Indiana Injury Lawyer Blog

Many people do not know that obesity is not a listed impairment under the Social Security Regulations. At one time, weight and height were considered in combination to be a reason for disability. However, on August 24, 1999, obesity was deleted from listing 9.09.

Now, SSR02-1p sets out how obesity must still be addressed within the listings. SSA recognizes that obesity has potential affects in causing or contributing to impairments in the respiratory system.

Even though obesity was deleted from the listings, SSA recognizes that obesity is a medically determinable impairment that is often associated with disturbance of the respiratory system, and disturbance of this system can be a major cause of disability in individuals with obesity. The combined effects of obesity with respiratory impairments can be greater than the effects of each of the impairments considered separately. Therefore, those deciding whether disability should be granted must consider any additional and cumulative effects of obesity.

The Social Security Administration recently announced that monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012.

The 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011.

This increase is based on a cost of living adjustment or COLA. The specific formula for a COLA adjustment is based on the Consumer Price Index for Urban Wage Earners and Clerical Workers. The last COLA to effect Social Security benefits was in 2008.

With regard to migraine headaches, SSA indicated in Q&A 09-036 that migraines cannot be considered a "medically determinable impairment” solely on a diagnosis in the evidence or on a claimant's reported symptoms. SSA requires that there must be clinical signs or laboratory findings to support a finding of migraine headaches.

Consequently, a diagnosis of migraine headaches requires a detailed description from the physician of a typical headache event (intense headache with more than moderate pain and with associated migraine characteristics and phenomena) that includes a description of all associated phenomena; for example, premonitory symptoms, aura, duration, intensity, accompanied symptoms, and effects of treatment. SSA cautions that the diagnosis should be made only after the claimant's history and neurological and any other appropriate examinations rule out other possible disorders that could be causing the symptoms. Clinically accepted indicators of the diagnosis for migraines include: a headache event that lasts from 4 to 72 hours if untreated or unsuccessfully treated; along with two of the following: unilateral, pulsating (throbbing in parentheses quality; moderate (inhibits but does not wholly prevent usual activity in the premises or severe (prevents all activity) pain intensity, worsened by routine physical activity (or causing avoidance of activity). At least one of the following must occur during a headache: nausea, vomiting, photophobia or phonophobia.

While reflex sympathetic dystrophy is not a listed impairment under the Listings of Impairments, SSA recognizes that it could be a condition that may result in disability. Social Security Ruling 03-02p suggests that reflex sympathetic dystrophy is a chronic pain syndrome most often resulting from trauma to a single extremity. It can also result from diseases, surgery, or injury affecting other parts of the body. Even a minor injury can trigger RSD. According to SSA, the most common acute clinical manifestations include complaints of intense pain and findings indicative of autonomic dysfunction at the site of the precipitating trauma. Later, spontaneously occurring pain may be associated with abnormalities in the affected region involving the skin, subcutaneous tissue, and bone. It is characteristic of this syndrome that the degree of pain reported is out of proportion to the severity of the injury sustained by the individual. When left untreated, the signs and symptoms of the disorder may worsen over time

Obviously, RDS must be diagnosed by a qualified treating physician. After a diagnosis has been made, it is important to establish what limitations result from this condition. If the limitations are serious, pervasive and long lasting, this condition can serve as a basis for disability.

Effective July 28, 2011, the Social Security Administration changed its policy regarding the filing of subsequent applications for disability benefits. In 1999, SSA had in place a procedure which allowed for the filing of a new application for Social Security Disability benefits even though a prior application was on file. Under this procedure, the new application was processed by the disability determination service. SSA noted that it has "seen an increase in the number of subsequent disability claims in recent years". As a consequence, SSA believes that some decisions have been inconsistent. SSA also believes that this duplicate filing has caused increased administrative costs and higher workloads.

The new procedure does not allow for the filing of two claims for the same type of benefits pending at the same time. If the claimant wishes to file a new disability claim for the same matter and that same matter is pending at any level within the Social Security administrative system, then the claimant must either withdraw the prior claim in order to file a new one or not file a new claim and simply stand on the prior claim. This policy does not change SSA's policy where an appeal in pending in federal court. In those cases, the claimant may file a new application while the court case is pending.

Effective July 1, 2011, people are not allowed to use phone or pager or personal digital assitn to text, email or read texts or emails while driving. An exception to the law permits texting and emailing or reading texts or emails if “used in conjunction with hands free or voice operated technology”. The law passed by the Indiana General Assembly was actually the result of a compromise. The sponsor of the legislation wished to avoid a constitutional challenges as well as insure its passage. As a consequence, other tasks which Smartphone users can perform such as surfing the internet and playing games are not illegal.

The new law makes a violation a class C infraction with a possible fine of up to $500. Importantly, if stopped for a violation, the arresting officer may not confiscate the devise to determine compliance with the law or retain the devise as evidence.

About 34 other states have laws which prohibit texting or emailing while driving.

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.