All posts by Louis B. Lusk

 

Judges Should Speak Plain English

Social Security Disability Hearings are held before Administrative Law Judges, who usually ask the Claimant a series of questions. I am constantly amazed at how many of these Judges have difficulty communicating with my clients, most of whom have blue collar, working class backgrounds.

It’s as if the Judges speak a different language. I call it “Judge-Speak”, and I am often required to act as a translator so my clients know what the Judge is saying.

Here are some real life examples of Judge-Speak and how I have translated the questions into plain English for my clients:

Judge: “Do you require the use of a hand held assistive device to ambulate?”

Translation: “Do you use a cane or a walker?”

Judge: “Are corrective lenses necessary for either near or distance visual acuity?”

Translation: “Do you wear glasses to see better close up? What about far way?”

Judge: “What was the highest level of education you attained?”

Translation: “How far did you get in school?”

Judge: “Please rate your level of pain on a scale of one to ten, with one representing less than mild discomfort, five representing significant discomfort but less than debilitating pain, and ten representing debilitating pain resulting in total incapacitation?”

Translation: “On a scale of one to ten how bad do you hurt?”

Judge: “What impairment or combination of impairments precludes your ability to engage in substantial gainful employment?”

Translation: “Why can’t you work?”

In conclusion, Judges should utilize language consistent with the Claimants’ educational and vocational backgrounds in order to foster better communication and to facilitate the expeditious conclusion of the proceedings.

In other words, use plain English and the Hearings will be over quicker.

 

 

 

Dear Disability Judges: Speak Plain English

Social Security Disability Hearings are held before Administrative Law Judges, who usually ask the Claimant a series of questions. I am constantly amazed at how many of these Judges have difficulty communicating with my clients, most of whom have blue collar, working class backgrounds.

It’s as if the Judges speak a different language. I call it “Judge-Speak”, and I am often required to act as a translator so my clients know what the Judge is saying.

Here are some real life examples of Judge-Speak and how I have translated the questions into plain English for my clients:

Judge: “Do you require the use of a hand held assistive device to ambulate?”

Translation: “Do you use a cane or a walker?”

Judge: “Are corrective lenses necessary for either near or distance visual acuity?”

Translation: “Do you wear glasses to see better close up? What about far way?”

Judge: “What was the highest level of education you attained?”

Translation: “How far did you get in school?”

Judge: “Please rate your level of pain on a scale of one to ten, with one representing less than mild discomfort, five representing significant discomfort but less than debilitating pain, and ten representing debilitating pain resulting in total incapacitation?”

Translation: “On a scale of one to ten how bad do you hurt?”

Judge: “What impairment or combination of impairments precludes your ability to engage in substantial gainful employment?”

Translation: “Why can’t you work?”

In conclusion, Judges should utilize language consistent with the Claimants’ educational and vocational backgrounds in order to foster better communication and to facilitate the expeditious conclusion of the proceedings. In other words, use plain English and the Hearings will be over quicker.

 

 

 

How Being Over 50 Affects Your SSI Disability Claim

If you are between the ages of 50 and 65 you have a much better chance of qualifying for Social Security disability than younger individuals. This is because of the so-called “grid” rules. These rules are based on charts (or grids) that outline the requirements to prove disability based on age, education, and the skill levels of past work.

Generally, the older you are the easier it is to qualify for disability. For example, if you are 50 at the time of the onset of the alleged disability and you prove to SSA that (1) you are limited to sedentary (“sit down”) work and (2) that you are unable to perform the duties of your past work, and (3) that you have no transferable job skills that would qualify you to do other less strenuous work, you could win your claim automatically based on these “Grids.”

When you turn 55 it becomes easier to qualify for disability than someone 50 to 54, and when you turn 60 it is easier to qualify than someone 55 to 59.

Disability attorneys call this “gridding out” and we argue these rules all the time in disability Hearings.  For all of my clients between 50 and 65 I first try and develop a winning case based on the grid rules.

