As a practicing Social Security disability lawyer handling claims throughout New England for the last 29 years, I have seen a number of changes to the Social Security disability program. For the majority of that time, from October, 1999 up through 2018, New Hampshire has been anomaly in terms of the appeals process as compared to Maine and Massachusetts, having been designated a prototype state (along with 9 other states) whereby the reconsideration appeal process was eliminated and a denied claimant could proceed straight to hearing.
In evaluating the pros and cons of reinstating the reconsideration process as of January 7, 2019, it certainly is important to take a hard look at the numbers associated with what have been the approval and denial rates at each stage of the process. Likewise, it’s important to understand the practicalities of the review process itself at reconsideration process, and to what extent it may or may not serve a useful purpose.
As a Social Security Lawyer practicing out of Maine, Massachusetts and New Hampshire, I’m familiar with how the approval rates differ not only between the states but between different areas of the state. When taking the national approval numbers for Social Security disability insurance claims for worker disability insurance claims between the years of 2007 to 2016, it is notable that the total overall award rate for disabled workers is 33%. Over that same period of time, the percentage associated with those that won their claims at the initial level has ranged between 20 to 25%, but has averaged 22%. And so, in essence, 2/3 of those approved ultimately were approved at the initial level. The percentage of those nationally that were awarded benefits at the reconsideration level was 2%, while the remaining 9% were awards that took place at the hearing level. And so indeed it is a very small number of individuals that prevail at the reconsideration level. And, yet, it’s important to remember that 10 out of the 50 states have not had a reconsideration process and so this has skewed the results somewhat. The SSA statistics with respect to the overall approval rate at reconsideration for worker disability insurance claims at the reconsideration level ran between 13.2 and 17%, with the percentage approval rate decreasing from a high of 14.5% in 2000 to 11.1% in 2016. This representing the fact that the reconsideration process has become a very rubber stamp denial process.
And yet the approval rates at the hearing level during the pre-prototype period (1992 to 1999) was between 73.7 and 80.1 during the period of 1992 to 1999. While initially seeing an uptake in approval rates for the 6 years after the institution of the prototype program given a curtailment of reconsideration in 10 states, there was subsequently a precipitous decline beginning in 2005 (from a high of 81.7% down to a low of 51.3% in 2016), which may very well speak to the very employment friendly economic climate for those remaining somewhat limited by their disabling conditions.
And so, while one might draw the conclusion that where there is only a very small approval rate at reconsideration as compared to the hearing process, why even bother requiring individuals to go through this process. In practical terms, while the Social Security POMS (Program Operation Manual) suggests that a new adjudicator undertake a reexamination of all evidence and make a new determination, in practice, even when there is compelling new evidence, the new adjudicator is ordinarily deferring to the initial decision by stating that the prior determination technically resolved all adjudicative issues. This has led to what I describe as a rubber stamp denial.
However, there are instances when the reconsideration can prove useful for both claimants and the hearing offices. Many claimants file their claims too early on, shortly after going out of work, receive a quick denial, and then find themselves at the doorstep of a hearing well prior to being out of work for a year. Many times, claimants fail to understand that Social Security disability is for those suffering from a medical condition that keeps the from working long-term (i.e., a year or longer). Facing this additional hurdle called reconsideration can cause some to turn back, and appropriately so: perhaps reapplying later on if in fact they do find themselves longer-term disabled. In practice, counsel likewise sees the need for claimants in NH to apply for both Medicaid (for absolutely essential health insurance) for treatment of their conditions along with APTD (Aid to the Permanently and Totally Disabled) for cash assistance. Applications for these programs require an active application for Social Security. Ending up at a hearing in front of a judge well shy of a year creates a serious dilemma at that point as to whether the claimant goes forward prematurely with the ALJ hearing as, if they turn back, they risk losing the APTD and Medicaid benefits they have. An interim process called reconsideration helps solve that dilemma.
And so there are certainly pros and cons to reinstatement of the reconsideration process in New Hampshire. However, reinstatement of this process will in no way harm one’s ultimate ability to receive benefits: and perhaps it will shorten for some the need to wait out what can be a year or longer to get to hearing.
If you or someone you love remains disabled from working and needs legal advice or assistance, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622.
The Social Security Administration has promulgated a set of rules of professional conduct that your Social Security representative must follow during the course of their representation. While one might think these rules are meant simply to protect the public and disability claimants from unscrupulous rules, in fact the rules are meant to protect the integrity of the Social Security disability fact finding process and ultimate administration of disability benefits to those disability claimants truly in need.
