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Posts Tagged ‘Social Security Disability’

Diabetes: How to win a social security disability case before an Adjudicator or ALJ

December 10th, 2015 by admin

The Social Security Administration (SSA) eliminated Medical Listing 9.08. For complications from diabetes, this listing previously resulted in a finding of disability at step three of the sequential evaluation process for social security disability claims. https://www.ssa.gov/disability/professionals/bluebook/9.00-Endocrine-Adult.htm In fact, effective June 7, 2015, there are no specific endocrine disorder listings anymore for adults. One exception is Medical Listing 109.08 for children under 6 years old, who require daily insulin. https://www.ssa.gov/disability/professionals/bluebook/109.00-Endocrine-Childhood.htm

Diabetes is a complex set of disorders characterized by abnormalities, which result in insulin deficiency. There are 29 million people total being affected by diabetes in the United States, approximately eight percent of the population. Diabetes is the most common endocrine-metabolic disorder and the seventh leading cause of death in the US. As the number of diabetes diagnoses rise, certain ethnic groups are more likely to be diagnosed with diabetes such as Native Americans 15.9 percent; African Americans 13.2 percent; and Hispanics 12.8 percent. http://www.diabetes.org/diabetes-basics/statistics/

The estimated annual medical cost of treating people with diagnosed diabetes is $116 billion. People who have diabetes incur medical expenses that are about 2.4 times higher than those who do not. http://www.ncsl.org /research/health/diabetes-prevalence-county-level.aspx

With SSA making it more difficult to be found disabled with diabetes, Dr. Jane Reusch, Director of the Diabetes Care Team at the Denver VA Medical Center, recently addressed social security disability attorneys and respresentatives at a NOSSCR convention in Denver, Colorodo. http://www.diabetes.org/about-us/who-we-are/board-of-directors/jane-eb-reusch-md.html

Dr. Reusch provided the facts and statistics for the three subdivisons of diabetes listed below:

I. Type 1 Diabetes Mellitus

• Usually younger at onset date
• Usually normal weight or thin at diagnosis
• Usually no family history
• Insulin sensitive
• Requires insulin for treatment
http://www.diabetes.org/diabetes-basics/type-1/

II. Type 2 Diabetes Mellitus

• Usually over 40 years old
• 90% of people diagnosed are obese http://www.diabeticcareservices.com/diabetes-education/diabetes-and-obesity
• Positive family history
• Insulin resistant
• Usually eventually requires insulin for treatment (may not be necessary at time of onset)
http://www.diabetes.org/diabetes-basics/type-2/

III. Gestational Diabetes Mellitus

• Develops in 4% of women during the 2nd or 3rd trimester of pregnancy
• Increases fetal morbidity and mortality
• Increases chances of caesarian section
• 30- 40% of women with GDM develop diabetes within 10 years http://journal.diabetes.org/clinicaldiabetes/v16n1J-F98/pg4.htm
http://www.diabetes.org/diabetes-basics/gestational/?loc=db-slabnav

Social security disability lawyers seek approaches to convince Adjudicators at the Georgia Vocational Rehabilitation Services, Disability Adjudication Services (DAS), and Administrative Law Judges (ALJs) at the Office of Disability Adjudication and Review (ODAR) to award disability benefits to claimants with diabetes. One way is to prove that your diabetes meets
or medically equals a Medical Listing of another body system. http://www.kathleenflynnlaw.com/medical-listings-of-impairments-for-adults-and-children. A medical expert must testify at the hearing to determine if your diabetes in combination with another medical impairment(s) equals a listing. https://ssa.gov/OP_Home/hallex/I-02/I-2-5-39.html

There are some common chronic complications with diabetes mellitus addressed below, which are found in other Medical listings as follows:

1. Retinopathy- Diabetes is the leading cause of blindness in the U.S. Usually by 10 years duration of diabetes 90% of individuals will have some degree of retinopathy. Medical Listings 2.01, 2.02, and 2.03 address the effects of retinopathy. https://www.ssa.gov/disability/professionals/bluebook/2.00-SpecialSensesandSpeech-Adult.htm

2. Nephropathy- Diabetes is the leading cause of renal failure/dialysis and transplant nationwide. Even when controlled, diabetes is the most common cause of kidney failure accounting for 44% of new cases nationwide. Medical Listing 6.02, 6.03, 6.06, and 6.09 are relevant. https://www.ssa.gov/disability/professionals/bluebook/6.00-Genitourinary-Adult.htm

3. Neuropathy – Most common complication stemming from diabetes affecting over 50% of those with this medical condition. Medical Listing 11.14 addresses neuropathy. https://www.ssa.gov/disability/ professionals/bluebook/ 11.00-Neurological-Adult.htm

4. Amputation- Diabetes is the most frequent cause of non-traumatic lower limb amputation. This is a result of diabetic foot disease which impairs blood flow to the lower extremities. Amputation is found in Medical Listing 1.05. https://www.ssa.gov/disability/professionals/bluebook/1.00-Musculoskeletal-Adult.htm

5. Due to the link between diabetes and cardiovascular disease, a cardiovascular disease risk profile is also recommended for those with prediabetes. Medical Listings 4.02, 4.04, 4.05, 4.06, and 4.09 could be considered for heart complications from diabetes mellitus. https://www.socialsecurity.gov/disability/professionals/bluebook/4.00-Cardiovascular-Adult.htm It is important to note that 77 % of all hospitalizations and 80% of all mortality in diabetes is secondary to cardiovascular disease. http://www.niddk.nih.gov/about-niddk/strategic-plans-reports/Documents/Diabetes%20in%20America%202nd%20Edition/chapter19.pdf

Another way to prove that you are disabled from diabetes is at step five of the sequential evaluation process based upon the Medical-Vocational Rules https://www.ssa.gov/OP_Home/cfr20/404/404-app-p02.htm or vocational expert testimony. A treating source statement addressing exertional limitations such as how long you can sit, stand, walk, push/pull, and lift/carry, along with non-exertional limitations including but not limited to pain, difficulty stooping/bending, inability to grasp or engage in fine manipulation, is very important.

Although some people do not meet the criteria for diabetes, the American Diabetes Association Expert Committee recognizes an intermediate group whose glucose levels are too high to be considered normal.
http://www.diabetes.org/diabetes-basics/diagnosis/ The current recommendation for those with prediabetes is yearly screenings, diet and exercise changes, and, in some cases, metformin. You should take the proper steps to manage your diabetes. http://www.diabetes.org/

Call the Law office of Kathleen M Flynn, LLC at 404-479-4431 if you would like assistance with filing a claim for social security disability. We assist claimants with filing a DIB or SSI application, Request for Reconsideration, Request for Hearing, Request for Review of Hearing Decision or help in expediting your case for social security disability benefits. Also, please visit our website at www.kathleenflynnlaw.com to learn more about us.

Representatives have a duty to submit all evidence in social security disability cases to the Social Security Administration

October 15th, 2015 by admin

Beginning in April 2015, the Social Security Administration (SSA) created new internal Hallex regulations requiring representatives to submit all existing evidence related to a client’s mental or physical impairments. In the past, representatives were not required to submit evidence that could adversely impact a client’s case. During hearings held at the Office of Disability Adjudication and Review (ODAR) in Atlanta, GA, Administrative Law Judges (ALJs) are asking attorneys and representatives if they are “aware of any additional evidence that relates to whether the claimant is blind or disabled.” https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-78.html

Examples of evidence that must be submitted includes all paperwork, forms, medical records, and test results from physicians, psychiatrists, therapists and health care providers such as nurse practitioners, licensed clinical social workers, chiropractors, etc. Problematic for the representative is an inability to locate evidence, for instance, from a past personal injury or worker’s compensation claim. Moreover, clients cannot always recall the names or addresses of previous treating sources.

As far as evidence that has to be submitted after the ALJ denies a case at the hearing level, the record is not closed at the Appeals Council (AC) for the Atlanta region. (The AC is where cases are appealed after claimants get unfavorable hearing decisions from ALJs). Therefore, the ongoing duty to submit evidence extends to the Appeals Council, which considers additional information if the evidence is NEW and MATERIAL or relates to the period ON OR BEFORE the ALJ decision. https://www.ssa.gov/OP_Home/hallex/I-03/I-3-2-15.html and https://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-6.html

If the evidence that a representative wishes to submit relates to the period AFTER the ALJ decision, the Appeals Council “will return the additional evidence to the representative with an explanation as to why it did not accept the additional evidence and will advise the claimant of his/her right to file a new application.” The Appeals Council “must return” the evidence and provide notice on how to file the new application. If the claimant files a new application within 6 months of the date of the AC denial notice in a Title II (DIB, SSDI) claim or within 60 days of the date of the AC denial notice in a Title XVI (SSI) claim, the date of the request for review of the ALJ’s unfavorable hearing decision will be used as a protective filing date. https://www.ssa.gov/OP_Home/hallex/I-03/I-3-5-20.html

Please note that a claimant cannot pursue an appeal, ie request for review of an ALJ’s denial of social security disability benefits and file a new application at the same time. An exception exists if the claimant has a new “critical or disabling condition” after the Judge issued an unfavorable decision at the hearing.https://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR2011-01-di-01.html(Social Security Ruling 11-1p). See our blog on June 29, 2011 at www.kathleenflynnlaw.com/blog. Additional evidence of a new diagnosis, not relating back to the ALJ’s decision, must be included with the new application.

