Maine Social Security Disability Lawyer

Colitis and Inflammatory Bowel Disease

Just recently, one of our clients was granted at hearing on the basis of debilitating colitis. Social Security had previously denied her claim after finding her capable of performing light work with ready access to a bathroom. After speaking with her and reading her medical records, it was clear that Social Security had not fully considered the nature of her illness or the severity of her symptoms.

What is colitis? 

Colitis refers to inflammation of the colon and causes several symptoms including: chronic diarrhea; abdominal pain; cramping; bloating; and dehydration. Associated symptoms of dehydration include: lightheadedness; weakness; and fatigue. 

What medical documentation is needed to establish the diagnosis and prove disability? 

At step 2 of the sequential evaluation, the judge must find that you have a severe impairment or combination of impairments that have or are expected to last at least 12 continuous months or be expected to result in death. 

There are many causes for inflammation and some are highly treatable and non-severe according to Social Security standards. Therefore, it is very important to talk with your doctor, and have him or her document your symptoms so that the proper tests to exclude other conditions with similar symptoms (i.e. diverticulitis, irritable bowel syndrome) can be performed and a proper treatment plan started.

Post Polio Syndrome

Post-polio sequelae (also called post polio syndrome, or PPS) are often disabling symptoms that occur in many polio survivors later in life, about 35 years after the initial poliovirus episode. The symptoms may include overwhelming fatigue, muscle weakness, chronic muscle and joint pain, sleep disorders, as well as difficulty swallowing and breathing.

Post polio sequelae constitute a medically determinable impairment, and certainly can provide the basis for a finding of Social Security disability. See Social Security Ruling 03-1p.

Very serious PPS symptoms may meet medical listing 11.11 at step 3 of Social Security's sequential evaluation. More often however, the cumulative effects of all of the individual's impairments, including PPS symptoms, will be assessed in determining that applicant's residual functional capacity for steps 4 and 5 of the sequential evaluation.

These are unusual disability cases. It is worth seeking out a disability lawyer familiar with post polio syndrome and the way that Social Security evaluates disability claims based upon PPS.

When pain becomes chronic

There is an excellent article in the Los Angeles Times entitled When pain becomes chronic. Here is an excerpt:

Pain is usually a symptom of something else — a scraped knee, a broken arm, appendicitis. Treating the pain makes the patient less miserable, but it's just a stopgap measure until the underlying problem is fixed and the pain goes away — the scrape heals, the bone knits back together, the appendix is removed.

With chronic pain, however, the underlying problem that started it has usually (though not always) been fixed and yet the patient is still hurting. A malfunctioning nervous system has started manufacturing pain. The pain is no longer simply a symptom. It has become a problem in its own right.

No one knows a sure-fire way to avoid chronic pain. Still, you can improve your chances by avoiding the temptation to simply tough it out when you get injured. "Luckily, if treated adequately, pain goes away in a majority of patients," says Dr. Talal Khan, a specialist in anesthesiology, pain management and pain medicine at the University of Kansas Hospital in Kansas City. "But once chronic pain develops, it can be very hard to cure."

And then it can be devastating. "Patients are often disabled," Webster says. "They live with a tremendous amount of pain even with top-of-the-line treatment."

The entire article is worth reading, but the key takeaway for me is that chronic pain is not always a symptom of something else. It is a problem in its own right.

I have may clients that are disabled due to chronic pain. Perhaps because the cause of the pain is not always clear, claimants are rarely credited with the severity of the pain they feel (see, for example, DDS and Claims Involving Chronic Pain). 

Because pain is subjective, often the focus of the disability claim becomes the credibility of the claimant rather than the medical record. The SSA has a regulation, 20 C.F.R. 404.1529, entitled "How we evaluate symptoms, including pain." The regulation discusses the factors that must be considered by the judge when assessing credibility. Social Security Ruling 96-7p also discusses those factors.

When evaluating a Social Security disability claim involving chronic pain, it is important to recognize that chronic pain is a problem in its own right, not just a symptom of something else.

Social Security Adult Listing 12.05C

Every year I handle at least one claim involving adult listing 12.05C. That listing requires:

A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function;

The listing is a two-pronged test. The first prong is a valid IQ score from 60 to 70. The second is some other mental impairment, or a physical impairment, that imposes a significant work-related limitation of function.

