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Social Security Disability Blog

Back Problems: The Most Common Source Of Disability Claims

Tuesday, February 22, 2011

If your back has ever “went out,” you understand just how devastating back problems can be. In my practice, impairments involving the spine are the single most common disabling condition. What follows below is my legal (as opposed to medical) understanding of back problems and my strategies to obtain disability benefits as a result of them.

1. What Types of Back Injuries May Qualify for Benefits

Most significant back problems involve disc injuries. The discs are the cushions between the bones in your back, the vertebra. You can think of them as jelly donuts as they have a jelly-like substance in the middle. They sit in between the vertebra and allow for the range of motion you have in your spine. The most significant disc injury occurs when one of these discs ruptures and the jelly-like substance in the middle is pushed out – just like smashing a jelly donut. When the substance comes out, it can come into contact with the spinal cord causing nerve damage. This is commonly referred to as a herniated disc and can certainly be a source of disability.

Bulging discs, however, are usually not a source of disability. Bulging discs are relatively common findings on an MRI. People with absolutely no back pain can have an MRI with bulging discs. As we all get older we tend to get more bulging as the process of aging compresses the spine. This compression of the discs (jelly donuts) causes them to bulge. Typically a bulging disc (or discs) by itself does not correspond to a disabling impairment.

2. Back Problems as a Listed Impairment

In my previous post, 5 Step Disability Evaluation Process, I described the disability evaluation process. The third step was to determine if the Claimant had a Listed Impairment. If the Claimant has a Listed Impairment, disability is granted without a consideration of whether the Claimant could return to work. A back condition has to be very severe to meet the requirements for a Listed Impairment.

As a threshold matter, there must be some nerve root compromise to qualify for the Listed Impairment for spinal disorders. From a symptom perspective, the pain and other symptoms cannot be localized in the back but need to radiate into the legs (or arms). As discussed above, something (most commonly that jelly-like material) is coming into contact with the spinal cord or nerve roots coming from the spinal cord. This needs to be demonstrated with an objective diagnostic test – like an MRI or EMG.

If that preliminary test has been met, the Claimant can meet the listing one of three ways. First, he or she could show that there is ongoing nerve root compression. This is demonstrated byallthe following:

  • limited range of motion,
  • atrophy (muscle loss),
  • sensory or reflex loss, and,
  • if it’s a low back problem, a positive straight leg raising test (e.g. a test the doctor does by raising the Claimant’s leg while he or she is lying on the examination table).

If the Claimant cannot show ongoing nerve root compression, the Claimant could show spinal arachnoiditis. This is a very rare condition involving inflammation of the membranes that protect the spinal cord. The diagnosis would have to be confirmed through an operative note or pathology results.

Failing nerve root compression and arachnoiditis, the Claimant’s final way to meet the listing is showing lumbar spinal stenosis resulting in pseudoclaudication resulting in an inability to walk effectively. Stenosis is a narrowing of the spinal canal causing a compression of the spinal cord. Pseudoclaudication typically involves severe leg pain with walking or standing. It is often accompanied by numbness and weakness in the legs.

3. What if the Back Condition Is Not Severe Enough to Meet a Listing?

Most Claimants do not meet the technical requirements for the listed impairment. Many have some of the elements, but very few have all the requirements to meet the listing. In those situations, the Claimant must prove that his or her residual abilities would preclude returning to work.

As a direct result of the back impairment, Claimants often have difficulty doing the following types of activities:

  • lifting,
  • prolonged standing,
  • prolonged sitting, and
  • walking.

Back problems indirectly – either because of pain or the effects of pain medication – also can cause difficulties:

  • concentrating,
  • staying on task,
  • being punctual, and
  • missing work due to flare-ups.

For Claimants under age 50, these impairments must not only prevent a return to the Claimant’s past work but also prevent any other type of work. When I ask my clients with back problems why they cannot work, they often indicate to me that they cannot sit or stand for very long. Unfortunately, these restrictions usually are not sufficient to prove disability. SSA has determined that there are jobs that allow for a sit/stand option. In other words, there are jobs that can be performed either sitting or standing. Additionally, SSA has found that these jobs will also allow for the employee to change positions frequently. Thus, the inability to sit or stand for prolonged periods of time rarely is sufficient to prove disability.

