SSA has also indicated that it has been advised by medical experts that the current listing regarding diabetes reflects "only inadequate glucose regulation." SSA has been told by these experts that adequate glucose regulation is achievable with improved treatment options. If SSA ultimately decides to change the regulation as proposed, then severe impairments such as diabetes and thyroid disorders will no longer serve as a basis to obtain Social Security Disability benefits on on their own. If endocrine disorders cause problems of listing-level severity in other organs or glands, SSA will "evaluate these effects under other body system listings."
Importantly, current beneficiaries who have received an award of Social Security disability benefits based upon endocrine disorders will not be terminated. They will, however, continue to be evaluated for medical improvement by continuing disability reviews but under the original listing upon which their initial entitlement was based.
]]>The Child Wrongful Death Act defines a child as an unmarried individual without dependents who is either less than 20 years of age or less than 23 years of age and is enrolled in a post secondary educational institution or a career and technical education school or program that is not a post secondary educational program.In the case of Howard v. E&B Paving, Inc., et al 2010 Ind. App. LEXIS 55, the Court of Appeals of Indiana decided what was meant in the statute by "enrolled in a post secondary educational institution".
Amber Howard was over 20 but under 23 years of age when she died from injuries which she received an automobile crash on November 13, 2002. Amber's parent's filed a wrongful death claim under the Child Wrongful Death Act. The issue was whether Amber a "child" under the Child Wrongful Death Act.
Amber had taken classes at Ivy Tech in the summer and fall of 2000. She took time off in the spring of 2001. Amber re-enrolled during the fall semester of 2001 and continued through the spring semester of 2002. Amber did not enroll or register for classes in the summer of 2002 or during the fall of 2002. She did not register for any classes for the spring of 2003. About one month after registration began for the spring 2003 semester at Ivy Tech, Amber died. Amber's parents indicated that Amber had intended to register for classes for the spring of 2003. Because Amber had not registered as a student for classes at Ivy Tech before she died she was not considered to be a "child" within the meaning of the Act. The Court held that the mere intention to enroll was not sufficient.
Justice Boehm, in writing for the Court, indicated that the statute in question, I.C. 34-13-3-3(3), ["A governmental entity or an employee acting within the scope of the employer's employment is not liable if a loss results from: (3) The temporary condition of a public thoroughfare. . .that results from weather."] requires that the loss result from a condition that is both "temporary" and "caused by weather." The Court noted that during the time that the government is in the process of responding to a weather condition, this immunity "extends to all claims caused by that condition during the period of reasonable response, whether the alleged injury occurred early or late in the response."
The Court found that there was no issue that the water on the road was caused by weather. It allowed, however, that there was a closer question about whether the road/water condition was temporary or had stabilized. The Court found that the since the water was still rising, the condition had not yet stabilized and was therefore still temporary. The Court found that the County attempted to address the flooding at the road site. Importantly, the Court found that the period of reasonable response "lasts at least until the condition stops worsening, in this case when the Yellow River crested." As a consequence, the Court held that because the accident occurred during this period, immunity applies, regardless of the inadequacies in the County's initial responses at the crash site.
]]>The Social Security Administration does not specifically include the condition of fibromyalgia on its list of diseases and conditions which may cause a person to be disabled. That said, many people have been award Social Security disability benefits because the condition of fibromyalgia was found to so severely affect them that they were no able to work. The first step toward a successful social security disability case is to obtain a diagnosis.
There are no recognized tests or imaging studies that can confirm or exclude the condition of fibromyalgia. Rather, fibromyalgia is a “rule out” diagnosis. That means that your physician orders tests for conditions that can be discovered by tests. Once those conditions are shown not to exist, your physician may conclude that your constellation or grouping of symptoms is fibromyalgia. In addition to the “rule out” diagnosis the American College of Rheumatology has established diagnostic criteria with a history of widespread pain for at least three months and pain in at least 11 of 18 tender point sites. The key to getting a diagnosis is not to give up. Often, fibromyalgia victims are not well understood by physicians. It is important to consult a physician who has the experience, the training and the patience to diagnosis this condition.
In its opinion, the court reaffirmed that Indiana recognizes certain legal and domestic relationships raise a presumption of trust or confidence as to the subordinate party on the one hand and a corresponding influence as to the dominant party on the other. When those sort of transactions arise, the law imposes a presumption that the transaction was the result of undue influence exerted by the dominant party, constructively fraudulent, and thus void. In order to rebut or defeat the presumption, the dominant party had to show by clear and unequivocal proof that the transaction was made at arm's length. (In practice, the effect of this presumption was to essentially preclude all transactions between a principal and her agent.)
The court did acknowledge that prior case law stood for the proposition that a power of attorney creates a fiduciary relationship between a principal and her agent and as a consequence, the presumption applied. However, the court held that the 2005 amendment to I.C. 30-5-9-2 changed the law. While finding no cases on point, the court cited, with approval, the probate treatise, Henry's Indiana Probate Law and Practice as supporting the court's finding that the statutory amendment essentially "abrogated" the common law presumption dealing with qualifying transactions involving a principal and her agent.