There are a few things to bear in mind about this listing:

• The mental impairment must have "manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." Ideally, there is an IQ test somewhere in the school records. Someone who meets this listing in all likelihood would have been a special education student. So get the school records.
• The lowest number of the Weschler series is used. See 12.00D.6.c.
• A test score slightly above 70 might be okay (but I wouldn't count on it). See POMS DI 24515.056 section D.1.c.
• The additional impairment must result in a "significant work-related limitation of function." While that phrase is not defined, it roughly equates to "severe" at step 2 of the sequential evaluation. I had a recent Maine disability claim where a lifting restriction of 25 pounds satisfied this prong of the test. 
• To establish the additional impairment, try to obtain a treating doctor's medical source statement assessing work-related functional limitations. 

The criteria for this listed impairment are pretty clear. If you have a qualifying IQ test, and evidence of a significant work-related limitation, there is little reason for a hearing. The claim can be granted on the record.

Is a GAF Score of 65 Too High?

Every now and then I see a claim involving mental impairments where the GAF score assessed in the clinician's treatment notes is higher than you want to see as a disability lawyer. 

A GAF score of 65, for example, normally would not denote a disabling mental impairment. However, most of the GAF scores in a disability case are assessed in periods when claimant is not working. The GAF score would not necessarily remain as high should the claimant attempt to work.

This reasoning is recognized in Social Security's regulations and rulings. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00C3 states:

We must exercise great care in reaching conclusions about your ability or inability to complete tasks under the stresses of employment during a normal workday or work week based on a time-limited mental status examination or psychological testing by a clinician, or based on your ability to complete tasks in other settings that are less demanding, highly structured, or more supportive.

Social Security Ruling 85-15 states, in part:

The reaction to the demands of work (stress) is highly individualized, and mental illness is characterized by adverse responses to seemingly trivial circumstances. The mentally impaired may cease to function effectively when facing such demands as getting to work regularly, having their performance supervised, and remaining in the workplace for a full day. A person may become panicked and develop palpitations, shortness of breath, or feel faint while riding in an elevator; another may experience terror and begin to hallucinate when approached by a stranger asking a question. Thus, the mentally impaired may have difficulty meeting the requirement of even so-called "low stress" jobs.

First Circuit case law echoes this conclusion. See Lancellotta v. Sec'y, H.H.S., 806 F.2d 284 (1st Cir. 1986), which cites Ruling 85-15 and notes its requirement for an individualized consideration of the claimant's reaction to the stress of the workplace.

In summary, a GAF score of 65 is not what you want to see as a Social Security disability attorney for a claim relying principally on mental impairments. But it is not the end of the world, and the GAF score should be put in a proper context for the U.S. administrative law judge deciding the claim.

Interstitial Cystitis and Social Security Disability

I have a claim coming up for a hearing where one of the claimant's impairments is interstitial cystitis (IC). IC is a chronic bladder disorder characterized by pelvic pain. IC occurs ten times more frequently in women than men, and is often associated with other impairments, such as fibromyalgia.

In my research for this case, I was a little surprised to find Social Security Ruling 02-02p, which addresses interstitial cystitis in the context of a Social Security disability claim.

The Ruling states in part:

many people with IC have chronic pelvic pain, which can affect the ability to focus and sustain attention on the task at hand. ... In assessing RFC, we must consider all of the individual's symptoms in deciding how such symptoms may affect functional capacities.

An assessment also should be made of the effect IC has upon the individual's ability to perform routine movement and necessary physical activity within the work environment. Individuals with IC may have problems with the ability to sustain a function over time.

As explained in SSR 96-8p ("Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims"), our RFC assessments must consider an individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. In cases involving IC, fatigue may affect the individual's physical and mental ability to sustain work activity.

Read the entire Ruling if you have a claim involving interstitial cystitis. And remember, Social Security must consider your combination of impairments when deciding your claim.

Chronic Fatigue Syndrome

Chronic Fatigue Syndrome is a basis for Social Security disability, and Social Security Ruling 99-2p sets forth the policy for evaluating disability claims involving chronic fatigue syndrome.

One of the problems with chronic fatigue syndrome is that no one really knows what causes it. However, the New York Times has a fascinating article today, entitled Is a Virus the Cause of Fatigue Syndrome? 

It is definitely worth reading, and while your on the New York Times site, check out the health quide for chronic fatigue syndrome.

