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Disability Newsletter – Winter 2016

Disability Newsletter
The Law Firm of Dempsey & Dempsey, P.C.
Disability Advocates in Illinois and Missouri

A Word about this Edition of our Newsletter.

I just finished meeting with a lady with a very nasty medical problem – progressive supranuclear palsy. She’s a lovely lady in her fifties who has worked hard all of her life and paid her taxes. She is one of a thousand of our clients being kicked around by life and the Social Security Administration. She deserves better and Vicki and I are going to do our best for her. She shakes like a leaf. She can’t walk so well any more. Her memory isn’t very good. Unfortunately, she is typical of the people we represent.
We get tired of hearing about the guy down the road who isn’t disabled and is getting Social Security. The fact of the matter is that guy is usually a myth. Typically it is a person who is getting disability for mental health reasons and tells others he has a “bad back” when he’s asked why he’s on disability. Forty percent of our caseload is mental health only. That’s consistent with the national statistics on SSDI and SSI applicants. Someone will see him putting an air conditioner into a window and decide he’s a fraud. We all should want people with mental health problems getting the treatment they need. It makes for a safer community for all of us.
This issue is about common problems we encounter each month with our clients and the community in representing Social Security Disability and SSI claimants. Hopefully you can learn something that can help you deal better with your patients and clients. If nothing else, it will take my mind off the problems of my clients and the inequities of the world for a couple of hours!
Terrell Dempsey

I’m Going to Work Part Time and Apply for Social Security Disability!

The Social Security Administration is at the root of this problem. Clients think – often because they are told by someone at the local SSA office – that they can work part-time and earn up to $1090 per month in 2016 and still be considered Disabled. Theoretically this is true. Here is why this almost never works in practice: The claimant (the sick or injured person) has the burden of proof in a Social Security Disability or SSI case. One of the things they have to prove is that they cannot work – i.e. that they are incapable of engaging in substantial gainful employment which is defined as earning more than $1090 per month.
If an individual is working part time and earning $700 per month (for example) it is almost impossible to prove they couldn’t work just a bit more and earn another $390 per month. (Imagine it: I swear to you judge, I can work 12 hours a week, but there is no way on God’s green earth I could work 19 hours!) When we were young attorneys, we actually tried a number of these – and always failed. The burden of proof is beyond reach.
The only time we have ever succeeded in cases with part-time work in a very unique situation – when the claimant has a serious, progressive, degenerative disease. In this scenario, the claimant has worked in the same place for years. The doctor limits the individual to a specific number of hours in writing (and usually specifies adaptive devices for the workplace or a requirement such as having the ability to lie down occasionally) and the employer has made accommodations in the workplace because the employee has been a long-term loyal employee. This changes the job from competitive employment to accommodated work. This is an exceedingly rare scenario. We tell clients that if they are able to work part-time, they are probably not going to be able to prove to the government that they are unable to work.

But My Neighbor is on Disability and He has the Same Thing!
Different Rules for Different Age People.

One of the most difficult aspects of Social Security Disability rules for professionals in the health and social work fields to understand is the ramification of age in Social Security Disability rules. The rules are even more difficult because the age rules are further modified depending on the previous work experience and education of an individual. What will disable a 58-year-old might not disable a 48-year old. What will disable a 58-year-old with an 11th- grade education might not disable the same person with a high school education.
A sixty-one-year-old with a sixth-grade education who has performed unskilled work is disabled even if they retain the ability to perform medium work – i.e. can lift 50 lbs occasionally, 25 lbs frequently and stand/walk 6 hours out of an 8-hour day. But if the same person has a seventh-grade education or more, they are only disabled if they are restricted to light work – i.e. can lift 20 lbs occasionally and 10 lbs frequently! If the person with the sixth-grade education is only 53-years-old, they are only disabled if they are restricted to sedentary work – i.e. lift 10 lbs occasionally, less than 10 lbs frequently, and have the ability to stand 2 hours of an 8-hour day!
People under age 50 who are literate and/or able to speak English, regardless of their education or work history must prove they cannot perform sedentary work. We speak to many people who apply for Social Security benefits because their doctor has told them they can’t do the type of work they have been doing – often for a very long time. For example, we see people under age 50 engaged in construction who have been put on 20-pound lifting restrictions, applied for Social Security Disability on their own, then sat around for months not doing anything under the mistaken belief they are disabled. Sometimes they come to see us after they have wasted a year when they should have been trying to get training or seeking another type of job. Not surprisingly, frequently people in this situation get angry. They get especially angry when a health-care provider or social worker has told them they should apply for disability.
The rules for people under 50 can have some harsh results. It is sad when we see a tool and die maker who has been working a very well-paying job reduced by health problems to a position only paying a little above minimum wage. It is a real kick in the teeth for them, but having one’s opportunities reduced doesn’t qualify one for disability. Our job as their attorney is to tell them just exactly how the rules and law apply to them.
There are really twenty different Social Security Disability and SSI sets of rules based on age, education, and work experience. There are even age-related rules on disabled widow/widower benefits! Of course, we have simplified factors greatly for this little article and only addressed lifting and standing there are a myriad of other manipulative and postural limitations that come into play. Serious hand problems eliminate sedentary and medium work. If an individual has an IQ of between 60 and 70 there are entirely different rules. The bottom line for us is we do meet a lot of people who know someone with the exact same problem they have who is getting disability, but are still not disabled themselves!