In the past, District Offices have refused to process a subsequent application with a new diagnosis such as HIV, for example, while the client’s request for review of the ALJ’s denial is pending at the Appeals Council. What is considered a “critical or disabling condition” is, apparently, open to interpretation by SSA. Before a new application can be processed, while the ALJ’s denial is being reviewed by the AC, the District Office must get approval from the AC.

A representative could be referred for sanctions if there are repeated failures to submit evidence related to the case or the representative does not inform SSA about evidence. An Administrative Appeals Judge will consider whether circumstances warrant a referral to the Office of General Counsel (OGC) as a possible violation of the rules. https://www.ssa.gov/OP_Home/hallex/I-01/I-1-1-50.html and https://www.ssa.gov/OP_Home/hallex/I-03/I-3-2-15.html

Call the Law Office of Kathleen M Flynn, LLC at 404-479-4431 if you would like assistance with filing a request for review of an ALJ’s unfavorable decision or a new application for social security disability benefits. Also, please visit our website at www.kathleenflynnlaw.com to learn more about us.

SOCIAL SECURITY’s 80th ANNIVERSARY

August 5th, 2015 by admin

Marking a Social Security Milestone

August 14, 2015 is the 80th anniversary of Social Security. Few Americans working today can remember a time when Social Security wasn’t part of the social fabric of America.

Since the Social Security retirement program was enacted under Franklin Delano Roosevelt in 1935, it has expanded in important ways. In 1939, benefits for dependent survivors of wage earners were added. And in 1956, disability insurance benefits were added. Today, as in the past, millions of Americans rely on these Social Security programs for income in the event of their own retirement, disability or death of a family wage-earner. Here is one claimant’s account of how getting social security disability benefits changed his life. For more accounts, please see the testimonials on our website at www.kathleenflynnlaw.com

“In 2013, I came to Kathleen Flynn’s law firm to get my SSI. I was homeless at the time, staying at Gateway shelter. I hired Ms. Flynn to assist me with receiving my social security disability benefits during a hard time in my life. In 2014, I found out I would be going before a Judge in February of 2015. At the time, I was still homeless and in need of assistance. Ms. Flynn’s office submitted a dire need letter that was able to expedite my case, and I really appreciated that. I was still in transitional housing. I received my first check the 29th of July 2015. When I checked my mail box, I knew right away what it was, and I felt so much joy. I’ve been enjoying every day since I was approved. Now, I have a Medicaid card and can be picked up for my doctors’ appointments. Because I did not have bus fare, I was unable to get to all of my appointments. Through the Medicaid, I can afford dentures. Now, that I have permanent housing and SSI, my mental state is beginning to stabilize. I am really thankful for Ms. Flynn and the staff’s hard work and help.” Abraham Jacobs Jr.

While Social Security is a part of our social fabric, that doesn’t mean that we can take its future for granted. As we celebrate the 80th anniversary of Social Security on August 14, this is the time to ensure that the Social Security programs remain strong for the next generation. Now more than ever, as an increasing number of workers approach retirement, we cannot afford to jeopardize the stability it provides millions of families.

Social Security offers vital protection to nearly all American workers and their families, so that if they face serious disability, illness, or injury before reaching retirement age, they will receive a monthly benefit. And, in the event of death, it provides some financial protection to the surviving family members. It is funded by your payroll taxes – as you work, you buy premiums for this important insurance.

After advocating for workers with disabilities for 23 years, I have seen firsthand the vital role Social Security plays in people’s lives when they need it most.

In addition to providing a foundation of economic security to millions of Americans, Social Security also boosts the economy, because when people receive this compensation, they spend it in their communities. In 2012, Social Security supported more than $1 trillion in economic output.

It is important to keep in mind that many of the people who rely on this program – seniors and people with disabilities – are barely scraping by. Social Security benefits make up at least 90 percent of income for half of all disabled beneficiaries, and it averages just around $1,130 per month ($35 per day). This doesn’t leave any room for cuts. And, the disability standard is extremely strict – requiring extensive medical documentation for serious impairments and conditions. In fact, more than 6 in 10 applicants are denied, even after all stages of appeal.

As part of the Social Security system, Disability Insurance is an important public structure, like our highways or water system that needs to be maintained. There are a few easy ways that Congress can make the program more efficient – including fully funding the Social Security Administration so they can hire more staff to process claims, and rebalancing the trust funds again to ensure there is adequate funding for years to come. In the lead up to the 2016 election, we should all ask candidates where they stand on this critical program.

Social Security belongs to the American workers who paid into it. Any of us could find ourselves disabled. That’s why it is so critical that our politicians work together to keep Social Security strong for generations to come.

Call the Law office of Kathleen M Flynn, LLC at 404-479-4431 if you would like assistance with filing an application or appeal for social security disability benefits or help in expediting your case. Also, please visit our website at www.kathleenflynnlaw.com to learn more about us.

How Long Can You Expect to Wait to get a Favorable Decision at the SSA Hearing Level?

March 24th, 2015 by admin

If you are applying for Disability Insurance benefits (DIB or SSDI) under Title II and Supplemental Security Income (SSI) under Title 16 of the Social Security Disability Act, you quickly realize that this government program cannot provide the swift help needed.The sudden onset of illness and/or disease can have dire financial consequences resulting in the loss of housing, a car, and medical treatment due to an inability to afford transportation, copays and medication.

Currently, in the Atlanta-North Office of Disability Adjudication and Review (ODAR), the average wait time for a hearing to be scheduled is 15.5 months from the date that the appeal (request for hearing) is filed at the Social Security District Office until the hearing date. At the Atlanta–Downtown ODAR, the average wait for a hearing to be scheduled is 17 months; and at the Covington ODAR office, the average wait time for a hearing is 15 months. http://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html

What can be done to get a Hearing Faster?

1. If you are terminally ill with a medical condition that is untreatable, irreversible, and expected to end in death, your case will be flagged as a “TERI case” for expedited processing. Examples include: 1) any malignant neoplasm defined as state IV cancer that is metastatic, persistent or recurrent following initial therapy; or inoperable or unresectable 2) an allegation or diagnosis of cancer of the esophagus; cancer of the liver; cancer of the pancreas; cancer of the gallbladder; mesothelioma; small cell or oat cell lung cancer; cancer of the brain; or acute myelogenous leukemia (AML) or acute lymphocytic leukemia (ALL) 3) comatose for 30 days or more 4) awaiting heart, liver, lung or bone marrow transplants excluding kidney and corneal transplants 5) chronic pulmonary or heart failure requiring continuous home oxygen and an inability to care for personal needs. 6) chronic dependence on a cardiopulmonary life-sustaining device 7) receiving inpatient hospice care or receiving home hospice care, ie. in-home end of life counseling or palliative nursing care 8) an allegation from the claimant or third party that the illness is terminal; 9) newborn with a lethal genetic or congenital defect 10) an allegation or diagnosis of amyotrophic lateral sclerosis (ALS), known as Lou Gehrig’s Disease or 11) an allegation or diagnosis of acquired immune deficiency syndrome or acquired immunodeficiency syndrome (AIDS). https://secure.ssa.gov/poms.nsf/lnx/0423020045

2. Determine if your case falls under the Compassionate Allowance Exception. Claimants suffering from conditions on a “Compassionate Allowance” list get special treatment. See our blog dated February 17,2012 which addresses the topic.http://www.kathleenflynnlaw.com/blog
The comprehensive Compassionate Allowance List can be found at: http://www.ssa.gov/compassionateallowances/

3. Submit information documenting that you are homeless or in a “dire need” situation. Dire need can be shown if you are without shelter, food, or access to medical care. http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-40.html

4. If you are VET attempting to obtain a VA Disability Rating, once a 100% VA Disability Rating is achieved, SSA regulations require special processing of these cases. http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-40.html

5. If you are a VET, who has not received a disability rating of 100%, but who has sustained a physical or mental impairment while on active duty, you are designated as a Military Casualty/Wounded Warrior, whose case requires special processing. http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-40.html

6. Your case may be designated as critical if SSA finds that you are suicidal, homicidal, or potentially violent. http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-40.html

7. If there has been an inordinate delay in processing your case, and there is a public, congressional, or other high priority inquiry on the case, SSA may designate your case as critical. Contact your local Congressperson to do an inquiry of the status of your case with ODAR if you have been waiting for a hearing beyond the average processing times listed above. http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-40.html

Unless the Judge issues a decision from the Bench, there will be a delay of months before a decision writer prepares a fully favorable decision for the Administrative Law Judge (ALJ) to sign. Then, there will be another delay before a PERK, financial interview, is conducted by the Social Security District Office for a SSI monthly payment and/or SSI back payment. Moreover, the Payment Center may take months to issue a monthly DIB payment and/or back payment for DIB. The Payment Center cannot release a DIB backpayment until all the SSI installments are released to you.