Fatigue and Social Security Disability

Fatigue is a frequently encountered symptom in Social Security disability claims. Fatigue can be a component of many conditions, including fibromyalgia and Lyme disease. Fatigue is often secondary to conditions involving chronic pain, because it is exhausting to be in pain all the time. Fatigue can also be secondary to severe depression. And of course, there is chronic fatigue syndrome.

Fatigue can certainly be a disabling symptom, and a record of your fatigue and its effects can help to establish your disability claim. However, your fatigue must be documented to strengthen your claim. Unfortunately, fatigue is often not well documented in the medical record. 

So consider keeping a journal. And tell your doctor about your fatigue, and how it limits your ability to function. Ideally, your treating physician will complete a medical source statement setting forth your functional limitations, including those due to fatigue. That is the best evidence of all.

Autism and Social Security Disability

Autism is certainly a basis for a Social Security disability claim, and there is a listed impairment for "Autistic disorder and other pervasive developmental issues" See Adult Listing 12.10 and Childhood Listing 112.10.

Typically we see autism as the basis for a childhood disability claim. However, we also see it quite a bit with a 19 year old claimant as the basis for a Social Security disability or an Adult Child Disability claim.

Every autistic child exhibits different symptoms and has a different place on the autism spectrum. These cases can take some time to see where your client fits.

Here is the adult listing:

12.10 Autistic disorder and other pervasive developmental disorders: Characterized by qualitative deficits in the development of reciprocal social interaction, in the development of verbal and nonverbal communication skills, and in imaginative activity. Often, there is a markedly restricted repertoire of activities and interests, which frequently are stereotyped and repetitive.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied.

A. Medically documented findings of the following:

1. For autistic disorder, all of the following:

a. Qualitative deficits in reciprocal social interaction; and

b. Qualitative deficits in verbal and nonverbal communication and in imaginative activity; and

c. Markedly restricted repertoire of activities and interests;

... AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration.

Overall, the "B" Criteria of listing 12.10 are a natural fit for an autistic claimant. Common symptoms of autism include restricted daily activities, difficulty in social functioning, and difficulty with concentration, persistence or pace. If the criteria of part A are met, in most cases part B will also be met, because the two parts are describing and measuring the same areas of functioning.

The autism listing differs in this respect from the other mental disorder listings where the disorder is defined in part A and the severity is measured in part B. Usually the two parts are largely unrelated. See, for example, listing 12.06 for anxiety. But with the autism listing, both the A and B criteria describe the same general areas of functioning.

Of course, it is quite possible for a mildly autistic person not to meet the "B" criteria. But this natural fit between the A & B criteria of the autism listing makes the listing much more likely to be met.

 

The First Circuit and Fibromyalgia

The First Circuit has a new memorandum decision which discusses fibromyalgia symptoms in the context of a Social Security disability claim.

In Johnson v. Astrue, Docket No. 08-2489 (1st Cir. 7/21/2009), the Court heard an appeal of an ALJ's denial of disability benefits. The ALJ in her decision discounted the opinion of Dr. Ali, the treating rheumatologist. The First Circuit panel looked at the reasons offered by the ALJ, and found each of them to be unpersuasive. Here is an excerpt from the First Circuit's opinion:

This leaves what appears to be the ALJ’s primary reason for giving little weight to Dr. Ali’s limited RFC assessment -- i.e., that such limitations were “of necessity based on the claimant’s subjective allegations as the doctor’s examinations of the claimant were, with the exception of the presence of tender points, relatively benign.” Trans. at 27. Dr. Ali’s “need” to rely on claimant’s subjective allegations, however, was not the result of some defect in the scope or nature of his examinations nor was it even a shortcoming. Rather, “a patient's report of complaints, or history, is an essential diagnostic tool” in fibromyalgia cases, and a treating physician’s reliance on such complaints “hardly undermines his opinion as to [the patient’s] functional limitations.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (internal punctuation and citation omitted). Further, since trigger points are the only “objective” signs of fibromyalgia, the ALJ “effectively [was] requiring objective evidence beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines,” and this, we think, was error. See id. at 106-07

The ALJ's decision also discredited the claimant's allegations of severe chronic pain. On this issue, the First Circuit panel had quite emphatic language:

Second, once the ALJ accepted the diagnosis of fibromyalgia, she also “had no choice but to conclude that the claimant suffer[ed] from the symptoms usually associated with [such condition], unless there was substantial evidence in the record to support a finding that claimant did not endure a particular symptom or symptoms.” See Rose, 34 F.3d at 18 (emphasis added). The primary symptom of fibromyalgia, of course, is chronic widespread pain, and the Commissioner points to no instances in which any of claimant’s physicians ever discredited her complaints of such pain. Given this, we do not think that the ALJ’s decision to discredit claimant was supported by substantial evidence.

