The WHOLE Truth – Telling your Physician and the Judge

Let’s just say it.  Some health information is embarrassing.  We don’t make a habit of discussing some elements of our health with anyone.  Socially, this may be beneficial, but in the context of assessing disability, not discussing troubling and truthful symptoms of your illness or treatment can be damaging.

Disability and SSI cases are based on a Claimant’s inability to perform work.  To evaluate disability, Social Security looks primarily to the evidence generated by the Claimant (patient) as they seek treatment for their ongoing health concerns.  Social Security Ruling 16-3p sets forth the idea that the SSA considers all of the individual's symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the individual's record. The SSA defines a symptom as the individual's own description or statement of his or her physical or mental impairment(s).

An individual's statements of symptoms alone are not enough to establish the existence of a physical or mental impairment or disability.  These statements are subject to a two-step evaluative process set forth in SSA regulations.  In short, the test asks 1) is there an impairment that could reasonably produce the alleged symptoms, and 2) do the intensity and persistence of an individual's symptoms limit his or her ability to perform work-related activities?

The best way to ensure that your symptoms are properly documented is through full and open communication with your physician regarding every element associated with the symptoms of your condition and the treatment thereof.  It is often helpful to let your physician know that your treatment records will be used in disability proceedings, and that ongoing and clear physician narrative is helpful.  

Many of my clients are cardiology patients who receive diuretics (like Lasix) as part of their therapy.  One very common side effect of diuretic therapy is the urgent and frequent need to urinate for several hours after taking medication.  When discussing this side effect with my clients, nearly all confirm that this is the case, but when I ask whether they have discussed this with their physician, very few have. 

Frequent unscheduled breaks can have a detrimental effect on a patient’s ability to work, and should be considered by a judge when contemplating a Claimant’s residual functional capacity for work.  In this way, not only is the judge considering the impact of the actual underlying condition on the ability to work, they are considering the symptoms of treatment as well.  

Claimants should not hesitate to share truthful (yet potentially embarrassing) information at their hearings, and should share this information with their physicians so that it can be acknowledged, documented, and managed in a clinical setting.  In addition to the benefit of having an informed physician, telling the whole story can introduce additional favorable considerations in the disability context.

Medicare Part D – The “Donut Hole”

The healthcare debate has brought much discussion about the “Donut Hole”, and what it means for Medicare recipients.  Frequently this term is used without further explanation, only noting that it is bad.  The “Donut Hole” affects Medicare recipients (typically the retired and the disabled) who utilize expensive medications.  It should be noted that the Affordable Care Act (ACA / Obamacare) has scaled in substantial improvements to the “Donut Hole” that are scheduled to be fully implemented by 2020.

In short, the "Donut Hole" represents a substantial amount of cash to be outlaid by many individuals who are insured through Medicare Part D.  As of this writing (in 2017), the “Donut Hole” begins when the sum total of the amounts paid by the insured AND the insurer for prescription drugs exceeds $3,700.  Before the “Donut Hole” begins, an insured’s outlay is typically a predictable deductible or copayment amount, and the balance is borne by their insurer.  After total spending by all parties exceeds $3,700, the insured enters the “Donut Hole”, and costs will be substantially increased to the insured party.  In 2017 while in the "Donut Hole", Medicare recipients are expected to pay 40% of the cost of brand name drugs and 51% of the cost of generic drugs.

To get out of the “Donut Hole”, an insured must spend enough money to qualify for Part D Catastrophic Coverage.  In 2017, the amount that the insured is required to pay out of pocket (plus any manufacturer contributions for brand name drugs) must exceed $4,950.  Once this threshold is crossed, insurance will cover 95% of drug costs for the remaining portion of the year.

The “Donut Hole” is a substantial problem for Medicare recipients who have a regular drug regimen.  Especially affected are those recipients on maintenance drugs that have no generic equivalent.  Additionally, because most Medicare recipients are on a fixed income, a drug regimen can create substantial hardships even though the recipient is insured.  If allowed to stand, the ACA / Obamacare will reduce costs to patients during the “Donut Hole“ by reducing patient responsibility to a maximum of 25% of drug costs during the gap.  This will represent a substantial benefit as long as pharmaceutical companies do not raise prices to erode these savings.

Is Obesity a Disabling Condition?

In 1999, Social Security deleted obesity from its Listing of Impairments (the “Blue Book”).  Does this mean that obesity is no longer be considered a disabling condition?  Absolutely not, but a different approach to arguing obesity is helpful.

Applicants who are claiming disability based on illnesses that are complicated by their weight should ensure that their physicians are documenting weight measurements (and preferably BMI) over time, as well as documenting the effects that their weight is having on their health.  This documentation will be usable when arguing that obesity is either a “multiplying factor” that makes other conditions worse, or significantly limits an individual's physical or mental ability to do basic work activities.

