Articles Posted in SSDI

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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.

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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.

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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).   Continue reading

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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.

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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).    Continue reading

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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.

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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.

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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. Continue reading

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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.

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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. Continue reading

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