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Today is the birthday of Franklin D. Roosevelt, 32nd President of the United States, founder of the New Deal and the Social Security system.

As one who toils in the field that FDR made, I honor his memory today.

FDR was also a polio survivor. It is fitting that the Social Security system he created recognizes post-polio syndrome as a basis for Social Security disability.

A client recently retained me after receiving an inital denial of his Social Security disability claim. He over 55 years old, and can no longer do his past relevant work, partly due to knee and ankle problems resulting from an old injury.

I have reviewed the disability claim file, and he was denied disability because a doctor at DDS reviewed his medical records and assessed an RFC for medium work.

What does medium work require? Medium work means lifting up to 25 pounds frequently (from 1/3 to 2/3 of the day) and up to 50 pounds occasionally (up to 1/3 of a day). See 20 C.F.R. 404.1567(c). Medium work means being on your feet for most of a workday. Also, the full range of medium work requires both frequent stooping and frequent crouching. See Social Security Ruling 83-14.

My new client cannot do these things. To win at Reconsideration, the medical evidence of record must demonstrate his strength limitations.

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

You can learn more about PPS by reading The Post-Polio Syndrome Fact Sheet.

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 the sequential evaluation process. More often however, the cumulative and interactive effects of all of the individual's impairments, including PPS symptoms, will be assessed in determining that claimant's residual functional capacity.

Tens of thousands of people in the United States suffer from post polio sequelae. I was unaware of how serious a condition it can be until recently, when I spoke with a prospective client on the phone, and did some research.

Administrative law judge Fred Harap has retired. Judge Harap has been a fixture at the Manchester, New Hampshire Social Security hearing office for many, many years. He will certainly be missed.

There is no word yet whether Judge Harap will remain in New Hampshire in retirement, or move to Hawaii, where his son lives. As I look outside this January morning at several feet of snow and a thermometer at 20 degrees, my vote is for Hawaii.

An error in the Explanation of Determination attached to your denial letter can present an opportunity for your Social Security disability attorney to practice some legal jujitsu. The error can be used to support an argument for reversal at the next stage of review. This argument is the most powerful when, but for the error in analysis, the claim should be granted.

For example, I have a new client who recently received his initial denial letter from Social Security. The explanation stated that the claimant cannot do his past work, but concluded that there is other work involving less strenuous lifting that the claimant could perform. That's standard step 5 language.

The problem with that analysis is that this claimant is almost 60 years old. Once you rule out past relevant work, if you limit a 60 year old claimant to jobs with no heavy lifting, that claimant must be found disabled (in the absence of transferable skills or education that leads to direct entry to skilled work) under Social Security's own Medical-Vocational Guidlelines.

This claim should be granted. A 60 year old claimant with an unskilled work background grids "disabled" even at the medium exertional level. {correction: actually, not quite. To grid "disabled" at the medium exertional level, a claimant must have an unskilled work background and a limited education or less. See Rule 203.02}

A recent article by Jericho, NY disability attorney Jeffrey Delott started me thinking more about this issue. Jeff wrote that he always highlights the defects in the explanation when he makes an on the record request at the hearing level.  Jeff's blog is always interesting reading, since most of his articles involve actual case stories. The blog also has a spiffy new design.

For more information about working with me, with no obligation whatsoever, simply email me, complete the contact form, or call me. 

Please feel free to call me on the telephone. I would be happy to discuss your disability claim. Some people call me when they are trying to decide whether or not they should file a disability claim, and we discuss their situation. Others contact me when their claim has been denied, and we discuss an appeal of that denial and how to achieve a favorable result. 

There is certainly no fee for a consultation when you call, and you will be able to speak directly with me. So please feel free to call me. I will happily answer any questions you have and make sure you get the information you need.

If you do not want to call on the phone, or if it is after business hours, please send an email or submit the free evaluation form. When I receive your evaluation request, I will call you or reply by email as soon as possible.

Tel     (207) 284-9999 (Maine)
Tel     (888) 200-4484 (toll free New Hampshire & Maine)

Email   gordon.gates@gmail.com

Fax    (888) 774-0270

Maine office
Suite 1404  (send mail to this address)
110 Main Street  
Saco, Maine 04072

New Hampshire office
Suite 54    (by appointment)
83 Hanover Street
Manchester, NH 03101

When Social Security denies a claim for disability benefits at the initial or reconsideration level, the SSA provides a personalized "Explanation of Determination" on the last page of the denial letter. The denial letter is otherwise a form letter.

The information or analysis in these explanations is often erroneous. As noted by Charles Hall in Social Security News, a recent GAO report found the explanations actually misleading in a significant number of claims.

I've seen hundreds of these explanations. Often, the denial letter is what sparks the search for a Social Security disability attorney, and the denial letter is the first thing I look at when I meet with a new client.

The explanations are occasionally so wrong that it would be funny, if it weren't so sad. Needless to say, these letters cause a fair amount of distress to claimants.

The lesson for claimants is don't get upset by a denial letter, even if the explanation of determination is wrong, or does not reflect the severity of your impairments. Take action instead: make sure you appeal the denial within 60 days. If you don't already have the assistance of a Social Security disability attorney, it's time to talk with one.

Colorado Springs disability lawyer Tomasz Satasiuk has published an article on his Colorado Social Security Law blog entitled Should I see a specialist when applying for Social Security Disability?

Tomasz and I agree that the answer is: YES!

Depending upon your impairment, a specialist's opinion can be very important both for your medical care and for your Social Security disability claim.

Three particular situations come to mind:

  1. If you suffer from fibromyalgia, it is very important to get that fibromyalgia diagnosis from a rheumatologist. The American College of Rheumatology sets forth the diagnostic criteria for fibromyalgia. There is a world a difference between a rheumatologist's diagnosis of fibromyalgia and your primary care doctor's diagnosis of a "fibromyalgia-like syndrome."
  2. If you have Lyme disease, you should see an infectious disease specialist who specializes in Lyme disease. Such expertise is very important both for your medical care and for your disability claim.
  3. If you suffer from a mental impairment (such as anxiety, depression or bipolar disorder), it is very helpful to have a psychiatrist or psychologist involved in your medical care. In my view, if your family doctor is the only one treating your severe anxiety and depression, you will have problems with your Social Security disability claim.

That's just three situations that come up over and over again in my practice. There are certainly others.

In addition to more focused medical care for you, a specialist's opinion is given greater weight by the SSA. See 20 C.F.R. 404.1527(d)(5).

I am frequently asked questions about attorney's fees from prospective Social Security disability clients. This is understandable. Many claimants are unfamiliar with the contingency fee arrangement used for Social Security claims. Some are concerned that retaining an attorney will cost them money at a time when they are not working and need every penny.

To explain how attorney fees are handled in Social Security disability claims, I have added a new About Attorney Fees page to this blog. A permanent link to the new page has been placed in the "Important Topics" section on the sidebar.

For more on attorney fees for Social Security disability claims, you can read the SSA's description of the fee agreement process. Additionally, Wisconsin Social Security attorney Donald Chewning has a recent article on the topic.