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Disability Newsletter – Summer 2017

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

“My Lawyer told me not to work!”
People get confused about what we tell our clients about working. Let us make this very clear: If a client can work and successfully keep a job, we strongly believe that is what she or he should do. Work is good for everyone. It not only provides you with income now, it also builds up your Social Security Retirement. For most of us, work is an important part of a healthy lifestyle. It gives us a sense of purpose and a sense of accomplishment. It gives us contact with the world beyond our own homes and families. If you can work, those of us at Dempsey and Dempsey want you to work.
But If someone can’t work, we don’t want our clients to feel guilty. It is hard to know when to call it quits. People know exactly what to tell their best friends, but we are awfully hard on ourselves. We frequently meet with clients who are wracked with guilt. They cry and tell us what hard workers they have been.
The standard advice we give people in this position is, “If you are sick or injured, be kind to yourself. Give yourself the advice you would give your best friend.” We give our clients some guidelines to help them: “If you are so tired and sick at the end of the day that you are just recharging your batteries to go in to work the next day, you are probably ready to quit. If you are getting no pleasure out of your weekends or evenings, you are probably there. If you are a burden on your family because you are in such a bad mood due to pain, you are probably there. Most importantly, if your employer is not getting their money’s worth out of you, you are probably there. The bottom line is to be kind to yourself.”
Another situation that we face frequently is people with schizoaffective disorders who can easily get a job when they are “up” but lose them when they enter a depressive phase. We have had very young clients who have had as many as fifty jobs! They can always get hired, but find themselves dismissed or quitting in anger or frustration within weeks. We do frequently advise these people to get off the merry-go-round, usually with the concurrence of their treating psychiatrist.

On the other hand, if a client’s doctor or healthcare provider, particularly in a mental health case advises the client to work, we agree completely.
If we have an open case and the client is able to resume full time work and keep the job, we withdraw the request for hearing. However, frequently clients find out they are unable to do the work after a few weeks or months. If a person quits work within three months because of their impairments, that job can be considered an unsuccessful work attempt and it will not require our ending his/her social security disability case. If the individual works between three to six months, the matter is more complicated. It can still be considered an unsuccessful work attempt if we can document that 1) there were frequent absences from work because of impairment; or 2) the claimant performed the work unsatisfactorily due to the impairment, or 3) the claimant worked during a period of temporary remission of his or her impairment; or 4) the claimant worked under special conditions and those conditions were removed.
Obviously it is very difficult to prove the factors that make a work attempt of more than three months an unsuccessful work attempt. Therefore, we encourage our clients to decide within the first three months if they are going to be able to sustain work. The good news is that the Social Security Administration is proposing to extend the three-month rule to cover the full six months. An extended period would be more effective in encouraging people to try to return to work if their health allows it.
A problem we encounter is that our clients frequently will not communicate with us when they return to work. They are reluctant to tell us they are back at work because they fear we will discourage them from working or that they will owe us money. Neither of these fears are true. However, it is important that we explain to our clients the impact of their returning to work and the importance of keeping us advised. We have had multiple clients over the years decide they can’t sustain a work attempt after four or five months. They are terribly disappointed when they learn they have to start their claim all over again. If we represent one of your patients or clients, please tell them how important it is to communicate with us!
No matter how sick or injured they are, it isn’t a good idea to advise people to do applications on their own.

I have just had my second appointment in as many days with clients with meningiomas who have had brain surgery and are clearly disabled by serious sequelae from both the surgeries and the meningiomas. In both cases, well-meaning healthcare providers advised them, “Go do an application on your own. You don’t need an attorney.” Both of them went to the local office on their own and did applications. They were told by SSA employees “there should be no problem.” To their surprise, both of the people were denied.

Why were they denied? Both denials contained the exact same language, “In order to be eligible for disability benefits, your condition must keep you from doing any work for 12 consecutive months. The medical evidence in file indicates that your condition is severe and keeps you from working at this time. However, based on your description of the job _________, we have concluded that you will have the ability to do that type of work as it is generally performed in the national economy within 12 months from the onset of your condition.”
The physicians of both of these individuals told them that their conditions are likely permanent. However, the SSA routinely denies people based on the 12-month rule. It is an easy out for an overworked bureaucrat. Unless a disease or condition is on the Compassionate Allowance list, they’re probably going to deny a claim.
It would have been wise in both of these cases to have waited a while before applying for SSDI benefits. The problem now is that both of these cases – which should have been very easy pays — will have to go to a hearing. On the Illinois case it means a wait of two years. On the Missouri case it means a wait of eighteen months, time in which mortgages are due, utility bills and medical bills must be paid, and people must eat. This hardship could have been avoided.
In the past, it would have been possible to avoid a hearing in both of these cases. When we got to the point where the claimants hadn’t worked for twelve months and we had twelve months’ worth of sufficient medical evidence, we could have gotten a report from their physicians, ordered their records, and written a brief. Bang, they would have gotten benefits. Unfortunately, the SSA has dismantled that process. The attorney advisors who were issuing decisions on the record are now writing decisions for the Administrative Law Judges. Now claimants denied on application are going to have to go eighteen-to-twenty four months without disability income.
Picking the right date can be tricky…
There are other tiger traps into which claimants fall. A person applying for SSDI or SSI benefits must designate an “alleged onset date,” which is the date that the person says they became disabled. The local office will take any date the person says. Frequently the person applying interprets “alleged onset date” to mean the date they first got sick. That may be a year before they stopped working. That person is automatically and perhaps needlessly buying themselves a long wait for a hearing.

