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Severe depression is a basis for Social Security disability. Depression is analyzed under listed impairment 12.04.

Sometimes a patient's depression is so deep, and/or so unresponsive to medication, that electroconvulsive therapy (ECT) is prescribed. It is not a procedure to undertake lightly, because the risks and potential side effects can be significant.

Having representing several Social Security disability clients who have undergone ECT, I have found that ECT can make an important difference in your disability case.

For one, it tends to validate the severity of your depressive symptoms in a way that routine medical notes and Social Security function reports cannot. ECT is something of a treatment of last resort, and it is not usually considered unless the depression is severe and continuing.

Second, side effects of ECT are not uncommon. Short-term memory, cognitive thinking and concentration can all suffer. Many disability claimants suffering from severe depression have these same symptoms without ECT. But when ECT is involved, these impairments seem to be given more weight.

When the SSA reviews your initial disability claim, it obtains your medical records, and determines your residual functional capacity after analyzing those records. The problem with this approach is that the SSA does not obtain your doctor's opinion about your limitations. Rather, the SSA reviews your medical records and makes its own determination.

However, a doctor's treatment notes are intended to manage a patient's medical care, not to establish the functional limitations that Social Security uses to evaluate a claimant's ability to work. As a result, the method used by Social Security to evaluate claims often results in a denial of the initial claim for disability benefits, because often your functional limitations usually are not clear from a review of your medical records.

To remedy this situation, it is very important to obtain your doctor's opinion regarding your physical and/or mental limitations, and how those limitations affect your ability to work. A medical source statement from your doctor setting forth your limitations due to your impairments is usually the most powerful medical evidence in support of your disability claim.

In general, an administrative law judge will give greater weight to the opinion of a treating physician, as opposed to a doctor who examined the claimant just one time, or never at all. However, a judge is not obligated to accept the opinion of a treating physician. Rather, the judge must consider several factors when evaluating a treating medical source opinion. See 20 CFR 404.1527(c). 

Until a few years ago, we all used to receive a Social Security statement in the mail each year. The statement contains a record of the earnings upon which you have paid Social Security taxes over the years, and an estimate of the benefits you may earn as a result.

To save money, these statements are now longer mailed. However, they are available online at ssa.gov. Anyone considering a disability claim should go online to obtain a copy of the statement. 

The statement will show your estimated disability benefit should you become disabled, as well as the family maximum for benefits, should you have children under the age of 18. Of course, the statement also shows your estimated retirement benefit.

The statement is a very handy guide for the Social Security beneifts you have earned. I urge you go check it out. You can create an account and then view your statement by clicking on this link: my Social Security.

Many clients make first contact with me after receiving a denial letter for an initial application for Social Security disability benefits. It is crucial to appeal the denial of your benefits right away.

After an appeal, the next step is Reconsideration. At Reconsideration the claim goes back to DDS, but gets assigned to a different disability examiner and medical team. They review the claim, consider any new evidence, and make new determination.

The Reconsideration step of the Social Security disability claim process can be an unfriendly place. On a national basis, almost 8 out of 9 claims are denied again at Reconsideration. Even when a claim is denied at Reconsideration, being involved as a lawyer at this stage can help to frame the issues for the hearing, so it is almost always worthwhile to get help at this stage.

In recent months I have had several clients granted disability benefits at Reconsideration. When a claim is allowed at Reconsideration, there is usually new medical evidence. When I look at the claim file after the initial denial, I sometimes ascertain that important medical records were never seen at the initial level before a determination was made. We then provide that missing evidence. When possible, we also develop medical opinion evidence that supports disability. All this new evidence provides a more complete picture of the applicant’s functional limitations, leading to an allowance of the claim at Reconsideration.

I have a whole booklet about preparing your case for a Social Security disability hearing (you can download a pdf of the booklet for free). This post concerns preparing your testimony for the disability hearing.

You should expect to testify at your hearing, and that testimony can be critically important to your claim. One of the tasks of a disability lawyer is to prepare you to testify. That does not mean telling you what to say at your hearing. But preparation does often include things you should not say. Here are two examples:

  1. The answer to the question "Why can't you work?" should never be: "Because no one will hire me." I hear this all the time. But "No one will hire me" is not a basis for disability. Working with clients over the years, I have learned that when they say "No one will hire me," it is almost always a shorthand way of saying "No one will hire me because I cannot do the job as required." So, a much better answer for the hearing is: "I cannot work because I am unable to ___." 
  2. In appropriate cases I counsel clients when talking about daily activities to make the point that what they do on a given day depends upon how they are feeling that day, and to make clear that daily activities are sporadic, depending upon symptoms. Judges often inquire about daily activities in an effort to infer a claimant's limitations and abilities. You do not want the judge reach a false conclusion about what you are able to do. Remind the judge that your daily activities depend upon how you are feeling.