The Social Security disability regulatory process used to determine which Social Security disability claimants meet the definition of “disabled” under Social Security’s rules is not what one typically sees in a court room, or for that matter on TV, depicting a court room. Instead of it being an “adversarial” process where opposing sides argue it out in front of a neutral judge who is meant to be an arbiter of a dispute, the Social Security disability determination process is an administrative one that is a fact finding process where there is only one side arguing their position to a neutral judge who is meant to be a neutral finder of fact.
On April 20, 2015, the Social Security Administration (SSA) put into effect new adverse evidence regulations which laid out both an attorney’s, and a disability claimant’s, obligation to submit evidence. Prior to those rules going into effect, the professional rules required claimants and their representative to furnish medical and non-medical evidence that is “material” to a determination of disability. However, given this rule allowed attorneys to make a legal assessment as to what constitutes “material” evidence, the new rule clarified any ambiguity by requiring both lawyers and their disability claimants present any evidence, medical or non-medical, which “relates” to their disability claim.
The most recent Rules of Conduct and Standards of Responsibility for Representatives promulgated by SSA regulating the conduct of Social Security lawyers in Massachusetts, Maine and New Hampshire is meant to address the manner in which attorneys deal with their disability claimant clients, and with the the SSA itself. The new rules require attorneys to “maintain prompt and timely communication” with their client such that consultation with the client continues throughout the course of the representation. Similarly, requiring that attorneys provide prompt responses to requests for information. While one would think it is “par for the course,” I can tell you that this is many times not the case given the calls we many times receive from individuals who are becoming frustrated with their representatives after being unable to receive a return call after placing multiple calls. Certainly, this is not how we handle matters in our office, as we believe in providing answers to our clients the same day, if possible, but certainly with an idea as to when they can expect to receive that answer.
Another concern that is addressed in the new rules has to do with last minute withdrawals from representation that occur within days of a scheduled hearing (which has been scheduled for almost 3 months). We have heard of withdrawals taking place within days of the pending hearing (and, even recently, of someone being told the day of the hearing that their attorney would not be showing up as they are withdrawing form the case). This is certainly unethical behavior, without SSA clarifying the inappropriateness of such conduct. The new rule mandates that once a hearing is scheduled, an attorney may only withdraw from representation “for extraordinary circumstances.”
Of interest, SSA is suddenly requiring for purposes of submitting any medical or vocational reports that attorneys inform SSA if they have “drafted, prepared or issues the medical or vocational opinion.” Likewise, one’s Social Security lawyer must also inform SSA if they referred or even suggested that one seek a medical opinion from their provider. Our office finds this particularly troublesome as it should be irrelevant (and should have no bearing as to how SSA views a medical report from a treating physician) whether the suggestion for such a report came from the disabled claimant’s attorney.
Finally, it’s important to remember (and these new rules continue to reflect the fact) that one’s lawyer is considered officer of the court, and is thereby responsible for maintaining the integrity of the fact finding process in much the same manner as a Social Security Administrative Law Judge. This means an attorney cannot allow false or misleading statements to take place in either applications or at hearings, and maintains a duty to correct such statements should they take place.
If you or someone you love is in need of a Social Security disability lawyer who works hard to obtain for you the benefits you deserve, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622.
All too often our office is contacted by individuals who have been attempting to file for Social Security disability benefits, only to get denied (and repeatedly). A hardworking gentleman, we’ll call Mark, contacted our office just the other day in just such a circumstance. Providing his story will, I hope, prove instructive to those who are thinking about filing for disability benefits for the first time (or have filed previously and have been denied).
Before I begin, I think it’s important to set forth for those who may not understand whom the Social Security disability program is meant to assist. It for those who have been suffering from a severe medically determinable impairment which, despite prescribed treatment is expected to keep one disabled from working for what has been (or is likely to be) a year or longer (or, in the alternative, result in death).
Mark called our office looking for a Boston, MA Social Security lawyer after losing 2 different attorneys while awaiting hearing before an administrative law judge at the Boston, MA Office of Hearing Operations. He is a fifty-four (54) year old Boston, MA resident who has worked hard his entire life: first, working many years in housekeeping before choosing to work as a deli clerk and stocker at a large chain grocery store in Boston. As a result of his hard work, he had significant shoulder problems to show for it, requiring rotator cuff repair on one shoulder and then, once healed, he attempted to go back to work at his old position.