Call the Law office of Kathleen M Flynn, LLC at 404-479-4431 if you would like assistance with filing an application or appeal for social security disability benefits or help in expediting your case. Also, please visit our website at www.kathleenflynnlaw.com to learn more about us.

Getting assistance in overcoming Military Sexual Trauma

February 2nd, 2015 by admin

I recently had the unique opportunity of dining with a group of women from the U.S. Armed Services who proudly served our country. As with female and male veterans whom I have assisted with social security disability claims over the years, I heard firsthand accounts of military sexual trauma (MST). Some of my clients have related suffering in silence or being revictimized by unaddressed complaints. I have been disheartened to hear how reporting a case of sexual assault can impact one’s military career. Those who reported incidents of sexual assault have been demoted, placed in dead end positions without career advancement, been discharged, or have felt compelled to leave the military and never reenlist, as S.E. Smith noted in her blog at rhrealitycheck.org/article/2015/01/26/often-military-sexual-assault-survivors-must-fight-disability-benefits/

Based on the Department of Defense’s Statutory Enforcement Report conducted by the US Commission on Civil Rights in 2013, there were 3,374 processed cases of military sexual assaults in 2012. According to The Invisible War, a documentary, the Department of Defense estimates that more than 19,000 military sexual assaults occurred in 2010, yet only 3,192 were reported. There were approximately 191 convictions at courts-martial. Wikipedia reports that there were 244 convictions in 2010.

The US Commission on Civil Rights notes that females, who only comprise approximately 14 percent of the military population, are 5xs more likely to be victims than males. The Department of Defense defines Sexual Assault as:

Intentional Sexual Contact characterized by the use of force, threats, intimidation, or abuse of authority, or when the victim does not or cannot consent. The term includes a broad category of sexual offenses including rape, sexual assault, aggravated sexual contact, abusive sexual contact, forced anal or oral sex or attempts to commit these acts, as noted in The Uniform Code of Military Justice (UCMJ). Sexual Contact in Article 120 of the UCMJ is defined as touching, or causing another person to touch either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh or buttocks of any person with intent to abuse, humiliate or degrade any person OR any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

For those on Active Duty or National Guard Service who wish to report MST, a Sexual Assault Response Counselor (SARC) is available 24/7. Call Military OneSource at 1-800-342-9647 to get the direct contact number for the SARC. A veteran in distress can call the crisis line at 1-800-273-8255.

Years later, these same veterans may be applying for social security disability benefits, as well as veteran’s benefits. Among the impairments evaluated by the Social Security Administration (SSA) are Post-Traumatic Stress Disorder (PTSD) and Depression, in addition to physical manifestations of MST such as obesity, chronic pain or ulcers. Unfortunately, MST survivors might also self-medicate with alcohol or drugs. In order to qualify for Supplemental Security Income (SSI) or Disability Insurance Benefits (DIB) with a diagnosis of substance abuse, a treating source must affirm that the underlying mental health diagnosis or physical condition exists separate and apart from alcohol and/or drug abuse.

In 1992, Public Law 102-805 made it possible for female veterans to pursue counseling for MST through the Veteran’s Administration (VA). Later, pursuant to Public Law 103-452, male as well as female veterans were able to pursue counseling for MST without any restrictions on the length of treatment. Medical providers within the VA now provide mandatory screening for military sexual assault to all veterans. For inpatient or residential treatment, the VA has over 20 programs nationwide with specialized MST treatment. Treatment is also available for medical conditions related to MST such as chronic pain, eating disorders, bowel problems etc. VHA DIRECTIVE 2010-033 effective through July 31, 2015.

Call the Law office of Kathleen M Flynn, LLC at 404-479-4431 if you would like assistance with filing an application or appeal for social security disability benefits based upon mental and/or physical conditions sustained from MST. Also, please visit our website at www.kathleenflynnlaw.com to learn more about us.

Increase in social security disability hearing denials by ALJs

May 24th, 2014 by admin

In recent years, social security disability attorneys have been dismayed by the social security disability program being under attack. Led by Oklahoma Senator Tom Colburn, media sources such as 60 minutes and PBS have circulated biased accounts of fraudulent Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) claims. The number of Administrative Law Judge (ALJ) denials at the hearing level, in turn, have increased nationwide. Approval rates dropped from 62 percent in 2010 to 48 percent in 2013 according to the National Association of Social Security Representatives (NOSSCR). In the Atlanta area, some of the ALJs, who arrived in the past couple years, have approval rates in the 20 to 35 percent range. www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html

As ALJs have denied more claims, the number of appeals of hearing denials to the Appeals Council (AC) increased 6 percent in 2013, as noted by NOSSCR. Requests for review of ALJ denials to the Appeals Council had the following outcomes in 2013: 78 percent were denied; 4 percent were dismissed; and only 17 percent were remanded (sent back to the ALJ for another hearing) due to errors at the hearing and/or in the decision rendered. After the Appeals Council denies a Request for Review, an attorney must file a Complaint in US District Court. Then, the attorney must write a brief and, sometimes, attend an oral argument before the Magistrate Judge.

Unlike most firms, the Law office of Kathleen M Flynn, LLC does not drop a client after the ALJ denies the claim. Our firm continues to appeal the case to fight for our client. Once a case is filed in US District Court, our firm may also file a new application, as permitted by the Social Security Administration (SSA). Call the Law office of Kathleen M Flynn, LLC at 404-479-4431 if you would like assistance with filing an application or appeal. Also, please visit our website at www.kathleenflynnlaw.com to learn more about us.

How to qualify for social security disability benefits with Fibromyalgia

October 27th, 2013 by admin

Unfortunately, fibromyalgia is the type of medical condition that has been misunderstood by some Adjudicators at Disability Adjudication Services (DAS), as well as Administrative Law Judges (ALJs) at the Office of Disability Adjudication and Review (ODAR). Thankfully, there is Social Security Ruling (SSR) 12-2p, which brings much needed guidance for SSA evaluators of this debilitating condition.

Two to five percent of the American adult population is afflicted with fibromyalgia, according to Dr. Richard Podell, who addressed SSR 12-2p at a recent NOSSCR (National Association of Social Security Representatives) conference. Dr. Podell mentioned how scientific studies reveal that fibromyalgia results from abnormalities of the central nervous system. Fibromyalgia is defined, in SSR 12-2p, as pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.

For a finding of a “medically determinable impairment” of Fibromyalgia, SSR 12-2p requires diffuse chronic muscle pain affecting four quadrants of the body in addition to the spine.Testing for this condition by nurse practitioners, internists, rheumatologists, etc. may include the application of standard pressure to 18 tender points (see SSR 12-2p for locations). A diagnosis of fibromyalgia is reached when pain occurs at 11 or more tender points on the right and left side of the body, as well as above and below the waist.

Under SSR 12-2p, in addition to a history of diffuse chronic pain, a claimant must have repeated occurrence of six (6) or more fibromyalgia symptoms including but not limited to chronic fatigue syndrome, poor restorative sleep, trouble concentrating or remembering, anxiety, depression, temporal-mandibular joint dysfunction (TMD), chronic migraine or tension headaches, chest pain, irritable bladder, numbness or tingling, nausea, ringing in the ears, Reynaud’s phenomenon, loss of taste or change in taste, shortness of breath, interstitial cystitis, and irritable bowel syndrome.

