Monday, January 25, 2016

Myasthenia Gravis and Social Security Disability

Myasthenia Gravis (MG) is a disabling neuromuscular disease that causes the muscles to become very weak when they are being used.  It is considered to be an autoimune disease and it breaks the communication between nerves and muscles.  MG has its own listing provided by the Social Security Disability regulations under the Neurological disorder Section 11.00.

Specifically , Social Security Listing 11.12 sets forth that the following conditions must be present in order to meet the listing:
A. Significant difficulty with speaking, swallowing, or breathing while on prescribed therapy; or B. Significant motor weakness of muscles of extremities on repetitive activity against resistance while on prescribed therapy.
Most Social Security Disability claimants do not have conditions related to MG that are severe enough to meet the listing.  However, due to the serious nature of the physical and mental limitations of the disease, they might not be able to work.  

With the help of a competent Social Security Disability Lawyer, a person with MG might be able to prove to the Social Security Adminstration that given his or her age, education and skill level there are no jobs that he or she can perform in the economy.  Social Security rules are very complex and there are many ways in which a person can prove his or her case.  A particular diagnois of a chronic condtion is not enough to win disability.  What really matters is being able to show the specific level of physical or mental limitations caused by the illness.    

Monday, January 18, 2016

Social Security's Use of CDI Units in Disability Cases

Social Security Disability Lawyers and their clients must be made aware of the increasing use of Cooperative Disability Investigations ("CDI") units by the Social Security Administration in disability cases.  CDI units have been created by the Federal Government to investigate allegations of fraud in the disability programs.  CDI units work with the Office of the Inspector General (OIG), state DDS and local and state law enforcement agencies.   It is important to take note of the new role of CDI units and its impact on pending SSDI cases.
Referrals to CDI units are typically made by DDS or SSA staff.  There is no clear guiding criteria for a referral.  Referrals can also be made by the hearing offices ("ODAR"), by private citizens or anonymous sources.  CDI units can investigate a case at any step of the disability process: at the initial application stage, at reconsideration, while a hearing is pending or while a claimant is receiving on-going benefits.  Once the CDI unit makes findings, it can send a report with the evidence gathered to DDS or to the ALJ.  DDS and the ALJ can rely on evidence gathered by the CDI unit to make their determinations.
Another very important aspect to note is that, upon referral, CDI staff will conduct a search of the claimant's social media accounts for evidence of fraud, including Facebook, Twitter and Google +. This is a clear departure from  the way that SSDI claims have been reviewed in the past few years. DDS and the Administrative Law Judges (ALJ's) do not look at social media accounts however, CDI units can.  If the CDI unit searches social media then, their findings can be turned over to DDS or to the ALJ.  For this reason, Social Security Claimants must be very careful with their social media postings and the privacy settings on their social media accounts.  CDI units will also interview claimants, talk to third parties and conduct surveillance of the claimant.    
As you all know, I practice Social Security Disability Law in Connecticut and Massachusetts. (Jurisdictions located within the 1st and 2nd Circuit Courts of Appeals.)  Issues involving CDI units have begun to arise in these two circuits.  For example, Donnelly v. Commissioner, 49 F. Supp. 3d 289 (E.D.N.Y. 2014) is probably the first case that discusses the use of evidence from a CDI unit in a Social Security Disability claim.  In Donnelly, the ALJ decided the case based on a report from a CDI that alleged that the claimant was able to move with normal gait an that she was able to move in and out of a car without any difficulty.  The District Court agreed with the ALJ that the CDI unit surveillance showed that the claimant's allegations were not credible.  The Second Circuit Court of Appeals upheld the district court's decision.  Another case in the District Court of Massachusetts that also also discusses the role of CDI Units is  Altman v. Colvin, No 14-CV.301-KAR (D.Mass Sept 1, 2015).
The rise of CDI units is part of an ongoing  Congressional effort to prevent Social Security disability fraud. The  bipartisan budget passed on 2015 specifically requires the SSA Commissioner to expand CDI units throughout the Nation.
If you or your lawyer becomes aware of a CDI unit investigation, you must demand that the agency provide you with a copy of the report.  The claimant must be given the opportunity to comment on the findings made by the CDI unit.  Failure to provide such an opportunity is a violation of a claimant's due process rights.  