However, even if you do not automatically qualify for disability based on the grids, you may still be able to win your claim. You and your attorney can usually do this by proving that because of your impairments you are unable to do your past relevant work, and that you are also unable and unqualified to perform any jobs that exist in substantial numbers in the local or national economy.

How Being Over 50 Affects Your SSI Disability Claim

If you are between the ages of 50 and 65 you have a much better chance of qualifying for Social Security disability than younger individuals. This is because of the so-called “grid” rules. These rules are based on charts (or grids) that outline the requirements to prove disability based on age, education, and the skill levels of past work.

Generally, the older you are the easier it is to qualify for disability. For example, if you are 50 at the time of the onset of the alleged disability and you prove to SSA that (1) you are limited to sedentary (“sit down”) work and (2) that you are unable to perform the duties of your past work, and (3) that you have no transferable job skills that would qualify you to do other less strenuous work, you could win your claim automatically based on these “Grids.”

When you turn 55 it becomes easier to qualify for disability than someone 50 to 54, and when you turn 60 it is easier to qualify than someone 55 to 59.

Disability attorneys call this “gridding out” and we argue these rules all the time in disability Hearings.  For all of my clients between 50 and 65 I first try and develop a winning case based on the grid rules.

However, even if you do not automatically qualify for disability based on the grids, you may still be able to win your claim. You and your attorney can usually do this by proving that because of your impairments you are unable to do your past relevant work, and that you are also unable and unqualified to perform any jobs that exist in substantial numbers in the local or national economy.

Social Security Disability and COPD

Can you recover Social Security disability benefits for Chronic Obstructive Pulmonary Disease, or COPD? The short answer is yes, in some cases.

My clients with this condition often describe the feeling of an “elephant sitting on my chest” making it difficult to breathe. Any strenuous physical activity can trigger shortness of breath and cause them to cough, wheeze and gasp for air. While years of smoking can often cause or contribute to this condition, not everyone with COPD is a smoker. Years of working around dust and prolonged exposure to chemicals and noxious fumes can lead to this disorder as well.

COPD is treated with the use of inhalers like albuterol and some newer medications that reduce inflammation and mucous production. Some of my clients also use portable oxygen containers and receive steady bursts of oxygen through a face mask or nasal prongs.

(The first thing I ask any client with COPD is if they smoke. If they do I tell them to stop smoking now! That is the single best thing they can do for their condition.)

To get approved for Social Security disability for COPD you must either have such a severe case that it meets the “Listing” for Respiratory Disorders (that is, it is so severe that you qualify automatically) or this condition, alone or in combination with your other health problems, renders you unable to work. For the latter requirement to be met you must generally prove that you are unable to perform the kind of work you used to do or any other work that you may be qualified for at your age and education level.

Most people with COPD will also have other health problems that may affect their ability to function. When filing for Social Security disability it is important to document all of your medical problems, as the Social Security Administration is required to consider all of your conditions in making their determination of disability.

Appealing a Denial of Social Security Disability Past the Deadline

If you file a new claim for Social Security disability benefits and receive a “Denial Letter” from the Social Security Administration (“SSA”), you may appeal this decision. This appeal, called a “Request for Reconsideration” generally must be filed within 60 days of your receipt of the denial letter.

I am often contacted by individuals who were turned down for disability and have already missed the 60 day deadline to file an appeal. In those cases I try and find out if the person may qualify for an extension of time in which to file the Request for Reconsideration.

You may, in fact, be able to get permission to file the appeal after the 60 days has expired. This extension will be granted only if SSA determines you have “good cause” (in other words, a good reason) for missing the deadline.

Examples of acceptable reasons for the missing of the deadline include being hospitalized or otherwise incapacitated due to illness, not receiving the Denial letter, a death in the family, or mistakenly submitting the appeal to the wrong government agency. Examples of what would not usually be deemed “good cause” include miscalculating the deadline date or simply misplacing the Denial Letter.