SSR 02-1p and POMS DI 24570.001 describe how obesity is evaluated.  Obesity is noted to be a medically determinable impairment whose effects should be considered when evaluating disability.  The combined effect that obesity has on other impairments is recognized by the SSA to be greater than the effects of each of the impairments considered separately, and can also bear negatively on a Claimant’s residual functional capacity.

A BMI above 30.0 is considered to indicate obesity, which is also noted to complicate and cause cardiovascular, respiratory, and musculoskeletal problems as well as diseases such as type II diabetes, heart disease, peripheral vascular disease, stroke, and osteoarthritis.  Obesity may also contribute to mental impairments such as depression and loss of mental clarity due to obesity-related sleep apnea.  As such, though it is no longer a listed impairment, obesity may represent an important issue to address in a disability filing.

Fox-5 Atlanta I-team-Social Security disability: Stay in line or start all over?

Hear Disability Attorney Thomas O'Brien weigh in on the difficult choice between pursuing appeals beyond the ALJ level versus starting a new case.  Click below for the Fox-5 Atlanta I-Team Report, and read below the video story for Thomas' talking points about this difficult decision.

Why File a request for Appeals Council review?
	• A new case might not be an option because Claimant is no longer insured for disability (DLI)
	• Claimant does not want to lose a few years of back benefits
	• All original records would be considered, and not as usable in a new case
	• Claimant is still generating new persuasive evidence that "relates back" to conditions considered in original filing
	• A good hearing may have resulted in good issues for appeal

Why start a new claim?
	• Might be able to file a new case prior to insurance lapse date (do not want to miss DLI)
	• Claimant may be past age 50 during a new filing
	• Can submit new evidence of new diagnoses (as well as ongoing care for old diagnoses)
	• New sets of eyes on the case, and potentially more favorable odds
	• High chance of losing at AC, meaning a loss of an additional delay in starting a new case
	• A win at AC often means appearing again in front of denying judge
	• The Appeals Council's scope of review is primarily to evaluate legal or procedural errors, and determines if evidence was properly considered
	• Any new evidence at AC must "relate back"

A Quick Test - Social Security Disability Acronyms

A couple of years back, I wrote the most SSA-acronym-loaded question that I could think of.  While it technically makes sense, I think the real value is providing evidence that expert help is sometimes needed when navigating this landscape.

Here's the question:

"Did the Claimant’s AOD precede the DLI, and does their RFC allow them to engage in SGA or their PRW?"

For those who are wondering what they just read, here is some help with the translation.

Claimant – This is the person who is applying for Social Security benefits.  Children can be Claimants.

PRW – Past Relevant Work – This is work that the Claimant has done for long enough to “learn the job”.

AOD – Alleged Onset Date – This is the date when an ailment rendered an individual too sick to work or created marked and severe limitations.  Evidence is required to establish this date.

DLI – Date Last Insured – This is a date (that may be in the future) after which a person will no longer be able to claim disability benefits.

SGA – Substantial Gainful Activity – This is work that is performed by the Claimant which meets Social Security’s minimum standards for salary and hours worked.

RFC – Residual Functional Capacity – This is a Claimant’s remaining ability to tolerate work, given their conditions.  This may be characterized as “Sedentary / Light / Medium / Heavy / Very Heavy”

Here is a clip from one of my favorite movies, Good Morning Vietnam, (start at 45 seconds) that inspired me to ask the question above.

Worn-Out-Worker Rule – Another Path to Disability Benefits

There is a lesser-known Social Security Regulation that provides a clear path to disability approval for marginally educated individuals who have performed arduous unskilled labor for a period of 35 years or longer, and are no longer able to do so due to severe impairments.  The so-called “Worn-Out-Worker Rule” may be found at 20 C.F.R. §§ 404.1562 and 416.962.

When evaluating a case under the Worn-Out-Worker rule, one must be very careful to establish each of the criteria.

1) Marginal education – This level of education is generally no more than a 6th grade education, but when considering the impact of education, other factors may come into play including the nature of the person’s responsibilities and tasks on the job (see SSR 82-63).

2) 35 years or more of arduous unskilled labor – Arduous does not necessarily mean Heavy or Very Heavy exertional capacity work, but lower exertional capacity work may qualify if the nature of the work can be considered arduous (see SSR 82-63).  The work must be also consistently regarded as unskilled, though brief periods of semi-skilled or skilled work will not necessarily prevent a person from qualifying under this provision.

3) Not currently working

4) Unable to perform arduous unskilled labor due to severe impairments – Medical evidence establishes proof of severe impairment(s) that prevent a return to past relevant work.

This information does not create an attorney-client or physician-patient relationship or any kind, and is for informational purposes only. For advice regarding your specific circumstances, contact Disability Attorney Thomas O’Brien.