Articles Posted in The Benefits of a Lawyer’s Involvement

And so you find yourself in the position of having pursued your Social Security disability claim for years.  You’ve applied and been denied repeatedly, and finally in front of an Administrative Law Judge (ALJ).   Now you face the prospect of having to start the process all over again.   The question now arises as to whether you will lose your rights to any benefits for the time period leading up to that ALJ denial.  You are now faced with the possibility that even if you were to be successful on a new application, benefits may not be payable the time period that has already been decided by the ALJ.

The Res Judicata doctrine (with the words Res Judicata meaning the thing having been decided) raises its head in any situation where an ALJ has issued an unfavorable decision in your case and where that decision is not facing the possibility of further appeal.  Thus, the issue arises where no further appeal has been taken and is pending before the Appeals Council, or if the decision was upheld at the Appeals Council level and either no further appeal has been undertaken or was denied at the Federal District Court level (and then no further appeal was timely taken at that point)  Failing to pursue the matter further, within the time period prescribed for appeal following a denial, will cause the ALJ unfavorable decision to be come final.  Continue reading

Contrary to the beliefs of many who have been denied their Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) benefits, it is important to understand that the Social Security disability program set up to administer the review of disability claims is a non-adversarial process.   The rules are set up in such a way as to provide a neutral review of one’s disability claim.

The initial application process requires that an individual claimant first submit information to the Social Security Administration (SSA) which will allow the agency to not only obtain all of the necessary medical documentation from one’s treatment providers but also review information as to how the claimant’s daily activities and ability to work is hindered.  The application forms likewise allows the Agency to determine one’s educational and work background as these areas of information are critical to the ultimate determination as to whether one may meet a medical listing of impairment and two, if not, if the individual remains incapable of returning to any of one’s past relevant work (work performed during the 15 year period prior to becoming disabled) or any other work that exists in significant numbers in the national economy.

The initial material that is gathered on the application form, along with a signed medical authorization from the claimant, is then transferred to the state agency responsible for making the actual disability determination for the Federal Government in each state.  In Maine, Massachusetts and New Hampshire, this is referred to as the Disability Determination Services (DDS).  In Maine, the office is located in the capital of Augusta, in New Hampshire, the office is located in Concord and in Massachusetts, there are offices in Boston and Worcester.    Once the case is transferred from one’s local Social Security Administration office (referred to as the District Office) to DDS, a disability claims examiner (or adjudicator) is then assigned to work on the case.  They are given the task of  ensuring that all of the relevant treatment records are obtained that are both listed in your application or that are subsequently pointed out to DDS by the claimant or their representative.   The DDS adjudicator is not, however, provided with the responsibility of obtaining helpful documentation from one’s treatment providers that might support a finding that one either meets a medical listing of impairment or remains disabled from performing one’s past relevant work or other work. Continue reading

We can all recall being told as children to sit up straight at the dinner table.  And yet for those who are suffering from a severe medical impairment, such as a severe back or neck condition (whether from issues with arthritis or from a herniated disk that is causing issues with radiculopathy), sitting in a chair at a kitchen table upright can be quite painful.  Similarly, those suffering from painful nerve conditions such as diabetic neuropathy may find it quite painful to have their feet on the ground.

A Social Security disability claim requires one to prove that they remain disabled from performing any manner of employment, making gainful wages on a regular and continuing basis, as a result of a severe medical impairment.   Just as was the case growing up, maintaining a certain posture is important to the successful performance of many types of jobs.  Any job requires that one be able to undertake some combination of sitting, standing or walking.  No job is going to allow one to recline or lie down during the day.  For those that work at a desk position, it is difficult to do so from a reclining position, and certainly attempting to recline at a job (even a sit/stand option position) is not going to go over well with an employer.

The Social Security regulations recognize the fact that one’s ability to perform a job successfully will depend on one’s age, education, work experience, potentially transferable skills and physical and/or mental health limitations. For those who are 50 years old or older, the Social Security regulations include a set of rules that take into account the above factors (called the Vocational Medical Guidelines, or Grid rules) and, in doing so, consider the difficulties older individuals who have worked more physical jobs will have in transferring to sedentary work.

