdraw the prior claim in order to file a new one or not file a new claim and simply stand on the prior claim. This policy does not change SSA's policy where an appeal in pending in federal court. In those cases, the claimant may file a new application while the court case is pending.

June 14, 2011 by Ted Smith

Death of a Disability Claimant

It does happen that a disability claimant dies before the appeal has been completed. In that case, if the claim is for Title II benefits, the surviving spouse of the claimant may claim the benefits due to the claimant up to the month of the date of death of the claimant. If the
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claimant had no surviving spouse, then SSA distributes the money that would have been paid to the claimant in the following order:

> the child or children of the deceased claimant
> the parent or parents of the deceased claimant
> the representative of the estate of the deceased claimant

The Code of Federal Regulations, Title 20, Section 404.503 sets out the priority of the beneficiaries. The survivors must file form HA-539 along with the death certificate.

I have handled cases in which my client has died before the hearing. Death can make proof more of a challenge for a successful case. Despite the difficulties, with well documented medical records, these cases can still be won even with the death of the claimant.

June 9, 2011 by Ted Smith

When Is Best Time To File for Social Security Disability Benefits?

The simple answer is that when you are no longer working due to medical condition which you expect to last in excess of 2 months, you should file immediately. There is a “durational” component to disability claims. What that means is that in order to qualify for disability benefits, the medical problem causing you to be disabled must have lasted or must be expected to last for a time period of 12 months or more. The point here is that medical issues which cause someone to be unable to work but only for a short time (that is, less than 1 year) are not problems for which federal disability benefits can be awarded.

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This often comes up when a person is injured, say a simple fracture, but the fracture is expected to heal before 12 months. Routine surgery is another example. A person who has had surgery, which is a very invasive procedure, is typically returned to their pre-surgery state of well being within less than 12 months. Another example is a severe case of the flu. Normally, this type of illness is resolved well within the 12 month period. If that matter is resolved within the 12 month period, then disability would not be awarded.

However, if the fracture results in a non-union causing an inability to weight bear; or if the surgery did not heal the illness or injury of if the flu developed into some other medical issue that did last more than 12 months, then in all of these instances the 12 month durational requirement may have been met.

If you do expect your illness, injury or surgery to cause you not to be able to do any job for a period in excess of 12 months, then you should consider filling for disability. This is true despite any remorse you may feel for not being able to work. A delay in filing may result in an inability to claim all of the back benefits to which you may be entitled.

June 8, 2011 by Ted Smith

Multiple Sclerosis, Fatigue and SSA

For those patients who have multiple sclerosis, fatigue is a common, if not predominate, symptom. As they know, fatigue is not the same thing as tiredness. Tiredness can be taken care of with rest or sleep. Fatigue on the other hand is really a lack of energy. The feeling or symptom is something that cannot be resolved with sleep. Often times it is chronic. Environmental factors such as wetness or heat, make fatigue worse.
When SSA evaluates a claimant with multiple sclerosis, it considers the fatigue of the person. SSA’s policy on looking at fatigue is:

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The best means of assessing fatigue is by inference in terms of the claimant’s activities of daily living, the extent of physical activity before fatigue occurs, and the frequency at which the claimant requires periods of rest.
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Journaling is an excellent method of documenting the feelings and frequency of bouts of fatigue. If you do keep a journal, you should include how your daily activities have been affected or limited. Notes should also be made of how much rest was required on a particular day as a result of the fatigue.

June 6, 2011 by Ted Smith

SSA Removes Diabetes Mellitus From Listings of Impairments

Effective June 7, 2011, the listings in the endocrine body systems, (Listings 9.02 through 9.08) dealing with diabetes mellitus and thyroid disorders will be deleted. As a consequence, those diseases will no longer be considered a reason to award disability based upon the fact that a claimant may have diabetes mellitus or a thyroid disorder. Several advocacy groups, including the American Diabetes Association opposed the changes.

SSA basically said that due to medical science significant advances in detecting diabetes mellitus and thyroid disorders at earlier stages and newer treatments have resulted in better management. As a result, SSA concluded that “most” diabetes mellitus conditions and thyroid disorders do not reach listing level. Even if they do reach listing level the severity does not remain for the required 12 month period.