The more typical rationale for granting disability for Claimants under the age of 50 is that the effect of his or her pain, pain medications, and frequent flare-ups would so decrease his or her productivity, that the Claimant would be unable to sustain work. The argument is that while at work the Claimant would be unproductive because of pain and/or pain medication. Additionally, the Claimant might also miss a lot of work due to flare-ups of his or her condition. If the Claimant cannot sustain full time work, he or she would be found to be disabled.

For Claimant’s over age 50, the road is a little easier. Such a Claimant will be granted benefits if the Claimant:

  • cannot do his or her past work,
  • has a restriction to only sedentary work (i.e. desk work), and
  • does not have transferable skills to sedentary work.

For example, a 50 year old Claimant who has worked construction his entire life and now can only lift 10 pounds because of a back impairment would be found disabled. The Claimant could not return to construction work with a 10 pound lifting restriction. A 10 pound lifting restriction would only allow the Claimant to do sedentary work. Finally, during the Claimant’s years in construction, it is doubtful that the Claimant acquired skills that would transfer to a sedentary work setting (e.g., like an office).

By David Galinis

Expediting Claims At The Social Security Administration

Tuesday, January 25, 2011

The social security disability claims process is a lengthy one. About 40% of those who apply for disability benefits are granted benefits on their initial application. It usually takes 3 to 6 months for the initial decision. For those that are not granted benefits upon their initial application, the delay can be from 12 to 24 months. Given that the claimant is unable to work during those 1-2 years — the delay is most often an extreme hardship. The Social Security Administration (SSA) will expedite some types of claims. Below I describe the five situations in which the SSA will speed up the evaluation process.

1. Terminal Illness

If there are medical records indicating the diagnosis of a terminal illness, the SSA will expedite the evaluation of the claim. Examples of conditions that SSA considers terminal are metatastic cancer, if the claimant is awaiting a heart or liver transplant, or if the claimant has been comatose for more than 30 days. These are just examples only and are not by any means an exhaustive list.

2. Military Service Casualty Case

The evaluation will be expedited if the allegation of disability is as a result of an injury occurring on or after October 1, 2001 during active duty. The active duty requirement is very broad and includes injuries to reserves and does not require the injury to occur on foreign soil. The manner of the injury or disability is also not important so long as it was while the claimant was on “active duty.”

3. Compassionate Allowance

The SSA has identified certain medical conditions which are so serious that they will most likely lead to a determination that the claimant is disabled. If a claimant has one of these conditions, the case will be expedited. The list currently has 100 conditions including Lou Gehrig’s disease (ALS), liver cancer and acute leukemia. For the complete list, see http://www.ssa.gov/compassionateallowances/conditions.html

4. Dire Need

A claimant is in a “dire need” situation when they have insufficient income or resources to meet an immediate threat to health or safety. Most commonly, the “dire need” is a lack of food, clothing, shelter or medical care. The situation must be immediate and the claimant must not be able to rectify the situation. If the claimant is currently receiving food and/or shelter through a charitable organization – the claimant has rectified the immediate threat and therefore will not be considered for expeditious processing. When attempting to prove “dire need,” the claimant needs to allege the above facts with specificity and, if possible, provide documentary proof (e.g., eviction notice, foreclosure notice).

5. Suicidal/Homicidal

In any case in which there is an indication that the claimant is suicidal or homicidal, the SSA will expedite the evaluation of the claim.

6. Congressional Inquiry

A common technique for claimants who have been waiting an inordinately long time for a decision is to get their congressional representative to intervene on their behalf. Many congressional offices do this routinely. The SSA rules indicate that a prompt investigation and response is required to any congressional inquiries. However, there is no rule requiring that evaluation of the case be expedited like in the previous five situations. Of course, if the congressional inquiry identifies the case as one of the five types discussed above, that would then put the case onto an expedited track.

By David Galinis

Should I Use The Attorney Provided By My Disability Insurance Company?

Thursday, December 23, 2010

Should I Use the Attorney Provided by My Disability Insurance Company?

