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Jonathan Ginsberg

Arthritis and Social Security Disability

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rheumatoid arthritisIn my office, I regularly get calls from clients who allege disability in whole or in part due to arthritis.   According to the CDC,  about 50 million adults have arthritis or related condition such as rheumatoid arthritis, lupus, fibromyalgia or gout.  Arthritis cases can be winners but they do present a challenge.  Most people as they age develop some form of arthritis – usually osteoarthritis.

Osteoarthritis (OA), sometimes referred to as degenerative joint disease, is a chronic joint disease of the hands, hips, knees and spine which primarily affects adults age 55 and older.  It is caused by the breakdown of cartilage in the joints.  Physical therapy and medications can help control the pain, but in severe cases, when the joints become sufficiently damaged and nonfunctional, replacement surgery can be the only option available.

Social Security judges see arthritis is medical records all the time and most judges believe that mild arthritis creates uncomfortable, but not disabling symptoms.  In my experience mild to moderate osteoarthritis generally will not produce a favorable disability decision.   Unusually severe osteoarthritis, osteoarthritis plus some other condition, or a severe form of inflammatory arthritis such as rheumatoid arthritis or psoriatic arthritis is much more likely to result in a finding of disability. [Read more…] about Arthritis and Social Security Disability

How to Convincingly and Credibly Describe Pain to a Social Security Disability Judge

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ssdi and painMany of the cases I try before Social Security judges involve claims of severe pain by my clients.  Pain can clearly impact your capacity to work and thus it is an important consideration by the judge, but at the same time, pain can be difficult to quantify.

Everyone experiences pain differently and there are no objective tests for it.  Further, some of us develop a high pain threshold and learn to live with pain, while others can develop depression or phantom pain in areas of the body secondary to the original pain site.  Finally there are several legitimate pain syndromes – namely fibromyalgia, somatiform disorder, and chronic regional pain syndrome (CRPS) that cause severe limitations out of proportion to any underlying physical cause.

Social Security gives us some guidance as to how disability adjudicators and judges are to evaluate pain.  Social Security Ruling 96-3p offers decision makers guidance about how to evaluate pain and Social Security Ruling 96-7p offers decision makers instructions about how to evaluate the credibility of a claimant.

  • Taken together these rulings suggest that when considering allegations of pain, a Social Security judge must look for some objective condition or injury that can reasonably be expected to cause pain.  Further, a judge should recognize that “symptoms such as pain sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, the judge must carefully consider the individual’s statements about symptoms with the rest of the relevant evidence in the case record in reaching a conclusion about the credibility of the individual’s statements.” [Read more…] about How to Convincingly and Credibly Describe Pain to a Social Security Disability Judge

Diabetic Claims: Judges are Demanding More Evidence

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Type I or Type II diabetes and disabilityOver the past three months, I have represented three different clients with Type I diabetes, each of which resulted in a favorable decision.  In working on these cases I note that the issues my clients face are much different than those faced by Type II diabetics and I have adjusted my approach accordingly.

As you probably know, there are fundamental differences between Type I and Type II diabetes.  An article at the medicalnewstoday.com web site explains the differences in detail but to oversimplify, my clients with Type I have usually been diagnosed as diabetic during childhood or adolescence and they almost always need insulin therapy because their bodies do not produce insulin.

Type II diabetics are usually diagnosed later in life and their bodies usually do continue to produce insulin but not enough.  Many Type II diabetics are prescribed pills, only ending up on insulin later in the process.  Type II diabetes can be partially controlled by diet and weight loss. [Read more…] about Diabetic Claims: Judges are Demanding More Evidence

Claim Approval Tip: Submit a Doctor Completed Functional Capacity Form

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SSA making it harder to win disabilityMy colleague and fellow Tulane Law School alumni Gordon Gates recently published a timely article on his blog discussing the disturbing trend that allowance rates by Social Security judges are down sharply.

Rumors have been floating around the Social Security representative community that Social Security has issued a directive to judges encouraging them to approve fewer cases.  SSA officials have denied this, although I hear that Freedom of Information requests have been filed to investigate further.

Gordon notes that in his jurisdiction – Maine and New Hampshire – SSA’s own statistics show that allowance rates are down across the board – sometimes by as much as 20%.  The same case that would have been approved last year may be denied this year – perhaps for no other reason than SSA’s need to save money.

The trend that Gordon writes about seems reflective of a culture of secrecy that permeates Social Security.

  • They apparently have new standards for approving cases, but they will not tell us what has changed.
  • Approval rates by judges in the same hearing office may vary by 50% or more but SSA has done nothing to address the arbitrary nature of claim adjudication.
  • Judges are asking claimants if they have filed for unemployment benefits and are using that fact as evidence that a claimant has the capacity to work (I question the logic of a correlation)
  • As of January, 2012, SSA will no longer reveal to representatives or claimants which judge will be assigned to a particular case – thus making it more difficult to prepare for hearings

It is not too difficult to see a trend here – Social Security’s disability program is running out of money and SSA will henceforth make it more difficult to recover disability benefits.