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Now diabetes mellitus and thyroid disorders will be considered under other listings such as blindness, renal failure and amputations. These disease will also be considered in the determining the claimant’s residual functional capacity. Also these diseases

For those disabled currently receiving disability benefits based on diabetes mellitus or thyroid disorder, those benefits will not be stopped. To the extent that there is an evaluation for medical improvement, those reviews will be under the listing which existed at the time benefits were awarded.

June 5, 2011 by Ted Smith

Video Hearings

As many claimants know the time between filing a request for hearing and actually having a hearing very long. Sometimes the wait can be in excess of 2 years! In an effort to reduce this time delay, SSA has created the “video hearings”. These hearings are held through a video conference system (VTC). The administrative law judge appears before a camera in his/her office (usually at in another state) and the claimant and claimant’s representative appears before a camera at the ODAR hearing office closest to the claimant. The advantage to having a video conference is that hearings are held sooner than having to wait for a hearing with a in the same room.

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This system has been particularly useful in ODAR hearing offices which are unusually busy such as the Indianapolis ODAR. As far whether a hearing before a judge in the same hearing room or a VTC hearing has a bearing on the outcome of the case, my experience is that neither form of hearing is “outcome determinative.” If the case is won it is not because the hearing was before a live judge or a video judge. Conversely, if the case is lost it is not because of having appeared before a live judge or a video judge. With all that said, SSA has by regulation, created an absolute right for a claimant to decline a video hearing. [ 20 C.F.R. §§ 404.936(e) and 416.1436(e).] As long as the claimant informs SSA “a the earliest possible opportunity, before the time set for hearing” the regulations provide that the ALJ will change the time and place for the hearing.

June 4, 2011 by Ted Smith

2010 Allowance Rates for Indiana

The numbers are in for 2010 for the percentage of cases which are allowed at the initial stage and allowed at the reconsideration level. The initial stage is when a person files a disability claim for the first time. Many of the people who are denied at the initial level believe that everyone is denied “the first time”. Actually, the numbers suggest that no quite “everyone” is denied. Rather on a national level, 35.4 % of the people who file disability are awarded benefits! Indiana is close to this number. In Indiana, 33.3% of the initial cases are allowed.

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If a person is denied at the initial level, the next step is to ask that the initial denial be “reconsidered”. This stage is called the reconsideration level. At this level, there is no hearing because this is the opportunity for SSA to determine whether it made a mistake. Basically this is a paper review by physicians hired by SSA. Nationally in 2010, the allowance rate was 12.7%, Indiana’s allowance rate at the reconsideration level was 5.9%, tied the lowest in the nation with Mississippi.

The next level is the hearing level. If you have any questions about the disability process, please call our office 800-296-2290.

June 2, 2011 by Ted Smith

The GAF Scale and Social Security Disability Claims

Physicians and psychologists must make a determination about how their mentally ill patient is functioning on a daily basis. This determination or assessment is used by mental health practitioners to: determine when treatment is needed, track the progress of treatment and select the site of service (whether treatment is to be administered in-patient or out-patient). The scale ranges from 1-100.

According to the fourth edition of the Diagnostic and Statistical Manual of the Mental Disorders published by the American Psychiatric Association (DSM-IV), a score between 1-10 is suggestive of “persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.” On the other end of the spectrum is the scale between 91-100 which describes a person who is “superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms.” Somewhere in between are many who suffer from mental illness with varying degrees of severity.

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It is not unusual to read in mental health records that a client with mental health issues has been assessed with a GAF score between 50-60. According to the DSM-IV, this score means that the person has “moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” Clients with severe mental health issues commonly have scores under 50.


The vocational implications of a GAF consistently in the low 50 range can mean that the client is not capable of gainful employment. This depends on the other evidence regarding restrictions of daily functioning (cleaning, shopping, paying bills, caring for grooming and hygiene to name few), mental assessments contained within the treatment notes and evidence of ability to function independently. Sometimes a vocational expert will testify to that effect. However, it is important to remember that SSA has taken the position in 2000 that a GAF score does not have a direct correlation to the severity requirements in the mental illness listings.