Lastly, under SSR 12-2p, other disorders that could cause these repeated manifestations of symptoms or coexisting medical/mental conditions must be excluded. Adjudicators and ALJs should consider a longitudinal history of symptoms dating back at least 12 months before the date of the application.
SSR 12-2p further states that Adjudicators and ALJs must consider opinions of other acceptable medical sources such as psychologists and psychiatrists. Also, statements from laypersons such as family members, friends, past employers or SSA employees could be helpful in establishing symptoms and limitations of fibromyalgia according to SSR 12-2p. For additional information about how you can receive SSI, SSDI (DIB), DAC or Widow’s/Widower’s benefits for fibromyalgia, please contact the Law Offices of Kathleen M Flynn, LLC at 404-479-4431 or visit our website at www.kathleenflynnlaw.com.

HEARING OFFICES WILL ONCE AGAIN DISCLOSE THE NAMES OF THE ADMINISTRATIVE LAW JUDGEs (ALJS) BEFORE HEARINGS ARE HELD

April 16th, 2013 by admin

Effective April 20, 2013, to the relief of Attorneys/Representatives and some Administrative Law Judges (ALJs), the Office of Adjudication and Review (ODAR), will once again disclose the names of the Judges when hearing notices are mailed. Please see my prior blog dated March 1, 2012, which addresses SSA’s prior policy of only disclosing the names of Judges on the day of the hearings. Attorneys/Representatives felt that they could not properly prepare the hearings in advance to satisfy particular Judges. For example, some Judges require pretrial briefs or want the attorneys to present the cases from opening to closing a certain way. Moreover, Attorneys/Representatives could not explain to a client, in advance, what he/she could expect when appearing before the Judge assigned to the case.

Aside from the hearing notices mailed to Attorneys/Representatives, as well as claimants after April 20, 2013, Attorneys/Representatives using online services called Appointed Representative Services (ARS) can find out which Judge is assigned to the client’s case. As an aside, ARS is useful in accessing a client’s electronic evidence folder before the hearing, in addition to the recording of hearing testimony. For hearing notices sent out before April 20, 2013, another option is to call the ODAR offices to find out which Judge is scheduled to hear the case. If you have any questions about your case, please contact the Law Offices of Kathleen M Flynn, LLC at 404-479-4431 or visit our website at www.kathleenflynnlaw.com.

THE FACES OF HOMELESSNESS-Giving beyond the Holiday Season

December 25th, 2012 by admin

1. Nicole, a 28 year old female, was a refugee from New Orleans post Hurricane Katrina. Growing up with severe Crohn’s disease, Nicole had much of her small intestines removed at 9 years of age. Nicole’s mother was a drug addict and her father was absent. At age one, Nicole was placed in foster care, and she lived with 12 different foster parents in 18 years due to her behavior, her ileostomy bag, and related medical problems. When Nicole was 18 years old, she was released from state custody, but, at majority age, was left without medical coverage. A doctor in New Orleans was providing medical care pro-bono, but after the hurricane, he lost his private practice. No surgeon was willing to do free extensive intestine and bladder reconstruction.

When John Marriner, a homeless advocate at First Presbyterian Church (FPC), found Nicole, she was living in an abusive relationship with a man 10 years her senior. Things got worse for Nicole, and she fought back and was arrested and evicted. Nicole came to FPC looking for a place to stay and for assistance. FPC worked to get Nicole into temporary housing. John Marriner wrote to New Orleans for Nicole’s medical records and got her Georgia IDs. John Marriner then found Nicole a doctor to prescribe medication to get her stabilized, but no surgery was possible without insurance. When Nicole obtained her SSI benefits along with Medicaid, she was finally safe, sheltered and getting medical care. Nicole is, currently, stable but is unable to receive colon reconstruction due to the cost and limited reimbursement under Medicaid. Nicole, also, still receives medical supplies through an arrangement with a Pharmaceutical supplier.

2. Preston was brought to FPC’s attention by another homeless person, who had received help from the Church. Preston was 42 years of age and had aggressive Multiple Sclerosis (MS) at the stage when he lost bladder and bowel control and his ability to walk. Preston had been in and out of Grady Memorial Hospital but had no insurance for long-term treatment or therapy or rehab housing. When John Marriner went to see Preston, he was sitting in a wheelchair in a parking lot across from a homeless shelter. Because of Preston’s lack of bladder and bowel control, the shelter could not keep him. They did not have the professional medical staff help for Preston and considered his condition as unsanitary for others in the shelter.

It was a cold and rainy morning in mid-October when John Marriner introduced himself to Preston, who was not wearing any underwear or pants and was covered with a sheet that was soiled in his own feces. Preston was cold and wet and probably would not have survived many days in his condition. FPC made calls to physician staff at Grady Memorial Hospital, and Preston was placed in a rehab/nursing home. Preston had worn his socks so long that the skin was growing over them and the socks had to be cut off.

Preston was unable to travel to a social security disability office. So, John Marriner obtained status as his representative and did a telephone interview with the Social Security Administration (SSA) for supplemental security income (SSI) and Medicaid, which were granted after a few months. John Marriner then found a group home in Austell that would take him in. There, Preston lived with a house parent, along with 5 other disabled adults. John Marriner visited Preston often and gained his trust to acquire enough information to locate Preston’s family in Chicago. A number of years had passed after his onset of MS, and Preston had no contact with family over that time. Preston’s father, who made several visits to Atlanta, was able to have Preston relocated, near family, at a Chicago nursing home, where they could provide him with the necessary medical and family attention. Preston is now stable with appropriate medications.

3.Sharonda was a 24 year old female with Cerebral Palsy (CP). Her mother was in prison ever since Sharonda was a young girl and her only other relative was a grandmother, who was on welfare and was unable to support her. Sharonda had a two year old daughter by a boyfriend who was on drugs. Sharonda was in the hospital having a second child when she developed severe CP symptoms. She gained considerable weight with CP and was over 250 pounds. Child and Family Services removed the children from her and put them in temporary foster care.

Sharonda was left to reside in a woman’s night shelter and would make her way to a day shelter a few blocks away. (She was too weak to climb on the disability bus that was not handicap accessible, so she walked on her walker from one shelter to the next while others were able to ride). This took all of her strength and she was not progressing. She was very depressed upon losing her children and could not find assistance. One of the FP volunteers met Sharonda at the Atlanta Day Shelter. John Marriner was able to find Sharonda a subsidized apartment while her social security disability was pending.

John Marriner accompanied Sharonda to DFCS hearings in Cobb County and convinced the court that she could have supervised visitation with her children. Meanwhile, the Church was able to furnish Sharonda’s apartment before the court granted her temporary custody of her children at her new home. The social security disability benefits were approved, and Sharonda has received sufficient medical care to be independent and provide safe parental care for her children.

Sharonda is now living a fulfilling life as a caring mother. Her children are both in school and are, seemingly, well-adjusted. She has lost almost 100 pounds (“so I can keep up with my kids”) and is functioning well and is happy (“the kids are my life!”). Sharonda’s boyfriend has been clean after entering rehab with the the Church’s help, is a very involved parent, and is employed full-time. They are planning to be married when they get some money set aside. Sharonda is volunteering at the Atlanta Food Bank to give back for all that she has been able to achieve. As to what can be achieved to gain independence, Sharonda is now used as an example by Families First.

4. Robert was living on the streets when John Marriner first met him. He was about 58 years of age and had a distinctive gravelly voice from heavy smoking. ‘Rob’ did not ask for money but had a unique way of asking for help- “Would you like to buy a joke for fifty cents?”, he would ask with a smile. Robert had ambitions of being a stand-up comedian and kept a notebook of all his jokes. FPC was able to get Rob into an extended stay hotel and help him get food stamps. FPC was working toward getting him SSI, but his condition was not considered severe. Based upon drug use, Rob was denied social security disability benefits, since he had not been in rehab to curtail his drug activity.

Rob’s condition deteriorated without insurance. With the long wait for an appointment at Grady Memorial Hospital, he refused medical care. Rob had given up on getting out of homelessness. Rob’s parents were deceased and his only family member was a brother institutionalized in Milledgeville. Rob’s health continued to decline and his voice became weaker. He was diagnosed with throat cancer when John Marriner got him to a doctor. FPC placed Rob in a nursing home, when he, eventually, received his SSI for terminal cancer. Reverand Black and John Marriner shared visitation with Rob, but he was soon diagnosed with brain cancer.

Rob died the day before New Years in the nursing home, but, not alone, since the staff were great. Reverand Black and John Marriner always made Rob feel special too. After John Marriner went to the nursing home to get Rob’s few personal affects, the nurses were surprised that he was not his brother. Few of the residents ever received visitors except infrequent family members. Rob was cremated with the Church help, and John Marriner ended up being his next of kin. Rob died with aspirations of a career in comedy, as John Marriner wrote his jokes in his journal up to his final week on earth.

