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Disability Newsletter Summer 2012

Success in Securing Benefits for Veterans

Recently our VA department has been successful in securing benefits for several veterans and their dependents.  Dempsey, Dempsey, and Moellring represented a United States Marine Vietnam Veteran at a Board of Veterans Appeals hearing at the Regional Office in Saint Louis.  The veteran had a service connected disability rating for PTSD of 70%.  He was denied an increased rating for individual unemployability.  A veteran is entitled to individual unemployability under the VA regulations when, as a result of their service connected condition(s), they are unable to be gainfully employed.  Our firm submitted evidence at the hearing including new medical evidence. We were successful and the veteran was awarded five years of back benefits and an ongoing monthly benefit of close to 3,000 dollars.

In another case the surviving spouse of a United States Marine Vietnam Veteran was awarded dependent’s benefits as a result of evidence and argument submitted by Dempsey, Dempsey, and Moellring at the United States Court of Appeals for Veterans Claims.  The Court remanded the case to the Regional Office.  The surviving spouse was awarded dependence and indemnity compensation (DIC) benefits back to October of 1997.  As a result of this benefit, the children of the veteran have also become eligible for dependent educational assistance, a monthly benefit they were entitled while receiving their college education.  The grant of DIC resulted in a retroactive benefit to the surviving spouse of over $70,000.  If you, a patient, or a client has been denied benefits from the Veterans Administration, Dempsey, Dempsey, and Moellring has the experience to handle VA appeals in a professional manner, striving to get the best result for you and your family.

 Determining Disability in Social Security Cases

To ensure a more uniform disability process, Social Security established a set of vocational guidelines to aid examiners in the decision-making process. These medical-vocational guidelines have become known as the “Medical-Vocational Grid,” or simply “The Grid.”

Social Security has established four physical categories to help evaluate the physical limits of the work an individual may be able to perform in spite of the limitations imposed upon them by their disabling condition or conditions. These categories, called residual functional capacity, are sedentary, light, medium, and heavy work.  In general, sedentary work involves the lifting of no more than ten pounds at any time; light work involves the lifting of no more than ten pounds frequently and no more than twenty pounds occasionally; medium work involves the ability to lift twenty-five pounds frequently and fifty pounds occasionally; heavy work is the frequent lifting of more than fifty pounds.

The grid also takes into consideration the age, skill, and education of an individual in addition to her residual functional capacity. The age categories are particularly important. Individuals who are 18 to 44 are considered young individuals, those 45-49 are “younger” individuals, those 50-54 are considered to be closely approaching advanced age, and individuals who are 55 and over are considered advanced age.

Social Security uses these age groups along with an individual’s residual functional capacity (that is, the ability to do sedentary, light, medium, and heavy weight work), the skill level of an individual’s past work, and the individual’s education to establish an individual’s disability. For example, if a person is 45-49, has little formal education, and is limited to sedentary work, he would most likely be denied disability if he is literate, even if he hasn’t performed skilled work before. But an individual over 50, with little formal education limited to sedentary work would likely be granted disability benefits.

Medical-vocational rules are more favorable if an individual is approaching advanced age (50-54). If an individual is limited to sedentary work or less, and doesn’t have work skills that transfer to other types work, she is likely to be approved for disability. Social Security does not expect a person in this age group to go through retraining to learn a sedentary job if she is approaching advanced age.

The Social Security medical-vocational rules are most favorable to individuals who are 55 and older. If an individual is 55 or older and is limited even to light work, or less than a full range of medium work, they may be approved for disability even if they have a high school education and their prior work was unskilled or their skills are not transferable. Social Security expects very little vocational adjustment at this age.

These are just examples. Even if an individual doesn’t meet the medical-vocational classifications for an approval at a particular age exactly, there is still a chance that her disability claim is winnable. For instance, if a person needs more than the typical mid-morning, mid-afternoon, and lunch breaks due to a medical problem, or if they will miss more than a day a month of work, they can still be considered disabled.  This is why it is beneficial for most individuals to obtain the services of a knowledgeable Social Security attorney.