I routinely file Motions for Good Cause to allow my clients to file the Request for Reconsideration past the 60 day deadline. I have been successful in getting the extensions to many clients who would otherwise have had to start the entire application process over. Many times I will argue that my client’s health problems impede their ability to understand the appeal process. Other times my clients are illiterate and therefore unable to understand the denial letter and the written appeal requirements.

If SSA approves your Motion for Good Cause and accepts the late filing of the Request for Reconsideration, the appeal is accepted and the claim is sent to a different adjudicator for a review. You may be able to win your claim at this “Reconsideration” level. However, if you also get turned down at this level, you may file an appeal called a “Request for Hearing.” This appeal must be filed within 60 days of the receipt of denial of the Request for Reconsideration, and the same “Good Cause” extension rules apply at this level as well.

Therefore, if you get turned down for Social Security disability, remember that time is of the essence.  You should either file an appeal or contact an experienced disability attorney to file the appeal for you ASAP!

 

 

Schizophrenia and Social Security Disability

Schizophrenia is a serious mental illness that afflicts over 3 million Americans. Symptoms may include paranoid delusions, compulsive and disorganized behavior, mental confusion, agitation and aggressive behavior. Without the proper medical treatment, those with this disorder may pose a threat to themselves or others.

As a disability attorney, I am often contacted by the relatives of the person with schizophrenia in order to help them apply for his or her Social Security disability benefits. A common refrain I hear is that their loved one needs anti-psychotic medication in order to function, but without money or health insurance he or she is unable to get the help they need.

There are a number of ways to prevail on a claim for Social Security disability for schizophrenia. One is to present credible evidence of specific severe symptoms, such as delusions, hallucinations, emotional isolation and social withdrawal that cause the client to have at least two of the following limitations:

  • The inability to engage in normal activities of daily living;
  • The inability to function socially;
  • The inability to focus or stay on task; and/or
  • A history of recurring, lengthy episodes of worsening symptoms.

Another way to prove disability for this condition is to present medical evidence establishing that the condition:

  • Has lasted at least two years, and
  • Has had a negative impact on his or her ability to work, and
  • Has impaired his or her ability to function in the world without a great deal of outside support, and
  • Has caused the individual to suffer episodes of decompensation (increase of symptoms and loss of function).

These cases can be very challenging, and the active participation of family members or loved ones in the claims process can be essential. If approved for Social Security disability or SSI, in addition to receiving monthly benefits, my client will be covered for psychiatric treatment under Medicare or Medicaid. Therefore, these cases can be rewarding as well.

 

Persistent Leg Pain Can Lead to Disability

After a long day of walking, a person’s legs may be swollen and cause them pain. For most people, a good night’s sleep takes care of things. But for some individuals, this is a daily occurrence from chronic venous insufficiency (CVI). CVI is when the valves in a person’s leg veins do not properly work and allow blood to pool in the legs.

Symptoms

CVI affects a person’s legs. Symptoms may manifest as:

  • Swelling in legs and/or ankles
  • Tight feeling calves or itchy painful legs
  • Pain during walking that stops with rest
  • Brown-colored skin, particularly near the ankles
  • Varicose veins
  • Leg ulcers that are sometimes very resistant to treatment

Johns Hopkins

Causes

Obesity is one of the leading causes of CVI. Pregnancy and family history are also common causes. If an individual has had a traumatic leg injury, surgery, or a blood clot in their leg called a deep vein thrombosis, those individuals are more likely to develop CVI. Lack of exercise, smoking, high blood pressure in the leg veins due to sitting or standing for long periods of time, and phlebitis, the swelling and inflammation of a superficial vein, also cause CVI.