April 23, 2011 by Ted Smith

Information About Private Pension Benefits

Many claimants who file a claim for Social Security Disability benefits receive a letter from SSA entitled "Potential Private Pension Benefit Information". This letter informs a claimant that he/she may be entitled to some private pension benefits upon retirement. Normally, the letter gives a specific pension name, plan names and address. It may also disclose an estimated amount of benefits.

1020934_retirement_money.jpgHow does the SSA know this information? Why is the SSA sending that information? Is this SSA disability? All private pension plans are required to report the names and social security numbers of the plan's beneficiaries to SSA and the IRS. SSA computers are able to match a Social Security Disability claimant's social security number to the social security numbers reported by the plan. Federal law requires that SSA notify all potential plan beneficiaries of the fact that they have been reported as a potential beneficiary under a private pension plan. Many plan beneficiaries do not know that they are potential beneficiaries of private pension plans. The government actually wants the plan beneficiaries to know of the existence of their plan. The government also encourages plan beneficiaries to make a claim for benefits if proper.

The notice does not insure that a person will actually receive private pension benefits. Instead it is meant only as a notice that the matter should be followed up with by the person receiving the letter. The notification letter has nothing to do with the disability claim itself.


April 8, 2011 by Ted Smith

Social Security and Possible Government Shutdown

As many of you known, if there is no agreement on the federal budget by midnight tonight, there will be a partial government shutdown. This shutdown will last until there is a budget agreement. As of today, SSA has issued plans for how it will operate during any shutdown. Here are some of the highlights:
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Will Disability Payments Continue? Yes. SSA has recognized that disability payments under Title II and Title XVI are funded indefinitely through trust funds. As a consequence, those payments will continue.

Will the Local SSA Offices Be Open? Yes, the SSA offices in Indianapolis, Anderson and throughout the nation will be open but on reduced hours and for only critical functions. For example, disability applications and adjudications will continue but the issuance of new and replacement SS cards will not occur.

Will ODAR Hearings Be Held? Yes. All scheduled ODAR hearings at the Indianapolis ODAR as well as throughout the nation, will be held. No new cases will be scheduled. The ODAR offices will not have employees except for security personnel. The ALJ will continue to decide cases but those decisions may not be written and mailed out during the shutdown.

January 1, 2011 by Ted Smith

Irritable Bowel Syndrome vs Inflammatory Bowel Disease

What is the difference between irritable bowel syndrome (IBS) and inflammatory bowel disease (IBD)? IBS describes a set of symptoms which include abdominal pain. To be sure, it can cause, in some cases severe pain and result in disability. However, IBD is considered by the medical profession to be the far more serious disease. Generally, IBS is relatively common, occurring in one in five persons while IBD occurs only in about 1 in 200 persons.

IBD usually includes either Crohn's disease [painful ulcers in their small and large intestines and sometimes inflammation in the rectum] or ulcerative colitis [which is a disease that results in ulcers in the rectum and large intestine]. IBD is normally diagnosed by endoscopy, biopsy, appropriate medically acceptable imaging, or operative findings. On the other hand, IBS is a "rule out" diagnoses. That means that a physician has decided that his/her patient has IBS after all other tests have ruled out other diseases.

SSA has a listing [5.06] for IBD. That means if the disabled person has IBD based upon the criteria set out by SSA, then a finding of disability will be made. Unfortunately, SSA does not have a listing for IBS. Which means that it is much more difficult, although by no means impossible, to be awarded disability for IBS.

October 23, 2010 by Ted Smith

Treatments Used to Relieve Pain

Treatments which are used to attempt to relieve pain are important facts to be considered by the Administrative Law Judge in accessing claims for Social Security Disability based on pain. Some treatments are effective and some are not effective. Most pain relieving treatments do not totally "do away" with the pain. Treatments may include: the use of heat; massage; whirlpool; traction; prescribed exercise; bed rest; a TENS unit; biofeedback; trigger point injections; nerve blocks; acupuncture; chiropractic treatments; cranial sacral therapy; behavior modification; counseling/psychotherapy; herbs, vitamins, etc; and attendance at a pain clinic or enrollment in a pain program.

