Gap in Medical Treatment and Effects on Social Security Disability Benefits

Medical Treatment and SSD Benefits

Medical records are the focus of every social security disability case. The Social Security Administration (SSA) will thoroughly comb through your medical records to assess the extent of your treatment in order to determine the severity of your disability.

In many instances in a social security disability case, a claimant will stop treating with a doctor. The reasons for the gap in treatment are important.   If the medical records are devoid of the reason that treatment stopped, SSA may assume that the symptoms have improved and that you are no longer disabled.  It is imperative that, whatever the reason, you have discussed the reason with your doctor so that it appears in your records.

Maximum Medical Improvement

If you stop treatment because you have exhausted the many different treatments recommended by your treating physician and there is no improvement in your symptoms, it can be argued that you have reached medical maximum improvement and there is nothing else your doctor can do for you. In this instance, SSA will use all of the relevant medical records to access your eligibility for benefits.

Financial Problems

Another reason for ceasing treatment is a claimant may not be able to afford treatment. This is true for many claimants and SSA understands that you are not working and your financial situation may not allow for you to treat. Thus, SSA cannot make a negative inference from your lack of treatment due to inability to access low-cost medical care or not having sufficient health insurance.

Reluctance to Have Surgery

You may have been recommended for surgery by a doctor but you refuse to go through with the surgery. Your refusal to treat in this situation, can be seen as a refusal to comply with medical treatment. However, your medical history and treatment can support your refusal to comply with treatment. For instance, if you have already had 3 surgeries without improvement it may be reasonable to decide not to have a 4th surgery.

Mental Impairments

For individuals with a mental disability it is understood by SSA that there may be periods of failing to seek treatment. This could be a symptom of your mental disability so failing to seek treatment in this scenario would not, in and of itself, be a deciding factor as to your eligibility for benefits.

Any claimant who has a situation where they have or intend to stop treatment must ensure their reasoning is a valid reason for which SSA will accept and not hold against you. After all, your medical records are the source of accessing your credibility, as well as the nature and extent of your disability. Without this information SSA can infer that your symptoms are not severe enough to warrant you seeking medical help, thus it is not severe enough to prevent you from working.

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3 Suggestions to Increase Your Chances of Winning a Claim for Social Security Disability Benefits

iStock_000016324892SmallThe Social Security Administration (SSA) denies a whopping 72% of the initial disability benefit applications and denies about 90% of reconsiderations (the first level of appeal). (Annual Statistical Report, 2011). Though these numbers might make you think poorly of SSA, in most of these cases the evidence in SSA’s record just does not support a claim for disability. You may, in fact, be disabled but the evidence in SSA’s possession does not support disability. If you are applying for disability benefits or at an appeal stage, below are three suggestions to increase your chance of success. Continue reading

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How Does the Social Security Administration Evaluate Disability Claims Based on Fibromyalgia?

iStock_000000073212SmallEarly in my career, I used to warn potential clients that fibromyalgia was a “diagnosis of exclusion.”  Many physicians seemed to be making the diagnosis of fibromyalgia, when everything else was ruled out.  There did not seem to be actual objective evidence of fibromyalgia, just an inability to diagnose anything else.  Proving disability in these cases was bound to be difficult due to the lack of objective medical evidence.  The Social Security Administration also picked up on the lack of standards in making the diagnosis of fibromyalgia and seemingly never granted disability on that diagnosis alone

In July 2012, the Social Security Administration issued a new ruling with regards to the evaluation of fibromyalgia.  (See SSR 12-2p).  This ruling recognizes that the diagnosis of fibromyalgia is no longer just a diagnosis of exclusion, is medically accepted, and has objective measures.  The ruling’s primary purpose is to provide guidance as to determining whether fibromyalgia is a medically determinable impairment (MDI).  If you look at my prior posts, you will see that I have not spent any time on whether a medical condition is a MDI.  That is because in most instances, it is a non-issue.  The question of whether the claimant has a MDI is actually a prerequisite to the five step sequential evaluation process.  (See 5 Step Disability Evaluation Process).  The fact that this ruling focuses on whether fibromyalgia is a MDI shows you just how difficult it still is to claim disability based on fibromyalgia alone.        Continue reading

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The Effect of Drug Addiction or Alcoholism on a Claim for Social Security Disability

1065717_HiResOn March 22, 2013 a new Social Security Ruling regarding drug addiction and alcoholism (DAA) went into effect.  (SSR 13-2p).   While the ruling does not dramatically change the way that SSA evaluates DAA in disability cases, I thought this was a good time to write on the topic.

What is DAA in the Social Security Disability Context?