Unfortunately, the first attorney that agreed to represent Mark in his claim earlier on in his claim didn’t appear to notice that Mark filed very shortly after going out of work and that it remained unclear whether his condition would last for what would be a year or longer. Upon discovering that Mark had returned to work, he failed to provide him with any advice as to how this might impact his pending case. Mark’s first lawyer should have informed him is that if he is able to return to work inside of a year’s time, and the attempt to return to work lasts longer than 6 months, then he has undertaken what is deemed a “successful” return to work. In that event, he should no longer pursue his claim at the point in time he’s shown an ability to earn gainful wages (what is $1180.00 per month in 2018) on a regular and continuing basis for what has been longer 6 months. In order to qualify for what would be an unsuccessful work attempt (in which case the return to work would not interrupt the period of time that was counting towards one year), Mark would have had to go back out of work as a result of his disabling condition within 6 months. He was never informed about any of this: instead he was simply dumped by the wayside.
The second lawyer took on the case, seemingly after getting a history of his circumstances, just a month or two later, and understanding that Mark was continuing to work. At the point in time they determined that Mark had in fact returned to work for longer than 6 months (in fact, it had been 9 months), they, too, dumped Mark by the wayside with no explanation. Instead, Mark was left to go to the hearing by himself with the judge explaining to him that he had only gone back out of work the month before and so he was wondering why Mark was even in front of him at that point.
It was thus left to our office to explain to Mark about his need to show he’s remained disabled from working for what has been or would be a year or longer (and that his first period of disability had been interrupted by a successful return to work). Likewise, we had to advise him that he was now dealing with a new period of disability starting from when he had to go back out of work for what was additional rotator cuff surgery on his opposite hand. And now that he was only 4 months disabled from working (and in recovery), it was not entirely clear that he would remain out of work for what would be a year or longer. Mark was advised of his right to consider withdrawing his request for hearing and potentially start a new claim if and when it becomes more apparent that his most recent surgery will keep him out of work (and we likewise had to clarify for him, any work for which he’s reasonably suited by age, education and experience, for what will be a year or longer).
Needless to say, Mark was provided a disservice by any attorney not willing to explain to him the rules that would apply to his Social Security disability claim. If you are seeking representation, ensure that your attorney is communicating to you what needs to be proven in your case, and how any medical or vocational developments may be impacting it.
For a legal analysis of your Social Security disability claim, with no cost or obligation to you, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622.
While it is not uncommon to see the signs of dementia (or what may ultimately be diagnosed as Alzheimer’s) in those who have reached retirement age already (and, thus, may be entitled to collect, or may be collecting early retirement benefits), we do receive calls from those who are suffering from signs of early onset dementia. One such call from a very kind woman whose mother is suffering from the cognitive effects associated with this condition, and whose mother has been out of work for quite some time, prompted me to write this article in light of their wish to apply for Social Security disability benefits.
It is important to understand that in order to establish a claim for Social Security disability benefits it’s necessary that a disability claimant establish that they have been objectively diagnosed as suffering from a severe, medically determinable impairment that described treatment causes one to remain totally disabled from all forms of gainful employment. The difficulty lies in establishing the diagnosis objectively of a severe medically determinable impairment.
When we were contacted for purposes of assisting with a potential Social Security disability claim, we were informed by our potential client’s daughter that her mother had to discontinue work over a year prior as a result of issues revolving around her memory and concentration. Tammy (we’ll call her daughter) informed us that her mother was embarrassed by the problems she was having and instead of going out on disability benefits with her company (and determining what could be done), she had instead gone out on early retirement. I then asked Tammy about what follow-up her mother did have at that time with her primary care physician, and she informed me that while she was seeing her primary care physician during that time, she would forget to mention her issues with her memory (and, unfortunately, her family was not accompanying her to the appointments).
Given the fact that there was no discussion or assessment of her condition at the time of her primary care physician’s visits up until this past spring, there would be no documentation in his chart that she was having these concerns. Once she did convey to the doctor the problems she was having, while he did undertake some testing within the office, this was only a first step towards establishing a diagnosis.
Most general practitioners will not undertake the battery of testing, which would include as well a mental status examination. Ordinarily, an evaluation with a neurologist may very well be suggested, in which case they might suggest brain imaging studies to determine whether there might be organic causes such as a stroke or a tumor, for example, causing cognitive dysfunction. Similarly, a referral for an evaluation with a neuropsychologist might be recommended, who would undertake a very extensive battery of testing, referred to as a neuropsychological evaluation, with respect to ones cognitive function. A neuropsychological evaluation can take up to 8 hours ordinarily, and would help detail the extent to which there are specific cognitive deficits with respect to different cognitive areas of function such as executive functioning, memory, attention and concentration, etc.