Pain medication is in a class by itself as a factor for the consideration of the extent to which pain is debilitating. The use of pain medication has advanced in recent years to a specialty in the medical profession. The use or non-use of pain medication alone will not determine the outcome of a claim for disability based on pain. However, is is a factor which the federal regulations require an Administrative Law Judge consider. Often times pain medications causes side effects which impairs the ability to function [drowsiness; dizziness etc.] Side effects are also facts which must be considered in accessing whether the person can perform sustained work functions.

October 18, 2010 by Ted Smith

Pain as a Basis for Disability

Obviously, no one but you can know the extent of your pain, how it feels or how long it lasts. There is no definitive medical test which can conclusively measure pain.

SSA allows pain to serve as a basis for disability. According to 20 CFR § 404.1529(b)(c) and SSR 96-7P, the ALJ must first evaluate whether a medically determinable both impairment exists which could reasonably be expected to produce pain, and then assess the credibility of the claimant's allegations about the intensity and persistence of her pain. Aidinovski v. Apfel¸27 F.Supp2d 1097, 1103 (N.D. Ill. 1998). The factors which the ALJ must consider include: (1) objective medical evidence; (2) prior work record; (3) daily activities; (4) location, duration, frequency and intensity of pain; (5) precipitating and aggravating factors; (6) use of medication; (7) other treatments and measures used to relieve pain; (8) observation of testimonial evidence by the claimant; and (9) the consistency of the claimant's statements.

So even if the medical record does not substantiate your complaints of pain the factors set out above will be considered to determine whether you are disabled because of pain.

October 17, 2010 by Ted Smith

The Mental Health Disability Series-Anxiety

The mental condition known as "anxiety" can also serve as the basis to obtain Social Security disability benefits. What is anxiety? How serious does anxiety have to be in order to qualify as a disability?

"Anxiety" is a normal reaction to stress. It is part of mental makeup which is designed to help us cope with difficult situations. For example, speaking in public, playing in competitive sports even taking an examination. Normally, experiences of stress are brief and mild. During the experience of stress, our senses become sharper and our focus more intense. But for some, experiences of stress last much longer, is far too intense and begins to interfere with normal daily activities. These people encounter what many view as normal and routine activities with dread and an irrational fear. It is then that anxiety crosses the line to an anxiety disorder.

It is estimated that 40 million adult Americans suffer with some form of anxiety disorder. There are several different types of anxiety disorders. The specific type depends upon the presentation of clinical features. While no two anxiety disorders are alike they do have in common a dread and irrational fear of the common place. Among the more specific diagnosis are: panic disorder; obsessive-compulsive disorder (OCD); post-traumatic stress disorder (PTSD) and social anxiety disorder.

In order to meet the listing for anxiety (Listing 12.06), SSA must first find that the disease has at least 1 of the following symptoms present: 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; or
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;

These symptoms must be present in your medical treatment records and found to be in existence for at least a continuous period of 1 year or expected to last for at least 12 continuous months. However, the source from which the medical record may note these symptoms may include, you, your family and friends and the physician/therapist's assessment.


In addition to proving that 1 of the above symptoms set out above are present, the symptoms identified must cause "marked" limitations in 2 of the following 4 areas: 1. restriction of activities of daily living; 2. difficulties in maintaining social functioning; 3. difficulties in maintaining concentration, persistence of pace; 4. episodes of decompensation).

June 18, 2010 by Ted Smith

Dept of Treasury Issues Proposed Rule to Make all Payments Electronic

On June 17, 2010, the U.S. Treasury issued a proposed rule to require that all payments to claimants whose claims for disability benefits are filed on or after March 1, 2011 be paid by direct deposit, thereby eliminating paper checks.

Many claimants have chosen already to receive their payments by direct deposit. For those who have chosen this option, direct deposit would continue.

Under the proposed rule, individuals who have not chosen to do direct deposit of their payments to an account at a financial institution would be enrolled in the Direct Express® Debit MasterCard® card program, a prepaid card program established pursuant to terms and conditions approved by Financial Management Services.

Beginning on March 1, 2013, all recipients of Federal benefit, which includes Social Security Disability benefits, would receive their payments by direct deposit, either to a bank account or to a Direct Express® card account.

