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.

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.

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.

Many claimants who file a claim for Social Security Disability benefits receive a letter from SSA entitled "Potential Private Pension Benefit Information". This letter informs a claimant that he/she may be entitled to some private pension benefits upon retirement. Normally, the letter gives a specific pension name, plan names and address. It may also disclose an estimated amount of benefits.

How does the SSA know this information? Why is the SSA sending that information? Is this SSA disability? All private pension plans are required to report the names and social security numbers of the plan's beneficiaries to SSA and the IRS. SSA computers are able to match a Social Security Disability claimant's social security number to the social security numbers reported by the plan. Federal law requires that SSA notify all potential plan beneficiaries of the fact that they have been reported as a potential beneficiary under a private pension plan. Many plan beneficiaries do not know that they are potential beneficiaries of private pension plans. The government actually wants the plan beneficiaries to know of the existence of their plan. The government also encourages plan beneficiaries to make a claim for benefits if proper.

The notice does not insure that a person will actually receive private pension benefits. Instead it is meant only as a notice that the matter should be followed up with by the person receiving the letter. The notification letter has nothing to do with the disability claim itself.

As many of you known, if there is no agreement on the federal budget by midnight tonight, there will be a partial government shutdown. This shutdown will last until there is a budget agreement. As of today, SSA has issued plans for how it will operate during any shutdown. Here are some of the highlights:

Will Disability Payments Continue? Yes. SSA has recognized that disability payments under Title II and Title XVI are funded indefinitely through trust funds. As a consequence, those payments will continue.

Will the Local SSA Offices Be Open? Yes, the SSA offices in Indianapolis, Anderson and throughout the nation will be open but on reduced hours and for only critical functions. For example, disability applications and adjudications will continue but the issuance of new and replacement SS cards will not occur.

Will ODAR Hearings Be Held? Yes. All scheduled ODAR hearings at the Indianapolis ODAR as well as throughout the nation, will be held. No new cases will be scheduled. The ODAR offices will not have employees except for security personnel. The ALJ will continue to decide cases but those decisions may not be written and mailed out during the shutdown.

What is the difference between irritable bowel syndrome (IBS) and inflammatory bowel disease (IBD)? IBS describes a set of symptoms which include abdominal pain. To be sure, it can cause, in some cases severe pain and result in disability. However, IBD is considered by the medical profession to be the far more serious disease. Generally, IBS is relatively common, occurring in one in five persons while IBD occurs only in about 1 in 200 persons.

IBD usually includes either Crohn's disease [painful ulcers in their small and large intestines and sometimes inflammation in the rectum] or ulcerative colitis [which is a disease that results in ulcers in the rectum and large intestine]. IBD is normally diagnosed by endoscopy, biopsy, appropriate medically acceptable imaging, or operative findings. On the other hand, IBS is a "rule out" diagnoses. That means that a physician has decided that his/her patient has IBS after all other tests have ruled out other diseases.

SSA has a listing [5.06] for IBD. That means if the disabled person has IBD based upon the criteria set out by SSA, then a finding of disability will be made. Unfortunately, SSA does not have a listing for IBS. Which means that it is much more difficult, although by no means impossible, to be awarded disability for IBS.

Treatments which are used to attempt to relieve pain are important facts to be considered by the Administrative Law Judge in accessing claims for Social Security Disability based on pain. Some treatments are effective and some are not effective. Most pain relieving treatments do not totally "do away" with the pain. Treatments may include: the use of heat; massage; whirlpool; traction; prescribed exercise; bed rest; a TENS unit; biofeedback; trigger point injections; nerve blocks; acupuncture; chiropractic treatments; cranial sacral therapy; behavior modification; counseling/psychotherapy; herbs, vitamins, etc; and attendance at a pain clinic or enrollment in a pain program.

Pain medication is in a class by itself as a factor for the consideration of the extent to which pain is debilitating. The use of pain medication has advanced in recent years to a specialty in the medical profession. The use or non-use of pain medication alone will not determine the outcome of a claim for disability based on pain. However, is is a factor which the federal regulations require an Administrative Law Judge consider. Often times pain medications causes side effects which impairs the ability to function [drowsiness; dizziness etc.] Side effects are also facts which must be considered in accessing whether the person can perform sustained work functions.

Obviously, no one but you can know the extent of your pain, how it feels or how long it lasts. There is no definitive medical test which can conclusively measure pain.

SSA allows pain to serve as a basis for disability. According to 20 CFR § 404.1529(b)(c) and SSR 96-7P, the ALJ must first evaluate whether a medically determinable both impairment exists which could reasonably be expected to produce pain, and then assess the credibility of the claimant's allegations about the intensity and persistence of her pain. Aidinovski v. Apfel¸27 F.Supp2d 1097, 1103 (N.D. Ill. 1998). The factors which the ALJ must consider include: (1) objective medical evidence; (2) prior work record; (3) daily activities; (4) location, duration, frequency and intensity of pain; (5) precipitating and aggravating factors; (6) use of medication; (7) other treatments and measures used to relieve pain; (8) observation of testimonial evidence by the claimant; and (9) the consistency of the claimant's statements.

So even if the medical record does not substantiate your complaints of pain the factors set out above will be considered to determine whether you are disabled because of pain.

The mental condition known as "anxiety" can also serve as the basis to obtain Social Security disability benefits. What is anxiety? How serious does anxiety have to be in order to qualify as a disability?

"Anxiety" is a normal reaction to stress. It is part of mental makeup which is designed to help us cope with difficult situations. For example, speaking in public, playing in competitive sports even taking an examination. Normally, experiences of stress are brief and mild. During the experience of stress, our senses become sharper and our focus more intense. But for some, experiences of stress last much longer, is far too intense and begins to interfere with normal daily activities. These people encounter what many view as normal and routine activities with dread and an irrational fear. It is then that anxiety crosses the line to an anxiety disorder.