5. George was 58 years of age when he came to FPC. As a working alcoholic and drug addict, George had been fully employed for 40 years. Age, abuse of body, hepatitis and liver damage had caught up with him. He was unshaven, sick, still drinking, and barely surviving on the streets in the winter cold. When John Marriner befriended George, he took to the friendship and was willing to get some help. Although George had previously been through rehabilitation many times, John Marriner’s constant supervision encouraged him to give up alcohol and drugs except for pain medication. Eventually, John Marriner was able to get George off medications, so that he could act responsibly and start thinking about the future and possible medical treatment.

George was able to receive social security disability benefits, after John Marriner researched and documented a childhood bipolar condition that led to self-medication. (SSDI was granted because of the pre-existing condition). Based on his work history, George received $1100 per month in benefits. John Marriner was able to get George into a senior high-rise through Atlanta Public housing and has visited him two or three times per week. George had surgery for liver cancer, is on prescribed meds, and has been living independently.

With Medicaire accompanying SSDI, George has a gastroenterologist, cancer specialist and liver specialist, as well as a visiting nurse. George is now able to shop for himself and travel to visit a brother and family out of town. He is surviving with severe cirrhosis, stomach inflammation and medically controlled pain but, is, otherwise, doing well with proper medications. John Marriner and George have gone from client/mentor relationship to close friends. George is two years younger but is often mistaken for John Marriner’s father. Such is the difference in a hard life and an easier life without addiction and serious mental health issues.

6.Zaida, who is a 46 year old female, does not trust many people. She has mental health issues and frequent depression. When John Marriner met Zaida, she had been on the streets for 14 years. Zaida’s home was the back of a bagel store storage area, where she would get left over food from the manager, break down boxes, and keep the back lot clean. FPC had tried to help her for 4-5 years when John Marriner met her, but every time Zaida had a medical or mental health appointment she would disappear. FPC would then have to start her assistance over again. John Marriner talked to Zaida several times and bought her breakfast. Zaida told him that she ate out of dumpsters and felt like she was ‘invisible” on the street. Business people in the midtown area would turn their heads to avoid eye contact with her.

Zaida had the smell of a person without a change of clothes or a hair washing or a bath for many days. But, there was something special about Zaida, and she would end her sessions with John Marriner with a hug and a smile. She needed someone to care. John Marriner told Zaida that he would help her if she met him once a week, and as long as she did not flee, he would be there for her. She seemed to trust John Marriner more with each visit. John Marriner went to the consultative psychological exam and SSA District Office with Zaida, who had no confidence in herself or hope for a better life after so much time on the streets.

Zaida was able to get her social security disability benefits. She was at the Church, in a group meeting, when she received her first check. John Marriner interrupted the meeting to show her the first check, and she jumped on a chair and started screaming with excitement. He was dumbfounded after asking her what she was going to do next. She said “I am going to get my dignity and self-respect back!” The next day, Zaida took the social security benefits and checked into a motel, got a shower, and washed her hair. FPC got her used, but decent clothes, from their clothing bank. Zaida came back several days later looking like a new person, holding her head high and knowing that she was somebody! Fourteen years on the streets had become a habit; however, and Zaida does not feel comfortable yet being inside an apartment. That is the next step, and John Marriner told her FPC would help when she is ready, but, no rush!

7.Ronald was 40 years of age and extremely depressed. Ronald said he had never used alcohol or drugs but had nowhere to live. Lacking confidence in his own abilities, Ronald could not work due to lack of initiative and drive. He had been kicked out by his girlfriend and also by his mother, because they could not afford to support him. Robert was living in under a bridge in Midtown in a sleeping bag with 3-4 other homeless persons. Ronald came to FP for Sunday breakfast and sandwiches during the week. John Marriner, who had a chance to chat often with Ronald, learned about his mental condition and the institutions he had been in over the years.

Ronald was apologetic for being a nuisance, as he felt that he really didn’t deserve any better life than he had. John Marriner told Ronald that he would go with him to SSA consultative evaluations and other medical appointments. John Marriner also convinced Ronald that his mental illness was not his fault, and he could move from under the bridge to a better place if he would try. Ronald agreed if John Marriner would stay by his side each step of the way.

Ronald was able to qualify for social security disability benefits, because of the long history of mental illness. Housing for the mentally ill was almost non-existent after institutions were closed in the 1970s-80s. Those with mental illness were expected to go to outpatient treatment centers, take their medicine as prescribed and find their own places to live while trying to survive without any income for food, transportation or rent.

John Marriner went with Ronald to move his garbage bags of worldly possessions from under the bridge. A basement room in a run-down, unlicensed boarding room seemed like a palace to him. All Ronald wanted was a radio and new shoes to be happy. John Marriner opened a bank account for Ronald, and he saw things changing for the better. Ronald became less depressed and started to make contact again with his mother, who still cared what happened to him. Now that Ronald could pay his own expenses and help with the rent, he could come back home to live. Ronald still comes to visit John Marriner to get his SSI check. They part with a hand shake, a hug, and then a pat on each other’s back. John Marriner tells him, “I am proud of you.” Ronald smiles and says “I love you man.” Ronald says that he doesn’t want direct deposit, because he would rather get his monthly disability check from John Marriner.

This is not intended to be a compilation of all character types whom I, John Marriner, have encountered over four years as a regular volunteer at First Presbyterian Church nor are these in anyway a characterization of the typical homeless person. There is no specific type or reason why persons are homeless. In thirty plus years of working with the homeless, I have encountered hundreds who are male and female; 18 years to 70 years of age; college educated to illiterate; artists or musicians; addicted to drugs and alcohol or mentally ill or both (dual diagnosis is very common since illegal drugs are often easier to obtain than prescription medication); healthy, yet lost without hope; seriously ill and just fighting for survival; as well as veterans, who have PTSD or just problems adjusting to civilian life after exposure to war.

The main thing missing in their lives is a navigator/friend plus a facilitator/guide. Someone to accept them as they are and willing to invest time and show compassion where there has been little or none. I have a list of maybe fifty, whom I have escorted from homeless and pennilessness to being housed and income supported.

There is no magic formula and no great expertise-just a listening ear and a person with a knowledge of places to find direction and help. They need someone to trust, and this comes only by opening themselves up to being vulnerable. The homeless need a friend, not a referral and, if necessary, someone to accompany them to the places that they have been to previously but are expecting to be rejected from, because of the way they look or speak.

None of those encountered have desired homelessness (although the mentally ill may prefer it to socialization and others may have lost any hope for a change). Shelters are not a definitive alternative due to crime, disease and a lack of dignity. Family relationships are long past with burned bridges or just a matter of time and distance (the average client is age 40-60).

I have made many lasting friendships and also been taken advantage of and burned by a con or two. But, I have learned from them all and realized that many are smarter, wiser, and more creative and talented then myself. I have been there-homeless-myself, with just a car for shelter, along with a sandwich and a candy bar for the day’s rations. Not for long, fortunately. I had an escape route through confidence that this time would soon pass with the knowledge of love and available support systems.

That is all that I can offer these travelers-a temporary support system; an oasis to become renewed and refreshed for their journey. That is what I need from God: knowing that I am loved, forgiven and promised hope for the future. Our example is from Jesus that we care for each other, as we have been cared for; to walk with our brothers and sisters on this journey and assist them along the way.

Where all the others have gone I do not know. I know that I have helped some get transportation to medical care and appointments; I have helped some get such needs such as diabetic supplies, blood pressure medicine, heart medicine, etc. I have given some a meal, a coat, or a pair of work boots to start work. I have given some a prayer or a smile or a word of hope. Who knows where these aids have taken them. I hope they find someone else at the next turn to send them further down the road.

Kathleen Flynn and staff would like to help any homeless person take a positive turn in his/her life by applying for and obtaining SSI (Title XVI); SSDI (Title II); Widows/Widowers benefits; Disabled Adult Child benefits or Child Survivor benefits. Please call 404-479-4431 or visit our website at www.kathleenflynnlaw.com.

How does the Social Security Administration evaluate SSI Child Cases?

July 1st, 2012 by admin

There are four steps to evaluating whether your child is entitled to SSI child disability benefits.

1.Is your child working at the Substantial Gainful Activity (SGA) level? Please see my blog dated September 18, 2010, www.kathleenflynnlaw.com for a more detailed explanation of how SSA examines work activity. In 2012, any child under the age of 18 earning more than $1,010 a month before taxes, will be declared not disabled.

2.Does your child have a medically determinable mental impairment (s) or physical impairment (s) or combination of impairments?

Most SSI child cases that are filed meet this standard.