Importantly, the court found that a person who wishes to challenge the action of an attorney in fact was not left without a remedy. The challenger still has available the right to complain based on undue influence.
]]> It is unusual for the Appeals Council to order the a new ALJ be appointed on the first remand. As far a court order directing that a new ALJ be appointed, common law has evolved sufficiently to establish a set of criteria for such an order. The criteria centers around those situations which compromise the integrity of the disability review process. "Specifically, when the conduct of an ALJ gives rise to serious concerns about the fundamental fairness of the disability review process, remand to a new ALJ is appropriate. Factors for consideration in this determination include: (1) a clear indication that the ALJ will not apply the appropriate legal standard on remand; (2) a clearly manifested bias or inappropriate hostility toward any party; (3) a clearly apparent refusal to consider portions of the testimony or evidence favorable to a party, due to apparent hostility to that party; (4) a refusal to weigh or consider evidence with impartiality, due to apparent hostility to any party." Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y. 2004)
Unfortunately, all medical records are not "created equal". Some are too brief. Others are difficult to read. Many do not incorporate all of which the patient had told the health care provider. A journal or diary will not take the place of medical records. It can, however, contain very useful information that would otherwise be lost to the memory of the disabled worker by the time a disability hearing occurs.
The journal or diary need be in any particular form, on special paper or be written, printed or typed in a specific way. An inexpensive spiral notebook is great. Each entry should contain the date and the name of the person making the entry. The entry does not need to be very long. Instead, it need only contain the essential points that the claimant wishes to recall later. For example, if part of the basis for the disability claim is a seizure disorder, then writing down the fact that a seizure occurred and some brief detail about the experience is enough. If part of the disability claim is based on headaches, depression, incontinence (bowel or bladder) or pain, then a brief note of the experience is that is needed. It is best to make the entries at or around the time of the occurrence. Before the hearing, the journal should be given to your attorney for use in preparing you for the hearing.
]]>Since travel time by the newly assigned administrative law judges takes more time, SSA has set up hearing rooms equipped with video systems that allow a judge to see and hear the claimant in a hearing office close to the claimant's home while the judge is at her hearing office in another state. Witnesses called by the administrative law judge appear in the same room with the claimant, or in the hearing room where the administrative law judge is located or by telephone from a third location.
SSA does not force a disability claimant to choose a video hearing. In fact, all video hearing notices come with a notice informing the claimant that he has the right to have an "in person" hearing with the administrative law judge. Does the outcome of the disability hearing change because it was a video hearing? In my experience, the fact that a social security disability hearing is conducted by video rather than in person has no bearing on the ultimate outcome of the case. The only thing that a video hearing does is provide a way to make the case go more quickly. While other attorneys opinions may differ, I encourage my clients to allow their hearing by video when that option is offered.
]]>The Social Security Administration has taken steps to improve the disability claims backlog by hiring additional administrative law judges and more support staff. As part of its effort to reduce the wait time, SSA has also introduced video hearing equipment. This equipment allows administrative law judges from around the county at less busy ODAR offices to step in and hear disability cases without the time consuming task of traveling to Indianapolis.
Finally, SSA has expanded the role of senior attorneys by allowing them to screen and allow fully favorable cases "on the record" without then need for a hearing.
As a result of these efforts, the Indianapolis Hearings Office has reduced its pending case level from over 19,000 cases at the end of 2008 to 15,863 cases at the end of 2009. Significantly the average processing time was deceased from 787 days in 2008 to 603 days by the end of 2009.
]]>The same report for the period ending December 2008 ranked the Indianapolis hearing office 145 out of 147 office in the United States. The average number of days it took the Indianapolis hearings office to process a case was 721 days. In December 2008, the Fort Wayne hearings office ranked 114 in the nation, taking an average of 564 days to process a hearing request.
On March 24, 2009, the Commissioner of Social Security testified before the subcommittee of Congress which has oversight of the Social Security program. Commissioner Astrue projected that SSA will receive more than 2.9 million disability claims in 2009, an increase of 300,000 cases over last year. The Commissioner hopes that hiring more staff and judges will deal with both the backlog and the increase of new cases.
]]>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.
]]>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.
]]>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.
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The Indiana Supreme Court held in Department of Pub. Welfare v. Couch, 605 N.E.2d 165, (Ind. 1992) that I.C. 34-53-1-2 applied to cases in which the Welfare Department was asserting a lien. This concept was reaffirmed by the Indiana Court of Appeals in Pedraza by Pedraza v. Grande 712 N.E.2d 1007 (Ind.Ct. App. 1999).
“common, but elusive and mysterious, disease. . . its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”
Judge Posner also noted that the Administrative Law Judge in Sarchet exhibited a “pervasive misunderstanding of the disease” by “depreciate[ing] the gravity of Sarchet’s fibromyalgia because of the lack of any evidence of objectively discernible symptoms, such as swelling of the joints.”
Some 11 years after the decision in Sarchet Administrative Law Judges still look, for "objective" signs and symptoms when confronted with a disability claimant who has fibromyaliga. Failing to find the requisite abnormalilties in tests, the claimant's disability clam is denied. It is very important to help educate the Administrative Law Judge both before and during the hearing about the nature of fibromyaliga and the current state of the law.
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