Indiana Injury Lawyer Blog

It does happen that a disability claimant dies before the appeal has been completed. In that case, if the claim is for Title II benefits, the surviving spouse of the claimant may claim the benefits due to the claimant up to the month of the date of death of the claimant. If the

claimant had no surviving spouse, then SSA distributes the money that would have been paid to the claimant in the following order:

> the child or children of the deceased claimant
> the parent or parents of the deceased claimant
> the representative of the estate of the deceased claimant

The Code of Federal Regulations, Title 20, Section 404.503 sets out the priority of the beneficiaries. The survivors must file form HA-539 along with the death certificate.

I have handled cases in which my client has died before the hearing. Death can make proof more of a challenge for a successful case. Despite the difficulties, with well documented medical records, these cases can still be won even with the death of the claimant.

The simple answer is that when you are no longer working due to medical condition which you expect to last in excess of 2 months, you should file immediately. There is a “durational” component to disability claims. What that means is that in order to qualify for disability benefits, the medical problem causing you to be disabled must have lasted or must be expected to last for a time period of 12 months or more. The point here is that medical issues which cause someone to be unable to work but only for a short time (that is, less than 1 year) are not problems for which federal disability benefits can be awarded.

This often comes up when a person is injured, say a simple fracture, but the fracture is expected to heal before 12 months. Routine surgery is another example. A person who has had surgery, which is a very invasive procedure, is typically returned to their pre-surgery state of well being within less than 12 months. Another example is a severe case of the flu. Normally, this type of illness is resolved well within the 12 month period. If that matter is resolved within the 12 month period, then disability would not be awarded.

However, if the fracture results in a non-union causing an inability to weight bear; or if the surgery did not heal the illness or injury of if the flu developed into some other medical issue that did last more than 12 months, then in all of these instances the 12 month durational requirement may have been met.

If you do expect your illness, injury or surgery to cause you not to be able to do any job for a period in excess of 12 months, then you should consider filling for disability. This is true despite any remorse you may feel for not being able to work. A delay in filing may result in an inability to claim all of the back benefits to which you may be entitled.

For those patients who have multiple sclerosis, fatigue is a common, if not predominate, symptom. As they know, fatigue is not the same thing as tiredness. Tiredness can be taken care of with rest or sleep. Fatigue on the other hand is really a lack of energy. The feeling or symptom is something that cannot be resolved with sleep. Often times it is chronic. Environmental factors such as wetness or heat, make fatigue worse.
When SSA evaluates a claimant with multiple sclerosis, it considers the fatigue of the person. SSA’s policy on looking at fatigue is:

The best means of assessing fatigue is by inference in terms of the claimant’s activities of daily living, the extent of physical activity before fatigue occurs, and the frequency at which the claimant requires periods of rest.
POMS DI 24580.015B (1-23-90)

Journaling is an excellent method of documenting the feelings and frequency of bouts of fatigue. If you do keep a journal, you should include how your daily activities have been affected or limited. Notes should also be made of how much rest was required on a particular day as a result of the fatigue.

On May 18, 2011, the Indiana Supreme Court resolved the confusion surrounding in Indiana appellate case law in the area of sport injuries. The case which the high court reviewed and vacated was Pfenning vs. Lineman 2011 WL 1885261. In Pfenning, a minor was struck in the mouth by a golf ball while operating a beverage cart while at an golf outing. After reviewing the disparate holdings on which standard of care to apply to a bystander/participant at a sporting event when injured by a participant, the Court wrote:

“We hold that, in negligence claims against a participant in a sports activity, if the conduct of such participant is within the range of ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law and does not constitute a breach.”

In ruling in this manner, the Supreme Court indicated that it was dealing with this case within the framework of existing Indiana statutory law and jurisdiction. The consequence of this holding resulted in the minor losing her case to the golfer who struck her.

Effective June 7, 2011, the listings in the endocrine body systems, (Listings 9.02 through 9.08) dealing with diabetes mellitus and thyroid disorders will be deleted. As a consequence, those diseases will no longer be considered a reason to award disability based upon the fact that a claimant may have diabetes mellitus or a thyroid disorder. Several advocacy groups, including the American Diabetes Association opposed the changes.

SSA basically said that due to medical science significant advances in detecting diabetes mellitus and thyroid disorders at earlier stages and newer treatments have resulted in better management. As a result, SSA concluded that “most” diabetes mellitus conditions and thyroid disorders do not reach listing level. Even if they do reach listing level the severity does not remain for the required 12 month period.

Now diabetes mellitus and thyroid disorders will be considered under other listings such as blindness, renal failure and amputations. These disease will also be considered in the determining the claimant’s residual functional capacity. Also these diseases

For those disabled currently receiving disability benefits based on diabetes mellitus or thyroid disorder, those benefits will not be stopped. To the extent that there is an evaluation for medical improvement, those reviews will be under the listing which existed at the time benefits were awarded.

As many claimants know the time between filing a request for hearing and actually having a hearing very long. Sometimes the wait can be in excess of 2 years! In an effort to reduce this time delay, SSA has created the “video hearings”. These hearings are held through a video conference system (VTC). The administrative law judge appears before a camera in his/her office (usually at in another state) and the claimant and claimant’s representative appears before a camera at the ODAR hearing office closest to the claimant. The advantage to having a video conference is that hearings are held sooner than having to wait for a hearing with a in the same room.