To submit a comment, go to www.regulations.gov, docket FISCAL-FMS-2009-0003.

May 3, 2010 by Ted Smith

The Mental Health Disability Series-Depression

The Social Security Administration (SSA) has listed the condition commonly known as "depression" as a basis to obtain Social Security disability benefits. Depression is actually under a broader category of mental impairments called "Affective Disorders". So what are "Affective Disroders"?

"Affective Disorders" is a psychiatric term used to describe a mental condition with multiple sides or faces which affects a person physically, mentally, socially and behaviorally. Commonly included within this disorder are major depressive disorders, bipolar disorders and anxiety disorders. Major Depressive Disorder (also known as "monopolar depression" as opposed to "bipolar depression") has as its hallmark an all-encompassing low mood accompanied by low self-esteem, and loss of interest or pleasure in normally enjoyable activities.

In order to meet the listing for depression (Listing 12.04), SSA must first find that the disease has at least 4 of the following 9 symptoms are present: 1. anhedonia, or pervasive loss of interest in almost all activities; 2. appetite disturbance with change in weight; 3. sleep disturbance; 4. psychomotor agitation or retardation; 5. decreased energy; 6. feelings of guilt or worthlessness; 7. thoughts of suicide; 8. difficulty concentrating or thinking; or 9. hallucinations, delusions or paranoid thinking.

Just telling SSA that you have these symptoms is not enough. These symptoms must be present in your medical treatment records and found to be in existence for at least a continuous period of 1 year or expected to last for at least 12 continuous months. However, the source from which the medical record may note these symptoms may include, you, your family and friends and the physician/therapist's assessment.


In addition to proving that 4 of the 9 symptoms set out above are present, the symptoms identified must cause "marked" limitations in 2 of the following 4 areas: 1. restriction of activities of daily living; 2. difficulties in maintaining social functioning; 3. difficulties in maintaining concentration, persistence of pace; 4. episodes of decompensation).

May 1, 2010 by Ted Smith

Introducing New Social Security Disability Series-The Mental Health Disability Series

Over the next several blog entries, the topic of mental illnesses in Social Security Disability Cases will be discussed. Many people have asked whether depression, anxiety (which includes panic disorders, post traumatic stress, obsessive/compulsive disorder and agoraphobia) and bi polar disorder can serve as the basis for an award of social security disability. The short answer is yes, mental disorders can make a person disabled.

According to the National Institute Mental Health, mental disorders are the leading cause of disability in the U.S. That said, a diagnosis by itself does not necessarily mean that a person is disabled. For example, an estimated 26.2 percent of Americans ages 18 and older — about one in four adults — suffer from a diagnosable mental disorder in a given year. That is over 57 million citizens. However, not every one of these person is disabled.

Make no mistake, the federal regulations for social security disability do allow for a finding of disability for mental illnesses. The blogs that follow will explore what the criteria is for a finding of disability based on mental disorders.

March 17, 2010 by Ted Smith

Drugs, Alcohol and Disability

Over the years, I have heard people remark that so and so received disability benefits because of a drug or alcohol addiction. In fact, many believe that the law provides for the granting of disability to addicts. The law is far more complicated.

Before 1994, a person could receive disability benefits if he or she were disabled because of an addiction. In 1994, Congress required that persons whose addiction was material to being disabled must undergo treatment, that their benefits be limited to 36 months (during that treatment) and that the benefits could be suspended if there was non-compliance with treatment.

In 1996, Congress again changed the law for folks whose addiction was a "contributing factor material to the finding of disability." Disability benefits for these people were prohibited. The bottom line is that if a drug or alcohol addiction exists and if that addiction were to stop the person could return to work, then no disability benefits can be awarded. If it is impossible to state which limitations remain after stopping, then it is appropriate to find that the drug/alcohol addiction is not material.

February 3, 2010 by Ted Smith

SSA Proposes to Eliminate Endocrine Listings

The Federal Register published on December 14, 2009 a change to the Endocrine Listing (Listing 9) proposed by the Social Security Administration (SSA). SSA proposed that the impairments set out in Listing 9 be eliminated. Listing 9 includes not only thyroid disorders but also diabetes. The elimination proposal by SSA is based upon what SSA considers to be "advances in medical treatment in the detection" of endocrine disorders. As a consequence of these advances SSA believes that these types of disorders no longer meet the 12 month durational requirement.

