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In a recent blog post entitled “Get It Written Down!” Chicago disability attorney Aaron Rifkind tells the story of a claim that was granted quickly due to the completeness of his client’s medical records.

I told her that it was because of her thorough medical records that we were able to win so quickly. She responded, “My records are so thorough because every time I go to the doctor, I tell him to make sure to write down everything I tell him, every complaint, and every pain I have, if you don’t do that then no one will ever know what you have.” And you know something, she is right!

One of the best things an individual can do when applying for Social Security disability benefits is to make sure that all of the complaints and medical issues are in writing.

This is an important point. Be sure to tell the doctor your symptoms, and make sure that your doctor writes them down.

Your medical records – the doctor’s treatment notes and progress notes – are maintained to keep track of your medical care, as a tool to assist your doctor with your treatment. Those notes are not created to be used for the purpose of establishing a disability claim. However, your medical records are the principal evidence for your Social Security disability claim, and the symptoms listed in your records will be used by the Social Security Administration to assess your work-related limitations.

In general, doctors do not focus on how your symptoms affect your daily activities. You should tell your doctor about your symptoms and how they affect your life. This information will help your doctor better understand your medical condition. The resulting medical record may also help your disability case, since your symptoms and their effects on your activites will end up in the doctor’s progress notes, and those notes will be used by SSA to establish your work-related limitations.

Be specific. Instead of saying to the doctor “my back hurts when I stand too long,” say “after 15 minutes of standing my back hurts so much that I have to sit down for 15 minutes.” Give the doctor some specific details to describe the effects of your medical condition. The same is true for mental limitations, such as depression or anxiety. Rather than saying “my depression is a little better (or a little worse) this month,” say “I was so depressed that I could not leave the house for 6 days last month.” Give your doctor some specifics. And make sure the doctor writes it down.

Every two weeks, I publish links to notable posts from the Social Security disability blogs. And sometimes I add a picture of my daughter Bridget, shown above.

Having to complete the Disability Report – Appeal (Form SSA-3441-BK) means that your claim has been denied. This form accompanies the appeal of the unfavorable determination of your application for Social Security disability benefits.

That initial denial is often a shock to people who have applied for disability benefits because they can no longer work. Don't miss the 60 day appeal deadline. You do not want to start all over with a new claim. The form can be completed online, or you can complete the form by hand. Download a copy of the form SSA-3441-BK here.

The Disability Report – Appeal is an update. The form specifically asks about any changes in your medical condition, new limitations, and new treatment since you filed the last a disability report. The report also asks for a list of your current medications. You don't have to rewrite the entire Adult Disability Report that you completed (either online or on that green paper form) when you first applied for benefits.

This is an appropriate time in your case to obtain legal help. The appeal process is an excellent opportunity to frame the issues in the claim for an eventual hearing. I would much rather get involved right now than later in the process. Remember, an attorney fee is contingent upon winning your claim, so it does not cost a penny to get help right away.

 

Social Security periodically conducts continuing disability reviews (CDRs) of those receiving disabillty or SSI benefits. See 20 C.F.R. 404.1589.

A medical review determines if an individual continues to meet the medical requirements to collect disability benefits. If the person does not meet the medical requirements, the SSA may stop the disability benefits. These reviews are scheduled every few years, depending upon the likelihood of medical improvement in a particular case.

Sometimes you see a recommended time period for a CDR in an administrative law judge's decision. For example, I had a case recently where the judge granted disability benefits to a 39 year old worker suffering from severe thoracic back pain. The very end of the decision stated: "Medical improvement is expected with appropriate treatment. Consequently, a continuing disability review is recommended in 18 months."

A spoonful of sugar helps the medicine go down.

In my view, when a judge makes a recommendation for a quick CDR, it makes the judge feel better about granting disability benefits, particularly to a younger individual. In general, judges do not like the prospect of putting a person on disability for what might turn out to be many years. However, knowing that the claim will be reviewed again soon tends to relieve this concern.

Every other Friday, I publish links to a selection of notable posts from the disability blogs.

I have linked to four posts written this week about the remarkable lawsuit against the SSA alleging anti-claimant bias by five administrative law judges in the Queens, NY hearing office. Here is the New York Times article on the lawsuit. Here is a copy of the complaint (link opens a pdf).