Monday, January 11, 2016

What is the Elimination Period in a Long Term Disability Policy?

In a long term disability claim, the elimination period is the period of consecutive days that a claimant must be disabled in order to begin receiving monthly benefits.  Typically the elimination period is 90 or 180 days.  Sometimes the elimination period is also known as the waiting period.
Some employer provided disability plans also provide for short term disability (STD) benefits.  If your benefit plan also provides STD benefits, then the elimination period will last the same amount of time as the STD benefits.   
The elimination period is partly a cost saving measure created by the insurance industry, but also, its purpose is to allow a period of time to determine whether the claimant is likely to improve his  or her medical condition.
Just a few weeks ago, the Second Circuit Court of Appeals had the opportunity to issue a decision dealing with the question of whether a claimant had satisfied the elimination period before he could become eligible for benefits.  In Sobhani v. Reliance Std. Life Ins. Co., 2015 U.S. App. LEXIS 22041 the Circuit Court held that it was reasonable for Reliance Standard to require the the Plaintiff to show that he had "completed the Elimination Period".  In fact, the evidence on the administrative record showed that Sobhani had worked between 30 to 35 hours a week for several weeks during the elimination period.
Unfortunately, many long term disability claimants are not fully aware of what an elimination period is and engage in conduct during this period of time that clearly contradicts their allegations of disability.  Some claimants are not mentally or financially prepared to go unpaid during this period of time.  This is one of the many reasons why claimants must read their LTD plan carefully and consult with a disability lawyer before filing an application for benefits.  A careful reading of the plan with the assistance of a lawyer can prevent many mistakes frequently made by claimants during the initial application process. 

Monday, January 4, 2016

Winning SSDI / SSI with Inflammatory Bowel Disease (Crohn's and Ulcerative Colitis)

The term "inflammatory bowel disease" (IBD) is used to describe a group of gastro-intestinal diseases. Crohn's disease and ulcerative colitis are the most common forms of these conditions. Crohn's disease typically affects the large and the small intestine.  However, it also affects the mouth, esophagus, stomach and the anus.  Ulcerative colitis, on the other hand, affects mostly the rectum and the colon.
The Social Security Administration examines disability claims for Crohn's and ulcerative colitis under the same listing of disabling conditions: Listing 5.06 (Inflammatory Bowel Disease).  To be entitled to Social Security Disability Benefits pursuant to this listing a person must have a medical diagnosis of a condition that is classified as IBD and suffer from the following conditions: 
  • Untreatable anemia
  •  Bowel obstruction
  • Abscess or fistula
  • Significant weight loss of more than 10% of a claimant's body weight
  • A tender abnormal mass with pain or cramping
Moreover, the conditions described above must also exhibit the specific complications described in listing 5.06.
If a claimant does not meet the listing, he or she can still win Social Security Disability if it is demonstrated that the limitations caused IBD prevent him or her from performing any occupation in the national economy.  It is important to keep in  mind that most Social Security Disability cases are not won because a claimant meets a Social Security Disability listing.  Instead, most cases are won by showing that the physical and/or mental limitations caused by a medical condition don't allow a person to perform any type of work.  For this reason, it is a mistake for claimants to place too much emphasis on trying to meet the listing.  Instead, claimants who suffer from Crohn's or ulcerative colitis need to concentrate on explaining how their condition imposes limitations on work like activities.  Some of these limitations might include frequent absences from work, frequent breaks and loss of concentration due to pain and fatigue.     
With the help of a competent Social Security Disability lawyer a claimant can present a compelling story of how IBD prevents him or her from working.  A lawyer can assist in explaining to Social Security how the claimant's age, work skills and education factor in the disability determination process.  Moreover, a good lawyer can also assist in explaining how other co-morbid conditions cause other work related limitations.