SSA has also indicated that it has been advised by medical experts that the current listing regarding diabetes reflects "only inadequate glucose regulation." SSA has been told by these experts that adequate glucose regulation is achievable with improved treatment options. If SSA ultimately decides to change the regulation as proposed, then severe impairments such as diabetes and thyroid disorders will no longer serve as a basis to obtain Social Security Disability benefits on on their own. If endocrine disorders cause problems of listing-level severity in other organs or glands, SSA will "evaluate these effects under other body system listings."

Importantly, current beneficiaries who have received an award of Social Security disability benefits based upon endocrine disorders will not be terminated. They will, however, continue to be evaluated for medical improvement by continuing disability reviews but under the original listing upon which their initial entitlement was based.

January 26, 2010 by Ted Smith

Fibromyalgia as a Basis for Social Security Disability

Fibromyalgia is a terrible condition which causes pain, fatigue, difficulty sleeping, morning stiffness, headaches, painful menstrual periods, tingling or numbness of hands or feet, and difficulty thinking and remembering. Some people with this condition may also experience irritable bowel syndrome, pelvic pain, restless leg syndrome, and depression. Fibromyalgia is also a condition which frequently forms the basis of claims for Social Security Disability.

The Social Security Administration does not specifically include the condition of fibromyalgia on its list of diseases and conditions which may cause a person to be disabled. That said, many people have been award Social Security disability benefits because the condition of fibromyalgia was found to so severely affect them that they were no able to work. The first step toward a successful social security disability case is to obtain a diagnosis.

There are no recognized tests or imaging studies that can confirm or exclude the condition of fibromyalgia. Rather, fibromyalgia is a “rule out” diagnosis. That means that your physician orders tests for conditions that can be discovered by tests. Once those conditions are shown not to exist, your physician may conclude that your constellation or grouping of symptoms is fibromyalgia. In addition to the “rule out” diagnosis the American College of Rheumatology has established diagnostic criteria with a history of widespread pain for at least three months and pain in at least 11 of 18 tender point sites. The key to getting a diagnosis is not to give up. Often, fibromyalgia victims are not well understood by physicians. It is important to consult a physician who has the experience, the training and the patience to diagnosis this condition.

January 19, 2010 by Ted Smith

New Judge After Remand in Social Security Disabilty Case?

Many people are surprised to learn that after an Appeals Council remand, the ALJ who will hear the case will be the same ALJ who originally heard the case. ( Hallex I-2-155). There are certain exceptions to the same ALJ rule. These exceptions include a specific direction from the court or the Appeals Council that a new ALJ be assigned; a finding the the claimant did not receive a fair hearing; the case has already been remanded from an appeal; or scheduling problems.

It is unusual for the Appeals Council to order the a new ALJ be appointed on the first remand. As far a court order directing that a new ALJ be appointed, common law has evolved sufficiently to establish a set of criteria for such an order. The criteria centers around those situations which compromise the integrity of the disability review process. "Specifically, when the conduct of an ALJ gives rise to serious concerns about the fundamental fairness of the disability review process, remand to a new ALJ is appropriate. Factors for consideration in this determination include: (1) a clear indication that the ALJ will not apply the appropriate legal standard on remand; (2) a clearly manifested bias or inappropriate hostility toward any party; (3) a clearly apparent refusal to consider portions of the testimony or evidence favorable to a party, due to apparent hostility to that party; (4) a refusal to weigh or consider evidence with impartiality, due to apparent hostility to any party." Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y. 2004)

January 18, 2010 by Ted Smith

The Benefits of Journaling for Your Disability Case

Social Security Disability process is heavily dependent upon medical records. Those who decide disability case are trained to review, analyze and understand the medical records of a Social Security claimant. Once the records are fully understood, the claim person then makes a determination whether those records prove that the claimant has a medical problem that is expected to make the person unable to work.