Diagnosis

Many of the symptoms of chronic venous insufficiency resemble other conditions, so doctors take a complete medical history and perform a physical examination. A doctor may order a duplex ultrasound to “assess blood flow and the structure of the leg veins.”  The ultrasound produces a picture of the veins and “evaluates the velocity and direction of the blood” within those veins. Another procedure doctors use to diagnose CVI is a venogram. An individual is given an “intravenous (IV) contrast dye to visualize the veins. Contrast dye causes the blood vessels to appear opaque on the X-ray image, allowing doctors to visualize the blood vessels being evaluated.”

Treatments

Treatments are tailored to the individual based on age, medical history, progression of the CVI, and exhibited symptoms. Simple treatments to increase blood flow include avoiding long periods of standing or sitting, exercising regularly, losing weight, elevating the legs to reduce pressure and wearing compression stockings to help blood flow. Antibiotics are used “to clear skin infections related to CVI.” If an individual with CVI also suffers from heart failure or kidney disease, then diuretics may be prescribed to “draw excess fluid from the body through the kidneys.”

For individuals with more advanced CVI, doctors may use sclerotherapy where a doctor injects “a chemical into the affected veins, scarring the veins so they can no longer carry blood. The body reroutes the blood through other veins and the body absorbs the scarred veins.” A new technique is endovenous thermal ablation “that uses a laser or high-frequency radio waves to create intense local heat in the affected vein. This treatment closes off the problem veins, but leaves them in place so there is minimal bleeding and bruising.”

Only in about 10% of CVI cases is surgery recommended. Surgical procedures include ligation, which is tying off an affected vein and removing it, surgically repairing the vein or valve, transplanting a healthy vein from another part of the body to the affected area, or subfascial endoscopic perforator surgery, which uses an endoscope to clip and tie off affected veins.

Social Security Disability

When reviewing a Social Security Disability application claiming CVI as the disabling condition, the Social Security Administration (SSA) looks at the individual’s medical records for treatments of at least 3 months, but 12 months is the preferred minimal time frame. If, despite treatments, an individual has continued blood pooling in their legs and has a brawny edema, a swelling in connective tissue that feels firm and is discolored, or “superficial varicosities (varicose veins), stasis dermatitis (inflammation and discoloration of the skin), and either recurrent ulceration or persistent ulceration that has not healed following at least 3 months of prescribed treatment,” then CVI is the qualifying disability.

Social Security Disability applications require extensive documentation on an applicant’s medical condition. If you are considering applying for disability benefits, contact our experienced attorney to assist you.

 

Dusty Work Can Lead to Breathing Problems

Chasing dust bunnies from under a couch can give rise to sneezing. But, some people deal with dust day-in-and-day-out in their jobs. For coal miners breathing in coal dust, they can develop the condition called black lung, medically called pneumoconiosis.

 Symptoms

 Symptoms of pneumoconiosis include tightness of the chest, shortness of breath, and coughing. Due to these breathing problems, individuals suffer from cyanosis, when the skin turns blue at the fingertips and toes due to low oxygen levels. Individuals also tend to suffer from bronchitis, an inflammation of the bronchial tubes. The inhaled dust can severely damage the small air sacs, alveoli, in the lungs causing emphysema.

 Causes

 Pneumoconiosis doesn’t develop overnight. It takes exposure of dust over a long period of time. The type of dust an individual was exposed to will dictate the specific type of pneumoconiosis an individual suffers from. The various dust exposures include coal dust, silica, asbestos, beryllium, and natural fiber dust from fabric manufacturing. An individual can prevent developing pneumoconiosis by avoiding exposure to and inhalation of dust.

Diagnosis

To diagnose pneumoconiosis a doctor will take a full occupational history. Chest X-rays are used to view how much dust has accumulated in an individual’s lungs. Pulmonary function tests show “how much air an individual’s lungs hold, how quickly an individual can move air in and out of their lungs, and how well an individual’s lungs put oxygen into and remove carbon dioxide from the blood.”