 The Role of the Treating Physician and Securing a Source of Payment for Medical Services

The Social Security Administration rather jealously guards the right to determine the residual functional capacity. A functional capacity assessment is almost worthless to us in representing claimants.  Instead, the Social Security judges want the opinions of treating physicians expressed in forms called Medical Source Statements.  The opinions of treating physicians are given great deference because the physician is presumed to know his or her patient better than anyone else.  Opinions from one-time examinations – no matter how thorough – are given much less weight.

We never ask the treating physician whether they believe a claimant can work.  Instead, on the physical side we want to know the treating physician’s opinions as to how long someone can sit, stand, walk comfortably, how much they can lift, etc.  On the mental health side, we want treating opinions on the ability to remember and carry out instructions and get along with the public, co-workers, supervisors, and handle the stress of employment.

We never want a functional capacity evaluation in a Social Security Disability or SSI case.  They may be of value in workers compensation cases and Veterans cases, but they are an expensive waste in a Social Security Disability case.

Finally, we want your opinions regardless of whether you think they will be helpful or not.  For the reasons set forth above, we can frequently get benefits for people who retain the ability to perform some types of work. The realities of the workplace are taken into consideration in the Social Security Disability process.  An older individual may retain the physical ability to perform sedentary work, but the reality is that retraining may not be possible.  Worse, the individual may not be realistically able to find work at a sedentary level.  We often hear of physicians telling patients they won’t fill out forms because they aren’t certain there isn’t some type of work the patient can do. Please fill out Medical Source Statements for your patients regardless.  A vocational expert will testify based on your opinions as to what jobs an individual can perform.

Perhaps the most important reason to fill out Medical Source Statements is that the opinions are extremely important in continuing access to medical treatment.

Medicaid in both Missouri and Illinois require that a person apply for or receive Social Security Disability or SSI.  After a person has been on Social Security Disability for two years, she is eligible for Medicare.  In either case, your patient will have greater access to healthcare and your facility will have a source of payment for the services you provide to them.

 Children’s Claims

A child who applies for SSI is disabled if the child has a medically determinable physical or mental impairment, which results in marked and severe functional limitations.  Like with adults, SSA has a set of medical impairment listings for applicants under 18.  The child is disabled if her impairment meets or medically equals a listing OR functionally equals a listing.

When evaluating Children for functional equivalence, SSA looks at 6 broad areas: (1) Acquiring and Using Information, (2) Attending and Completing Tasks, (3) Interacting and Relating with Others, (4) Moving About and Manipulating Objects, (5) Caring for Yourself, and (6) Overall Health and Physical Well-Being.  If functioning is extremely limited in one area or markedly limited in two or more areas, the child is considered disabled.

SSA must look at the functioning of the “whole” child.  One impairment may cause functional limitations in multiple areas.  For instance, a child with ADHD may have trouble with learning, with concentrating, with making friends, and in making safe choices.  Finally, the child is evaluated against same-aged peers who do not have impairments.   A child may have a limitation even if he or she is functioning well with extra help, support, or accommodations.

 Thank You

Thank you to all the medical providers and social service agencies for all the kind things you do for our clients!  Everyone we represent is worried about financial matters as well as their physical and mental health.  We are overwhelmed by the kindness many of you show.  The Social Security Disability process is long, slow, and all too often capricious.  Some people with extremely serious problems draw cynical, jaded judges.  Other people with less severe problems draw compassionate judges.  We often scratch our heads at the decisions we see and try to take the case to the next appellate level when someone has been unjustly denied.

We have handled thousands of cases and we understand compassion fatigue as well as any doctor, nurse, therapist, or social worker.  Thank you for hanging in there and being understanding when some of our clients are agitated and not as polite as they should be.  Thanks as always for filling out the Medical Source Statements we need.  We know you have other important things to do as well.

If you have a patient or client who is thinking about applying for Social Security Disability, Workers Compensation, or Veterans benefits, have them see us before they apply.  Frequently we can avoid big problems down the road.  Because people do not receive Social Security Disability benefits until the sixth full month after the date they become disabled, that means we regularly do applications for people in which we do not receive a penny in fees.  The payoff for us is that we win a higher proportion of our cases because we don’t lose them due to an error the client made before he or she came to see us. We provide everyone with a free consultation with an attorney in disability cases.

Nation Association of Consumer Bankruptcy Attorneys
The Missoui Bar
NOSSCR
Illinois State Bar Association