Transcription:

“Hi, my name is Andrew Kinney and I’m an attorney with Hoglund Law. I practice Social Security Disability Law and also Supplemental Security Income Law.

One of the things I wanted to talk to today is, as of this filming, something that happened about a week ago. Social Security has changed one of its laws and it may raise some questions about whether you can be approved based on this law. Social Security has definitions of disability that describe what sort of elements you need to meet the criteria for certain kinds of problems. Halo back problem to meet what’s called a listing would need to meet certain elements. What Social Security has recently done as of June of 2011 is remove the diabetes listing, so this certainly causes concerns and the American Diabetic Association is one of the groups that had not wanted this to happen, but despite that the law has changed. So, what does it mean?

One thing it does not mean: It does not mean you cannot be approved of Social Security benefits, do not believe that. One of the things in my practice at Social Security hearings in particular, I’ve noticed that when someone has diabetes I generally look for side effects of diabetes, for instance is someone has neuropathy of their toes or their hands or they have other problems like retinopathy. Diabetes as people that have it well know, can affect other parts of the body. Generally what I would argue in hearings isn’t necessarily diabetes listing anyway. What I would argue is the symptoms from diabetes that despite regular insulin and regular care have still risen, so don’t worry about that. As far as with Social Security and going to a hearing, one of the things that happen is that Social Security, at the first two lower levels –state agency levels — they make decisions too.

There’s an application, reconsideration, and then a hearing level. It’s at the hearing level that you generally see more of the attorney work. At Hoglund Law Offices, we help people apply, we help people appeal, and we help people in any stage. Generally we consider where they are and their chances of approval.

If you have questions about diabetes or you have questions about getting approved of Social Security benefits, feel free to call our office at 1-800-850-7867. You can also visit our website at HoglundLaw.com. Thank you very much.”

Related posts:

1. Beating Type 2 diabetes may be just that simple
2. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes
3. Nigh shift workers are at greater risk for Type 2 diabetes

Hoglund Lawyer Andrew Kinney

Legal strategy is important in Social Security benefits claims.  That is why many people applying for Social Security disability benefits (and SSI benefits) hire a law firm with licensed lawyers and experienced paralegals to help them.  One area of legal strategy involves the best way to manage the medical evidence in your claim. It can take a long time to get your hearing day with a judge for your Social Security disability benefits claim.  Once you have your hearing, should your lawyer simply wait for the decision?  Not necessarily.

Hearings for Social Security Disability Insurance (SSDI) claims and Supplemental Security Income (SSI) claims involve medical evidence. All medical evidence should be requested and submitted electronically as soon as it is received so it is available before the scheduled hearing day for review by your judge and the experts. Sometimes, for whatever reason, not all the evidence is available on the hearing day.  Also, sometimes there is other evidence that will support your medical treatment evidence.  What is it?  How can your lawyer submit it?  This depends on the kind of evidence that you need to prove your claim and the experience of your law firm.

Unimportant evidence

Not all evidence carries the same weight in your claim for Social Security benefits.  If there is missing evidence on the hearing day that is non-essential to your claim, your lawyer should explain that — in his or her legal judgment — this evidence will not make a difference in your case.  For example, if you have depression as your primary disability, new chiropractic records for a minor back problem are unlikely going to impact the judge’s decision.

Slow Treating Sources

If the missing evidence is essential to your claim, such as from a regular treating source, your lawyer should ask the judge to “hold the hearing record open” to receive these records post-hearing. This offers extra protection to avoid a decision before the missing evidence gets into the post-hearing record.  For example, if your MRI of your lower back was taken three weeks before your hearing, it may be available soon after the hearing.  In a back case, this can be critical evidence.  Your lawyer would ask the ALJ to hold the record open to receive the MRI, usually with a deadline.  Your lawyer may also submit a legal argument along with this post-hearing evidence if necessary to emphasize the relevance of the new test. Licensed legal training matters.

Subpoenas

What if your law firm, despite due diligence, cannot get your medical provider to release important records before (and even after) a hearing?  If the medical evidence is essential to your claim, your lawyer should request the ALJ to subpoena these records.  At Hoglund Law Offices, a subpoena request is rare.  We try to avoid them by making multiple record requests and follow-ups.  Under the right circumstances, though, an ALJ’s subpoena for medical records gets results.  Your lawyer should be familiar with the regulations about subpoenas.  Your claim may hinge on this evidence.  If you are unsure about your law firm’s experience in this area, ask.