By David Galinis

5 Step Disability Evaluation Process

Tuesday, November 30, 2010

The Social Security Administration (SSA) uses a five-step sequential evaluation process to determine if any given Claimant is entitled to Social Security Disability benefits. SSA considers each step in this process sequentially before moving onto the next step. In this post, I describe these five steps in their most basic terms.

Step One – Has the Claimant been Unable to Work for 12 Months?

SSA first looks at whether the Claimant has not engaged in substantial gainful activity for at least 12 months. In simpler terms – has the Claimant been out of work for 12 months? If so, move on to step 2. If the Claimant is still working, SSA will not even consider your medical impairments and will deny the claim at step 1. But what about those Claimants who are not working but it has not been 12 months yet? In my experience, SSA will deny the claim at this step. On rare occasions, if there is evidence in the record that the impairment is likely to cause an inability to work of at least 12 months, the SSA may proceed to step 2.

Step Two – Does the Claimant have a Severe Medical Impairment?

The Claimant’s alleged medical conditions must be considered to be a “severe medically determinable impairment.” This is not much of a road block in the evaluation. Most Claimants will have in their medical records some type of diagnostic testing or examination findings that support their doctor’s diagnoses. This will normally be enough to satisfy step 2.

Step Three – Does the Severity of the Claimant’s Impairment Meet the Listings?

The Code of Federal Regulations contains an exhaustive list of medical conditions called the Listing of Impairments (Listings). The Listings contains such impairments as 2.02 Loss of Visual Acuity and 1.04 Disorders of the Spine. Under each listing there is a description of a certain severity of that impairment. For instance, for loss of visual acuity — the Claimant meets the listing if the corrected vision in the Claimant’s best eye is 20/200 or worse. If the medical records show that level of severity the Claimant is entitled to disability benefits at step 3. Please note that the level of severity described in the Listing of Impairments describes only the most seriously disabled of Claimants. Most Claimants do not meet the Listings and SSA proceeds to step 4.

Step Four – Can the Claimant Perform Their Past Relevant Work?

If the Claimant can still perform their past relevant work — they are not entitled to disability benefits. The Claimant’s past relevant work is work that has been done in the last 15 years. SSA will examine all of the jobs the Claimant has had over the past 15 years and categorize them as sedentary, light, medium or heavy work. These categories describe, in general terms, the physical requirements of the jobs. For instance, in a sedentary job, the Claimant would not be required to lift more than 10 pounds.

The SSA will then determine the Claimant’s residual functional capacity (RFC). The RFC is a description of what types of things the Claimant can still do despite his or her impairment. One element of the RFC is often how much weight the Claimant can still lift. If the Claimant can lift no more than 10 pounds, his RFC will be at most sedentary. If the Claimant has prior work at the sedentary level and has an RFC for sedentary work — the Claimant is not entitled to benefits. If the Claimant’s RFC is less than all the Claimant’s past relevant work — SSA proceeds to step 5.

Step Five – Can the Claimant Perform Other Work?

In this final step, the question is whether there are any other types of jobs, besides the ones the Claimant has performed int he past, which the Claimant can do. SSA performs its analysis by examining the Claimant’s RFC in conjunction with his or her age, education and skills to determine if there are any other types of jobs the Claimant can still do. Note that the analysis here is whether such jobs exist – not whether the Claimant could actually get hired. If there are no other types of jobs the Claimant could do, the Claimant is granted disability benefits at Step 5.

By David Galinis

Mental Illness As Basis For Disability: No Objective Evidence, No Problem

Friday, November 12, 2010

Mental illness can be as devastating as any physical impairment. Depression and bipolar disorder form the basis of SSA disability determinations every day. The key to any social security disability case is proving disability – the inability to work. That proof can be challenging in cases of mental illness.

In a low back injury, we can use the results of magnetic resonance imaging (MRI) scan to show the extent of the injury. The scan may show a herniated disc with compromise of the nerve root. The claimant, absent fraud, cannot fabricate the results of the MRI scan. The scan is objective evidence of the medical impairment. It is important to note that although the scan demonstrates a severe medical impairment, it does not say anything about the claimant’s disability. The claimant’s doctor might, however, indicate that the claimant should not lift more than 10 pounds. With those particular scan results, the SSA is likely to find that restriction to be supported by objective medical evidence.

