Indiana Social Security Disability Attorney Blog

The consensus in the country is that unless Congress acts to rebalance the Disability Insurance Trust Fund, there will be a short fall starting in mid 2016.  The belief is that this shortfall will cause the government to pay about  80 percent of the monthly disability benefit to those who are entitled.  Why is there a shortfall?  Experts say that is is largely due to changes in the American population and the retirement age.

© Petrik

Shortfalls, for various reasons, have occurred in the past.  Each time a short fall has arisen, Congress has stepped in to “reallocate” the various trust funds so that disabled Americans who have been declared qualified to receive disability benefits continue to receive those benefits.  This reallocation is “normal” for the federal government.  Basically, what is reallocated is the Social Security payroll tax income dealing with old-age benefits or the Old-Age and Survivors Insurance (OASI) and the Disability Insurance Trust Fund.  Notability, the reallocations, of which there have been 11 since 1968, run in both directions.  That is sometimes the Disability Insurance Trust Fund has been reallocated to transfer money to the OASI and sometimes the OASI has been reallocated to transfer money to the Disability Insurance Trust Fund.  The thought about this reallocation is that if allowed, both the OASI and the Disability Insurance Trust Fund would be stable until about 2033.  This time period would give Congress enough time to work out a sensible plan to continue funding both trust funds.

Before August 24, 1999, deciding an obesity claim was pretty easy for the Social Security Administration. The weight, height and gender of the claimant was insert into a table and if the claimant was over the weight listed then disability would be awarded. On August 24, 1999, it all changed. (See Obesity, Respiratory Illnesses and Social Security Disability Benefits Posted on this blog on December 2, 2011). The Commissioner published a final rule on that date which became effective on October 25, 1999. This rule deleted listing 9.09 from the Listings of Impairments. The reason that the listing was deleted was because, in the Commissioner’s opinion, the weight/height/gender classification “did not represent a degree of functional limitation that would prevent an individual from engaging in any gainful activity.” (See SSR 02-01p.)

With this change, the Social Security Administration no longer had an objective method for determining whether the disease of obesity was disabling. In its place, the Commissioner suggested that obesity can adversely effect the musculoskeletal, respiratory, and cardiovascular body systems. As a consequence, the Commissioner placed language in each of those listing categories to insure that the disability evaluators would remember to consider the disease of obesity when also considering those body systems. So, the charge from the Commissioner is that “adjudicators must consider any additional and cumulative effects of obesity.”

There are 2 problems with the new evaluation method for obesity. First, the consultative medical examiners, to whom the Social Security disability applicant is sent to for a physical evaluation, do not, other than noting the weight, consider how the person’s obesity affects the muscle skeletal, respiratory or cardiovascular body systems. There is just nothing in the consultant of reports addressing those issues. The fact that there is nothing in those reports does not mean that the obesity is having “no effect” or “minimal effect”. It’s just not considered by the examiner.

The Social Security Disability program rules are very clear in cases where a claimant missed the 60 day deadline in which to request a hearing: the claimant must show “good cause” in order to be allowed to file a late appeal. “Good cause” is defined by regulation at 20 CFR § 404.911 and 404.933(c). These regulations basically say that the Agency will consider each case on its own merits as to why a deadline was missed. The regulations also include some examples of good cause such as a death or serious illness in the claimant’s immediate family, records were destroyed, the Agency itself caused a missed deadline or “unusual or unavoidable circumstances exist”.

Interestingly, even if the local SSA office (or “field office” as it is known in SSA speak) where the late claim is filed makes an initial determination that “good cause” exists for the late filing that is not the last word. After the filed office has processed the paper work the case is sent to ODAR for a hearing. Under the program rules, the ALJ is entitled to make the final call on whether “good cause” existed. SSA does not require the ALJ offer a hearing before he/she makes a determination as to whether “good cause” is the reason for the late filing. If the ALJ determines that “good cause” did not exist, then that is the end of the case and there is no appeal to the Federal District Court. In other words, there is no judicial review regarding whether the ALJ’s determination of no “good cause” was based no substantial evidence. No judicial review was the law at least under the thirty-four year old case of Watters v. Harris, 656 F.2d 234 (7th Cir. 1980). The reason for no judicial review was premised on the fact that since there was no “oral” hearing the courts did not have subject matter jurisdiction.

