Indiana Injury Lawyer Blog

The Federal Register published on December 14, 2009 a change to the Endocrine Listing (Listing 9) proposed by the Social Security Administration (SSA). SSA proposed that the impairments set out in Listing 9 be eliminated. Listing 9 includes not only thyroid disorders but also diabetes. The elimination proposal by SSA is based upon what SSA considers to be "advances in medical treatment in the detection" of endocrine disorders. As a consequence of these advances SSA believes that these types of disorders no longer meet the 12 month durational requirement.

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.

Fibromyalgia is a terrible condition which causes pain, fatigue, difficulty sleeping, morning stiffness, headaches, painful menstrual periods, tingling or numbness of hands or feet, and difficulty thinking and remembering. Some people with this condition may also experience irritable bowel syndrome, pelvic pain, restless leg syndrome, and depression. Fibromyalgia is also a condition which frequently forms the basis of claims for Social Security Disability.

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.

Many people are surprised to learn that after an Appeals Council remand, the ALJ who will hear the case will be the same ALJ who originally heard the case. ( Hallex I-2-155). There are certain exceptions to the same ALJ rule. These exceptions include a specific direction from the court or the Appeals Council that a new ALJ be assigned; a finding the the claimant did not receive a fair hearing; the case has already been remanded from an appeal; or scheduling problems.

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)

Social Security Disability process is heavily dependent upon medical records. Those who decide disability case are trained to review, analyze and understand the medical records of a Social Security claimant. Once the records are fully understood, the claim person then makes a determination whether those records prove that the claimant has a medical problem that is expected to make the person unable to work.

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.

Over the last few years, the time for the ODAR (Office of Disability Adjudication and Review) Indianapolis Office to process requests for hearings has been around 2 years. That means that from the time a disabled worker files a request for hearing until the time a decision was made and mailed, it would take about 2 years. This time calculation does not take into account the the many months it took to wait for the denials at the initial and reconsideration stage.

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 National Ranking Report run for the period ending March 8, 2009 showed that out of the 149 Social Security hearing offices in the United States, the Indianapolis hearing office ranked 146 for processing time. The average number of days it took the Indianapolis hearings office to process a request for hearing was 734 days which is just at 2 years! The Fort Wayne hearings office ranked 138 for processing time for the same period. Fort Wayne's average time to process a request for hearing was 666 days or 1.8 years.

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.

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.

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.

The conclusion by a Social Security Administrative Law Judge that fibromyalgia must not be a debilitating impairment when “practically all tests have been normal” is not an uncommon error. As Judge Chief Judge Posner wrote in Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996), fibromyalgia is a:

“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.

Fibromyalgia syndrome is a terrible disease that afflicts at least 5 million U.S. residents. It is characterized by chronic widespread pain, fatigue, sleep disturbance, stiffness, impaired memory and concentration, anxiety and depression. Even though the American College of Rheumatology recognizes the disease of fibromyalgia the Social Security Administration has been slow to accept it as justification to find a claimant disabled.

Chief Judge Posner of the U. S. Court of Appeals for the Seventh Circuit Court wrote in Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996) that fibromyalgia could be the basis for an award of disability. Judge Posner described fibromyalgia as a:

“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 noted that "some people may have such a severe case of fibromyalgia as to be totally disabled from working. . . but most do not and the question is whether Sarchet is one of the minority."

Without question, fibromyalgia is a disease which can have debilitating consequences. It certainly can serve as the basis for a disabilty claim. The question is how severe is the disease at the time a claimant is seeking disabilty.