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When considering an application for Social Security disability benefits for Multiple Sclerosis (MS), there are a number of considerations one should keep in mind.  Given the different types of MS and the manner in which the condition can progress differently for each individual, the advice will differ depending on the individual.

There are four major categories of Multiple Sclerosis: 1) Relapsing Remitting MS, 2) Primary Progressive MS, 3) Secondary Progressive MS and 4) Progressive Relapsing MS.   The different categories are important to understand as, ultimately, in a Social Security disability claim, one needs to show that their condition will remain severe and disabling such that the individual will remain totally disabled from all forms of gainful employment for what will be a year or longer.

The most common form of Multiple Sclerosis is Relapsing Remitting MS, which affects the vast majority of individuals suffering from MS. This form of MS ordinarily presents the first signs of the disease to those in their early 20’s.  The initial symptoms may or may not be severe, and many times those with this stage of the condition will find that by undertaking rehabilitation, such as physical therapy, they will recover from most if not all of any loss of function and will experience what is called a remission of their condition for what can be weeks, months or for that matter years.   Continue reading

When considering an application for Social Security disability benefits (or if you’ve started an initial application already), it is not always clearmay not be (or may not have been) apparent what types of issues should be presented to the Social Security Administration (SSA).  One of the commonly overlooked problems that seem to impact our disability claimants, whether they are suffering from physical problems or mental health problems, is the issue of one’s sleep.

Issues with one’s sleep can creep on you.  It may start off as simply as causing an occasional issue with falling.  At first it may not be as pervasive and may only be an occasional day where it becomes a bit more difficult to fall asleep, or it may be an occasional getting up in the middle of the night.  However, if such problems are causing an individual to lose sleep on any consistent basis (even a day per week), this can cause one difficulty getting up in the morning to get ready for work (or for that matter, may cause an individual difficulty with staying alert and being able to concentrate on the tasks at hand at a job setting.

There are a number of reasons one may have a sleep disorder, and it’s entirely appropriate (in fact, essential) that these types of issues be placed front and center of one’s application for Social Security disability benefits.   One may be suffering from orthopedic problems (whether it be a low back problem that may involve issues including sciatica, or knee or hip problems stemming from arthritis that may or may not have required surgical intervention) or mental health issues (such as anxiety at night, causing one to have racing thoughts which may keep one up at night, or even nightmares resulting from issues involving Post Traumatic Stress Disorder, that is, PTSD).   Likewise, we frequently represent clients who are experiencing problems with their sleep as a result of a sleep disorder such as Obstructive Sleep Apnea.   All of these conditions can and many times do interrupt an individual’s sleep at night and cause them to feel exhausted in the morning.  Likewise, we find that the side effects to certain medications (for example, steroids such as Prednisone) can have an adverse impact on one’s sleep. Continue reading

In our prior blog post we discussed how important it is to obtain supportive residual functional capacity questionnaires from one’s treating physicians.  In this follow-up blog, we’ll advice you as to the best way to go about requesting these forms from your doctors.

First, and of primary importance, it’s important to understand that an ongoing, consistent and lengthy relationship with your provider should be established prior to requesting they provide you with a questionnaire.   Your doctor is more interested in attempting to treat your condition and they want to see that this remains your priority as well.

In order to establish a claim for Social Security disability, one needs to show that they remain totally disabled from all forms of gainful employment, despite prescribed treatment, for what will be a year or longer.   With this in mind, exhausting medical treatment avenues prior to seeking opinions from your physicians needs to remain one’s first priority.   Continue reading

When proceeding with a Social Security disability claim or appeal, one of the most important considerations moving forward is whether your treating physician understands the seriousness of your medical conditions and the extent to which your problems are impacting your ability to function (both in and out of the home).  Ultimately, it’s important that your treatment providers are willing and able to express in a meaningful manner to the Social Security Administration (SSA) he nature and severity of your medical conditions and the extent to which you would be impacted in terms of your ability to function in a work site.

As part of the five (5) step sequential evaluation process, it is first necessary to establish that one is suffering from a medically determinable to severe impairment before SSA will next determine what symptoms could reasonably be expected to follow from such medically determinable impairments.  At that point, the Social Security regulations   require that the agency determine the persistence and severity of one’s symptoms and the manner in which it impacts one’s ability to function in a work setting.  This requires a determination of one’s Residual Functional Capacity, which is defined by the regulations as the most one can do despite their physical and mental limitations.