3.Do(es) your child’s mental condition (s) or physical condition (s) Meet or Medically Equal the requirements of a Child Medical Listing of Impairments?

The Medical Listings for children can be technical. Thus, child cases may be reviewed by medical experts hired by the GA Department of Labor, Disability Adjudication Services (DAS) at the initial or reconsideration levels. Medical experts are contracted by the Office of Disability Adjudication and Review (ODAR) at the hearing level. These medical experts could include but are not limited to psychologists, psychiatrists, pediatricians or, in rare cases, a specialist such as a cardiologist.

Because these medical experts receive modest compensation, they usually testify by phone, as opposed to traveling to the hearing office. Unfortunately, the medical expert is not always sent a copy of the complete exhibit file to review or if exhibits are submitted after a copy of the file has been sent to the medical expert, he/she may not be sent updated exhibits. Therefore, it is always a good idea to ask which exhibits the medical expert has and compare the number of exhibits against your own.

Visit my website at www.kathleenflynnlaw.com for the Child Medical Listings of Impairments for each of the major body systems that cause marked and severe functional limitations in children.

4.Do(es) your child have a mental or physical condition that Functionally Equals a Medical Listing of Impairments?

If your child’s mental or physical impairment(s)does not meet or equal one of the Child Medical Listings (only a medical expert can determine if your child’s medical conditions equals one of the Medical Listings for children per social security regulations),then the Adjudicator or ALJ will determine if the functional limitations caused by your child’s mental or physical impairment(s) are the same as the disabling functional limitations of any Child Medical Listing, and, therefore, are functionally equivalent to the Child Medical Listings. In other words, the combined effects of your child’s different impairments will be considered to determine disability.

In order to Functionally Equal a Child Medical Listing, the Adjudicator or ALJ will determine if your child’s mental or physical impairment (s) results in TWO MARKED limitations or ONE EXTREME limitations in the following areas:

1. Acquiring and using information

2. Attending and completing tasks

3. Interacting and relating with others

4. Moving and manipulating others

5. Caring for yourself

6. Health and physical well-being

There are various ways that your child’s mental or physical condition(s) can result in a marked or extreme limitation in the above categories. Observations noted in questionnaires from teachers, after school tutors or daycare providers, Individual Education Programs (IEPs), behavioral modification plans, or Section 504 plans from schools, as well as findings addressed in our forms completed by treating sources such as pediatricians, specialists, physical therapists, speech-language pathologists, psychologists, psychiatrists, etc. are important in developing your child’s case. Of course, at the hearing, testimony from the child, parent or another essential witness can help convince an ALJ that your child(s) mental or physical impairment(s) Functionally Equal a Child Medical Listing.

Many of the parents, whom I represent, want their child to receive Supplemental Security Income (SSI), in order to afford private tutors, after school or summer programs or more specialized treatment. If your child is awarded SSI, then a separate bank account must be set up in your name, as well as your child’s name. SSI back pay can only be spent on things for your child. If you have a question about what you can use your child’s SSI back pay for, you should ask the person handling your child’s case at your local Social Security District Office. For additional questions, please call our office at (404)-479-4431 or visit our website at www.kathleenflynnlaw.com.

SSA Representatives and Claimants will no longer know the name of the ALJs adjudicating their cases until they walk into the Hearing Room

April 1st, 2012 by admin

The Social Security Administration (SSA) has begun effectuating its policy of concealing the name of the Administrative Law Judge (ALJ) from the attorney and the claimant until they enter the hearing room. According to the National Association of Social Security Representatives, (NOSSCR), the reason for the policy change is to prevent some representatives from “judge shopping,” by declining a National Hearing Center (NHC) video hearing, with an ALJ in Falls Church, VA, once the ALJ’s identity is revealed.

As far as the Atlanta area, in the past, video hearings with ALJs from Falls Church, VA were held at the Marietta Social Security District Office. However, once the Office of Adjudication and Review (ODAR) opened in Covington, GA, these video hearings were discontinued. Many of us were relieved, since the quality of the video was poor. Secondly, the ALJ did not have an opportunity to view our clients in person, which many attorneys feel is necessary for the ALJ to observe a client’s mental demeanor and/or physical limitations. So, given the fact that areas such as Atlanta no longer have video hearings with the NHC ALJs, SSA’s policy of not revealing the ALJ is nonsensical.

Why do attorneys and claimants want to know the name of the ALJ before walking into the hearing room? First, the way ALJs conduct social security disability hearings vary greatly. Some ALJs require the attorney to ask a majority of questions, whereas other ALJs prefer to ask the questions themselves. If an attorney knows the ALJ asks a majority of questions, he/she can prepare the client to answer the questions that a particular Judge usually asks. Each Judge has a different personality, as well, and telling a client what to expect from a particular ALJ helps diffuse the stress of testifying.

We have another issue in the Atlanta area. Hearings are scheduled and hearing notices are sent by mail without contacting the representative or claimant about availability. Unfortunately, some ODAR clerks are not always entering the hearings they schedule in SSA’s centralized computer system nor are they always checking for conflicts on the system. Then, multiple conflicting hearings are scheduled on the same day, and attorneys no longer know which ALJ’s clerk to contact to address the problem.

Finally, vocational experts, who testify about a claimant’s past work at the hearing and answer questions about which jobs a claimant can or cannot perform in the regional or national economy based upon certain physical and/or mental limitations, are also unhappy with the change in policy. Their case preparation also varies based upon the type of questions asked by a particular Judge. Some may not receive CDs with the vocational evidence from ODAR and no longer know which ODAR clerk to contact for a copy. Nor are all the ALJs pleased with the policy change, because some ALJs, for example, require a prehearing brief.

NOSSCR has alerted members that a Freedom of Information Act (FOIA) request case is now pending in the Eastern District Court of Missouri, and research is underway to examine the possibility of a constitutional challenge of the SSA Commissioner’s new policy. Many representatives have contacted their Senators and Representatives asking for a reinstatement of the practice of providing the name of the ALJ presiding over a client’s case. Claimants should do the same. If you have any questions, please contact the Law Offices of Kathleen Flynn at 404-479-4431 or please visit our website at www.kathleenflynnlaw.com

Thirteen new Compassionate Allowance Medical Conditions added by the Social Security Administration

February 17th, 2012 by admin

As mentioned in my previous blog dated September 12, 2010, the Social Security Administration’s (SSA) Compassionate Allowances program moves the cases of claimants with specific medical conditions, classified as “the most serious disabilities” by SSA, faster. According to SSA, these claimants receive their social security disability decisions “within days instead of months or years.”

Effective December 10, 2011, the SSA has added 13 additional Compassionate Allowance medical conditions to the previous Compassionate Allowance list of 50 diseases and medical conditions initiated in 2008. (please see my previous blog at
www.kathleenflynnlaw.com

The following new additions to the Compassionate Allowance program include certain cancers, adult brain disorders, a number of rare genetic disorders of children, early-onset Alzheimer’s disease, idiopathic pulmonary fibrosis, and other disorders:

1. Malignant Multiple Sclerosis
2. Paraneoplastic Pemphigus
3. Multicentric Castleman Disease
4. Pulmonary Kaposi Sarcoma
5. Primary Central Nervous System Lymphoma
6. Primary Effusion Lymphoma
7. Angelman Syndrome
8. Lewy Body Dementia
9. Lowe Syndrome
10. Corticobasal Degeneration
11. Multiple System Atrophy
12. Progressive Supranuclear Palsy
13. The ALS/Parkinsonism Dementia Complex

If you need more information, please contact the Law Office of Kathleen Flynn at 404-479-4431 or go to our website at
www.kathleenflynnlaw.com

Social Security Disability claimants get cost of living increase in 2012

November 20th, 2011 by admin

Great news as the holidays approach! Beginning in January 2012, anyone receiving disability benefits will get a cost of living increase (COLA) of 3.6 percent. Thus, those who were found disabled by the Social Security Administration (SSA) and those who are receiving benefits based upon the records of disabled, deceased, or retired workers will see an increase in their monthly checks.

This includes but is not limited to recipients of SSI (Title XVI); SSDI (Title II, DIB); Child Insurance benefits; Widow’s benefits; Widower’s benefits; Disabled Adult Child benefits (DAC); and Auxillary benefits. There has been no COLA increase since 2009.

According to NOSSCR (National Association of Social Security Representatives), the average monthly disability benefit in 2012 for all disabled workers will be $1,111 (vs. $1,072 in 2011). For a disabled worker, spouse, and one or more children, the average monthly benefit in 2012 will be $1,892 (vs. $1,826 in 2011), as reported by NOSSCR in their most recent newsletter.