Forgotten Treatment

What if you forget to tell your law firm about medical treatment before the hearing?  Regretfully, this can happen.  Tell your lawyer immediately about this — even after a hearing.  Your lawyer can only request records he or she knows about.  Sometimes your lawyer can request a judge to hold the record open after the hearing by explaining what happened.  Sometimes simply submitting the new records is the only option.  New evidence may, at a minimum, be relevant on appeal.  Ask your law firm about strategies for Appeals Council appeals.  Good lawyers plan how they would appeal every case, including yours.

Uncovering New Evidence

How does a Social Security law firm with experience where you live help you?  Good local law offices can have intuitions about where related medical records are.  Your law firm’s experience and persistence with your region’s different medical facilities can help ensure that requests, once made, get where they need to.  But even the best intuition still needs your help.  If you haven’t had a hearing yet, try to write down everywhere you have received treatment — especially since you stopped working.  A one-time visit with a neurologist can make a difference in your claim depending on the other medical evidence.  All treatment can count.  Your lawyer can ultimately decide what’s important.  At Hoglund Law Offices, our lawyers make these kinds of decisions all the time.

Creative Evidence

Your law firm’s experience can count, particularly when it comes to creative evidence.  Evidence is not limited to traditional medical records.  At Hoglund Law Offices, we find alternative evidence can be strong secondary support for medical treatment records. Depending on the situation, we can submit county forms from physicians for welfare benefits, VA benefits decisions, court commitment evaluations, personal medical journals, workers’ compensation evaluations, child custody documentation of inability to work, vocational training records, and the list goes on. Sometimes a point of contention first arises at the hearing.  In these situations, a post-hearing treating medical opinion can “plug a hole” in the evidence.

Hopefully after reading this, you can see how legal experience can impact what your lawyer and your law firm does before and after your Social Security hearing.  How your lawyer handles your evidence can make a difference.  If you have questions about Hoglund Law Offices or our Hoglund Lawyers, please feel free to visit HoglundLaw.com or call us toll-free at 1-855-780-4357.

Andrew Kinney, Esq.

*** Attorney Andrew Kinney speaks locally, statewide, and nationally on Social Security Disability Law.  If you wish for him to speak or train at your upcoming professional function, please contact his offices for details.  For examples of topics in our Hoglund Lawyer Disability Library, click here:  Top 5 Ways to get Approved for Social Security Benefits.

Related posts:

1. Submitting Evidence After Social Security Hearing
2. How the Social Security Disability Process Ignores the Real Job World
3. Download your FREE Hoglund Lawyer Guide to Social Security Hearings

As an attorney representing clients in Social Security disability benefits claims, I have helped a number of people who suffered from traumatic brain injuries, or TBI.  In just the last couple weeks, I have helped 4 people in this situation. Some discussion of the challenges proving disability in these cases may help others.  Please feel free to pass this blog along to others.

Over the years, my clients with TBI have been in bad car accidents, have fallen from heights, have suffered from failed suicide attempts, or were victims of violent assault.  Some suffered brain trauma from medical conditions such as a stroke.  Whatever the cause, what does Social Security look for when evaluating such a person’s ability to work a full-time job?

First, let’s go to the “Listings,” or definitions, of disability the Social Security Administration uses to initially evaluate TBI.  Under the title “organic mental disorders,” Social Security lays out what combined functional limitations would automatically result in disability for TBI:

12.02 Organic mental disorders: Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities.

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

A. Demonstration of a loss of specific cognitive abilities or affective changes and the medically documented persistence of at least one of the following:

1. Disorientation to time and place; or

2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or

3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or

4. Change in personality; or

5. Disturbance in mood; or

6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or

7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., Luria-Nebraska, Halstead-Reitan, etc;

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;

OR

C. Medically documented history of a chronic organic mental disorder of at least 2 years’ duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or

3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

These definitions appear clear enough, but these standards are difficult to prove in practice.  Why?

Let’s discuss the reality of TBI, which many of you reading this may already know too well.  The brain is complicated.  Brain injuries can cause much physical and mental damage depending on the type of injury.  In some ways, the brain can recover over time — especially for those who are younger.  In other ways, the brain cannot fully recover.  TBI can involve a very complicated and drawn out recovery.  It is always good to work for improvement, but recovery can be elusive.