On August 4, 2014, the United States Court of Appeals for the Seventh Circuit reversed itself and ruled in the case of Boley v. Colvin, 2014 U.S. App. LEXIS 14989, 2014 WL 3810999 that a claimant’s denial of “good cause” to file late was in fact reviewable even if there had been no oral hearing. In Boley, Marilyn R. Boley has applied for Social Security disability benefits and was denied at the initial and reconsideration levels. She was presented by an attorney at the reconsideration level but SSA only sent notice of the reconsideration denial to her rather than to her and her attorney. Ms. Boley, who was preparing for a double mastectomy, assumed her attorney was going to handle the appeal for her. About nine months after the notice was sent to her, she discovered that no appeal had occurred. Ms. Boley’s attorney then filed a request for hearing. Even though SSA admitted that it had failed to send the notice to Ms. Boley’s attorney, it denied that she had “good cause” to file a late appeal so the ALJ denied her late appeal without a hearing. Ms. Boley then filed an appeal in the U. S. District court. The court, following Watters affirmed the denial. On appeal the U.S. Court of Appeals for the 7th Circuit found that “’hearing’ means a decision after whatever process the Social Security Administration itself elects to use”. As a consequence, the 7th Circuit found that Ms. Boley was entitled to judicial review of her claim that the agency mishandled her case. In making this ruling the 7th Circuit expressly overruled Watters. This case has national significance because this is the first judicial circuit to rule that a federal district court had the subject matter jurisdiction to hear a case from the agency when there was no “oral” hearing below.

The Commissioner of Social Security recently announced that beginning in mid-March 2014, Social Security disability claims filed by Veterans who have received a 100% permanent and total disability rating from the Veterans Administration will be expedited. According to the Commissioner “under the new process, Social Security will treat these veterans’ applications as high priority and issue expedited decisions, similar to the way the agency currently handles disability claims from Wounded Warriors.” Even though a veteran’s claim may be expedited, there is still no time limit for a claim to be processed and decided.

In order to expedite the Social Security disability claim, the veteran must tell the Social Security Administration that he/she has a VA disability rating of 100% and show proof of that rating. Of course, the fact that a veteran has been awarded a 100% permanent and total disability rating from the VA does not necessarily mean that he/she will be awarded Social Security disability.

That said, SSR 06-03p requires that the VA’s finding of disability be considered as relevant evidence and given appropriate weight. The Ruling provides that “we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies (20 CFR 404.1512(b)(5) and 416.912(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.

On October 20, 2011, I reported in a blog article, “Migraines and Social Security Disability” that the Social Security Administration, in a question and answer type publication in 2009, required a very specific diagnosis from a physician in order that migraines be considered a “medically determinable impairment”. Once that diagnostic criterion has been met, the Social Security Administration does allow for the possibility that migraines may be found to be “medically equivalent” to Listing 11.03.

In the Program Operations Manual System (“POMS”) § DI 24505.015, provides examples of rationales for medical equivalence determinations and lists migraine headaches as an example of an unlisted impairment that may be medically equivalent. The example states that if:

1.) a claimant has chronic migraines for which she sees her treating doctor on a regular basis;

Gout is a type of arthritis that occurs when uric acid builds up in the blood and causes inflammation in the joints. Gout is generally a very painful disorder than can be both acute and chronic. Acute gout affects one area specifically, and is generally extremely painful and debilitating. Most often acute gout affects the big toe of those who suffer from the disease. In some cases of chronic gout, the joint becomes permanently inflamed and deformed.

Understanding that gout can be a debilitation condition, the federal government does allow for gout sufferers to qualify for Social Security Disability benefits in some situations. The most common way that applicants with gout qualify for Social Security Disability benefits is through the inflammatory arthritis listing.

Qualifying Under the Inflammatory Arthritis Listing for a Gout Diagnosis

For many Americans, the pains of stress affect virtually every aspect of live, even blossoming into an illness that can hinder basic daily functions. And for those individuals, the Social Security Administration has set forth guidelines that present possible disability benefits for those suffering from near debilitating stress.

The Mental Health Disorder Listing

In order for an applicant to qualify for Social Security Disability benefits for stress, that applicant must do so under the “Mental Health” listing, meaning that the stress must be at the level of being a “mental health” disease or disorder.

Bipolar disorder—formerly called “manic-depressive disorder”—can be a debilitating disease that prevents sufferers from living normal lives. Its symptoms include severe mood swings, from states of mania to states of depression. Often times those who suffer from the disease find it difficult to get out of bed, are severely depressed, and sometimes develop suicidal thoughts.

Because the disease is so severe in some cases, the federal government has determined that, in some circumstances, those who suffer from bipolar disorder can qualify for Social Security Disability payments.

Qualifying for Disability with Bipolar Disorder

The Office of Disability Adjudication and Review hearing offices (Social Security Hearing Offices) in Fort Wayne, Indianapolis and Valparaiso are closed. Hearings set for today will be rescheduled.

Multiple Sclerosis is an autoimmune disorder affecting the central nervous system, which includes the brain, spinal cord, and optic nerves. MS is a degenerative diseases meaning that, as time passes, the disease gets worse and worse. While every person’s symptoms are different, the symptoms of MS are usually:

• Problems concentrating and/or remembering certain things, depression, feelings of dread, etc.,
• speech problems, including slurred speech,