It sure would be nice if we could show evidence of depression in an MRI. Unfortunately, in mental illness cases we must rely on the opinions of doctors as to the existence and severity of a mental illness. These opinions, though, are not based on the results of objective tests – like an MRI – but rather the doctor’s observations of the claimant and what the claimant has said to the doctor. What the claimant says to the doctor is subjective. The problem in mental illness cases is that there is no objective proof of mental illnesses such as depression or bipolar disorder. As it turns out, however, the fact that there is no objective evidence of mental illness can actually make it easier to prove disability.

The key to mental illness cases is the support of the doctor. The treating physician’s opinion – according to Federal law controlling in Maryland – is entitled to “great weight.” Moreover, the treating physician’s opinion can only be disregarded if there is persuasive contradictory evidence. So let’s assume the treating physician provides an opinion that the claimant has bipolar disorder. The treating doctor further indicates that the condition is so severe that the claimant would not be able to hold down a job due to frequent absences. Thus, according to the treating physician the claimant is disabled.

The SSA can only disregard that opinion if there is persuasive contradictory evidence. What might that evidence be? There is no MRI, x-ray, or blood test that counters the physician’s opinion. Remember, there is no objective evidence in mental illness cases. SSA might send the claimant to a doctor for a second opinion – the SSA calls it a “consultative examination.” Theoretically, that examining doctor might indicate that the condition is not as severe. But how can a doctor that only sees the claimant once, who has no history with the claimant, understand the claimant’s mental condition better than the treating physician? The answer: they can’t – the consultative examination is not persuasive contradictory evidence.

The lack of objective medical evidence should not be seen as a barrier to pursing social security disability benefits for mental illness. In fact, with the support of the treating physician, these claims for disability are frequently granted.

By David Galinis

3 Reasons Your Claim Was Denied

Monday, November 08, 2010

1. You Are Still Working

The most basic eligibility requirement to receive Social Security Disability Benefits is an inability to engage in substantial gainful activity that has lasted or is expected to last for 12 months. In other words you cannot be working. When the disability examiners evaluate your claim, they will look at your earnings record. Remember how Social Security taxes are taken out of each paycheck? Social Security knows how much you have earned during each month of your working life. If the examiner finds ongoing wages, it’s pretty easy to deny the claim.

2. Lack of Medical Evidence

When you apply for disability benefits, the Social Security Administration (SSA) requires that you provide the names and addresses of any doctors or hospitals that have provided treatment. SSA also requests that you sign medical authorizations. SSA will then request your medical records from all the providers that you identify. When the examiners review your file to determine your eligibility for benefits, the medical records received are the most significant evidence considered.

In many cases, when the examiner finally gets around to your case the medical records contained in your file are thoroughly incomplete. This is for a variety of reasons. First, you may not have identified all the providers – thus SSA would have never requested those medical records. This could be a hospital visit you forgot or the diagnostic imaging center that performed your MRI. Second, obtaining medical records requires persistence. Many times the first request to a medical provider gets no response and a follow up request is required. Other times no records are received because the identity or address of the provider is wrong. SSA employees simply do not have the time to follow up on requests that don’t get a response. In these situations, the examiner often denies the case because there are no medical records to support your allegations of disability.

 

3. The Wrong Kind of Medical Evidence

Even if SSA has received the medical evidence – it is probably the wrong kind of evidence. To understand my point here, you need to understand medical records. When doctors create a record from your visit, they generally write it in the SOAP (subjective, objective, assessment, plan) format. The medical record typically contains these four categories of information: history (subjective), examination (objective), diagnosis (assessment), and treatment recommendations (plan). There is no category called “Disability” or “Work Restrictions.” Hence, most medical records will typically not contain any information about how the condition affects your ability to work.

The medical evidence that will support your claim for disability is information about restrictions. How much weight you can lift? How long can you stand or walk? How often will you be absent from work due to your condition? When the examiner looks in the medical records he or she may see that you have lumbar disk disease. The examiner needs to know how that condition prevents you from doing work activities. What restrictions does that condition impose upon you? The examiner, because the medical record is usually silent as to restrictions, is allowed to formulate his or her own opinions as to how your lumbar disk disease may impair your ability to work.

By David Galinis

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