In Social Security’s world, it is not enough to have behavioral changes from TBI.  Social Security needs objective measures of cognitive dysfunction.  For example, you can have a personality change from a TBI, but this does not necessarily result in marked limitations in social functioning as required by the “B” criteria of the Listing above.  In other cases, short-term memory is affected, but not long-term.  How exactly does this correspond to the ability to concentrate?  A common thread in many of my TBI clients is a very short-temper.  How do you objectively measure these problems to prove disability?

Neuropsychological testing.  In my legal experience, this testing is the gold standard for TBI cases.  If I go to a hearing, I can argue testing results that objectively measure the damage to cognitive function.  I did it at a hearing today.  ”Neuropsych” testing teases out many intangibles of cognitive dysfunction in ways that traditional mental health treatment cannot.  Personality “quirks” that come out during a 1/2 hour mental health appointment may actually be pathology from a TBI.  How do you get this testing?  Ask your mental health provider.  Psychologists giving these tests have specialized training.  This testing can help you recover from a TBI.  Results can direct psychological treatment and strategies for occupational therapy.  I have seen some providers order neuropsych testing relatively soon after a TBI and another at a later interval to measure improvement against the original baseline test.

If you or a loved one believe you have problems associated with a TBI, even post-concussion syndrome, make sure to point out your specific concerns to the doctor.  The doctor can only treat problems he or she knows about.  Describe your concerns, big and small, and ask questions about the right treatment for you or your loved one.  If you have further questions about how to argue for Social Security Disability benefits for TBI or any other disability, you should contact an attorney in a law firm about your specific legal situation.

Only lawyers in law firms can give you legal advice.  If you wish to contact us, you can reach Hoglund Law Offices at 1-800-850-7867.  We have licensed lawyers to assist you.  You can also visit our website at HoglundLaw.com.

Andrew W. Kinney, Esq.

Hoglund Law Offices

5/9/11

Hoglund Lawyer Andrew Kinney

No related posts.

Hoglund Lawyer Andrew Kinney is speaking at a national conference in May.  The topic is cross-examination of expert witnesses.

The session “Cross-Examining Experts: From Theory to Practice” has been scheduled for Friday, May 13, at 2:45-3:45pm.

The conference will be held in Baltimore by the National Organization of Social Security Claimants’ Representatives (NOSSCR).  For more information about NOSSCR, check out their web site:  NOSSCR.org

Andrew Kinney spoke on cross-examination at the national conference last September in Chicago.  Click here to view the presentation materials:  “Rethinking Cross-Examination”

Related posts:

1. Hoglund Law Offices Attorney Presenting at National Conference
2. Download your FREE Hoglund Lawyer Guide to Social Security Hearings
3. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes

Hoglund Lawyer Andrew Kinney

Chemical dependency (CD) can destroy your Social Security Disability benefits claim.  As an attorney who argues these kinds of claims every week, I’ll explain how this happens.  I’ll also explain how to make Social Security take your benefits claim seriously.

The Law

From my legal perspective, chemical dependency usually takes one of three forms:  Addiction to alcohol, illegal drugs, or prescribed medications.  Most often, I see chemical dependency issues in my clients with depression and anxiety.  It is not always clear which one came first.  My instinct tells me that, in most cases, the mental illness comes first.  Unfortunately, social security does not always care.  In the 1990′s, social security changed the law about how to evaluate chemical dependency.  Before this change, chemical dependency was its own disability.  After this change, chemical dependency became a basis for denial.  In social security’s view, chemical dependency exaggerates symptoms of mental illness and other impairments.  Social Security also attributes chemical dependency with reducing the effectiveness of medication.  This can be true.  But the actual cause and effect is usually unclear.  Experts in this field have confirmed this with me.  Regardless of this truth, people struggling with chemical dependency these days face an uphill battle in their social security claims.

Why Help Yourself?

What can you do about chemical dependency?  The most important thing is to get professional help now if you (or people you know) think you may have a chemical dependency problem.  Addictions of any kind can have a devastating effect on your health.  They can also unwittingly impact those who care about you.  Candor with your doctors and chemical dependency treatment by professionals is often the best way my clients get themselves out of this hole.   The present law, however imprecise and unscientific at times, can blame your disability on your chemical dependency and deny your claim.  Social Security denies legitimate claims by blaming chemical dependency.  I witness it first-hand all the time.

