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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Winning Your Disability Case in 3 Words

In a disability case, almost any symptom or limitation can be disabling; but to determine whether they preclude work, the relevant questions are how frequent, how severe, and how long do they last?

A critical point I make to people who contact me everyday is that their disability case is won or lost based on symptoms/limitations and not on their diagnosis! Clearly, under federal law, a disability claimant has to have a legitimately diagnosed physical and/or psychological disorder to even allege disability, but this is only the beginning of the analysis.

Disability cases are almost always won or lost based on the quality (documentation) of your medical records and the subsequent opinions rendered by your treating physicians regarding your ability to sustain full-time employment. The documentation of symptoms and limitations in your medical records is critical as it provides tremendous credibility to and an understanding as to why your doctors’ have concluded you are unable to work.

Once a diagnosis is established, the disability inquiry immediately shifts to why you are unable to work due to the symptoms and limitations that result from the diagnosis. I tell my clients that of the total time spent in a disability hearing before a federal judge, 5% is spent on the diagnosis and 95% is spent determining the frequency, severity and duration of symptoms and limitations, and whether they prevent all work. Ignoring this fact places the success of your claim in great peril…don’t ever forget this!

A common problem disability claimants frequently make is having “tunnel vision” and focusing solely on their diagnosis, as if the fact they have been diagnosed with a disorder automatically confirms they are disabled and entitled to benefits. This is especially true of people suffering from chronic pain and fatigue disorders such as fibromyalgia and chronic fatigue syndrome. I believe this is true because these folks have almost universally been sent on an “odyssey” by the medical community, simply to obtain a diagnosis.

Never forget that obtaining a physical and/or psychological diagnosis is the very beginning, and not the end of your disability case.

Thus, the question becomes, “How do I document the frequency, severity and duration of my symptoms and limitations?”

Tip #1: What should I be Documenting? Simply put, whatever it is that prevents you from working. For example, let’s use chronic pain and fatigue. It is critical you distinguish why the pain and fatigue is different from what an average person may experience. If I say “I am in pain and fatigued,” that does not tell you much. Why? From time to time we all experience some degree of pain and/or fatigue. But if you tell your doctor “I am unable to function as I experience severe daily pain and exhausting fatigue lasting most of the day without relief,” or “I am unable to function 2 days per week due to migraine headaches that last all day even with medication,” now you’ve given the doctor and a judge an idea of why your symptoms are so debilitating.

Tip #2: Obtain a Copy of your Medical Records from your Treating Physicians

After you have followed Tip #1, the next question becomes, “Did the doctor write down what I just told him/her?”

I am often surprised at how many people applying for disability benefits have never seen their medical records. Obtaining a copy of your current treating physician’s records is important because it will give you an idea of whether your symptoms and limitations are being recorded. You may be surprised to find that your complaints do not appear in the records or if they do, the doctor’s notes are totally illegible! Illegible handwriting is a real problem, because judges who decide your claim are just like you and I, they don’t (and generally won’t) try too hard to decipher what the notes say.

If you are not satisfied with the documentation, address the issue tactfully with your doctor and explain the importance of documentation to your disability case. If they are receptive, I suggest you give them a copy of this article for reference.

Tip #3: Keep A Short Diary of Your Symptoms and Limitations before your next Visit to the Doctor

Whether you know it or not, your daily lives tell a compelling story about your inability to work. But how do you remember the frequency, severity and duration of your symptoms especially if you can’t spell your name at times!

I advise clients to keep a short and simple diary one week before their next visit with their doctor. For simplicity sake, the entries should short and not detailed (otherwise you will not do it). On a day when you were unable to get out of bed due to pain or fatigue, document it. Or document when you slept for only three hours the night before and then took a couple of naps the next day. Or document the migraine headache that lasted for two days in spite of medication.

Then, on your next doctor visit, when he/she asks “How are you doing?” you will have a laundry list of symptoms and limitations rather than giving them a blank stare!

Of course, winning your disability case is more complicated than this article has the time for; however, following these tips will significantly increase your odds of winning.

Best of luck to you and remember to keep fighting for the benefits you deserve!

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© Copyright 2002, Scott E. Davis, P.C., Used with Permission
All Rights Reserved Worldwide

Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders.

In almost every case, a fee is charged only if his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via his web site.

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GUEST BLOGGER: Explaining Invisible Illness is Hard!

Guest Blogger, Dianne Pruim, is blessed with two sons and two grandsons.  She continues to surrender all (sometimes kicking and screaming), including painful idiopathic neuropathy, to God. We think you will be able to relae to her blog about trying to explain invisible illness to even those in the medical profession.

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I was with yet another health care professional today… This one was removing an interesting contraption from my legs and feet that was supposed to decrease pain and maybe even restore some feeling. Earlier we had discussed my insurance coverage (or lack thereof) and their willingness to be very generous with me in the use of their facility, etc. It was then that I mentioned that I was on disability [financial assistance].

 

So as she removed the wires and such she said, “So why can’t you work?” I should know better than to try and answer a question like that. I tried to explain that I have to take a lot of pain medications that cause extreme drowsiness and impair my thought process and memory, but of course it doesn’t come out like that.

 

The truth is…I have an invisible disability. And if it weren’t for the cane I sometimes use for balance, most people wouldn’t know there was anything wrong with me. They don’t realize that I make very planned appearances–not too many during a week, because I need a significant amount of time to recover. Yesterday I had friends over for Sunday dinner and today I spent the rest of the day (after my therapy) in bed.

 

I don’t like for people to see me “down” so I “bite the bullet” or “suck it up.” I guess the problem with that is that it makes the disability more invisible. The thing is, I liked my job. My own business, built from scratch, my boys working with me. We had just painted my office and put in new carpet. I never got to add the logo to the wall.

 

Why can’t I work? I tried to keep up for several years as my condition got worse. The business suffered and so did I. But I still don’t really know how to answer that question. Please don’t judge me by the way I look on the outside because I try so hard to appear normal and healthy when I am with people. Just try to understand.

 

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Diane shares: “I think National Invisible Chronic Illness Awareness Week is important to participate in because education and awareness are the best steps toward understanding, acceptance and hopefully bearing each other’s burdens.”

 

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