Will You Receive Disability Benefits If You have an “Open and Shut” Case?

Most people who file for Social Security disability benefits are in for a fight, even if it seems to them that they have an “open and shut” case. It’s important for those filing for SSD/SSI to realize that there is no medical condition in and of itself that qualifies one for disability (though there are certain conditions that may qualify for expedited processing).

Disability decisions are based on two things:
1) The existence of a severe, ongoing mental or physical impairment, and
2) an inability to earn living as a result of this impairment (which, for the social security administration, equates to the inability to work and earn at least the monthly SGA, or substantial gainful activity, amount that is in effect for the current year).

Proving the existence of a severe medical impairment can be difficult, particularly if the claimant hasn’t recently sought medical treatment for the condition, a situation that can easily come to pass, of course, if the individual no longer has health insurance.

The general rule of thumb is that if the claimant hasn’t seen a physician in the 90 days prior to the evaluation of the disability claim, a disability examiner will schedule the individual for a consultative medical exam (CE).

CEs are performed by doctors who are in private practice (not Social Security employees) and who are paid by Social Security to perform medical examinations and mental examinations and mental testing. CEs can be very brief (physical CEs probably last an average of only 20 minutes), and are intended to provide only a snapshot of the claimant’s current state of health.

There are really no substitutes for solid medical records from a treating physician documenting the date of onset (when symptoms began), how the impairment has developed over time, a prognosis, and, especially, some indications of how the claimant’s condition has reduced their functional ability to engage in normal activities of daily living. However, when this information does not exist for whatever reason, a claimant will likely be required to go to a consultative exam.

Are the results of a CE a good substitute for records from a treating physician, particularly a medical source statement from a treating physician that succinctly explains that the claimant’s remaining functional capacity does not allow a return to work activity? Of course not. And as a disability examiner, I found few examples of cases that were approved solely on the strength of a consultative examination report.

Medical record documentation from a physician who has an established history with a claimant and who continues to provide medical or mental treatment will always be the bedrock on which social security disability and SSI disability cases are decided.

Yet, just the same, even those who have copious medical records in support of their disability claim, and even physician statements, sometimes get turned down for disability. About 70 percent of all disability applications filed each year are denied, and first appeals are even less likely to succeed. Does this mean that the majority of people who file for benefits are not really impaired in some way? Hardly.

Statistics also show that most people who request a second appeal, a hearing before an administrative law judge (ALJ), go on to win benefits. This fact alone strongly throws doubt on the ability of the federal disability system to make accurate decisions at the initial claim and reconsideration appeal levels that occur right before the disability hearing level.

Of course, it can take years to work through the entire disability process from initial application, to reconsideration appeal, to the disability hearing.

Some would argue that’s the idea: wear people down over time so that they just give up and go away. However, those who stay the course and go through with the disability hearing win their cases more often than not, and these individuals are usually rewarded with considerable back pay in addition to monthly benefits. However, by that time the financial and emotional toll is considerable.

The lesson in all this? If you are disabled and unable to work, do not assume that your case will be “open and shut.” When it comes to winning SSD/SSI, there’s no such thing. Instead, begin documenting your medical treatment as soon as you begin to experience difficulty working.

And, if your application for disability is denied (and most are) do not give up. The chances of being approved for disability go up at each level of appeal, particularly at the administrative law judge hearing level.

Tim Moore is a former disability examiner and the creator of Social Security Disability Secrets. He currently writes at My Disability Blog

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When Police Don’t See Your Invisible Condition

In 2004 I was involved in a terrible auto accident caused by a negligent driver. This resulted in my living with constant severe pain throughout my body primarily caused by a Mild Traumatic Brain Injury and the herniation /rupture of 8 discs in my spine. As a result of this I now need tinted windows as a medical necessity since the sun is too bright and causes me to have severe migraines.

In May 2009 I was pulled over by a local police officer. I have with me a Letter of Medical Necessity, a visible disability placard, and a mobility scooter in my vehicle. The policeman’s first question after telling me I had illegal window tinting, after I mentioned it being a medical necessity, was “what is wrong with you?”

This was rather very hurtful and shocking, so added more stress from being pulled over in McDonalds for no apparent reason. The policeman treated me as if I was guilty of breaking the law which I was not according to the Michigan Vehicle code. I kept my cool as I sat there in severe pain for 30 minutes until I was ticketed and he let me go. In the end I was upset and wept for the injustice that had just occurred since I am a very safe driver and actually drive very little due to chronic pain. I get severe migraines caused by even just a little sunlight on a cloudy day. The officer told me that everyone has a Letter of Medical Necessity and that doctors hand them out like candy here in MI.

The Michigan Vehicle Code Act 300 of 1949, 257.709 –which includes rules for vehicle window tinting– is in need of revision so that disabled people, such as me, are not pulled over and ticketed by police unjustly and needlessly. States such as Ohio, Texas, and Washington require a sticker be placed on one or more windows of a vehicle with legal tinting. I believe that Michigan needs this incorporated into the vehicle code. House Bill 4343 supports adding this exterior identification for vehicles with legal tinted windows and this amendment also protects my wife if she is driving me in my personal tinted window vehicle when I cannot drive myself.

I now await a letter of approval from the Driver Assessment and Appeal Division (517) 335-7051 which I have been directed to take to my local Secretary of State to have a tinted window restriction placed on my Driver’s License. Please help protect those of us that legitimately need tinted windows to drive safely.

I think what I’ve learned the most through this tinted window ticket by the police is that even law enforcement cannot see invisible illness; I do not have to accept their false assumptions or disbelief.

Now I have to go to court and fight the ticket but I have an attorney if I need him. Being in my mid-forties I know that people may assume I am fine even though I suffer from chronic pain due to a host of conditions attributed to an auto accident that was not my fault. Being a systems thinker with an eye towards continuous improvement I realized that vehicles with legally tinted windows should have some way to identify them to law enforcement.

Tinted windows seem to be all the rage here in MI and I see several cars with them when I drive. A proactive approach would be to certify cars first with a sticker in order to get window tinting applied. I checked online to see what other states require and I discovered that Ohio, Washington, and Texas all provide a sticker to identify legal window tinting. This protects the law enforcement and people like me with medical conditions. I then checked online with the Michigan House and Senate for laws related to window tinting and I discovered House Bill 4343! This bill was introduced in 02/09 and if approved will require a sticker to identify legally tinted vehicles and it will protect my wife if she is driving me or driving my car alone to get gas, etc.

I have contacted several organizations and government representatives about this matter. I have received many positive responses including my State Representative Marty Knollenberg, the Speaker of the House Andy Dillon, Michael F. Dabbs President of the Brain Injury Association of MI, the American Chronic Pain Association, and Leah Vassas Member Services Coordinator of the National Pain Foundation.

I hope that my efforts will make Michigan a safer place for all of us to live in especially when we hurt. This unpleasant experience is not over yet so more pain is to come but I hope in the end to help others avoid this type of very unpleasant experience.

7/2/09 Update: I went before a magistrate at court today and my case was dismissed so I am very glad and thankful to God since this has been a terribly stressful event!

David W. Stickley

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