From my legal perspective, my clients who have gone to get professional help for their chemical dependency have strengthened their Social Security claims.  I can usually make stronger arguments in their favor on three basic levels.  First, clients who treat for chemical dependency are more credible.  I can argue that they have tried to help themselves.  Clients who recognize they may have an addiction and try to overcome it are more likely to get the decisionmaker’s ear.  The rationale is this:  It is easier for decisionmakers (or anyone, for that matter) to sympathize with people who are trying to get out of their holes rather than blaming society for them.  Second, clients who treat for chemical dependency generally have better medical records.  With treatment for chemical dependency, I can argue how medical records parse out chemical dependency from the underlying medical problems.  Third, clients who treat for chemical dependency also have stronger claims because they create a stronger platform for their underlying medical problems.  If I have clients who have overcome chemical dependency, I can argue that their medical problems have not changed in the 3 to 6 month window after they have quit.  If erasing chemical dependency does not change the severity of other impairments, it is undeniably logical  that chemical dependency was not “material” to their disability.  But if being clean and sober does make them better, they might be able to work.  In my book, this is the best case scenario.  When possible, working is a better alternative than benefits.  I wish all my clients got better.

What if I am Still Actively Addicted?

There are still some legal arguments if my clients are struggling with active chemical dependency.  In these situations, I look for how their treating providers view the chemical dependency.  Medical records generally rank order diagnoses, starting with the most significant.  Sometimes chemical dependency is not the first, or primary, diagnosis.  In these circumstances, there is an argument that chemical dependency is a secondary condition and therefore is not to blame for how bad the primary condition is.  Note, however, that this argument can be difficult.  Other arguments in this situation are similarly difficult.  For example, there is an argument that substanced-induced mental illnesses have diagnosis codes custom-tailored for “material” (a legal term) chemical dependacy.  A health professional who does not choose these codes arguably has not found chemical dependency material.

Chemical dependency is a very difficult problem.  Not feeling well does not make it any easier to face.  Getting help is a first step to getting out of this deepening hole.  If you have a social security benefits claim, it is important that Social Security focuses on the truth of your underlying medical problems.  Removing the fog of chemical dependency can not only help you, but it can also help your claim for benefits.

If you do not have an attorney helping you with your claim, it is important to get legal advice specific to your situation.  If you want legal advice from one of our lawyers at Hoglund Law Offices, you can reach our offices at 1-800-850-7867.  There is no fee unless you are approved.  If you are approved, our only fees are 25% of your backpayment of benefits.

→ Click Here to Download your Free Hoglund Lawyer’s Guide to Security Security Hearings

Andrew Kinney, Esq.

AMDG

Related posts:

1. Top 4 Social Security Client Questions about Getting the Right Medical Treatment for your Social Security Claim
2. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes
3. Download your FREE Hoglund Lawyer Guide to Social Security Hearings

Hoglund Lawyer Laura Ross

1.  How do I prove that I am disabled due to diabetes?

Diabetes can be a very serious disease with multiple complications.  As with any claim for social security disability benefits, it is imperative that you treat regularly with a doctor, and follow their recommendations.  Lab reports are going to be important to show fluctuating blood sugar levels despite a regular course of treatment.  It is also essential that your symptoms are documented within your medical records.  Try to be as specific as possible when discussing your symptoms with your doctor.  For example, if you suffer from numbness in your hands and feet, tell your doctor exactly what activities are affected –such as using a computer, picking up change, or standing for extended periods of time.  

A. Neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C); or  

B. Acidosis occurring at least on the average of once every 2 months documented by appropriate blood chemical tests (pH or pC0₂ or bicarbonate levels); or  

C. Retinitis proliferans; evaluate the visual impairment under the criteria in 2.02, 2.03, or 2.04.  

* In order to be approved for benefits, you must prove at least one of the above requirements.*  

2.  What is neuropathy and how do I prove it?   

Neuropathy is nerve damage.  Symptoms may include muscle weakness, cramping, spasms, tingling, numbness, and pain.  To meet the listing based on neuropathy, the claimant must show that at least two of his or her extremities (arms or legs) have such nerve damage that he or she has difficulty using them due to pain, numbness, etc.  An individual’s ability to stand and walk will be analyzed, as well as balance and coordination.  

If you have been experiencing numbness, weakness, and pain and have not been diagnosed with neuropathy, it is extremely important that you bring this to your doctor’s attention.  Specific testing needs to be conducted to confirm the diagnosis.  

