Why is so difficult to be found disabled due to a seizure disorder?
People often call me with questions about disability due to a seizure disorder. Usually the person has been denied benefits and they are upset because the seizure disorder disrupts their life and they believe they cannot work.
I tell them that Social Security is extremely skeptical of someone filing a claim for benefits due to seizures. In fact, Social Security takes the view that it is usually the claimant’s fault that their seizure disorder is disabling. Social Security Ruling 87-6 clearly states:
“Situations where the seizures are not under good control are usually due to the individual’s noncompliance with the prescribed treatment rather than the ineffectiveness of the treatment itself. Noncompliance is usually manifested by failure to continue ongoing medical care and to take medication at the prescribed dosage and frequency. Determination of blood levels of anticonvulsive drugs may serve to indicate whether the prescribed medication is being taken. In a substantial number of cases, use of alcohol has been found to be a contributory basis for the individual’s failure to properly follow prescribed treatment.”
So how do you overcome Social Security’s mindset? I advise my clients to:
1. Create a seizure log.
2. Get statements from people who have witnessed your seizures.
3. Take your medicine and make your doctor appointments. This is vital. If you are taking your medications and still having seizures, your doctor will more than likely check your blood to see if your medication levels are ideal.
4. Do not drink alcohol.
Remember, you have the burden of proving you are disabled.
The most common question asked by disability claimants is “how long will it take for a hearing?” Throughout the years the waiting period has fluctuated. Currently, the Mobile, Alabama Office of Disability Adjudication and Review takes an average of one year to decide a claim. http://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html Remember, this is the time period from when the Request for Hearing is filed until decision, and not the time period from when you initially apply.
During this waiting period, it is best to see your doctor and submit any and all evidence connected to your disability appeal. There are also mechanisms that allow the Administrative Law Judge (“ALJ”) to review your case and determine whether it can be approved without having a hearing. Usually, this requires submission of evidence that overwhelmingly supports your claim. Keep in mind that some ALJ’s rarely issue a decision without having a hearing and that your case is randomly assigned to an ALJ. As with many things, the amount of time you have to wait for a decision can sometimes be determined by the luck of the draw.
Earlier in this blog, we discussed how Social Security evaluates a doctor’s opinion in the context of a disability claim. Unfortunately, there are many people that never see an actual Medical Doctor (M.D,) when they go to a clinic. Instead, they see a Certified Registered Nurse Practitioner (CRNP) or a Physician’s Assistant (PA).
In the real word, for many patients there is practically no difference between an M.D. and a CRNP/PA. Each comes into the room, examines you, and prescribes medicine. For purposes of a disability claim, there is a huge difference between an M.D., and a CRNP/PA. Under the Social Security regulations, the agency has to consider an MD’s opinion differently: an MD’s opinion is entitled to the most deference. Although the agency can defer to the opinion of a CRNP/PA, the agency can also discard a CRNP/PA opinion much easier than an MD’s opinion.
With that said, it must be stressed that the disability claimant continue to get medical treatment, even if they can only afford to go to a clinic and see a CRNP/PA. The Administrative Law Judge might be willing to adopt the CRNP/PA opinion if it is consistent with the medical records. Most Administrative Law Judges are aware of the different clinics in the area and that not everyone sees a doctor when they visit a clinic.
A Social Security Disability Insurance Benefit (“DIB”) or Supplemental Security Income (“SSI”) claim can be a life altering experience. If the claim is awarded, the disabled person will receive monetary benefits plus medical insurance. Although a person will not get rich from disability, it is better than having zero income and being uninsured. It is important to put your best foot forward if you are thinking of filing an application for disability. Here are some tips I give people if they are thinking about filing a claim:
Try to save enough income to cover living expenses for a year. Sometimes it takes over a year before an application is approved.
Try to keep your medical insurance for as long as you can.
Talk to your doctor about a potential disability claim before your insurance expires. It might be difficult to see your doctor once your insurance expires.
Try to get all scans, x-rays, and lab work done before your insurance expires.
Obtain letters from former employers detailing how your medical condition affected your job performance.
These are a few tips I tell people if they are thinking about filing a disability application.
Social Security is reviewing my case years later.
If you are found disabled, the chances are pretty high that Social Security will review your case sometime down the road. Social Security will usually write to inform you that they are reviewing your claim. They will gather your medical records and probably send you out for an examination just like they did when you first applied. Eventually Social Security will make a decision whether or not you are still disabled.
If Social Security decides you are still disabled, they will write you a letter stating so. There is nothing else to do. But remember, Social Security might review your case again in a few years.
If Social Security decides that your disability has improved to the point where you can work, there are deadlines that you must be aware of if you plan to appeal. You have sixty days (60) to appeal the decision, but if you want your benefits to continue during the appeal process you must appeal within ten days (10) of the notice. Remember that if you continue your benefits during the appeal and you ultimately lose, Social Security can request that you pay back the money you received during the appeal.
If you appeal the decision, you can request an informal hearing. This hearing usually takes place at the local Social Security Office. It is very informal. The Decision Officer will ask you a series of questions and will allow you to tell them any information that is pertinent to the case. These hearings usually last around thirty minutes (30).
The Decision Officer will make a decision and send you a copy of it. You will continue receiving your benefits if you are found disabled. If you are found not to be disabled, you will have to appeal the decision for a hearing before an Administrative Law Judge. Once again, you must appeal the decision within sixty days (60).
If you are receiving Social Security Disability Benefits or Supplemental Security Income and have received a letter from Social Security that they are going to review your case, you should contact an attorney to help you.