“Everything You Need is in the Medical Records.”

Medical records are a big problem for us. Many doctors refuse to fill out Medical Source Statements for us and tell us that everything we need is in the medical records. Unfortunately, it isn’t. Diagnoses do very little in persuading the Social Security Administration. The Administrative Law Judge is making a vocational determination and needs the opinions of treating physicians as to what the patients are capable of doing. If they don’t have the opinions of treating physicians, they are going to rely on the doctors who review records for the Social Security Administration. The fact of the matter is that we need the opinions of treating doctors.
The Social Security Administration is required to give great weight to the opinions of treating physicians. Social Security Regulation 96-2p (last legal citation we will make you read!) provides that controlling weight will be given to treating positions on “the nature and severity of an individual’s impairment(s), from treating sources.” Of course, the opinions of the treating physician must be consistent with other substantial evidence in the case and must be well-supported by medically acceptable clinical and laboratory diagnostic techniques.
Medical records are problematic in other ways. Some physicians write long notes. Other docs write very short notes on the SOAP outline. With the advent of computerized records, we are seeing lots of “cut and paste” records. We had one specialist who had been treating an individual for three-to-four times a year for more than three years. The wording of every single entry was identical down to a misspelling and a typo, except for the date, time, and medications – which did get tweaked occasionally.
Some medical records include the patient’s employment. We had a record this past year where every single entry included the phrase “works as a carpenter” for the past three years. The individual hadn’t worked in more than two years. When the suspicious judges at the SSA see entries like that, they look at the claimant with a raised eyebrow and say, “You told your doctor you are working. Are you working for cash under the table?”
We really do understand the pressure health care providers are under. Clinics have expectations on the number of patient-encounters per hour. Things have to be charted correctly and coded. No one likes more paper work. But seriously, your medical records aren’t sufficient in a Social Security Disability case.

Social Security Administration Trying to Play Catch-up

If you have read our last newsletter, you know that the Social Security Administration had gotten very bogged down. Nearly a million people were waiting to have their hearings held nation-wide. The offices that serve Northeast Missouri and West-Central Illinois are among some of the slowest in the nation. In October, the head of the Social Security Administration announced that she had a plan to try to deal with the backlog.
We are seeing some improvement in scheduling cases. Most of this region (except for the area served by the Kirksville Social Security Office) are now handled by the Columbia, Missouri Office of Disability Adjudication and Review. A number of new judges have been hired and we already had more hearings in January than we had in six months of 2015. They appear to be serious about setting hearings. When someone drops out (having either returned to the work force or having gone homeless and disappeared, for example) they are actually scheduling someone else into the slot! Believe it or not, that is a new development.
Unfortunately, we cannot give an estimate on the wait times for cases to get to hearings. To be on the safe side, please tell your patients and clients to expect at least a two year process in Illinois and a year-and-a-half in Missouri.
We are hoping that the SSA will come up with a review process so that cases in which there is ample evidence can be paid without a hearing. We believe it was a grave mistake to eliminate the “On the Record” process which allowed cases to be paid without a hearing.

The Law Firm of Dempsey & Dempsey, P.C. is dedicated to helping Social Security Claimants in Northeast Missouri and West-Central Illinois with the best representation possible. We would like to say thank you to all of the hard working physicians, nurses, healthcare workers, psychologists, counselors, social workers and their support staff who help our clients every day in their quest for a healthier life. Thank you for all you do! Thank you, especially, to those of you who help us with records and Medical Source Statements. Thank you for referring your patients to us. We will take good care of them.

The Law Firm of
Dempsey & Dempsey, P.C.
716 Broadway
P.O. Box 510
Hannibal, Missouri 63401
Ph. 573-221-2150
Fax 573-221-2808

The Law Firm of
Dempsey & Dempsey, P.C.
236 N. 6th Street
P.O. Box 331
Quincy, Illinois 62306
Ph. 217-222-2432
Fax 217-234-3264

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