Treatments

 Pneumoconiosis cannot be reversed. Doctors treat the symptoms an individual suffers from. Quitting smoking is strongly recommended. Bronchodilators are used to relax lung muscles to allow an individual to breath easier. If an individual’s pulmonary function tests shows low blood oxygen, oxygen therapy can be prescribed.

 Social Security Disability

 Pneumoconiosis is evaluated by the Social Security Administration (SSA) similarly to chronic pulmonary insufficiency, also known as chronic obstructive pulmonary disease. The SSA reviews pulmonary function tests for one-second forced expiratory volume in relation to an individual’s height and forced vital capacity in relation to an individual’s height. These tests may be required for both pre-bronchodilator tests and post-bronchodilator tests. The SSA will also look at impairment of gas exchange by looking at arterial blood gas values through a blood test that is “analyzed for oxygen pressure, carbon dioxide pressure, and pH.” Arterial blood gas values are evaluated in relation to where a testing site is in relation to sea level.

 Social Security Disability applications require extensive documentation on an applicant’s medical condition. With pneumoconiosis, the medical documentation includes X-rays and multiple pulmonary function tests. If you are considering applying for disability benefits, contact our experienced attorney to assist you.

The Political Salvos Are Flying Over Social Security Disability

 The impending shortfall in the Social Security Disability (SSD) Insurance trust fund has been front and center in Washington this past week. The Senate Budget Committee held a hearing about the status of the program on February 11, 2015.

 The Senate Budget Committee Hearing

 Senator Mike Enzi, R-Wyo., opened the hearing by stating that, “disabled Americans and workers deserve a long-term solution so that the program that doesn’t once again flirt with disaster and, more importantly, reflects the full ability of the disabled to contribute their talents to our country.” Senator Enzi described the challenges cuts that those receiving SSD benefits would face. He further argued that the impending cuts had been predicted for years and that President Obama had ignored this impending disaster. Senator Enzi then stated that Social Security has no money, whatsoever. “There are not dollars stashed away anywhere. There are no dollars in the disability trust fund and there are no dollars in the social security trust fund. More accurately it should be called accounts payable because it is further debt. We spent the money.”

 Senator Enzi proposed revamping the SSD program to encourage more disabled individuals to work. He pointed to the fact that when the program began, most workers were in manual labor fields and truly could not work in their original jobs once injured. But today, disabled workers have many more options, in part due to the workplace changes to facilitate disabled employment as mandated by the Americans with Disabilities Act of 1990.

 Carolyn W. Colvin, the Social Security Administration Acting Commissioner, also spoke at the hearing advocating for a reallocation of a portion of the payroll tax rate to prevent the SSD trust fund from needing to cut benefits by approximately 20% come December 2016. She pointed out that the SSD definition of disability is very stringent and those who receive SSD benefits have significant disabilities that prevent a significant portion of them from being able to work again. For individuals who were funneled through a couple of intervention programs, there was an increase in individuals finding part-time work, but their wages did not amount to enough income to remove them from the SSD rolls.

 The Response

 Michael Hiltzik of the Los Angeles Times refuted some of Senator Enzi’s comments. Regarding the trust funds having no money: “The trust funds hold trillions of dollars of U.S. Treasury bonds bought and paid for by payroll taxes collected from American workers since 1983; these transfers have been certified, in writing, every year by U.S. treasury, secretaries and other cabinet members, Republican and Democrat, and accepted by Congress.”

As for those receiving SSD, they will continue receiving benefits, but those benefits will be cut by 20%. Senator Bernard Sanders, I-Vt., issued a statement pointing out that the impending 20% benefits cut would be “a horribly devastating cut for individuals – most of whom are in their 50’s and in poor health – to absorb beginning next year. In fact, since most disability recipients receive barely $1,200 a month, a cut of nearly 20 percent could mean the difference between affording food, medicine, clothing or paying bills.”

 As this political fight plays out in the halls of Congress, additional workers require the assistance afforded by the SSD program. If you are considering applying for disability benefits, contact our experienced SSD attorney to assist you.

 

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