Once a determination can take place as to whether dementia is indeed an appropriate diagnosis (whether that be in the form of Alzheimer’s or a more general dementia), medical providers can determine the appropriateness of certain medications that may be used to ease the symptoms of the condition. Treatment for Dementia can include medications referred to as cholinesterase inhibitors (with name brand medications such as Aricept, Razadyne, Reminyl and Exelon) which can, in some circumstances, provide some benefit to those suffering from some form of dementia, such as “less anxiety, improved motivation, and better concentration and memory. And some are able to continue with their regular activities.”
With the above testing and treatment underway, a disabled claimant will stand a much better chance of establishing a disability claim for dementia. Follow-up treatment with continued cognitive testing, however, will be essential in order to show that the condition does remain severe and disabling such the deficits would serve to preclude the individual claimant from being able to perform gainful employment.
If a loved one is feeling lost as a result of difficulties with cognition, give a call on their behalf to the Law Offices of Russell J. Goldsmith at 1-800-773-8622 so that together we can determine whether they appear to be receiving appropriate treatment, and, given the problems they are still experiencing, whether an application for Social Security disability might be appropriate for them.
On November 7, 2017, the State of Maine citizenry went to the ballot box and passed the Question 2 ballot initiative calling for expansion of Medicaid. The ballot initiative called for the state “to provide Medicaid through Mainecare for persons under the age of 65 and with incomes equal to or below 138 percent of the federal poverty line.”
Since that time, the present governor, Paul LePage, has refused to order the Department of Health and Human Services (DHHS) to implement Question 2. Governor LePage, who had vetoed on 5 previous occasions the expansion of Medicaid coverage (which expansion cost would initially be covered by Federal funds to the tune of 90% of the cost), has refused to allow this citizen passed bill to go into effect, thereby thwarting the will of the people. What elected officials had previously passed on 5 occasions, was now passed by a significant majority (60%) of the citizenry so as to allow individuals making up to approximately $16,000.00 and families of four with an income of up to $34,000.00 obtain health insurance (thereby allowing anywhere from 70-80,000 indigent Mainers health insurance the can’t otherwise afford to obtain).
As a Maine Social Security disability lawyer assisting the long-term injured and disabled for almost 30 years, I have seen first hand how the lack of health insurance coverage and available health care has impacted those with the least in this state. Every day, disabled individuals call our offices seeking assistance with a potential Social Security disability claim, and yet they remain unable to receive the types of treatment that might allow them 1) to get better and return to work, or 2) make evident to the Social Security Administration just how serious their condition would remain despite treatment. In either event, these individuals are looking for treatment which will allow them to lead a better quality of life.
The Social Security disability system is meant to address financial support to those suffering from a “severe medically determinable impairment,” and who have remained or will remain totally disabled from all forms of gainful employment for what will be a year or longer despite prescribed treatment. Day in and day out, we have to advise individuals who do not have health insurance to try and find care (many of whom have applied for “disabled status” Mainecare, only to be told that they do not qualify as they do not have a doctor whose treatment records reflect the fact that their condition remains severe and disabling). It remains a catch 22, however, for many of these individuals: they can’t prove they remain disabled from a severe “medically determinable impairment” if they can’t be seen by a doctor. And yet, they can’t prove they remain disabled “despite prescribed treatment” if they can’t be in treatment.
These individuals remain in an impossible situation. Many are being denied the health insurance they need to get better because they haven’t been able to see a doctor who first confirms that their condition has remained severe and disabling. By the same token, these individuals find themselves attempting to apply for Social Security disability benefits given the fact that they remain disabled given they remain incapable of obtaining the ongoing treatment and medication their conditions call for.
Ultimately, with proper care, many of these same individuals’ health might improve to the point where they could attempt to return to work if they were able to obtain the ongoing treatment they require for their conditions. By the same token, there is a certain share of these individuals who simply will not be able to get better to the point where they are employable. However, the availability of Mainecare would allow these individuals to come out from the shadows of disability and actually be seen and heard when applying for Social Security disability benefits. Many Social Security disability applicants are denied simply because there remains “insufficient evidence” as to the nature and severity of their medical conditions because they cannot be seen or treated.
Given the Governor’s failure to order DHHS to begin implementation of Question 2, and as required under the terms of the bill notify the Federal government of its opting to expand Medicaid coverage within the state by an early April deadline so as to secure the Federal funding for the expansion, the Medicaid expansion which should be taking effect as of July 2, 2018 remains in doubt. A superior court judge has now ruled that the LePage administration must comply with the results of the election ballot initiative and file its plan for Medicaid expansion with the Federal Department Health and Human Services by June 11, 2018. We at the Law Offices of Russell J. Goldsmith certainly hope that expanded Mainecare will be available soon for both our clients and those around the State of Maine suffering from disabilities.
