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Disability Newsletter Summer 2013

Our Firm Wins $70,000 Award for Homeless Veteran in Pro Bono Case

 Tooting our own Horn!

Our office participates in the Center for Veteran Advancement/National Organization of Veteran’s Advocates Advocate Pro Bono Program.  The following is from their newsletter:

Congratulations to Marcia Moellring, CVA/NOVA Pro Bono Advocate.  Marcia was successful in winning over $70,000 for a homeless veteran and as a result, the veteran will avoid further poverty.

Such a win continues to be a testimony to both the importance and impact of the CVA/NOVA Pro Bono Advocates Program, and its participant.  Thank you, Marcia, for your tireless advocacy.

Dempsey, Dempsey, and Moellring is proud that Marcia volunteered her time to help this deserving homeless veteran.  It is a great honor when professional veterans’ advocates recognize you as an extraordinary advocate.

Many people do not understand the amount of pro bono work we do, nor do they understand how frequently we take cases in which the fees when we are successful are far less than the time and expenses we put into the case.  Last month, we received one check for an SSI case for $2.45.  That was our total fee for doing the application, preparing the request for reconsideration, preparing the request for hearing, gathering the medical evidence, preparing the client for the hearing and appearing at the hearing.

 Why Medical Records are Insufficient in Many Social Security Cases:

A Real Example

We recently received a letter from a client’s new doctor stating she could not believe that Social Security had denied her patient benefits after a hearing.    The client suffered from postural orthostatic tachycardia syndrome (POTS).  The record documented substantial symptoms.  Here are some highlights: Heart monitoring had recorded more than 10,000 premature ventricular contractions over a period of 48-hours.  She had several hundred couplets where the contractions happened in rapid succession.  She had undergone tilt-table testing, catheterizations, and multiple EKGs.  She had edema and wore compression hose. She had a pacemaker implanted.  Unfortunately, the treating cardiologist and family physician refused to fill out Social Security Medical Source Statements for the client.

The administrative law judge found there was “no objective testing” and “no doctors placed any limitations in her record.”   You might wonder how that is possible.  One problem lies in the nature of the medical records themselves. The cardiologist’s office and the hospital use electronic medical records.  At each patient encounter a form is filled out by the nurse or physician.  The administrative law judge literally went through the record and counted each occasion when the box “no acute distress” was checked.

Of course, no one knows exactly what “no acute distress” means, though it is standard language found in many records.  Dr. Timothy Ebel, a family physician writes in the journal Minnesota Medicine, “Perhaps it originated from the swamps and hollows of defensive medicine.  If I write, ‘The patient appeared in no acute distress,’ how can I be blamed for a bad outcome?  If I state, ‘She appeared in no acute distress,’ I avoid soiling my hands with the messiness and vagaries of our human condition.  But how many of us actually live lives of no acute distress? How much pain does one have to endure before we call it distress? How much human pathology flies under the radar of our medical templates?”

The treating cardiologist and family physician were probably sincere in thinking that their medical records should be sufficient for Social Security to make a determination.  They didn’t realize that in fact, their own records could be used as a weapon against their patient.  The week of this poor lady’s hearing we had 43 hearings in front of the same judge. The judge denied every case in which a treating physician had not set forth his or her opinions about limitations in a Medical Source Statement. The great irony is that people with less severe problems received benefits.

Was the administrative judge wrong in this case?  Of course!  His philosophy is I’m a lawyer. I don’t know what limitations this person has.  If her problems were that bad, her doctor would clearly describe her limitations. The philosophy of many treating physicians who refuse to fill out Medical Source Statements appears to be I’m terribly busy.  I don’t trust the lawyer who is asking me to do this. Besides, any idiot can read my records and see what problems my patient has.

The unfortunate result for the patient is that she is going to endure another year-and-a-half in an appeal with the Social Security Administration.  If that is unsuccessful, she is going to have a further year appealing to Federal District Court.  On the bright side, the new doctor did fill out a Medical Source Statement for the lady so there is a ray of hope on the horizon.