This is good stuff. It is an important acknowledgment of fibromyalgia's unique signs and symptoms, and how that uniqueness affects the analysis in a Social Security disability claim. It would be great if the First Circuit were to change its mind and designate this case for publication.

Kudos to Rhode Island attorney James Gannon for a great job on the First Circuit appeal. Hat tip to Portand attorney Murrough O'Brien for giving me a heads up on this very recent case. 

Lastly, the First Circuit's recent opinions are now available by RSS. Who knew?

Fibromyalgia and Social Security Disability

Fibromyalgia is a medically determinable impairment, and can therefore provide a basis for a Social Security dsability claim.

However, many patients report that their doctors do not take fibromyalgia seriously. This was the topic of a recent fibromyalgia article in the Sacramento Bee, a California newspaper. Here is an excerpt:

Controversy swirls even as new FDA-approved medications have shown promise and recent brain imaging research has shown central nervous system changes in those afflicted. ...

It is this array of symptoms not linked to specific cause and effect – as opposed to how rheumatoid arthritis can ravage a patient's joints – that keeps skeptics in mainstream medicine from validating fibromyalgia as a legitimate disease.

Where, exactly, is this deep muscular aching? What's the cause of that nebulous numbness and dizziness? Why won't painkillers help? Where are the lab tests that can prove it exists?

Those are the questions that still dog fibromyalgia patients.

"They make you think you're a hypochondriac or something," says Jennifer Filbeck, 36, a former restaurant manager from Fairfield who's been unable to work since 2006. "Doctors treat you like you're crazy."

Not crazy per se, critics of the existence of fibromyalgia claim. Their argument: These people suffer from psychological conditions that manifest themselves in vague and hard-to-define physical maladies.

That article could have been written about patients in Maine and New Hampshire, not just California. It is surprising to me how different treating physicians have widely disparate views regarding fibromyalgia.

Nevertheless, for Social Security disability, what matters is not the cause so much as your functional limitations. If you are unable to work due to your medically determinable impairment, you are disabled. Period. Providing evidence establishing those functional limitations is the crux of a Social Security disability case.

Hat tip to @gachman for bringing the article to my attention.

It's Not the Diagnosis, It's the Severity

When talking with Social Security disability claimants, I often hear a statement like "I can't work because I have been diagnosed with bipolar disorder" (or degenerative disc disease, or fibromyalgia). The claimant makes the statement like the matter is settled. The reasoning seems to be: since there is a doctor's diagnosis of my impairment, my disability claim should be granted.

Unfortunately, that reasoning is not at all correct. It is not the diagnosis of the impairment but the severity of the impairment that matters in a Social Security disability claim. And I explain this to clients every day.

The diagnosis is just the beginning. A good beginning to be sure, since the diagnosis satisfies the medically determinable requirement in a Social Security disability claim. But the important thing is the severity of your impairment. How much does it affect your functionality? How does it affect your ability to work? These are the important questions in a Social Security disability case.

What is missing from almost every denied Social Security disability claim is evidence establishing a claimant's functional limitations. A medical diagnosis alone does not establish any functional limitations. And unfortunately, a patient's medical records usually have little information regarding functional limitations (medical records are created and maintained for medical providers to track a patient's medical care, not to establish disability).

So remember, it's not the diagnosis but the severity of the impairment that matters. And a Social Security disability lawyer spends a great deal of time trying to obtain evidence - often a medical source statement - that will establish a claimant's functional limitations.

Anxiety and Social Security Disability

Severe anxiety can certainly provide a basis for Social Security disability. Anxiety is among the SSA's listed impairments - please see listing 12.06.

I had a hearing last week for a claimant suffering from severe anxiety with agoraphobia. This claimant has been basically housebound by anxiety, and leaves the house only for doctor appointments. Her husband does the food shopping. She buys her clothes online. It was quite clear from her hearing testimony that anxiety was severely limiting all aspects of her life, and employment was not a realistic possibility. Further, I was able to obtain a medical source statement from her treating psychiatrist that assessed severe limitations. The judge found that the claimant met listing 12.06, and issued a bench decision granting the disability claim.