3.  What is acidosis and how does Social Security view it?   

Acidosis is defined as excess acid in the body fluids.  Diabetic ketoacidosis (DKA) is a potentially life-threatening complication in patients with diabetes mellitus, resulting from a shortage of insulin.  It may occur due to illness, poor compliance with insulin therapy, or other reasons.  Symptoms may include vomiting, dehydration, difficulty breathing, confusion, and coma.  Without proper treatment, diabetic ketoacidosis can lead to death.  Again, an individual must do their best to follow prescribed treatment for diabetes in order to be found disabled.            

4.  What is retinitis proliferans and when might this allow an approval for benefits?   

Retinitis proliferans is inflammation of the retina.  Diabetic retinopathy is analyzed under the third sub-section of the Diabetes Mellitus listing.  Social Security will evaluate a person’s vision difficulties under the following listings:  

• Loss of Visual Acuity (2.02)
• Contraction of the Visual Fields in the Better Eye (2.03)
• Loss of Visual Efficiency (2.04)

A person meets this listing if their vision after correction in the best eye is 20/200 or less, or other technical requirements involving their peripheral vision and loss of visual efficiency.     

5.  What if my symptoms from diabetes do not meet Social Security’s Listing of Impairments?   

 If your diabetes does not meet or equal Social Security’s criteria under the listings, your symptoms may still cause significant functional limitations which may prove you are unable to work.  An individual may have difficulty walking, standing, or may need to elevate their legs throughout the day.  Numbness in one’s hands may prove difficulty with tasks such as writing, typing, and using small objects.  Vision problems may prevent an individual from reading, using a computer, using small objects, or avoiding hazards in a work environment.  The functional limitations in combination may be enough to prove that no work would exist in the national economy for this individual.  

6.  I received my first denial in the mail.  Now what?  

Most claims are denied at the initial and reconsideration levels.  It is important not to give up, follow the appeal timelines, and being fully prepared at the time of a disability hearing.  Having representation and medical record documentation will make for the best chance of success.  If you have not hired a lawyer, you should get legal advice about your particular situation.  If you wish to call us about legal help with your Social Security disability claim, you can reach us toll-free at:   1-800-850-7867 or through HoglundLaw.com.

Laura Ross, Esq.  

→ For a free Hoglund Lawyer Guide to Social Security Hearings, click here:  Free Guide

© 2010, Hoglund Law Offices.  Reprint with written permission.

Related posts:

1. Beating Type 2 diabetes may be just that simple
2. Social Security Law and Diabetes
3. Hoglund Lawyer Speaking at National Social Security Benefits Conference this May

Hoglund Lawyer Andrew Kinney, Esq.

 → Click Here to Download your Free Lawyer Guide to Security Security Hearings   

Hoglund Lawyer Andrew Kinney, Esq., has just published a free “Client Legal Guide to Social Security Hearings.”  Finally, a way to understand what to expect at a hearing from a Hoglund Lawyer who does 400-500 Social Security hearings a year!   

This free 28-page client guide explains the entire hearing process, and shows you how your Hoglund Lawyer can help you get approved for Social Security benefits. 

Andrew Kinney explained why he wrote the guide:           

I wanted to help our clients understand what to expect at our hearings.  There are federal judges and experts, and the process can be scary even with one of our Hoglund Lawyers there with you.  We’ve found over the years that our clients benefit from knowing what’s going on at the hearings — especially when we are cross-examining experts or giving closing legal arguments.           

An excerpt from page 26 of the free Hoglund Lawyer Guide:         

Know that at your hearing, you are helping the judge understand your medical problems.  Most people know how they feel day-to-day.  Your attorney can describe the kinds of questions the judge may ask.  The judge can read your medical records, but you are there in person to give your side of the story and make your situation ‘real’ for the judge.           

This full color, fully indexed and bookmarked Hoglund Lawyer Guide answers these questions:      

• What is a Social Security benefits hearing?
• What am I trying to prove at my Social Security benefits hearing?
• Are there different kinds of Social Security benefits hearings?
• Who is at my Social Security benefits hearing?
• What will happen at my hearing?
• What should I bring? What should I wear?
• Fearing your hearing?
• Does my attorney need any legal forms for my hearing?
• What happens just before my hearing?
• What is my Social Security hearing file?
• What if I miss my hearing?
• What kinds of Social Security benefits are there for disabled people?
• When am I first disabled?
• What is my “Filing Date”?
• Does my “Filing Date” matter?
• Does Social Security make findings like workers’ compensation?
• What if I already receive disability from the VA?
• What is the most important legal concept I should know before my hearing?
• Does age matter?
• Can children under 18 receive Social Security benefits?
• How are children under 18 evaluated for disability at a hearing?
• What must my judge ask me at my Social Security hearing? What do I do after my hearing?
• How will I know whether I won or lost my hearing?
• Could I have a supplemental hearing?
• What is the full Social Security benefits appeal process?
• How will my attorney prepare for my Social Security hearing?
• How do I get paid?
• How does my attorney get paid?