Here are the recent notable posts that are not related to the Queens hearing office bias case:

Sometimes there is a physical residual functional capacity (RFC) assessment in the disability claim file from a single decisionmaker. That means the RFC assessment from DDS was not completed by a doctor. At the hearing level, a single decisionmaker RFC should be located with the "A" exhibits in the disability claim file, rather than with the medical evidence in the "F" exhibits. A single decisionmaker RFC must be given no evidentiary weight by the judge at the hearing level.

This topic was the subject of a memorandum from former Chief Administrative Law Judge Frank Cristaudo, dated May 19, 2010. However, that memorandum has been revised by a September 14, 2010 memorandum by Associate Chief Administrative Law Judge John P. Costello. Here is a copy: Download Revised SDM memo. Thanks to New York disability attorney Jeff Delott for emailing the revised memorandum to me.

An Administrative Law Judge may not rely on a single decisionmaker RFC to support an unfavorable decision at the hearing level. For "prototype" states without Reconsideration, that single decisionmaker RFC is probably the only physical RFC in the file. So to have it off limits is quite beneficial for the claimant.

Be sure to check whether or not the DDS RFC is from a single decisionmaker. You do that by checking the signature line on the RFC form.

A "Notice of Reconsideration" letter states that your disability or SSI claim has been denied for a second time by Social Security. When you get a Notice of Reconsideration in the mail, there are a few things to remember:

  1. The first is do not be discouraged. 7 out of 8 Reconsideration claims are denied, and the majority of these denied claims are approved at the hearing level. See this chart to see how the percentages improve at the hearing level.
  2. The second is to call or email your lawyer, and let him or her know. We are supposed to get copies of all correspondence going from Social Security to our clients, but it does not always happen. Just last week I had a client receive a Reconsideration denial, and this office was not sent a copy. If the client hadn't called me, I would not have known until the next time I checked on the claim. It is possible to miss the 60 day appeal deadline under these circumstances. Don't let that happen. Contact your lawyer, and make sure the claim is appealed right away. Chances are the lawyer's office has also received the notice. That's fine. It is also good time to discuss a plan to develop the evidence necessary to turn the negative result around, so you get a fully favorable decision at the hearing level.
  3. If you do not have a lawyer, be sure to appeal the denied claim right away by contacting your local Social Security office.
  4. Lastly, if you are not represented by a lawyer, it is a good time to seek out counsel. There is usually plenty of time after a Recon denial and before the hearing to develop the evidence that will support a favorable decision. The next step after Reconsideration is a hearing before an administrative law judge. You want a lawyer for that, in my view. It does not cost one penny to hire a lawyer for a Social Security claim. Any fee will be paid in the future, if you win your claim. There is no fee should you lose your claim. You can read more about attorneys fees here.

In summary, if you receive a Reconsideration denial from Social Security, don't get discouraged. There is hope. Make sure the denied disability claim gets appealed, and get in touch with your lawyer or find a disability lawyer if you don't have one yet.

Every other Friday, I publish links to recent notable posts from the Social Security disability blogs. From time to time, I also take the opportunity to show a recent picture of my daughter Bridget, who will have her first birthday this month.

Here are the recent notable posts from the disability blogs:

Remember that you can submit a statement from a spouse, parent or friend in support of a disability claim. 20 CFR 1513(d)(4) states that Social Security will consider evidence from other non-medical sources (for example, spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy).

When you have the right person with the right story to tell, it can be powerful evidence. A non-medical, or "lay" statement is powerful evidence because it puts a disability case in a human context. Lately I have been requesting a statement from the spouse more frequently. I have yet to receive one that has not been thoughtfully written and compelling.

The statement is usually a 2 or 3 page typed document. It will usually tell the story of how the claimant used to be, what changed medically, and what life is like now.  There is a genuineness to these statements, and they are often very moving. 

Ideally, the statement should be in the record when the judge reviews the claim prior to the hearing. In a typical case, prior to the hearing the judge can only review the medical records and various Social Security forms that are in the claim file. The human element is pretty scarce until the actual hearing, when the judge finally meets the applicant. The statement adds the human element to the disability claim file in advance of the hearing.

The statement often provides an excellent summary of the claim. And since the statement is in the record as evidence, you can refer to it in your pre-hearing brief. 

Look at the cases you have coming up for hearing. One or more of them might benefit from a statement from a spouse.

 

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.