Some people will select the date they last worked as the alleged onset date. We often do that ourselves and it is good practice, as long as there is sufficient medical evidence to support it. Often people will quit work long before they even start treating with a physician. In that case, a proper onset date would be the date they started treating.
We understand that healthcare providers often see cases where patients meet the physician’s common sense definition of disabled. However, you are frequently not doing your patients a favor to tell them to go directly to the SSA and do an application. There are different rules for different age people. The regulations are very confusing. We love getting clients benefits on application – though it often means little or no attorney’s fees. It is absolutely the best and cheapest advertising we do.
Appeals Council becomes Denial Council:
Five years ago, the Appeals Council remanded 47% of cases. This year that has dropped to 13%. The reason… God knows. The drop in remands preceded the changes in the rules. They have obviously been instructed to remand fewer cases. The instructions they have been given are secret and not revealed to either claimants or their attorneys.
Medical Source Statements: The Value of Physician’s opinions
There have been many dramatic changes in Social Security in the past year. Perhaps the most important of these is that opinions of nurse practitioners and physician’s assistants are now considered as coming from Acceptable Medical Sources. This reflects the reality of medical treatment for people who live in medically underserved areas. Of the hundreds of people we represent each year, there are many who receive the bulk of their treatment from advanced practice nurses and PA’s. But there was another change that has greatly affected Social Security Disability practice. Prior to this year, the law was that the opinions of treating physicians were to be given “controlling weight” in the formation of an administrative law judge’s decision in a case.

Under the new rules the Social Security Administration will not have to automatically give the greatest weight to the treating physician’s opinions. Now the judge is instructed to focus on the “persuasiveness” of evidence from each medical source and whether the evidence in “supportable” and “consistent.” In addition, the SSA will not have to explain its reasons for choosing one opinion over another as thoroughly as it is not required by the rules. We are already seeing decisions that rely more heavily on the opinions of consultants retained by the SSA to perform disability exams or to review medical records without even examining the claimant. This will probably mean fewer applicants will receive disability benefits.
This does not mean that your opinions are not important. In fact, they are as important as ever. What you are going to see is that your patients and clients are going to suffer longer waits as more cases are appealed to the Appeals Council and to Federal District Court. This will add to their misery as they wait without income for a favorable decision.
In further changes, the new rules will not require SSA to consider evidence that a claimant has been awarded disability by other agencies such as the Veterans Administration or workers compensation programs. While SSA can consider the medical reports on which the other agency’s decision was based, SSA is no longer required to consider the fact that a claimant meets another program’s disability requirements in making its decision about disability under the Social Security program.

Waiting Times
If you receive this newsletter your patients and clients are dealing with the Columbia (Missouri) Office of Disability Adjudication and Review (ODAR). Here are the waiting times for each step of the process:
– Compassionate Allowance cases are taking approximately a month.
– Dispositions at application are taking two to seven months (avg.)
– Illinois Requests for Reconsideration are taking two to seven months.
– Requests for hearings at the Columbia ODAR are taking 554 days which is up from 541 in 2016.
The bottom line for your patients and clients is that the Illinois residents are going to have a two-and-a-half year wait to get to a hearing. Missourians will have a two year wait. Most clients receive their decision three to four months after their hearing.
A final word about
Medical Source Statements

A doctor in Hannibal wrote me and asked me to review the how and why of our requests for Medical Source Statements. I’m flattered that he reads this newsletter and even more flattered that he asked me to do this. I find it interesting that quite a few physicians are resistant to filling out these forms for clients. My grandfather Dempsey was an M.D. My grandfather Anderson was a pharmacist. Some of my earliest memories are riding with Dr. Dempsey to make house calls. I’ve played in the watermelon patch outside a sharecropper’s shack and waited in the garden of the nicest house in Kennett, Missouri while he visited a sick person.
I realize that we are never going to return to the days of house calls and personal service, but the underlying idea of the Medical Source Statement has its roots in that personal relationship between the healthcare provider and the patient. When we ask you for your opinions regarding what a patient of yours can do, that is literally what we want – your opinions. Please don’t ask the patient and record what he or she says. For goodness’ sake don’t send someone for a functional capacity evaluation. The baseline assumption of the Medical Source Statement is the idea that you know your patient better than anyone else.
Unfortunately, the Social Security Administration has a bank of physicians who are more than willing to state opinions of what your patients can do after merely reading the patient’s medical records. You can imagine what kind of physicians work for the pittance the SSA pays. They almost always give opinions that deny claimants benefits.
The fact is that you are capable of doing what we ask. The only real question is whether you are willing. You understand your patients’ limitations and their practical implications. You probably think they are self-evident, but they aren’t.
The consequence of your not filling out forms is tremendous. It drags out a process that already takes two to two-and-a-half years. That is time in which your patient is suffering and you can do something about it. The day your medical record will be sufficient for this purpose will be the day you download the Medical Source Statement form, fill it out and make it part of your record. (Mark Twain Behavioral does this!)
This isn’t to say your office notes are not important. They are extremely important! The more you can record about your client’s report of pain and limitations when they come to see you, the more support there will be for the judge to accept your MSS opinion. The more objective evidence from imaging or lab work the better.
The Social Security Disability process has almost gotten to the point it is adversarial. Now more than ever your patients need you to give your honest opinions of what they can and cannot do. I wish it were as simple as asking you whether your patient can work or not – it isn’t. There are some nineteen different sets of rules – most of which are age-based. The vast majority of our clients – and your patients – make their living with their backs, arms, hands, and legs. When they are impaired, they’re in trouble. When they are emotionally unstable and can’t interact with coworkers, supervisors or the public, they’re in trouble.
I realize that you need another piece of paper to fill out like you need a hole in the head, but your patient is going without income and dealing with cold, indifferent bureaucrats and “doctors” who haven’t treated a real live patient in years, if ever. That’s the how and why of the Medical Source Statement.
Terrell Dempsey

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