This system has been particularly useful in ODAR hearing offices which are unusually busy such as the Indianapolis ODAR. As far whether a hearing before a judge in the same hearing room or a VTC hearing has a bearing on the outcome of the case, my experience is that neither form of hearing is “outcome determinative.” If the case is won it is not because the hearing was before a live judge or a video judge. Conversely, if the case is lost it is not because of having appeared before a live judge or a video judge. With all that said, SSA has by regulation, created an absolute right for a claimant to decline a video hearing. [ 20 C.F.R. §§ 404.936(e) and 416.1436(e).] As long as the claimant informs SSA “a the earliest possible opportunity, before the time set for hearing” the regulations provide that the ALJ will change the time and place for the hearing.

The numbers are in for 2010 for the percentage of cases which are allowed at the initial stage and allowed at the reconsideration level. The initial stage is when a person files a disability claim for the first time. Many of the people who are denied at the initial level believe that everyone is denied “the first time”. Actually, the numbers suggest that no quite “everyone” is denied. Rather on a national level, 35.4 % of the people who file disability are awarded benefits! Indiana is close to this number. In Indiana, 33.3% of the initial cases are allowed.

If a person is denied at the initial level, the next step is to ask that the initial denial be “reconsidered”. This stage is called the reconsideration level. At this level, there is no hearing because this is the opportunity for SSA to determine whether it made a mistake. Basically this is a paper review by physicians hired by SSA. Nationally in 2010, the allowance rate was 12.7%, Indiana’s allowance rate at the reconsideration level was 5.9%, tied the lowest in the nation with Mississippi.

The next level is the hearing level. If you have any questions about the disability process, please call our office 800-296-2290.

Noting an increase of Social Security Disability applications of more than 50% over the past four years (now more than 750,000 applications a quarter), Peter Orszag, the former director of the White House Office of Management and Budget, called for a reform of the federal disability insurance program. Mr. Orszag gave his opinion that the increase in disability applications is not due to a less healthy population. Instead, Mr. Orszag believed that the increase in applications was due to the weak labor market which has driven more people to apply for disability benefits that they qualify for but wouldn’t need if they could find work.

His theory is that now, as opposed to 1956 when the disability program began, there are technologies in place which can help disabled persons return to work. A concern of his is that when disabled are awarded benefits, there is a rare chance (he used the word “nonexistent”) that disabled persons would ever return to the work force. Consequently, he suggested that the disability program be reformed so as to incentivize disabled workers to return to work. In order to do this, Mr. Orszag thought that employers should be required to provide workers with private disability insurance for a limited amount of time. This insurance would provide vocational assistance and work-place accommodation with limited wage replacement. This private disability insurance would be geared to prevent workers from filing federal disability applications for two years and only after that would they be entitled to file for federal disability insurance.

By providing this type of intermediary disability program, Mr. Orszag’s belief is that some workers who were disabled would return to the work force. So far, no federal legislation has been introduced to reform the disability program in concert with his suggestions.

Physicians and psychologists must make a determination about how their mentally ill patient is functioning on a daily basis. This determination or assessment is used by mental health practitioners to: determine when treatment is needed, track the progress of treatment and select the site of service (whether treatment is to be administered in-patient or out-patient). The scale ranges from 1-100.

According to the fourth edition of the Diagnostic and Statistical Manual of the Mental Disorders published by the American Psychiatric Association (DSM-IV), a score between 1-10 is suggestive of “persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.” On the other end of the spectrum is the scale between 91-100 which describes a person who is “superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms.” Somewhere in between are many who suffer from mental illness with varying degrees of severity.

It is not unusual to read in mental health records that a client with mental health issues has been assessed with a GAF score between 50-60. According to the DSM-IV, this score means that the person has “moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” Clients with severe mental health issues commonly have scores under 50.

The vocational implications of a GAF consistently in the low 50 range can mean that the client is not capable of gainful employment. This depends on the other evidence regarding restrictions of daily functioning (cleaning, shopping, paying bills, caring for grooming and hygiene to name few), mental assessments contained within the treatment notes and evidence of ability to function independently. Sometimes a vocational expert will testify to that effect. However, it is important to remember that SSA has taken the position in 2000 that a GAF score does not have a direct correlation to the severity requirements in the mental illness listings.

Narcolepsy is a chronic disorder resulting in an irresistible urge to sleep and frequent daytime “sleep attacks.” This disorder is viewed as a neurological problem rather than a mental illness or something caused by anxiety. Little is known about the exact cause of the condition. Some researchers believe that the brain producing a reduced amount of a certain protein is the likely cause. Unfortunately, there is no known cure for this condition. Treatment is geared toward either reducing or controlling the symptoms.

Narcolepsy may be accompanied by one or more of the following symptoms: periods of extreme drowsiness (every 3 to 4 hours during the day), dream like hallucinations, sleep paralysis, and cataplexy (a sudden loss of muscle tone while awake resulting in an inability to move). Sleep periods can range from a few seconds to a half an hour.

Without question, narcolepsy can form the basis of an award of Social Security Disability benefits. This particular disease is not found in the Listings of Impairments. As a consequence, it is important for a person representing a disability claimant to know how SSA looks at this disease. First, narcolepsy is not a listed impairment. SSA considers the closest listing to equate with narcolepsy to be Listing 11.03, Epilepsy-Minor motor seizures. Second, SSA examiners evaluate narcolepsy after a period of 3 months of prescribed treatment. Therefore consistent treatment records are a must. Third, as in all disability cases, it is vital to provide as much medical evidence that is available including: physician treatment notes, results of electroencephalogram (EEG), a list of the medications used and their responses, a detailed description of the narcoleptic attack along with other events that sometime accompany a narcoleptic attack (such as cataplexy, hypnagogic hallucinations or sleep paralysis).