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United states Court House in Los Angeles

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The End of the Administrative Process.  Claimants who have been denied Social Security Disability benefits at the initial, then the reconsideration level, then at the administrative hearing and finally at the Appeals Council level have competed the administrative process.  The decision of the Appeals Council is the last administrative decision.  Even though the Appeals Council denial is the final step in the administrative process, it is not the end of the appeals process.  The federal court system is the next appeal stage.

Filing in Federal Court.  The law permits a person who is dissatisfied with the decision of the Commissioner of Social Security to file for court review.  It is a little odd that the law provides that what a person is appealing is actually the decision of the administrative law judge rather than the decision of the Appeals Council.  However, Social Security statutes and regulations view the decision of the Administrative Law Judge, except in a few rare instances, as the last word on the case. Continue reading

Memorial Day 2015

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The Law Office of Ted Smith Attorney at Law honors the men and women who made the ultimate sacrifice in defense of our nation.

Our law office will be closed on Monday, May 25th in their honor.

On October 20, 2011, I reported in a blog article, “Migraines and Social Security Disability” that the Social Security Administration, in a question and answer type publication in 2009, required a very specific diagnosis from a physician in order that migraines be considered a “medically determinable impairment”. Once that diagnostic criterion has been met, the Social Security Administration does allow for the possibility that migraines may be found to be “medically equivalent” to Listing 11.03.

In the Program Operations Manual System (“POMS”) § DI 24505.015, provides examples of rationales for medical equivalence determinations and lists migraine headaches as an example of an unlisted impairment that may be medically equivalent. The example states that if:

1.) a claimant has chronic migraines for which she sees her treating doctor on a regular basis;

Fotolia_34753861_XS.jpgBeginning in late 2011, the Social Security Administration adopted a policy to keep the identity of the Administrative Law Judges assigned to Social Security Disability cases at ODAR a secret until the hearing. The motivation for this rule was an effort on SSA’s part to avoid a claimant declining a National Hearing Center video hearing in order to get a different ALJ. Most attorneys who represent claimants know the ALJs, their preferences and what to expect at the hearings. In order to meet the particular expectations of the judge, to screen for conflicts, to avoid delay, to comply with regulations that require pre-hearing communication directly with the judge, and to know more about what to expect in the hearing, it is necessary to learn the identity of the ALJ.

Many representatives believed that they were entitled, by law, to learn the identity of the ALJ in advance of the hearing. To that end, representatives nationwide began filing requests for the name of the ALJ through the Freedom of Information Act (FOIA). Initially, SSA rejected the requests made under the FOIA for disclosure of the identity of the ALJ claiming that because the request: “related solely to the internal personnel rules and practices of an agency,” the information sought was deemed the internal personnel assignment of an agency employee to a particular case. Therefore, the Agency reasoned, the claimant was not entitled to this information.

SSA’s denial for the request under the FOIA prompted litigation. One of the lead cases was Hoagland v. Social Security Administration, C12-05750 (W.D. Wash. 2012). In that case, Dallas Hoagland filed a complaint under the Freedom of Information Act to discover the name of the Administrative Law Judge assigned to his case. SSA settled the case by naming the judge and paying attorney fees to Mr. Hoagland’s attorney for bringing the action in the first place. Shortly after that case, SSA began to disclose the names of the ALJs assigned to cases to those claimants who requested that information under the FOIA by using the SSA web site.

One case decided by the Social Security Administration concerns individuals with disabilities who are subject to treatment that could lead to a restoration of their ability to work and whether they are required to follow their prescribed treatment plan to remain eligible for disability benefits.

Fotolia_29839080_XS.jpgThe Social Security Administration makes clear right away in this ruling that those who fail, without good cause, to follow treatment that can be expected to restore that person’s ability to work, cannot be found to be disabled.

The first step before deciding whether this has occurred is determining whether there has been a failure to follow prescribed treatment. The SSA can declare that a failure has taken place only where all of the following conditions exist:

1. The evidence establishes that the individual’s impairment precludes engaging in any substantial gainful activity; and
2. The impairment has lasted or is expected to last for 12 continuous months from onset of disability or is expected to result in death; and
3. Treatment which is clearly expected to restore capacity to engage in any gainful activity has been prescribed by a treating source; and
4. The evidence of record discloses that there has been refusal to follow prescribed treatment.

If all of the above conditions are met and the person is found to have failed to follow a prescribed treatment, a determination must then be made as to whether the failure was justifiable.