So, you lost your Social Security Disability claim. Now what?
Many people choose to attend their Social Security Disability hearing without representation. Some win. Some lose. What are your options if an Administrative Law Judge (“ALJ”) issues an Unfavorable Decision (“UFD”)?
First off, you should consider your appeal options. You can appeal a UFD to the Appeals Council. You only have sixty days from the date of the UFD to appeal. If you miss the deadline to appeal you must show good cause why your appeal is late. The Appeals Council has the authority to reverse the ALJ’s decision, remand it for a new hearing, or keep it the same. If you do not appeal the UFD, it become final and it is extremely difficult to change the decision later.
You can also decide to file a new claim for benefits. This is usually not recommended because you are essentially giving up all of your past due benefits, which can be a substantial amount of money and insurance. However, sometimes this is the best option for the claimant. Your situation will determine whether you should file a new claim.
If you represented yourself before an ALJ and received a UFD, you should make an appointment to speak with an experienced disability attorney to discuss your options.
How important is your doctor’s opinion when you apply for Social Security Disability Insurance Benefits or SSI? It is very important.
A treating source is usually in the best position to give an opinion regarding your limitations, such as your ability to lift, carry, sit, stand, walk, pay attention, concentrate, use your hands, climb, squat, stoop, crawl, etc. Social Security does not care if your doctor thinks you are “disabled”, they only care about the limitations placed on you by your doctor.
Social Security drafted regulations that state the weight to be given to a treating source’s opinion. It is called the “treating source rule”. Usually, Social Security will adopt your doctor’s opinion if the medical records support the opinion. Social Security will give little weight to the opinion if the medical records do not support it.
For example, Social Security will likely not pay much attention to your doctor’s opinion if your doctor opines that you could only lift and carry five pounds but your medical records rarely mention any problems that would equate to such limitations. There has to be documentation to support the opinion.
A treating source opinion that is supported by the medical evidence often is the difference between a case be awarded or being denied.
Feel free to contact me if you have a disability claim pending and have questions about your claim.
You applied for disability benefits and were turned down. You appealed the denial and have waited at least a year for a hearing before an Administrative Law Judge. The big day is right around the corner and you start to wonder, “What do I do? What goes on in a disability hearing?”
First off, a hearing is a non-adversarial proceeding. What does that mean? It means there is not another “side” at the hearing trying to prevent you from getting benefits. The hearing is inquisitional, which means it is basically a fact-finding proceeding. The Judge will introduce himself and ask you some basic questions regarding your work history and medical conditions. Many Judges will give you the floor and let you tell them anything that relates to your disability. Other Judges exert much more control over what you can say. The Judge will then ask some questions to a Vocational Expert and allow you to cross-examine the Vocational Expert. The hearing will last anywhere from twenty minutes to one hour.
You might ask yourself whether you need an attorney to represent you at your hearing. Many people do not use an attorney and some of those people win their case. You might be one of those people whose case is so strong that there is nothing to do except show up for the hearing. Unfortunately, most cases are not that strong and need an experienced attorney to review the medical records and help you put your best foot forward at the hearing
Children’s SSI and Autism/Pervasive Developmental Disorders:
I am frequently asked if a child with Pervasive Developmental Disorder (PDD) or Autism is eligible for Supplemental Security Income. The short answer is yes. A child with PPD or Autism may be eligible for SSI depending on the severity of the impairment.
Social Security first looks to their Listed Impairments to determine whether the child is eligible for SSI. Listing 112.10 states the requirements to be found eligible for SSI based on Autism or PDD. The child is eligible if these requirements are met. If these requirements are not met, Social Security determines whether the child “functionally equals” a Listing. What this means is that the Administrative Law Judge will determine how the impairment, in this case Autism or PDD, impacts the child’s ability to pay attention, complete tasks, interact with others, and the ability to care for themselves.
Documentation is the key to show the child is eligible for SSI. Medical records, school records, Individual Educational Programs, statements from family and friends, pharmacy records, and a statement form the physician are all vital to show the impact PPD or Autism has on the child.
If you are in the process of applying for SSI for a child with Autism/PDD or have already been denied, please feel free to contact me to discuss your options.
How to apply for Social Security Disability or Supplemental Security Income.
If you are reading this, you are probably thinking about filing for disability for yourself or loved one. There are many misconceptions about these programs and everybody “knows someone” that knows all the tricks of the trade. Let me start by saying that usually advice from someone who “knows” the tricks of the trade is not sound advice.
To be disabled you have to show an inability to work for one year due to a medical condition or you must show that the medical condition is going to kill you. Although it sounds relatively easy to show disability, when you factor in all the statutes, regulations, agency rulings, agency operational manuals, and case law, it turns out to be not as easy as it sounds.
To get the ball rolling, you need to contact Social Security either via website at www.ssa.gov or call their toll-free number 1.866.593.1922. If you would rather go in person, the addresses for the local Social Security Administration offices are:
550 Government Street
Mobile, AL 36602
Baldwin County, AL
101 Courthouse Drive
Fairhope, AL 36532
411 W Garden Street
Pensacola, FL 32502
Be prepared to give basic information, such as your Social Security number, address, date of birth, who are your doctors, and where did you last work. Most of this can be done over the phone or online. However, if you are filing an SSI application you might have to do this in person with the Social Security worker.
If you are hesitant to contact Social Security and talk with anyone at their office to get your application started, you might want to contact the office of an attorney who/specializes in disability cases.