It is estimated that 40 million adult Americans suffer with some form of anxiety disorder. There are several different types of anxiety disorders. The specific type depends upon the presentation of clinical features. While no two anxiety disorders are alike they do have in common a dread and irrational fear of the common place. Among the more specific diagnosis are: panic disorder; obsessive-compulsive disorder (OCD); post-traumatic stress disorder (PTSD) and social anxiety disorder.

In order to meet the listing for anxiety (Listing 12.06), SSA must first find that the disease has at least 1 of the following symptoms present: 1. generalized persistent anxiety accompanied by three out of four of the following signs or symptoms: a. Motor tension; or b. Autonomic hyperactivity; or c. Apprehensive expectation; or d. Vigilance and scanning; or
2. A persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; or 3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or 4. Recurrent obsessions or compulsions which are a source of marked distress; or 5. Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress;

These symptoms must be present in your medical treatment records and found to be in existence for at least a continuous period of 1 year or expected to last for at least 12 continuous months. However, the source from which the medical record may note these symptoms may include, you, your family and friends and the physician/therapist's assessment.

In addition to proving that 1 of the above symptoms set out above are present, the symptoms identified must cause "marked" limitations in 2 of the following 4 areas: 1. restriction of activities of daily living; 2. difficulties in maintaining social functioning; 3. difficulties in maintaining concentration, persistence of pace; 4. episodes of decompensation).

On June 17, 2010, the U.S. Treasury issued a proposed rule to require that all payments to claimants whose claims for disability benefits are filed on or after March 1, 2011 be paid by direct deposit, thereby eliminating paper checks.

Many claimants have chosen already to receive their payments by direct deposit. For those who have chosen this option, direct deposit would continue.

Under the proposed rule, individuals who have not chosen to do direct deposit of their payments to an account at a financial institution would be enrolled in the Direct Express® Debit MasterCard® card program, a prepaid card program established pursuant to terms and conditions approved by Financial Management Services.

Beginning on March 1, 2013, all recipients of Federal benefit, which includes Social Security Disability benefits, would receive their payments by direct deposit, either to a bank account or to a Direct Express® card account.

To submit a comment, go to www.regulations.gov, docket FISCAL-FMS-2009-0003.

The Social Security Administration (SSA) has listed the condition commonly known as "depression" as a basis to obtain Social Security disability benefits. Depression is actually under a broader category of mental impairments called "Affective Disorders". So what are "Affective Disroders"?

"Affective Disorders" is a psychiatric term used to describe a mental condition with multiple sides or faces which affects a person physically, mentally, socially and behaviorally. Commonly included within this disorder are major depressive disorders, bipolar disorders and anxiety disorders. Major Depressive Disorder (also known as "monopolar depression" as opposed to "bipolar depression") has as its hallmark an all-encompassing low mood accompanied by low self-esteem, and loss of interest or pleasure in normally enjoyable activities.

In order to meet the listing for depression (Listing 12.04), SSA must first find that the disease has at least 4 of the following 9 symptoms are present: 1. anhedonia, or pervasive loss of interest in almost all activities; 2. appetite disturbance with change in weight; 3. sleep disturbance; 4. psychomotor agitation or retardation; 5. decreased energy; 6. feelings of guilt or worthlessness; 7. thoughts of suicide; 8. difficulty concentrating or thinking; or 9. hallucinations, delusions or paranoid thinking.

Just telling SSA that you have these symptoms is not enough. These symptoms must be present in your medical treatment records and found to be in existence for at least a continuous period of 1 year or expected to last for at least 12 continuous months. However, the source from which the medical record may note these symptoms may include, you, your family and friends and the physician/therapist's assessment.

In addition to proving that 4 of the 9 symptoms set out above are present, the symptoms identified must cause "marked" limitations in 2 of the following 4 areas: 1. restriction of activities of daily living; 2. difficulties in maintaining social functioning; 3. difficulties in maintaining concentration, persistence of pace; 4. episodes of decompensation).

Over the next several blog entries, the topic of mental illnesses in Social Security Disability Cases will be discussed. Many people have asked whether depression, anxiety (which includes panic disorders, post traumatic stress, obsessive/compulsive disorder and agoraphobia) and bi polar disorder can serve as the basis for an award of social security disability. The short answer is yes, mental disorders can make a person disabled.

According to the National Institute Mental Health, mental disorders are the leading cause of disability in the U.S. That said, a diagnosis by itself does not necessarily mean that a person is disabled. For example, an estimated 26.2 percent of Americans ages 18 and older — about one in four adults — suffer from a diagnosable mental disorder in a given year. That is over 57 million citizens. However, not every one of these person is disabled.

Make no mistake, the federal regulations for social security disability do allow for a finding of disability for mental illnesses. The blogs that follow will explore what the criteria is for a finding of disability based on mental disorders.

Over the years, I have heard people remark that so and so received disability benefits because of a drug or alcohol addiction. In fact, many believe that the law provides for the granting of disability to addicts. The law is far more complicated.

Before 1994, a person could receive disability benefits if he or she were disabled because of an addiction. In 1994, Congress required that persons whose addiction was material to being disabled must undergo treatment, that their benefits be limited to 36 months (during that treatment) and that the benefits could be suspended if there was non-compliance with treatment.

In 1996, Congress again changed the law for folks whose addiction was a "contributing factor material to the finding of disability." Disability benefits for these people were prohibited. The bottom line is that if a drug or alcohol addiction exists and if that addiction were to stop the person could return to work, then no disability benefits can be awarded. If it is impossible to state which limitations remain after stopping, then it is appropriate to find that the drug/alcohol addiction is not material.

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.