 Workers’ Compensation Offset in Social Security Disability Cases

Many disability cases originate as workers’ compensation cases following workplace accidents or occupational diseases.  In both Missouri and Illinois, injured workers receive two-thirds their average weekly wage as temporary total disability (TTD) until they are able to return to work.  Typically, after they reach maximum medical improvement or return to work, this benefit stops and they receive an award of permanent partial disability (PPD).  If they are unable to return to work, they may receive an award of permanent total disability (PTD).

If the injured individual applies for and receives Social Security Disability Insurance (SSDI) benefits, the workers’ compensation benefits he or she receives are offset by the Social Security Administration.  The total amount of Social Security Disability benefits plus workers’ compensation cannot exceed 80 percent of the average earnings the disabled worker received before becoming disabled.  In any month the amount exceeds 80 percent, the administration reduces the amount of the SSDI benefits.  Typically, then, the disability benefit for months in which TTD was paid will only be 13.3 percent of their average earnings.

PPD and PTD payments are subject to the same rules.  However, there is a way to protect the bulk of the money the injured worker receives in PPD cases.  Because the PPD payment is compensation for future loss, it can be pro-rated over the lifetime of the individual.  Using actuarial tables published by both the states of Missouri and Illinois, the lump sum received is divided by the number of months of typical life expectancy.  This usually results in very little if any reduction in SSDI payments.  The pro-rata language MUST be included in the settlement (Missouri) or contract (Illinois) resolving the workers’ compensation case.

If you have patients or clients who have both a workers’ compensation and SSDI claim, urge them to speak with their attorneys in both cases.  We have seen many unfortunate cases where a workers’ compensation attorney failed to include the language in their settlements and ended up costing their clients thousands of dollars in benefits.

 Unemployment  Benefits and Social Security Disability – A Risky Proposition

While unemployment benefits are not offset like workers compensation payments in Social Security Disability cases, they do constitute a potential trap.  When people apply for unemployment benefits, they present themselves to the state as “ready, willing, and able to work.”  When they apply for Social Security Disability benefits they have to prove they cannot perform any job if they are under age 50 or prove they can’t do any job they have done in the past 15 years or can do with the skills they possess if they are 50 or above.

Many judges simply do not inquire about unemployment benefits.  They do not consider it relevant to the claim for Social Security Disability benefits.  This could be for a couple of reasons.  First, the ALJ may just be cognizant of the fact that the claimant has been attempting to survive during the lengthy period in which the SSA was making a decision about their claim.  Second, it could be that the ALJ understands that the claimant may believe they can still work but that in reality, and under SSA rules, they will be determined unable to work.  For instance, a 55-year-old construction worker suffers a serious back injury and now can only lift 10 pounds.  The worker is theoretically able to work with a 10 pound lifting restriction (e.g., like in an office).  The SSA rules recognize that such a claimant, at age 55, with only construction experience is not going to be able to make the transition (or be hired for) a desk job.  Thus the Claimant is legally considered to be “unable to work.”  The claims for unemployment benefits and Social Security benefits are, therefore, not inconsistent with each other.

Other ALJs always ask about the claim for and receipt of unemployment benefits.  It is their position that the claimant told one government agency (unemployment) that they were “able to work” and at the same time told another government agency (SSA) that they were “unable to work.”  These are inconsistent statements.  These ALJs are of the opinion that these inconsistent statements seriously damage the claimant’s credibility.  At the hearing the ALJ may disregard some of the claimant’s testimony as a result of this damage to their credibility.  This, in turn, can lead to a denial of disability benefits.

Some ALJs take a hybrid approach.  They do not consider the claim for unemployment benefits to be an inconsistent statement and, therefore, will, not let that influence their determination of the claimant’s credibility.  However, these ALJs believe that a claimant should not be receiving unemployment benefits at the same time that they are receiving disability benefits.  Thus, the ALJ will often request that the claimant amend their onset of disability to a date after unemployment benefits had ceased.  Perhaps these ALJs believe that the claimant should not receive disability benefits while they were still actively looking for work – a requirement while receiving unemployment benefits.

We have had hearings in which unemployment benefits were treated in each of these three very different ways.  As the claimant has no control over the choice of judge, the choice to apply for unemployment benefits is indeed risky.

 

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