If you have any further questions, please contact the Law Office of Kathleen Flynn at www.kathleenflynnlaw.com or call 404-479-4431.

Filing Subsequent SSI (Title XVI) and SSDI (Title II, DIB) Applications

July 29th, 2011 by admin

In the past, whenever one of our clients received an unfavorable decision at a hearing by an Administrative Law Judge (ALJ), the Law Office of Kathleen Flynn would appeal the claim to the Appeals Council (AC), as well as file a new application for the client. If the client won on a subsequent SSI (Title XVI) and/or SSDI (Title II, DIB) application, it could, in my opinion, improve the chances of a remand from the Appeals Council or from the next level of review by US District Court, which is where social security disability cases denied by the Appeals Council (AC) are appealed.

In a startling reversal, the Social Security Administration (SSA) issued Social Security Ruling 11-1p, which revises SSA’s prior policy for filing subsequent applications where a prior application is pending at the Appeals Council. 76 Fed. Reg. 45309 (July 28, 2011). http://www.gpo.gov/fdsys/pkg/FR-2011-07-28/pdf/2011-19103.pdf. Now, according to SSR 11-1p, which is effective July 28, 2011, SSA “will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process.” This SSR does not change SSA’s policy when an appeal is pending in US District Court. A claimant may still file a subsequent application while a previous application is being reviewed by the US District Court. According to the Social Security Administration, SSR 11-1p will not apply to a subsequent application that was filed BEFORE July 28, 2011, while a previous application is awaiting review at the Appeals Council.

This is disadvantageous to the claimant (s), who had “2 bites at the apple” earlier in the appeals process by filing both a new application and a Request for Review of the ALJ denial to the AC. One has to wonder what SSA’s motives are for doing this. Was the decision for financial reasons or due to difficulty tracking both cases? In our experience, there were instances when various SSA offices did not seem to know where the previous application and the subsequent application were. Unfortunately, more thought should have been given by SSA to the suffering claimants, who have to, sometimes, wait over a year for a decision from the AC. It seems the agency put their interests first.

For more information, please contact the Law Office of Kathleen Flynn at 404-479-4431 or www.kathleenflynnlaw.com

Importance of Medical Records

April 5th, 2011 by admin

Your medical records are the most important evidence considered by the Social Security Administration.(SSA) in evaluating your social security disability case. In order to be found disabled, you must have a “severe medically determinable impairment (s)”, ie mental or physical condition (s) that interfere with your ability to do basic work-related activities. The physical or mental conditions must be expected to last for 12 months or result in death. Medical records document your longitudinal medical history, symptoms, and, sometimes, your limitations from these severe impairments.

Tell your treating physicians, nurse practitioners, chiropractors, psychiatrists, psychologists, social workers, etc. about all of your medical conditions, symptoms, and limitations, so your medical records will be complete. Attend all scheduled appointments and comply with any recommendations by your treating source such as taking medications, going to physical therapy, getting x-rays, MRIs, CT scans, and lab work done or pursuing referrals with specialists. Treating sources issue reports and summaries that contain your diagnoses, medical history, clinical signs and symptoms, medical findings, and laboratory results.

Some clients will tell us that they cannot afford to go a doctor, psychiatrist, or psychologist, etc These clients believe that SSA will find them disabled after sending them to SSA’s paid consultative physical or psychological examination. But, this is NOT a substitute for regular treatment by your own doctor. It is difficult to win a case based only upon the assessment of a one-time examiner, who may be biased. Please see my blog addressing consultative evaluations at http://www.kathleenflynnlaw.com/blog

Social security regulations 20 CFR 404.1527 (d) and 20 CFR 416.927 (d) state that more weight should be given to the opinion of a treating source (s), who provides a detailed, longitudinal picture of your medical impairments, than to a one time psychological or medical examiner. If you do not have insurance or the funds to see a private physician, the Law Office of Kathleen M Flynn can help you find free or low cost clinics and doctor offices in your area.

The Georgia Department of Labor’s Disability Adjudication Services (DAS) and the Office of Disability Adjudication and Review (ODAR) now require that medical records be submitted electronically with a bar code. Sometimes, our office has to make multiple requests for bar codes. While the medical records can be faxed with a bar code to the Georgia Department of Labor’s DAS, there is an online procedure for submitting scanned medical records to ODAR that our clients could not handle on their own. Our office will obtain, scan, and electronically submit your medical records to provide DAS and ODAR with a complete and updated file. It is very important to inform your representative of every doctor, hospital, mental health clinic, medical center etc. that you have visited for treatment.

Your treatment will depend on what type of disability you have. Some examples of treating sources that you should consider seeing, depending on what your disabilities are, include: primary care physicians, surgeons, psychologists, psychiatrists, optometrists, ophthalmologists, neurologists, orthopedists, pulmonologists, cardiologists, endocrinologists, rheumatologists, speech-language pathologists, physical therapists, podiatrists, and chiropractors. Social security regulations 20 CFR 404.1527 (d) (5) and 20 CFR 416.927 (d) (5) state that SSA generally gives more weight to the opinion of a specialist concerning medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.

Medical documentation is the most effective way to get your case granted. You cannot get social security benefits by just telling SSA that you are sick and cannot work. At the hearing before the Office of Adjudication and Review (ODAR), some claimants believe that all they have to do is tell the Administrative Law Judge (ALJ) what is wrong with them, and they will receive a fully favorable decision (be found disabled by the ALJ). The ALJ will consider your testimony, but will make a decision based primarily on the medical records in the file.Your word is not enough! You need to engage in regular treatment with a physical or mental health professional. Make sure that you keep the Social Security Administration (SSA) or your representative updated when you change a treating source(s) or visit new ones.

Steady treatment creates an excellent record for SSA to review your claim. Furthermore, if you go to a treating source on a regular basis, he or she may complete our assessment forms on your behalf, which address your work-related limitations. If you have any further questions, please contact the Law Office of Kathleen Flynn at 404-479-4431 or www.kathleenflynnlaw.com

How Does The Social Security Administration Evaluate My Case As An Adult?

February 16th, 2011 by admin

If you are 18 years old or older, there are five basic steps of a sequential evaluation process that the Social Security Administration (SSA) considers to decide if you are disabled.

1. Are you engaging in substantial gainful activity? Please see my other blog posting regarding this topic on my website at www.kathleenflynnlaw.com. In 2011, you cannot earn more than $1000 per month before taxes. If you earn this monthly amount or more, you will not receive social security disability.

2. Do you have a “severe impairment or “combination of severe impairments” that meet the duration requirement? Social Security Ruling 96-3p states that you have a severe impairment or combination of severe impairments if your mental and or physical condition(s) has more than a minimal effect on your ability to work. Social Security Ruling 82-52 states that your mental or physical condition (s) must have lasted or be expected to last for twelve months OR be expected to result in death. It is very unusual for an Adjudicator at the Georgia Department of Labor, Disability Adjudication Services (DAS) or for an Administrative Law Judge at the Office of Adjudication and Review (ODAR)to deny your claim at this
step.

3. Do you have a mental or physical impairment that meets or equals a Medical Listing(s)? Please see my website at www.kathleenflynnlaw.com. for a comprehensive list of mental and physical conditions to determine if your condition is there and what symptoms, signs, laboratory results or medical findings SSA is looking for. In my experience, most cases are granted at this step by an Adjudicator at the Georgia Department of Labor, Disability Adjudication Services (DAS). At the initial and reconsideration levels, DAS has psychologists or physicians on staff, who review your file, to see if your impairment(s) meets or equals a medical listing.

4. Can you return to any of your past relevant work? There is a three part test that is applied to your past jobs. First, in addressing recency, was the work performed within the last 15 years? Secondly, was the work substantial gainful activity (see step 1 above)? Thirdly, did your job meet the duration requirement? Pursuant to Social Security Ruling 82-62, the job should have been performed long enough for you to have “learned the techniques, acquired information, and developed the facility needed for average performance in the job situation. The length of time this would take depends on the nature and complexity of the work.” SSA has a vocational expert analyze all your jobs in the past 15 years to determine if you performed a job long enough to meet the duration requirement. If SSA finds that you can return to your past relevant work, you will not be found disabled.

5. If you cannot return to any of your past relevant work, can you do any other work, which exists in significant numbers in the regional or national economy? SSA considers your age, education, and the skill level of your past relevant work in evaluating whether there are other jobs that you can perform. If you have a physical condition, you could be found disabled based on a grid rule /OP_Home/cfr20/404/404-ap11.htm If a grid rule does not apply to you or you have a mental illness, you could be found disabled based on vocational expert testimony provided that you have disabling limitations. In my experience, most cases are granted at this step by an Administrative Law Judge at the Office of Adjudication and Review (ODAR), since Judges do not use Medical experts very often at hearings.