Our office quite commonly represents individuals suffering from headache issues that have become severe, persistent and disabling such that they remain unable to work. Pursuing such a Social Security disability claim can prove to be a very difficult proposition.
Every claim requires that an individual begin by showing that they are suffering from a medically determinable severe impairment. The Social Security regulations (and, specifically, 20 C.F.R. §404.1521) requires as follows: “[y]our impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source.” This can be easier said than done when it comes to headaches.
There are a panoply of medical conditions that can result in headaches. However, the more difficult circumstance is where the diagnosis itself is simply that of simply experiencing chronic headaches.
As a Social Security lawyer handling disability claims out of Maine, Massachusetts and New Hampshire for the last 29 years, we frequently represent individuals in claims that involve, for example migraine headaches or what are referred to as cluster headaches. Proving objectively that such headaches do indeed exist, and remain severe and disabling, requires appropriate documentation from one’s treatment provider. First and foremost, we recommend that treatment take place with a specialist, which would be a neurologist, and that visits take place consistently so that the frequency, severity, location and duration can be properly documented. An initial diagnosis will require significant history taking and objective testing to rule out organic causes for one’s condition.
One type of severe headache, referred to as migraines do have certain tell tale signs and symptoms that ideally are detailed by one’s treating neurologist throughout their notes. Migraine episodes or attacks, sometimes referred to as “suicide headaches” as the level of pain can be so severe, can last for hours or even days. Many individuals experience warning signs known as an “aura” that can be in the form of blind spots, or other visual disturbances such as light flashes or seeing shapes or bright spots, tingling on one side of one’s face or down an extremity, difficulty speaking, hearing noises or music, among others. A migraine might also be accompanied by nausea and vomiting, and with a period following the seizure referred to as “post-drome,” that may include feeling exhausted/drained following the migraine.
Triggers can include certain types of foods, alcohol, highly caffeinated beverages and stress, and following one’s treatment providers’ recommendations with reference to avoiding certain triggers is very important (both personally and in terms of showing the Social Security Administration (SSA) that one remains disabled despite prescribed treatment). Likewise, attempts at medication management for migraines would be anticipated by SSA, with efforts at migraine prophylactics such as beta blockers, or SSRI (for example, Zoloft, Prozac and Paxil) and/or SNRI inhibitors (Cymbalta and Effexor) be expected, along with the prescriptions for Triptan medications (such as Imitrex and Zomig) once a migraine is occurring.
Another type of headache, called “cluster headaches,” has quite a different pattern than migraines. The cluster period typically lasts 6 to 12 weeks headaches followed by periods of remission (with no headaches occurring for months). These cluster periods many times occur the same time each year, and individuals may experience what are called episodic cluster headaches (with headaches occurring for a period of one week to a year, followed by a pain free period that can last up to 12 months) or what are called chronic cluster periods that can last for more than a year (with pain free periods lasting less than one month). During the cluster period, headaches are usually daily, sometimes several times a day, can last 15 minutes to 3 hours, can occur at the same time each day and with most attacks occurring at night. Signs and symptoms can include similar nausea and aura issues to migraines, with headaches involving excruciating pain around one eye, that may radiate, one-sided pain, redness and/or excessive tearing in one eye, forehead or facial sweating, facial flushing or pale skin, swelling around the affected eye or a drooping eyelid.
Once again, one of the triggers can be alcohol and so avoiding alcohol should be understood. Treatment can include 100% Oxygen inhaled through a mask for brief periods during the course of a headache and once again Triptans (in injection, as well as inhaler and pill form). Other treatment available includes or Octreotide (Sandostatin), which is injectable, Lidocaine (Xylocaine) as an inhalant, and Dihydroergotamine, which is available in injection and as an inhalant (Migranal).
Keeping a headache diary both for purposes of diagnosis and treatment and your Social Security disability claim can prove quite useful.
Certainly, in addition to the headache classifications listed above, headaches may also occur as a symptom of other objectively identifiable medical conditions that can be established through testing such as an MRI or CT scan, etc. Headaches may be very well understood and explainable based on the nature of the underlying condition. Examples of such conditions might include such objective conditions as a tumor or cyst in the brain, trigeminal neuralgia, a blood clot or other vascular disorder, or a cervical disk issue.
If in fact you or someone you care for has been experiencing headaches that persist to the point where their daily life, including their ability to work has been compromised, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 for advice as to whether Social Security disability benefits may be an appropriate resource to pursue.