About the Author:              

Attorney Andrew Kinney began practicing Social Security benefits law in 1992.  He graduated from the University of Notre Dame and Marquette Law School.  Since 1995, he has presented seminars on Social Security to lawyers and related professionals.  He is licensed to practice law in Minnesota, New York, Ohio, and Wisconsin.  He is next scheduled to present a legal seminar on cross-examination skills at a national conference in Chicago in the fall of 2010.     

If you would like to arrange for him to speak about Social Security Disability Benefits at your next group event, please feel free to call his offices at:  1-800-850-7867.             

→ Click here for YouTube video of Andrew Kinney:  5 Secrets to Getting Social Security Disability Benefits  

If you are not a current Hoglund Law Offices client, make sure to get legal advice about your particular situation.  To call us about representing you with your Social Security benefits claim, call toll-free now at:  1-800-850-7867.         

Remember, only a lawyer at a law firm can give you legal advice.  At Hoglund Law Offices, attorney fees are a quarter of back pay only if you win!             

© 2010, Hoglund Law Offices         

 

      

Related posts:

1. Hoglund Lawyer Speaking at National Social Security Benefits Conference this May
2. How Should an Experienced Social Security Lawyer Handle Evidence at your Social Security Disability Hearing?
3. Social Security Lawyer Explains 10 Things that Happen at Hearings

Hoglund Lawyer Andrew Kinney, Esq.

At administrative hearings with Social Security judges, our Hoglund lawyers argue disability methodically:  (1) Diagnosis, (2) imaging studies to support the diagnosis, (3) examination findings, and (4) client testimony.  Social Security’s decisions are primarily driven by medical treatment evidence.  So, getting the right medical treatment can make or break a case.     

Four questions arise most frequently from our clients about medical treatment:     

① Should I tell my doctor about my psychological needs?  Yes.  Depression, for example, is common for those with chronic pain.  I tell my clients to mention their legitimate concerns to their doctors.     

② Should I treat for medical problems that doctors cannot fix?  Yes.  Some of our clients stop treating because medical care isn’t helping their symptoms, such as headaches.  But avoiding doctors offers no medical proof for Social Security.  Our clients should maintain appropriate doctor appointments at regular intervals.  This has two benefits.  One, it helps our clients’ doctors review the progress of the medical problems.  Two, it helps Social Security judges verify these problems.        

③ How much medical treatment should I get?  Enough that doctors you trust are satisfied with your care.  Don’t get treatment to “game” the system.     

④ Should I call my Social Security attorney about whether to get surgery?  No.  While it is good to keep us up-to-date about medical problems, I tell my clients to consult with their physician about what medical decisions are best for them.  Legally, Social Security judges will find the need for surgery relevant.     

In short, clients should make good medical decisions to get better, not to get benefits.   

If you are not our Social Security Benefits client yet, consult our law offices about your particular situation toll-free at:  1-800-850-7867.    

Andrew W. Kinney, Esq.    

Related posts:

1. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes
2. How Chemical Dependency can Destroy your Social Security Benefits Claim
3. Developing Medical Evidence In A Social Security Disability Claim

Top 7 Questions about Getting Social Security Benefits for Asthma & COPD

At administrative hearings with Social Security judges, our Hoglund Lawyers review and argue asthma and chronic obstructive pulmonary disease (COPD) claims for our clients in particular ways.  Here are some answers to common questions from our clients at Hoglund Law Offices who cannot work due to asthma and other kinds of breathing problems.  (You should get an attorney for advice that applies to you.)

7.  What are Social Security disability benefits?

Social Security disability benefits (and Supplemental Security Income benefits) are monthly disability benefits payable to you if you are unable to work (or are expected to be unable to work) full-time for 1 year or more for medical reasons.