For more information about anxiety and social security disability, there is a link on the sidebar of this site (in the Important Topics section) to the Claimants with Mental Impairments page, which discusses the issues involved with Social Security disability claims involving anxiety and other mental health conditions.

If you are wondering if your anxiety or other mental health condition is severe enough to receive disability benefits (and you live in Maine or New Hampshire), ask for a free Social Security claim evaluation.

Lyme Disease and Social Security Disability

Lyme disease can certainly provide the basis for a successful Social Security disability claim. However, it can be a long road.

I saw a recent news story regarding a Connecticut man suffering from chronic Lyme disease, who is also struggling to have his Social Security disability claim granted. His story is all too common.

Chronic lyme disease often involves headaches, chronic fatigue and pain. In addition, for this gentlemenan in Connecticut, bright light hurts his eyes; loud noises bother him; his joints hurt him constantly.

There is no specific Social Security listing for Lyme disease. A Lyme disease disability claim is evaluated under Listing 14.09D Inflammatory Arthritis, which is not a precise fit. That means, as a practical matter, a Lyme disease claim will usually proceed to steps 4 and 5 of Social Security's sequential evaluation process. Further, claims involving chronic pain can be difficult for DDS to evaluate, so this gentlemen may have to wait for a hearing on his disability claim. 

This is the timely topic, because the ticks that carry Lyme disease reappear this time of year. If you have Lyme disease or suspect that you do, you need a Lyme-literate primary care physician, and an infectious disease specialist who handles Lyme cases. Likewise, for your Social Security disability claim, retain a Social Security specialist.

GAF Score

Severe depression or anxiety is often a component of a Social Security disability claim. For claims involving mental health, the Global Assessment of Functioning score assessed by your mental health provider can provide a convenient benchmark for the administrative law judge.

The GAF scale is Axis V of the multiaxial assessment used by mental health clinicians. The GAF score offers a snapshot of a patient's functioning at that time. Although the GAF score does not correlate directly to the severity requirements Social Security's mental disorders listings, it still offers a convenient distillation of a clinician's progress notes.

In general, for claimants who have primarily mental impairments, I like to see a GAF score below 50. When a GAF score is in the range of 35-45, I always point it out to the judge in my hearing memorandum. For example, if the treating psychologist assessed a GAF score of 45, I note that a score from 41-50 equates with "Serious symptoms OR any serious impairment in social, occupational, or school functioning." In such a case, the GAF score provides compelling, contemporaneous evidence of the severity of a claimant's mental health problems.

A GAF score of 55, on the other hand, doesn't help that much. A score from 51-60 corresponds with "Moderate symptoms OR any moderate difficulty in social, occupational, or school functioning." Moderate symptoms do not make for a successful Social Security disability claim. In such cases, I highlight the other evidence in the record that better demontrates the severity of the claimant's impairments.

A GAF score of 65, which I see from time to time, is actually evidence that your mental health is not dramatically affecting your occupational functioning. Mild symptoms and some difficulty in social or occupational functioning are not likely to result in a favorable disability determination, without other medical evidence of severe work-related limitations.

Go to the Claimants with Mental Impairments page to learn about the issues involved with Social Security disability claims involving depression, anxiety and other mental health conditions.

If you are wondering if your mental health condition is severe enough to receive disability benefits (and you live in Maine or New Hampshire), ask for a free Social Security claim evaluation.

Medically Determinable Impairment

 

Social Security requires a medically determinable physical or mental impairment as the basis for a finding of disability. The "medically determinable" language is part of the definition of disability in the Social Security Act itself. See 42 U.S.C. 423(d)(1)(A).

A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms. Please see 20 C.F.R. 404.1508. Signs, symptoms and laboratory findings are defined by regulation. Also, Social Security Ruling 96-4p discusses this requirement, and is a good starting place for research on the issue.

The point of the requirement for a medically determinable impairment (MDI) is to ensure there is a valid basis for your claim, and for the functional limitations you are asserting.

Some illnesses are problematic in the MDI department, however. Social Security has had to clarify that the MDI requirement is met for certain illnesses. For example, Social Security has declared that chronic fatigue syndrome, post-polio sydrome and fibromyalgia all satisfy the requirement for a medically determinable impairment. As a result, these impairments can medically support a determination of Social Security disability.