Indiana Injury Lawyer Blog

In October 2008, Michael J. Astrue, Commissioner of Social Security announced the beginning of a new program named "Compassionate Allowances." This program is designed to give very quick (in some instances six to eight days) awards of social security disability for claimants whose medical conditions are so severe that their conditions obviously meet the Social Security disability standards. This fast track approach deals, at least at this point, with people who have cancers and rare diseases.

The "50" conditions are: acute leukemia; adrenal cancer; Alexander Disease; amyotrophic lateral sclerosis; anaplastic adrenal cancer; astroycytoma; bladder cancer; bone cancer; breast cancer; canavan disease; cerebro oculo facio skeletal syndrome; chronic myelogenous leukemia; creutzfeldt-jakob disease; ependymoblastoma; esophageal cancer; Farber's diesease; Friedreichs Ataxia; Frontotemporal Dementia; gallbladder cancer; Gaucher disease; glioblastoma multiforme; head and neck cancers; infantile neuroaxonal dystrophy; inflammatory breast cancer; kidney cancer; krabble disease; large intestine cancer; Lesch-Nyhan syndrome; liver cancer; mantle cell lymphoma; metachromatic leukodystrophy; Niemann-Pick disease; non-small cell lung cancer; ornithine transcarbamylase deficiency; osteogensis imperfecta; ovarian cancer; pancreatic cancer; peritoneal mesothelioma; pleural mesothelioma; pompe disease; Rett Syndrome; Sandhoff Disease; small cell cancer; small cell lung cancer; small intestine cancer; spinal muscular atrophy; stomach cancer; thyroid cancer and ureter cancer.

According to the POMS, while the medical documentation may be "minimal" it must be "sufficient" and "objective".

Social Security believes that as many as 250,000 cases under this program will be decided in an average of six to eight days.

In a recent case decided by the U.S. District Court for the Southern District of Indiana, the judge held that the "law of the case" doctrine applies in Social Security Disability cases. The law of the case doctrine provides that , in a trial following a reversal and remand, if the evidence is substantially the same as the facts upon which the reviewing court based its decision, matters decided on appeal become the law of the case to be followed in all subsequent proceedings in the trial court and, on second appeal, in the appellate court, unless there is plain error of law in the original decision. Kaku v. Nagano v. Brownell, 212 F. 2d 262, 263 (7th Cir. 1954). See also, Vidimos v. Wysong, 179 F.3d 1063, 1064 (7th Cir. 1999).

As a consequence, the law of the case doctrine compels an ALJ on remand of a case from the district court, and the district court, on a second appeal, to accept the findings of the judge of the district court who first decided the case as established and not subject to further review or renewed appeal.

In the particular case in which the applicability of the doctrine was announced, a fibromyalgia victim had appealed an adverse decision of an ALJ to the district court. The district judge (in district court case No. 1), while remanding the case for further proceedings, made findings favorable to the claimant. At the second administrative hearing, the evidence of record was either cumulative or showed the claimant was even more in pain. Even so, the ALJ at the second administrative hearing made findings that were opposite to that which the district judge found in district court case No. 1. The second administrative hearing resulted in an denial of disability benefits. On appeal again to the district court (district court case No. 2) the district court held that the law of the case doctrine applied to the findings in district case No. 1. Based on this application, the ALJ at the second hearing erred when he made findings regarding the medical evidence that were directly opposite the findings of district court No. 1. District Court case No. 2 resulted in a reversal and award of disability benefits for the claimant based on her fibromylagia.

NO! Many disabled workers confuse the 12 month durational requirement with a 12 month wait to file a disability claim. These two concepts are very different. One of the requirements for qualifying for Social Security disability is called the durational requirement. This means that a disability must last 12 months or longer in order to qualify for Social Security disability. The point is that short term medical problems (that is, medical issues lasting less than 12 months) are not accepted under the program.

The durational requirement does not mean, however, that a disabled worker must wait for 12 months before he or she files for Social Security disability. Nor does it mean that the worker must be off work for 12 months before filing a claim. As long as the worker can prove that his or her disability can be expected to last longer than 12 months at the time of filing for a claim then that is all that is required to satisfy the durational requirement.

If a disabled worker has received a denial, Social Security will note on the last page of the denial whether its examiners have determined that the medical problems are not expected to last longer than 12 months. Often the medical examiners have find that the durational requirement has not been met in situations where an operation has occurred (such as an operation to repair a fracture or a back operation). Sometimes these medical problems continue to cause the worker to be disabled even with the best medical care. If these medical probles are expected to last 12 months or longer then they should satisfy the durational requirement.