The Social Security rules and regulations provide a disability claimant with a number of opportunities to appeal should one be denied. Following an initial denial, a Maine or Massachusetts Social Security disability claimant would appeal the decision by way of filing a Request for Reconsideration and then, upon further denial, by way of a Request for Hearing before an Administrative Law Judge (ALJ). A New Hampshire disability claimant, however, gets to bypass the reconsideration process and proceed straight to an ALJ hearing.
Once denied at hearing, claimants may then bring further administrative appeal before the agency (that is, the Social Security Administration (SSA)) by way of a Request for Review of Hearing Decision/Order before the Appeals Council. A denial by the Appeals Council, however, exhausts one’s administrative options.
At the point in time of an Appeals Council denial, a Social Security disability applicant has exhausted their administrative options. It is important note that the failure to pursue further appeal of the ALJ denial at hearing will result in that decision becoming final under the doctrine of Res Judicata (which means the “matter having been decided”). Should this take place, it becomes very difficult, if not impossible, to bring a new claim that would succeed in providing you with benefits prior to date of the ALJ denial. There are few exceptions to this rule of finality.
And so, the only only avenue left, whether in Massachusetts, New Hampshire or Maine, is for a Social Security lawyer and their claimant is the filing of an appeal to Federal District Court. It is important to understand that the odds of a favorable decision at the Federal District Court level is quite small, with success rates at less than 30% (and with the vast majority of successful appeals involving simply a return of the claim (or what is called a remand) for additional hearing before what may be the very same ALJ that initially denied the claim.
In order to bring a Federal District Court action, one must pay both filing and service costs unless the court determines that there is a basis for a waiving of such costs based on an individual claimant’s inability to afford such costs. In order to proceed in such a fashion, it’s necessary that the court approve a motion to proceed “in forma pauperis.”
It is important to understand that at the Federal District Court level of appeal the standard for review is whether the agency decision was in error as a matter of law or whether the decision by the ALJ was not supported by substantial evidence. The Federal District Court is not tasked with reviewing additional medical records or evidence, as they are not a fact finder. Instead, the Court looks to see whether the ALJ failed to follow the law in coming to its decision or the ALJ failed to base its decision on substantial evidence in the record. For these reasons, the likely remedy is a remand of the case back to an ALJ for additional proceedings (and only rarely is there a direction by the Court that a favorable decision is to be instituted).
Because of the extensive work involved in handling a Federal District Court action, which can run well in excess of $10,000.00 of an attorney’s time with what is a very low success rate, federal law (under what is called the Equal Access to Justice Act) does provide a mechanism whereby an attorney can be compensated on an hourly rate for the work performed at the Court level and for costs to be reimbursed. In order for such time and costs to reimbursed, however, it is necessary that the attorney and their disability claimant prevail against the Agency (that is, SSA) and must show that the Agency’s position was not substantially justified.
Unfortunately, not all Social Security disability claims can be said to justify the time and expense involved with proceeding to Federal District Court. If you or someone you care about, has been facing multiple denials and simply doesn’t know how to proceed, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 for a free evaluation of their case.
We frequently represent individuals in Social Security disability claims who are suffering from the effects of Post Traumatic Stress Disorder (PTSD), in circumstances that many times involve military Veterans who have served our country. This may result from involvement in armed conflict or as a result of military sexual assault. Just as likely is the circumstance where an individual is suffering from PTSD as a result of trauma that they may have experienced from physical or emotional abuse during childhood, in a domestic violence situation or as a result of a crime of violence.
The effects of PTSD can be significant and crippling in terms of one’s ability to function from day to day at home (nonetheless in a work setting). And yet, understanding the type of treatment and proof required to satisfy the requirements of the Social Security regulations may not be so obvious.
Just as with every manner of Social Security disability claim, it’s important to show that one is suffering from a severe medically determinable impairment which, despite prescribed treatment, has caused one to remain disabled from any manner of gainful employment for what has been, or will be, a year or longer.
As a Massachusetts Social Security disability lawyer licensed in Maine, Massachusetts and New Hampshire, we frequently see individuals who choose to insulate themselves from triggers of the PTSD to the point where the isolation causes them to avoid seeking help. This means that sufficient evidence can be a major concern as clients may be unwilling to seek treatment in the form of counseling and/or psychiatric care . Ultimately, without such treatment, we find that proving the condition exists and meets the criteria of the both the medical literature and the Social Security regulations may be lacking.