Unfortunately, all medical records are not "created equal". Some are too brief. Others are difficult to read. Many do not incorporate all of which the patient had told the health care provider. A journal or diary will not take the place of medical records. It can, however, contain very useful information that would otherwise be lost to the memory of the disabled worker by the time a disability hearing occurs.

The journal or diary need be in any particular form, on special paper or be written, printed or typed in a specific way. An inexpensive spiral notebook is great. Each entry should contain the date and the name of the person making the entry. The entry does not need to be very long. Instead, it need only contain the essential points that the claimant wishes to recall later. For example, if part of the basis for the disability claim is a seizure disorder, then writing down the fact that a seizure occurred and some brief detail about the experience is enough. If part of the disability claim is based on headaches, depression, incontinence (bowel or bladder) or pain, then a brief note of the experience is that is needed. It is best to make the entries at or around the time of the occurrence. Before the hearing, the journal should be given to your attorney for use in preparing you for the hearing.

January 16, 2010 by Ted Smith

Disability Hearing Backlog is Improving

Over the last few years, the time for the ODAR (Office of Disability Adjudication and Review) Indianapolis Office to process requests for hearings has been around 2 years. That means that from the time a disabled worker files a request for hearing until the time a decision was made and mailed, it would take about 2 years. This time calculation does not take into account the the many months it took to wait for the denials at the initial and reconsideration stage.

The Social Security Administration has taken steps to improve the disability claims backlog by hiring additional administrative law judges and more support staff. As part of its effort to reduce the wait time, SSA has also introduced video hearing equipment. This equipment allows administrative law judges from around the county at less busy ODAR offices to step in and hear disability cases without the time consuming task of traveling to Indianapolis.

Finally, SSA has expanded the role of senior attorneys by allowing them to screen and allow fully favorable cases "on the record" without then need for a hearing.

As a result of these efforts, the Indianapolis Hearings Office has reduced its pending case level from over 19,000 cases at the end of 2008 to 15,863 cases at the end of 2009. Significantly the average processing time was deceased from 787 days in 2008 to 603 days by the end of 2009.

April 16, 2009 by Ted Smith

Indiana's Hearing Offices Rank in the Bottom Third for Processing Time

The National Ranking Report run for the period ending March 8, 2009 showed that out of the 149 Social Security hearing offices in the United States, the Indianapolis hearing office ranked 146 for processing time. The average number of days it took the Indianapolis hearings office to process a request for hearing was 734 days which is just at 2 years! The Fort Wayne hearings office ranked 138 for processing time for the same period. Fort Wayne's average time to process a request for hearing was 666 days or 1.8 years.

The same report for the period ending December 2008 ranked the Indianapolis hearing office 145 out of 147 office in the United States. The average number of days it took the Indianapolis hearings office to process a case was 721 days. In December 2008, the Fort Wayne hearings office ranked 114 in the nation, taking an average of 564 days to process a hearing request.

On March 24, 2009, the Commissioner of Social Security testified before the subcommittee of Congress which has oversight of the Social Security program. Commissioner Astrue projected that SSA will receive more than 2.9 million disability claims in 2009, an increase of 300,000 cases over last year. The Commissioner hopes that hiring more staff and judges will deal with both the backlog and the increase of new cases.

February 25, 2009 by Ted Smith

Social Security Compassionate Allowances Means Quick Determinations in Some Cases

In October 2008, Michael J. Astrue, Commissioner of Social Security announced the beginning of a new program named "Compassionate Allowances." This program is designed to give very quick (in some instances six to eight days) awards of social security disability for claimants whose medical conditions are so severe that their conditions obviously meet the Social Security disability standards. This fast track approach deals, at least at this point, with people who have cancers and rare diseases.