The claimant or beneficiary should be given an opportunity to fully express the specific reason(s) for not following the prescribed treatment. Detailed questioning may be needed to identify and clarify the essential factors of refusal. The treating physician should also be contacted concerning the individual’s reasons for refusing treatment to clarify what the individual was told.

The following are examples of circumstances where a person’s failure to follow prescribed treatment will be seen as “justifiable” and thus will not preclude a finding of “disability”:

1. When the acceptance of a prescribed treatment would be contrary to the teachings of the claimant’s religion. In such a case, the claimant will be asked to identify church affiliation and provide a statement or other information from either church authorities or other members of the religious to substantiate that the individual is a member of the church. Additionally, the church’s position relative to medical treatment must be documented by obtaining either church literature or a statement from church authorities.
2. In an unusual case, a claimant’s fear of surgery may be so intense that it serves as a reason to not have surgery. However, lack of a guarantee that the surgery will be a success (something no doctor can provide) or fears based on stories of others who have failed to improve after similar surgery will not negate a finding of
“failure.”
3. A conflict among licensed medical doctors also serves as a valid reason for not pursuing a prescribed treatment. If a person has two treating sources who take opposing views regarding treatment, one recommending and one advising against the same treatment, failure to follow the recommended treatment is justifiable.
4. If the treatment carries a high degree of risk because of the enormity or unusual nature of the procedure that can be seen as a justifiable reason not to follow a prescribed treatment.
5. Finally, another justifiable reason is if the treatment recommended involves amputation of an extremity.

These are a sample of the most significant reasons why a refusal would be deemed justifiable, but there are other specific reasons that should be considered depending on the particular circumstances of your case.

If the decision to refuse treatment is not deemed justifiable, the SSA may decide to deny the disability claim or cease payment of benefits. However, before such a determination is made, the individual must be informed of this fact and of its effect on eligibility for benefits. The individual will be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for failing to do so.

Continue reading

Narcolepsy is a chronic disorder resulting in an irresistible urge to sleep and frequent daytime “sleep attacks.” This disorder is viewed as a neurological problem rather than a mental illness or something caused by anxiety. Little is known about the exact cause of the condition. Some researchers believe that the brain producing a reduced amount of a certain protein is the likely cause. Unfortunately, there is no known cure for this condition. Treatment is geared toward either reducing or controlling the symptoms.

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Narcolepsy may be accompanied by one or more of the following symptoms: periods of extreme drowsiness (every 3 to 4 hours during the day), dream like hallucinations, sleep paralysis, and cataplexy (a sudden loss of muscle tone while awake resulting in an inability to move). Sleep periods can range from a few seconds to a half an hour.

Without question, narcolepsy can form the basis of an award of Social Security Disability benefits. This particular disease is not found in the Listings of Impairments. As a consequence, it is important for a person representing a disability claimant to know how SSA looks at this disease. First, narcolepsy is not a listed impairment. SSA considers the closest listing to equate with narcolepsy to be Listing 11.03, Epilepsy-Minor motor seizures. Second, SSA examiners evaluate narcolepsy after a period of 3 months of prescribed treatment. Therefore consistent treatment records are a must. Third, as in all disability cases, it is vital to provide as much medical evidence that is available including: physician treatment notes, results of electroencephalogram (EEG), a list of the medications used and their responses, a detailed description of the narcoleptic attack along with other events that sometime accompany a narcoleptic attack (such as cataplexy, hypnagogic hallucinations or sleep paralysis).

As any one knows who has filed a claim for disability benefits, the wait time for a disability hearing can be very long. SSA recognizes that some of its 142 hearing offices across the nation are busier than others. For that reason, it has begun to reassign cases from the very busy hearing offices to less busy hearing offices. Those administrative law judges to whom cases are assigned from distant hearing office must not only review and prepare the cases but also hear those cases.

Since travel time by the newly assigned administrative law judges takes more time, SSA has set up hearing rooms equipped with video systems that allow a judge to see and hear the claimant in a hearing office close to the claimant’s home while the judge is at her hearing office in another state. Witnesses called by the administrative law judge appear in the same room with the claimant, or in the hearing room where the administrative law judge is located or by telephone from a third location.

SSA does not force a disability claimant to choose a video hearing. In fact, all video hearing notices come with a notice informing the claimant that he has the right to have an “in person” hearing with the administrative law judge. Does the outcome of the disability hearing change because it was a video hearing? In my experience, the fact that a social security disability hearing is conducted by video rather than in person has no bearing on the ultimate outcome of the case. The only thing that a video hearing does is provide a way to make the case go more quickly. While other attorneys opinions may differ, I encourage my clients to allow their hearing by video when that option is offered.

Indiana Trial Lawyers Association