The American Psychiatric Association revised the diagnostic criteria for PTSD in 2013 in the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders, otherwise known as the DSM-V. First and foremost, there must exist evidence that the individual was exposed to actual or threatened serious injury, sexual violence or death in one of the following ways: direct exposure, witnessing the trauma, learning that a close relative or friend was exposed to such a trauma , or indirect exposure to horrible details of such a trauma (such as is the case with first responders). Likewise, there must be a re-experiencing of the event through one of the following: intrusive thoughts, nightmares, flashbacks, or emotional distress or physical reactions following exposure to traumatic reminders. An example of some of the additional categories that must be addressed in order to satisfy the criteria include evidence of the need to avoid trauma-related stimulus after the trauma, the experience of negative thoughts or feeling following the trauma (that may include, for example, such issues as a sad or depressed emotional state, decreased interest in activities, feelings of isolation) and trauma-related reactions following experience of the trauma (such as, irritability or aggression, hypervigilance, an increased startle reaction and difficulty concentrating or sleeping).
The Social Security Administration (SSA) set forth a new mental health listing of impairment with respect to PTSD that went into effect on January 17, 2017, entitled “Listing 12.15 Trauma and stressor-related disorders.” The criteria required in section A appears very much tailored to match the DSM-V criteria, requiring that one show medical documentation of all of the following: 1) exposure to actual or threatened death, serious injury or violence, 2) subsequent involuntary re-experiencing of the traumatic event (for example, intrusive memories, dreams or flashbacks), 3) avoidance of external reminders of the event, 4) disturbances in mood and behavior; and 5) increases in arousal and reactivity (for exampled, exaggerated startle response, sleep disturbance).
Section B or C must likewise be met. Section B requires a showing of either an extreme limitation in one category or marked limitation in two of the following categories: 1) understanding, remembering or applying information, 2) interacting with others, 3) concentrating, persisting and maintaining pace and/or 4) adapting or managing oneself. Section C requires a showing that the condition has remained “serious and persistent” which is defined as a medically documented history of the disorder over a period of 2 years with evidence of both: 1) medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting (s) that is ongoing and that diminishes the symptoms and signs of your mental disorder and 2) that you have marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life.
Needless to say, in both establishing that one meets the diagnostic criteria and that the condition remains severe and disabling such that either mental health listing 12.15 is met or one remains incapable of undertaking gainful employment, consistent ongoing treatment with mental health specialists remains critical to establishing entitlement to Social Security disability benefits. If you, or someone you know, is suffering from severe mental health trauma and remains unable to return to work, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 to see how we might be able to assist.
There are a number of important considerations to keep in mind when suffering from a seizure disorder as you consider applying for Social Security disability benefits whether you’re in Maine, Massachusetts or New Hampshire. Understanding how the Social Security Administration (SSA) analyzes such claims can help avoid unexpected surprises down the road.
As with any disability claim before SSA, it is important to understand that one needs to prove that they are suffering from a medically determinable impairment (MDI) that remains severe and disabling, despite prescribed treatment, for what will be a year or longer. There are two different ways to qualify for benefits: one is to prove that you meet one of Social Security’s medical listings of impairments (at step 3 of the sequential evaluation process).
Social Security listing 11.02 addresses epilepsy (seizures) and requires documentation of what are referred to as dyscognitive seizures or generalized tonic-clonic seizures. Dyscognitive seizures were formerly referred to as “partial complex seizures” for what are deemed to be focal seizures with altered awareness. These are seizures that involve altered awareness or responsiveness (such as what is also called a petit mal seizure). The other type of seizure referenced within the listing, generalized tonic-clonic seizures, refers to the type of seizure that involves loss of consciousness and violent muscle contractions.
First and foremost, as a Social Security lawyer advising Maine, Massachusetts and New Hampshire disability claimants for 28 years, we ensure our clients are remaining in consistent treatment with a specialist (that is, a neurologist) and not just a primary care. Listing 11.02 provides, whether for dyscognitive seizures or generalized tonic seizures, the very initial requirement that the seizures be “documented by a detailed description of a typical seizures.” Likewise, the Listing requires that the frequency of the seizures be documented: with generalized tonic clonic seizures needing to occur at least once a month for at least 3 consecutive months, and with dyscognitive seizures documented as occurring at least once a week for 3 consecutive months.
Given the impact such seizures have on one’s cognitive and physical functioning, and certainly over time, Listing 11.02 does include provisions for less frequency of such seizures if there is found to be a marked limitation in one of the following: 1) physical functioning, 2) understanding, remembering or applying information, 3) interacting with others, 4) concentrating, persisting or maintaining pace or adapting or managing oneself. A treating neurologist who is familiar with one’s condition and can comment on these issues is critical to establishing that one meets the criteria of Listing 11.02.