From my perspective as a claimant’s lawyer, I can adjust to tighter standards but my plea to Social Security – reveal the new standards so I can properly advise my clients. [Read more…] about Claim Approval Tip: Submit a Doctor Completed Functional Capacity Form

Work Attempts and Unemployment Applications – Do They Hurt or Help Your Case?

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unable to work because of disabilityWork attempts and unemployment insurance can be important factors in your Social Security disability case.  I recently received this email from a reader of my ssdAnswers.com blog:

I have read a lot of your information online, and  I have a up coming hearing in about 3 weeks.  A non-attorney advocate will be representing me.  I am very curious about one aspect of my hearing, that I have attempted to try to work but was unsuccessful 3 different times after I filed for disability. The longest the employer has kept me was about 45 days, and the last job was only 7 weeks. I drew unemployment, however, my physician wrote a letter on my behalf due to the job turnover I have had in reference to my current disabilities.

Of course I have had no unemployment since beginning of may due to the claim year ending, and my father has tried to help me financially. I have interstitial cystitis, lumbar back problems, along with depression and anxiety. I cannot sit for over 15 to 20 minutes, and have a lot of leg weakness when standing. This has been quite an ordeal for me.  I have NO insurance, so it is a challenge trying to get medication, or any further services related to medical. Could you please give me some advice concerning my upcoming hearing. I have supplied my work History and documents from unemployment stating the reason I was terminated and of course I qualified for benefits. I have truly tied to keep work, but my health problems and disabilities have stopped me. Thank you for your input.

Here are my thoughts: 

1. As far as your work attempts, the rule of thumb that I follow is that a work attempt that lasts less than 3 months will generally be considered an unsuccessful work attempt.  I usually find that if my client has 2 or 3 unsuccessful work attempts, it shows that my client tried to work despite his medical issues and it reflects positively on his credibility at a hearing.  This is especially true if the unsuccessful attempt was an entry level, low stress job with minimal physical requirements.

I recorded a video about work attempts prior to hearings – which you can view at https://youtu.be/PnZzTM42Bt0.

2. Unemployment – recently I have noticed that judges are asking whether you have filed for unemployment.  The problem, of course, is that when you file for unemployment, you are stating that you are ready, willing and able to work.  This is contrary to what you are saying to Social Security – i.e., that you cannot work. [Read more…] about Work Attempts and Unemployment Applications – Do They Hurt or Help Your Case?

Fibromyalgia Cases Coming Under More Scrutiny

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You may have read in the news that the Social Security Disability trust fund (not the retirement trust fund) is scheduled to run out of money in 2016, just four years from now.  If Congress does not act, benefits to existing claimants will automatically be cut 21%.

While Congress will most likely wait until the last minute to shore up the disability trust fund, I can already see a change in the level of scrutiny that some judges are applying to disability cases.

A colleague of mine who attended a recent disability claims representative conference tells me that a major topic of discussion at this conference was a rumor that Social Security Administration Commissioner Astrue has established a goal for judges to approve only 30% of the cases they consider.  By contrast, judges nationally now approve close to 60% of all cases at ALJ hearings.  The National Association of Social Security Claimant’s Representatives has apparently filed a freedom of information request to investigate this rumor.

male fibromyalgia patientsWhether this approval rate goal is true or not, I can tell you that I have definitely noticed a trend whereby disability judges are scrutinizing cases much more carefully.  During several of my hearings, judges have referenced my client’s age relative to age 50 – in other words, I think that claimants over the age of 50 have a better chance for approval than younger claimants.

Another area where judges are clamping down has to do with fibromyalgia cases.  I first starting seeing a significant number of fibromyalgia cases about 15 years ago.  Initially, judges did not know what to do with a condition that could not be confirmed by objective tests, but that affected claimants (especially women) in a very dramatic and consistent fashion.

Back in the mid-1990’s judges would call medical witnesses to help them understand this chronic pain condition – it was not uncommon to see psychiatrists, psychologists, orthopedists, neurologists and even orthopedic surgeons appear as expert witnesses to offer theories about what was going on with these claimants.

By the early 2000’s I was consistently winning fibromyalgia cases for claimants who met “the profile:”

  • females, age 40+
  • type A personalities
  • past work at fast paced stressful jobs
  • consistent and extensive work history
  • some form of physical and/or emotional trauma in the past
  • employment at a level often exceeding their education level
  • visits to multiple medical providers and extensive medical records
  • problems with digestion and balance
  • short term memory problems (i.e., fibro fog)
  • myofascial pain
  • crushing fatigue
  • deep joint and muscle pain
  • pain that seemed to travel around the body [Read more…] about Fibromyalgia Cases Coming Under More Scrutiny

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