The SSA considers DAA to be “maladaptive patterns of substance use that lead to clinically significant impairment or distress.”  Continue reading

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The Importance of the “Disability Onset Date” in Social Security Disability Decisions

iStock_000021642021SmallThe “Disability Onset Date” (DOD) is the date that the Claimant has met the evidentiary requirements to prove “disability” as defined by the Social Security law.  This date is extremely important in evaluating disability cases.  For instance, if the DOD is after the Claimant has turned 50 years old, the Medical Vocational Guidelines might mandate a finding of disability. (See Age: A Crucial Factor in Your Social Security Disability Case).  Conversely, if the DOD is after the “date last insured” then it doesn’t matter how disabled the Claimant is, because the Claimant is not insured, the Claimant is not entitled to Social Security Disability Benefits. (See Have I Worked Long Enough to Qualify for Social Security Disability Benefits?). Continue reading

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Can I Apply for Social Security Disability Benefits if I Am Still Receiving Workers’ Compensation?

There are no prohibitions against receiving both Social Security Disability (SSD) benefits and workers compensation (WC) benefits.  The law merely provides that there may be a reduction in your monthly SSD check because of the simultaneous receipt of WC benefits.  In this post I will explain the calculation of that reduction, reasons for and against applying for both benefits and some issues to consider if you do receive both benefits. Continue reading

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How to Find Out Your Monthly Social Security Disability Benefit Amount

Each year the Social Security Administration (SSA) used to send out statements to each taxpayer.  These statements would indicate what earnings had been reported to the SSA, whether the taxpayer had contributed enough to qualify for benefits, and what the monthly benefit would be for both disability and retirement benefits.  As a cost saving measure in March 2011, SSA stopped sending out those statements to anyone under the age of 60.  This was frustrating for younger individuals who were deciding whether to apply for Social Security Disability as they had no idea what their monthly disability benefit would be.  Continue reading

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Liver Disease, Alcoholism & Social Security Disability

The most common forms of liver disease I see in my disability practice are liver cancer, hepatitis, cirrhosis, and alcoholic liver disease.  All of these medical conditions can be severe enough to prevent a person from working.  This post describes the most common types of liver disease and how they may be used as a basis for social security disability benefits. Continue reading

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How Do I Calculate My Past Due Benefits for Social Security Disability?

The primary benefit to being awarded  either Social Security Disability (SSD) or Supplemental Security Income (SSI)  is a monthly check from the United States Treasury.  Besides those monthly checks, most people also get a bigger (sometimes much bigger) first check which represents their “past due benefits.”  This post attempts to shed some light on exactly how the amount of past due benefits is determined. Continue reading

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Navigating through the Social Security Disability Claims Process

A claim for Social Security Disability benefits could take anywhere from 6 months to 6 years!  During that time, the claimant will have to complete an application, and possibly navigate his or her way through 3 levels of appeals at the Social Security Administration (SSA) and another 3 levels in Federal Court.  What follows is an explanation of the major steps along this arduous path. Continue reading

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What Are Non-Exertional Limitations?

More often than not, it is my client’s non-exertional limitations that win their case.  In prior posts I have described SSA’s analysis of disability cases using exertional limitations.  (See What Are “Exertional Levels” and Why are They Important in a Social Security Disability Case?).  Exertional limitations are limitations on the ability to sit, stand, walk, lift, push and pull.  Any other limitations are called non-exertional limitations.  The following table describes some common impairments and associated non-exertional limitations: Continue reading

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What Are “Exertional Levels” and Why Are They Important in a Social Security Disability Case?

The amount of exertion (or effort) required in a particular job is a key component in the Social Security Administration’s (SSA’s) analysis of every disability claim.  The SSA classifies each job by how much exertion is required.  For example, work that requires very little effort or exertion is considered to be “sedentary.”  While, at the other end of the spectrum, jobs which require extreme exertion are classified as “heavy.”

The following illustrates what I consider to be the most important differences between the different exertional levels: Continue reading

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Eliminate the Early Retirement Penalty with Social Security Disability Benefits

While it’s possible as early as age 62, choosing to receive Social Security retirement benefits before your normal retirement age is penalized.  The “early retirement penalty” can amount to a 30 percent reduction in your monthly benefit.  And what’s worse is that the penalty is permanent.  Thus, although your monthly benefit will change with cost of living adjustments, the initial reduction as a result of the penalty will continue even past normal retirement age.  As a general rule, you should wait until your normal retirement age (66 or 67) or, even better, get an increased monthly benefit by delaying your retirement until age 70.

But what if you simply cannot work until your normal retirement age?  If you are under Continue reading

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Social Security Benefits for Stay-At-Home Parents

Stay-at-home parents face a serious problem obtaining social security benefits.  To qualify for benefits, they had to have paid into the social security system.  For disability benefits, the disabled person must have worked 20 of the last 40 quarters (5 of the last 10 years) before their disability began.  (See Have I Worked Enough to Qualify for Social Security Disability Benefits?)  By definition, the stay-at-home parent does not pay into the social security system while raising the children.  As a result, they often do not have enough (or any) work credits to be insured for disability benefits. Continue reading

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Have I Worked Enough to Qualify for Social Security Disability Benefits?