However, even if one doesn’t meet Listing 11.02, one can still prove entitlement to Social Security disability benefits at at steps 4 and 5 of the sequential evaluation process by showing that one remains disabled from performing any of the past work they performed in the 15 years prior (their past relevant work) and that they remain incapable of performing any other forms of gainful employment that exist in significant numbers in the national economy. In doing so, it’s important to understand that one needs to show that one’s seizure condition remains severe and disabling despite prescribed treatment. This means taking one’s medication as prescribed by their treating neurologist and following their recommendations.
One of the big problems one can see in these types of cases is that one may not take their medication regularly as they may not like the side effects to the medications. It’s important to remember that showing one remains disabled despite prescribed treatment is required, and so taking one’s medications is quite important. SSA will take into account the side effects of one’s medications (whether they impact one’s focus or cause drowsiness) in assessing one’s ability to work (and with respect to the cognitive limitations associated with Listing 11.02).
Finally, one cannot expect to receive benefits under Social Security’s rules if alcohol and/or drugs are deemed to be substantially contributing to one’s disabling condition then benefits are not payable. This rule has been interpreted to mean the continued use of alcohol and/or drugs, and not simply if one’s condition may have initially been brought about due to alcohol and/or drugs. Certainly, any neurologist will explain that the use of alcohol is contraindicated when on anti-seizure medications and may not only hinder the effectiveness of the medication, but also cause additional seizure activity.
If you or someone you love has an uncontrolled seizure disorder or other disabling condition, contact the Law offices of Russell J. Goldsmith at 1-800-773-8622 to see how we can assist.
Before considering an application for Social Security disability benefits, or for that matter, an appeal of your denial, it is always a good idea to have the advice, and potentially assistance, of a Social Security disability lawyer. Without even having to call our office, ask yourself these very important questions before you make that next call.
First and foremost, ask yourself what makes you believe that your illness or injury will keep you from working any job, making simply $1180.00 per month (that is to say, undertake gainful employment) on a regular and continuing basis for what will be a year or longer. If you are unable to clearly answer that question of duration, any application you might bring yourself or with the aid of a lawyer will be lacking conviction in its truth.
Instead, consider whether an attempt at returning to work may be possible and consider waiting to see what course your health might take: the Social Security rules do provide incentives for attempts at returning to work and should you find yourself back out of work shortly thereafter as a result of your medical condition, you will not find that this attempt at work works against you.
The most common misunderstanding our potential Social Security disability clients out of Maine, Massachusetts and New Hampshire have is that they fail to understand that such benefits are not payable for the first five (5) full months after one becomes disabled for what is deemed to be a year or longer. Thus, calling your Maine Social Security lawyer to start a claim short of being out of work for longer than a six (6) month period will not make good sense unless one otherwise remains in poverty circumstances (without income and/or assets in the household that would bring them above the poverty line) and thus justify entitlement to the Supplemental Security Income (SSI) program which pays the month after one applies assuming once again you are found disabled for what will be a year or longer (or result in death).
Second, ensure that you have been undertaking zealous treatment before even considering the prospects of a Social Security disability claim. Ask yourself, how long have you been actively treating? Have you sought treatment with your primary care physician along with specialists that might be able to address your specific medical condition of concern?
If you are not receiving treatment because you don’t have insurance in place, have you looked into applying for Medicaid in your state: in Massachusetts, it’s referred to as Mass Health, in Maine, it’s called Mainecare and in New Hampshire, the federally funded health insurance administered through the states for those found in poverty, otherwise without health insurance and long-term disabled, is called Medicaid (as the insurance program is generally known)? At the same time, have you already looked into front treatment options in your area. For example, Maine Medical Center and Southern Maine Health Care are just 2 examples of hospitals with free treatment programs, while Dartmouth Hitchcock Medical Center out of New Hampshire has a financial aid program for those in need that runs statewide. Most hospitals offer either a free treatment program or sliding scale program that may very well allow you to remain in treatment.
The Social Security disability application process can take up to 2 years. Asking yourself these very important questions prior to making calls in an effort to start an application can save you a lot of frustration down the road. SSA wants to see that disability claimants are coming to file as a last resort and not as a potential option.
If you or someone you love has found themselves with no choice but to file for Social Security disability benefits as a result of a severe illness or injury that they are not recovering from, and simply cannot go to work, contact the Law offices of Russell J. Goldsmith at 1-800-773-8622 for a free analysis of your or their potential claim.