6.  Can I apply if I can only work part-time? 

Yes, but you cannot be going to work and regularly earning above certain monthly amounts.  For 2010, this “substantial gainful activity” amount is $1,000 gross per month.  This changes annually. 

5.  What does Social Security review in asthma claims?

In asthma and/or COPD claims, Social Security generally reviews:  

• Your diagnoses;
• Your pulmonary function test results;
• The frequency and severity of your asthma attacks or breathing issues; and
• The nature of your treatment (such as ER visits, nebulizer treatments, etc.)

The most important documentation of your breathing issues comes from testing of your ability to breath with and without medications.  Pulmonary function tests measure the amount and/or speed of air you can breathe in and out.  Imaging studies may also reveal other kinds of structural breathing problems. 

Important notes:  Make sure to talk with your doctor about whether you should have pulmonary function tests and how often.  Also, make sure to discuss any day-to-day breathing issues you are having with your doctor – including fatigue and shortness of breath.  Logically, the more your doctor knows, the more your doctor can understand how you are doing on your current medications.  This also creates a “track record” of how you are functioning when this comes up at Social Security hearings.  Your Hoglund Law Offices attorney can explain more about this.     

4.  When does Social Security find disability in asthma and/or COPD cases?

The general rule of thumb is that the more your asthma limits your ability to function, the greater chance you will be found disabled.  The Social Security Administration often looks to the frequency and severity of your asthma attacks and other breathing issues to determine whether your asthma significantly limits your ability to function.  For example, if you have been hospitalized frequently (such as once every two months) for control of your asthma, or if you require an oxygen tank, it may be easier to prove why you cannot work full-time.

3.  What factors does Social Security use in evaluating asthma/COPD cases?

Social Security focuses on objective findings that your doctors records from your medical appointments.  Social Security calls these findings “listings.”  Listings are found in Social Security’s regulations.  The primary listing for disabling asthma is respiratory system listing 3.03.  Note that it includes findings about your height because your testing results relate to your height. 

Note:  “Meeting” or almost meeting (“equaling”) the listing requirements below can allow an approval, but approval is also possible by proving you cannot medically work full-time.  Listing 3.03 (set out below) gives you an idea about how Social Security evaluates asthma:

 3.03 Asthma.  With:   

1.  Chronic asthmatic bronchitis. Evaluate under the criteria for chronic obstructive pulmonary disease in 3.02A;                         

[3.02A states:] 

                        A. Chronic obstructive pulmonary disease, due to any cause, with the FEV₁equal to or less than the values specified in table I corresponding to the person’s height without shoes. (In cases of marked spinal deformity, see 3.00E.);

TABLE I

OR 

1. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks.

[3.00C states that the “attacks” are defined as prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting.  Hospital admissions are defined as inpatient hospitalizations for longer than 24 hours.  The medical evidence must also include information documenting adherence to a prescribed regimen of treatment as well as a description of physical signs.  For asthma, the medical evidence should include spirometric results obtained between attacks that document the presence of baseline airflow obstruction.]

2.  Does age matter?

Yes.  If you are 50 or older when Social Security reviews your claim, the legal standards (called “medical-vocational guidelines”) favor you over those younger than 50.

Important note:  Your claim may take 2 or more years from when you apply.  Consider that you may be 50 (and get the legal benefit of your age) at least by the time of a hearing.  Your attorney should factor this in when evaluated your claim.   

1.  How can I make sure Social Security knows how bad my asthma and/or COPD is?

Social Security’s decisions are primarily driven by your medical treatment records.  You should get the appropriate treatment with doctors and associated professionals that you trust.  If you feel you are not getting relief for your breathing problems, mention your concerns to your doctor.  Also, even if you have may have no immediate options for improvement, you should maintain at least some regular visits to your doctors so they can understand (and document) the progress of your problems over time.  Your attorney can explain how this may impact the strength of your claim.  

Remember, only a lawyer at a law firm can give you legal advice.  If you wish to hire us, you can reach us at Toll-Free: 1-800-850-7867.  Only a quarter of back-pay if you win!

“Trust a Hoglund Lawyer.”

Andrew Kinney, Esq., with Tracy Bishop

© 2010, Hoglund Law Offices.  Reprint with written permission.

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Related posts:

1. Top 6 Client Questions about Getting Social Security Disability Benefits for Diabetes
2. A Social Security Lawyer’s Top 7 Questions about Getting Benefits for Asthma & COPD