Time with a client going over these issues is always well spent, and is an important benefit of local representation.

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Get help with your disability claim

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates.

For several years, Social Security has had a list of medical conditions that qualify for compassionate allowances. If you have one of these diagnoses and have stopped working, then the SSA has an expedited process to establish disability.

In general, compassionate allowance claims are granted before a disability lawyer ever becomes involved. So it is not something we see that often.

This week I worked with a new client on an initial application for Social Security disability benefits. The gentleman has spinocerebellar ataxia, a degenerative nerve condition which is on the list of SSA compassionate allowances. He cannot perform his past relevant work, and is over the age of 55 (although this should not matter, since he clearly meets listed impairment 11.17A). See how Social Security evaluates disability claims.

This gentleman just stopped work in the past few months, so there is unlikely to be an award of back disability benefits (due to the 5-month waiting period) to support a contingency fee. As a result, my work with him is likely to be pro bono. However, it is an honor to spend time with a person facing progressive loss of function with such understanding and dignity.

I flagged the claim as a compassionate allowance claim when I submitted it to Social Security. I am curious to see how quickly the claim gets granted. I will let you know.

3/31/2014 Update: This compassionate allowance claim was processed immediatey by the Saco Social Security field office, and a claim examiner has already been assigned by DDS. Typically, a claim examiner would be assigned a month or two after filing, not a week. This claim is moving fast.

Social Security is working on an updated version of its Best Practices for Representatives at the Appeals Council (link opens PDF of the new draft). This draft is much more extensive than the current version, and is worth reviewing.

Thanks to NADR for circulating this new draft. If you have comments on the draft, they can be emailed to Patricia.Jonas@ssa.gov.

Since we are discussing the Appeals Council, here is a copy of the always helpful Appointed Represesentative Guide to Requesting Appeals Council Review (link opens 2-page PDF)

The latest average processing time statistics for Social Security hearing offices around the country were published in the October 2013 Social Security Forum, a newsletter for NOSSCR members. 

The average processing time for the Portland, Maine hearing office is now 377 days, or just over a year. Remember, processing time runs from the date of the hearing request to the day a decision is issued. The 377 days is an average. Some claims are resolved more quickly, but a claim that requires a hearing and a written decision may take longer.

In my view, the processing time was hurt by the government shutdown. Although the hearing offices remained open during that time, the staff work came to a virtual standstill. And they have not recovered yet. I have a number of claims at the hearing level that are still "pending folder assembly," which means that the appealed claim has not been initially processed by the hearing office.

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Get help from a lawyer with your disability hearing

Has your claim been set for hearing in Maine or New Hampshire? Do not go to the hearing unrepresented!  Contact Gordon Gates for help.

The key evidence for Social Security disability claims is often a medical source statement, which is an opinion from a treating physician (or other acceptable medical source) regarding the functional limitations resulting from your impairments. The doctor's actual progress notes usually do not have meaningful information regarding a patient's functional limitations (my clients are often surprised by this), so an opinion on this issue is quite important for your disability claim. Further, Social Security must give special consideration to a treating source opinion.

However, a medical source statement is not always available. Many doctors will not provide them. I have several clients who go to a New Hampshire pain management clinic, and the clinic simply has a policy not to complete medical source statement forms. Whatever the reason, it is intensely frustrating when you have a disabled client who cannot get a treating doctor's opinion regarding functional limitations.

What can an administrative law judge infer from a lack of a medical source statement? In my view, nothing. There are lots of reasons why a doctor may not choose to complete the form. Nevertheless, I see ALJ decisions where the absence of a medical source statement is cited as a reason supporting an unfavorable decision.

What to do for a disability claim with no medical source statement?

  • Try again. Exhaust every avenue to get a medical source statement.
  • Beef up the other aspects of the claim, including nonmedical evidence. Consider a statement from a spouse, family member, or friend. Develop any evidence you can that demonstrates disability.
  • Explain at the hearing that this particular doctor does not provide these opinions. Don't allow the judge to assume that the doctor does not think that the claimant has significant functional limitations.

Lastly, hope for the best. The absence of a medical source statement gives the judge much more leeway, in my view. Nevertheless, disability claims without a treating doctor's opinion are approved every day.

There is an interesting Practice Tip provided by Illiniois attorney Eric Schnaufer in the September 2013 Social Security Forum, a newsletter for NOSSCR members. Attorney Schnaufer suggests submitting a treating source's curriculum vitae (CV) to the disability claim file. 

I think this is a great idea in certain cases. Some clients have treating specialists with impressive backgrounds. Submitting that doctor's CV can help to make the point that the claimant's treating doctor has a more reliable opinion than the guy who performed the consultative exam for Social Security.