The "50" conditions are: acute leukemia; adrenal cancer; Alexander Disease; amyotrophic lateral sclerosis; anaplastic adrenal cancer; astroycytoma; bladder cancer; bone cancer; breast cancer; canavan disease; cerebro oculo facio skeletal syndrome; chronic myelogenous leukemia; creutzfeldt-jakob disease; ependymoblastoma; esophageal cancer; Farber's diesease; Friedreichs Ataxia; Frontotemporal Dementia; gallbladder cancer; Gaucher disease; glioblastoma multiforme; head and neck cancers; infantile neuroaxonal dystrophy; inflammatory breast cancer; kidney cancer; krabble disease; large intestine cancer; Lesch-Nyhan syndrome; liver cancer; mantle cell lymphoma; metachromatic leukodystrophy; Niemann-Pick disease; non-small cell lung cancer; ornithine transcarbamylase deficiency; osteogensis imperfecta; ovarian cancer; pancreatic cancer; peritoneal mesothelioma; pleural mesothelioma; pompe disease; Rett Syndrome; Sandhoff Disease; small cell cancer; small cell lung cancer; small intestine cancer; spinal muscular atrophy; stomach cancer; thyroid cancer and ureter cancer.

According to the POMS, while the medical documentation may be "minimal" it must be "sufficient" and "objective".

Social Security believes that as many as 250,000 cases under this program will be decided in an average of six to eight days.

February 3, 2009 by Ted Smith

Is There a 12 Month Wait To File SS Disability Claim?

NO! Many disabled workers confuse the 12 month durational requirement with a 12 month wait to file a disability claim. These two concepts are very different. One of the requirements for qualifying for Social Security disability is called the durational requirement. This means that a disability must last 12 months or longer in order to qualify for Social Security disability. The point is that short term medical problems (that is, medical issues lasting less than 12 months) are not accepted under the program.

The durational requirement does not mean, however, that a disabled worker must wait for 12 months before he or she files for Social Security disability. Nor does it mean that the worker must be off work for 12 months before filing a claim. As long as the worker can prove that his or her disability can be expected to last longer than 12 months at the time of filing for a claim then that is all that is required to satisfy the durational requirement.

If a disabled worker has received a denial, Social Security will note on the last page of the denial whether its examiners have determined that the medical problems are not expected to last longer than 12 months. Often the medical examiners have find that the durational requirement has not been met in situations where an operation has occurred (such as an operation to repair a fracture or a back operation). Sometimes these medical problems continue to cause the worker to be disabled even with the best medical care. If these medical probles are expected to last 12 months or longer then they should satisfy the durational requirement.

May 4, 2007 by Ted Smith

Fibromyalgia Often Misunderstood

The conclusion by a Social Security Administrative Law Judge that fibromyalgia must not be a debilitating impairment when “practically all tests have been normal” is not an uncommon error. As Judge Chief Judge Posner wrote in Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996), fibromyalgia is a:

“common, but elusive and mysterious, disease. . . its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”

Judge Posner also noted that the Administrative Law Judge in Sarchet exhibited a “pervasive misunderstanding of the disease” by “depreciate[ing] the gravity of Sarchet’s fibromyalgia because of the lack of any evidence of objectively discernible symptoms, such as swelling of the joints.”

Some 11 years after the decision in Sarchet Administrative Law Judges still look, for "objective" signs and symptoms when confronted with a disability claimant who has fibromyaliga. Failing to find the requisite abnormalilties in tests, the claimant's disability clam is denied. It is very important to help educate the Administrative Law Judge both before and during the hearing about the nature of fibromyaliga and the current state of the law.

March 18, 2007 by Ted Smith

Social Security Disability and Fibromyalgia

Fibromyalgia syndrome is a terrible disease that afflicts at least 5 million U.S. residents. It is characterized by chronic widespread pain, fatigue, sleep disturbance, stiffness, impaired memory and concentration, anxiety and depression. Even though the American College of Rheumatology recognizes the disease of fibromyalgia the Social Security Administration has been slow to accept it as justification to find a claimant disabled.

Chief Judge Posner of the U. S. Court of Appeals for the Seventh Circuit Court wrote in Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996) that fibromyalgia could be the basis for an award of disability. Judge Posner described fibromyalgia as a:

“common, but elusive and mysterious, disease. . . its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”

Judge Posner noted that "some people may have such a severe case of fibromyalgia as to be totally disabled from working. . . but most do not and the question is whether Sarchet is one of the minority."

Without question, fibromyalgia is a disease which can have debilitating consequences. It certainly can serve as the basis for a disabilty claim. The question is how severe is the disease at the time a claimant is seeking disabilty.