The Social Security regulations, for claims filed prior to March 27, 2017, provided that treating source opinions (which would include the opinions of one’s medical doctors) would carry controlling weight assuming that the  opinions were supported by the  not inconsistent with the treatment records of the provider.  Amendments made to the Social Security regulations  provide that for those claims filed on or after March 27, 2017, controlling weight will not be provided to the opinions of a treating source (such as one’s primary care physician, psychiatrist or surgeon).  Rather, their opinions will be evaluated along side those of non-treating sources using the same set of factors that have now been outlines at 20 C.F.R. 1520(c).  Medical sources have now been expanded to include that of licensed physician assistants, with respect evaluation of impairments that fall into their licensed scope of practice and for licensed advanced practice nurses, and yet the opinions of your own providers may no longer be presumed to carry more weight than one of Social Security’s providers that may be asked to see you.  Continue reading

The issue of substance abuse can come up in a variety of ways as part of a Social Security disability claim.  It might be a circumstance, very routine in this day and age, where somebody is taking too much of their narcotic medication.  Or, one might be taking medications that their friend or relative has suggested they try.  And then, there’s the very common scenario seen by our office where an individual is smoking marijuana or drinking alcohol in order to help them sleep at night.

Each of above scenarios can serve to derail a Social Security disability claim.  Understanding Social Security’s rules can help avoid the pitfalls we many times see individuals face as a result of the use of substances either not prescribed or in a manner that was not provided for by their physician(s).

There are two (2) provisions to keep in mind when considering an application for Social Security disability benefits.  20. C.F.R. §404.1530 provides that the Social Security Administration (SSA) will not find a claimant disabled if they, without good reason, fail to follow prescribed treatment.  Likewise, the Social Security Act additionally provides that one cannot be found entitled to benefits if in fact drug addiction or alcoholism is found to be a “contributing factor material to the determination of disability.”  

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It is extremely common for individuals applying for Social Security disability benefits to be experiencing problems with chronic pain, as one might imagine.  There are a panoply of medical conditions that could the cause of such symptoms, whether it’s from a degenerative disk disease in one’s back or neck, or, for example, from diabetic neuropathy that might cause excruciating, burning nerve pain in one’s feet.

The problem arises, however, where an individual is continuing to experience chronic pain and there is no easy offender at which to point the finger.   Chronic pain can arise from any one of a number of reasons and pointing to a diagnosed medical condition as the culprit may not be so easy.   It is important to understand that the inability to point to a medical condition as causing the impairment may end up proving somewhat problematic with a potential Social Security disability claim.

The Social Security Administration is required to undertake a five (5) step sequential evaluation process, which process is set forth by the Social Security regulations.  Step 1 requires that an individual is not gainfully employed.  Step 2 requires that a disability claimant is suffering from what is deemed to be a severe medically determinable impairment: an impairment is deemed to be “non-severe” if it does not significantly impact one’s ability to undertake basic physical or mental ability to do basic work-related functions. Continue reading

And so now you’ve been provided with your upcoming hearing date and time and you have no idea what to expect.  In part II, we’ll attempt to make you feel comfortable about the hearing process itself and what you should expect on the day of your hearing.

You can expect you’ll be provided advanced notice of your hearing before an administrative law judge (ALJ) at least 75 days in advance. Ordinarily, 3-4 days prior to the hearing you’ll receive a recorded message explaining that you should show up to the hearing an hour in advance.  It will be important to read carefully the notice of hearing you’ve been provided in the mail months in advance as it will contain important information such as where and when the hearing will be held, the items you should bring (such as a picture ID)  and what issues will be addressed at hearing.

Upon arrival at the hearing office, you can expect to be met by a security guard who will check you in and will scan you for weapons.  With this in mind, be sure not to bring with you anything that can be construed as a weapon: whether it be mace, a pocket knife or even needles you might require for your diabetes condition (leave this in your car, and should you need to test your sugars, plan on doing this outside of the hearing office location).

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