The Social Security Administration (SSA) implements two separate programs that provide cash benefits to disabled individuals.  The primary focus of this blog is on Disability Benefits (aka “Disability Insurance,” “DI,” “RSDI,” and “Title II benefits”).  The other type of benefit is called Supplemental Security Income, “SSI” or “Title XVI benefits.”

Both programs use the same definition of disability and identical rules and regulations to determine disability. (See 5 Step Disability Evaluation Process)   SSI benefits are less money per month and, most importantly, means tested.  Thus a claimant must meet certain income and resource qualifications to be eligible for these benefits — besides proving disability.  Disability benefits, on the other hand, have no means testing.  Your current income or resources Continue reading

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Age: A Crucial Factor in Your Social Security Disability Case

While the severity of the impairment is the most significant factor in Social Security Disability cases, age follows right on its heels as the second most important factor.  The reason is simple – the law is different for people of different ages.  The younger a person is, the more difficult it is to prove an inability to work.  Conversely, every year older will make the case for disability a little bit easier.

The basic idea is that as we get older, the real opportunity to change careers diminishes.  Continue reading

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Can I Work While Receiving Social Security Disability Benefits?

Unfortunately, many of my clients find the monthly check they receive from the United States Treasury is too small to live on.  I am always receiving calls from former clients asking if they can return to work part time and still receive their Social Security Disability benefits?  The answer is not simple.  And, in classic lawyer fashion, it depends.

Substantial Gainful Activity

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Crohn’s Disease and Ulcerative Colitis As Bases for Social Security Disability.

Crohn’s disease and ulcerative colitis are both included in a larger set of conditions known collectively as Inflammatory Bowel Disease (IBD).  Over the years I have assisted many clients obtain social security disability benefits on the basis of their IBD alone.  In this post, I discuss these conditions as well as how the conditions can support a finding of disability.

What is IBD?

Simply put, IBD is a chronic inflammation of the gastrointestinal tract. Continue reading

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Can you File for Unemployment and Social Security Disability Benefits?

The application process for Social Security disability benefits can take years.  During that time period the claimant is – by definition – not working. (See 3 Reasons Your Claim Was Denied).  How does the claimant pay for food and shelter during that long wait?  Some claimants are fortunate enough to have spouses or family members who can help them until they ultimately receive benefits.  But many claimants have no such support.  There are state and local assistance programs that can help with some amount of cash assistance and food stamps.  In Maryland you can contact the Department of Human Resources.  In addition to these benefits, many claimants also want to file for unemployment benefits while their disability claim is pending.

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Back Problems: The Most Common Source of Disability Claims

If your back has ever “went out,” you understand just how devastating back problems can be.  In my practice, impairments involving the spine are the single most common disabling condition.  What follows below is my legal (as opposed to medical) understanding of back problems and my strategies to obtain disability benefits as a result of them.

1.  What Types of Back Injuries May Qualify for Benefits

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Expediting Claims at the Social Security Administration

The social security disability claims process is a lengthy one. About 40% of those who apply for disability benefits are granted benefits on their initial application. It usually takes 3 to 6 months for the initial decision. For those that are not granted benefits upon their initial application, the delay can be from 12 to 24 months. Given that the claimant is unable to work during those 1-2 years — the delay is most often an extreme hardship. The Social Security Administration (SSA) will expedite some types of claims. Below I describe the five situations in which the SSA will speed up the evaluation process. Continue reading

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Should I Use the Attorney Provided by my Disability Insurance Company?

David Galinis
Managing Partner – Estates and Social Security Practice
Berman, Sobin, Gross, Feldman & Darby, LLP
481 N Frederick Avenue, Suite 300
Gaithersburg, MD 20877
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5 Step Disability Evaluation Process

The Social Security Administration (SSA) uses a five-step sequential evaluation process to determine if any given Claimant is entitled to Social Security Disability benefits. SSA considers each step in this process sequentially before moving onto the next step. In this post, I describe these five steps in their most basic terms.

Step One – Has the Claimant been Unable to Work for 12 Months?

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Mental Illness as a Basis for Disability: No Objective Evidence, No Problem

Mental illness can be as devastating as any physical impairment. Depression and bipolar disorder form the basis of SSA disability determinations every day.  The key to any social security disability case is proving disability – the inability to work.  That proof can be challenging in cases of mental illness.

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3 Reasons Your Claim Was Denied

1. You Are Still Working

The most basic eligibility requirement to receive Social Security Disability Benefits is an inability to engage in substantial gainful activity that has lasted or is expected to last for 12 months.  In other words you cannot be working.  When the disability examiners evaluate your claim, they will look at your earnings record.  Remember how Social Security taxes are taken out of each paycheck?  Social Security knows how much you have earned during each month of your working life.  If the examiner finds ongoing wages, it’s pretty easy to deny the claim.

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