If you have any further questions about whether you are entitled to social security disability benefits, please contact the Law office of Kathleen Flynn at 404-479-4431 or visit our website at www.kathleenflynnlaw.com

Can I receive Unemployment Compensation Benefits and Disability Benefits?

January 13th, 2011 by admin

After losing a job due to a disability, many people apply for and receive state unemployment compensation benefits. Unemployment compensation benefits provide temporary income to unemployed workers. In order to receive weekly unemployment compensation benefits, one must affirm, to the GA Department of Labor, that he or she is actively seeking employment and is available for work. Each state has different requirements to collect unemployment compensation benefits.

Receiving unemployment compensation benefits can have an effect on your social security disability claim. But, you cannot be denied social security disability benefits only because you received unemployment compensation benefits. The Supreme Court held that a claim for social security disability benefits is often consistent with a claim for relief under the Americans with Disabilities Act. The Supreme Court reasoned as follows:

SSA sometimes grants SSDI benefits to individuals who not only can work, but are working. For example, to facilitate a disabled person’s reentry into the workforce, the SSA authorizes a 9-month trial-work period during which SSDI recipients may receive full benefits. See 42 U.S.C. § 422(c), 423(e)(1); 20 CFR § 404.1592 (1998). See also § 404.1592a (benefits available for an additional 15-month period depending upon earnings). Improvement in a totally disabled person’s physical condition, while permitting that person to work, will not necessarily or immediately lead the SSA to terminate SSDI benefits. And the nature of an individual’s disability may change over time, so that a statement about that disability at the time of an individual’s application for SSDI benefits may not reflect an individual’s capacities at the time of the relevant employment decision.

Following the Cleveland Supreme Court analogy, a claim for Social Security disability benefits [ie. SSI (Title XVI), DIB (SSDI/Title II), DAC, or Disabled Widows or Disabled Widower’s claim] is also consistent with a claim for unemployment compensation benefits, whereby a claimant may state that he is willing or able to work. In fact, there is a Memorandum from the Social Security Administration‘s Chief Administrative Law Judge Frank A. Cristaudo, located in Falls Church, VA, who concludes that unemployment compensation benefits do not necessarily preclude the receipt of social security disability benefits. Chief Judge Cristaudo also cites Social Security Ruling 00-1c and Carolyn C. Cleveland v. Policy Management Systems Corp., 526 U.S. 795(1999).

The Social Security Administration looks at the totality of the circumstances in evaluating whether or not you are disabled including but not limited to your medical conditions, treating source records, past work history, and earnings. Bottom-line is: receiving unemployment compensation benefits will not automatically disqualify you from receiving social security disability benefits BUT it can be used against you. Some Administrative Law Judges (ALJs) believe that if you are receiving unemployment compensation, then you think that you can work, and this conflicts with a claim for disability. The ALJ may question you about the specifics of why your job ended to find out if your job ended due to a mental or physical condition(s).

Below are some additional sample questions that a ALJ may ask:

 How long have you been receiving unemployment compensation benefits?
 Have you applied for any part-time or full-time jobs?
 How many jobs have you applied for?
 Do the jobs that you have applied for require heavy lifting?
 Do the jobs that you have applied for require rigorous physical activity?
(ie, standing, lifting, carrying, pushing or pulling)
 Are the jobs that you have applied for classified as high stress or fast pace?
 Are any of the jobs you have applied for similar to your past jobs?
 Have you had any job interviews?
 Have you had any job offers?
 Do you believe you can work full-time?

If you win your case, receiving unemployment compensation benefits will also affect whether you qualify for Supplemental Security Income (SSI). SSI payments are need-based for persons with little or no income. If a person receives unemployment compensation benefits, he or she may have excessive income and can be ineligible for SSI depending upon the monthly amount. However, if you applied for Social Security Disability Insurance Benefits (also called SSDI, DIB or Title II), then you can still be eligible for SSDI, which is based on the FICA taxes paid by you, as an employee.

Any further questions, please contact the Law Office of Kathleen M Flynn, LLC at 404-479-4431 or visit our website at www.kathleenflynnlaw.com

Social Security Consultative Examiners vs. Your Treating Sources

January 2nd, 2011 by admin

When you apply for social security disability, the Social Security Administration (SSA) may arrange an appointment with a Consultative Examiner (CE). A consultative examiner is a physician, a licensed psychologist or a psychiatrist who has a contract with SSA to perform a medical or mental examination of you. These physicians, psychologists, and, on rare occasions, psychiatrists will interview, examine, and write a report about your physical and/or mental impairments. The consultative examiner may take x-rays, perform an eye exam or breathing test called a spirometry, administer IQ testing, physically examine you or ask you questions. SSA may send the consultative examiner medical records or your daily living questionnaires from your file.

Remember this doctor is NOT going to become your treating physician. You will see this doctor only once. The consultative examiner will write a report detailing what you said and what findings or signs he or she observed. As far as the psychological consultative evaluation, a student, who is working with a licensed psychologist, might conduct the IQ testing. Be sure to note how long the psychological evaluation lasts, since some of these consultative psychological examiners bill SSA 3 hours to perform the psychological evaluation but may spend less than an hour with you.

It is important to note that whatever you tell the consultative examiner may be written in the report including your history of substance abuse. You may be asked about your medical history, daily activities, side effects of medications, hospitalizations, and symptoms. Talk about your pain, depression, surgeries, change in daily routine, and frequency of doctor visits. If you have a friend or family member who can discuss your psychological limitations, take him/her with you, as a third party is supposed to be interviewed by the consultative psychologist. However, this usually does not occur if a physical evaluation is scheduled.

Important tips for CE appointments

• Take copies of important medical records, although there is no guarantee that the consultative examiner will accept information that was not sent by SSA
• Take your medication or a medication list
• Take a witness-family member or friend for a psychological evaluation
• Tell the consultative examiner about ALL of your symptoms
• If you use a cane, walker, crutches, breathing machine, TENS unit, knee or hand brace, you should take them to your appointment

If Social Security schedules a CE appointment in your case, make sure you show up and are on time. It is important to attend any CE appointment that is scheduled, because at the initial and reconsideration levels, your case can be denied for failure to attend. At the hearing level, the Administrative Law Judge may find you are uncooperative if you did not attend a consultative evaluation.

The government has to pay for the consultative evaluation, so you pay nothing. If your claim was denied in the past and you are scheduled with the same consultative examiner again, SSA has to reschedule the physical or psychological evaluation with a different consultative examiner. If you are scheduled for an appointment that is too far from where you live, the consultative evaluation has to be rescheduled with another consultative examiner, who is closer.

Going to this appointment scheduled by SSA is NOT enough to win your claim. You must regularly go to your own physician, psychologist, psychiatrist, or therapist. Having your own treating source, who knows your limitations, is vital to establishing that you are disabled. SSA wants to see a steady, longitudinal history of medical records including but not limited to hospitalizations, office visits, counseling sessions, laboratory findings, therapy notes, and tests.

If you need assistance with your social security disability claim, please contact the Law Office of Kathleen Flynn, LLC at 404-479-4431 or visit our website at www.kathleenflynnlaw.com

Can I work and qualify for social security disability too?

September 18th, 2010 by admin

The first question that the Social Security Administration (SSA) asks in order to determine your eligibility for disability is: Are you engaging in substantial GAINFUL activity (SGA)? By applying for social security disability with SSA, a person claims that he or she cannot work at the substantial gainful activity level for at least 12 consecutive months because of a medically determinable physical or mental impairment.

SSA uses the term substantial gainful activity to describe the performance of significant physical or mental work duties usually for pay or profit. Each year, SSA determines the monthly amount, BEFORE taxes are taken out, that you can earn and still be eligible for social security disability benefits such as SSI (Title XVI); DIB (SSDI or Title II); DAC; and Disabled Widow’s/Widower’s claims. If your income is above the SGA amount in the guidelines set forth below, then you cannot get social security disability benefits even if you physically or mentally disabled.
http://www.ssa.gov/OACT/COLA/sga.html

SGA Maximum Income Amounts:

Year                        SSA Monthly Income
2011 $1,000
2010                       $1,000
2009                       $980
2008                       $940
2007                       $900
2006                       $860
2005                       $830
2004                       $810
2003                       $800

There are exceptions that an attorney can argue including but not limited to you had an unsuccessful work attempt; you are working in a sheltered workshop; or you are receiving special work accommodations. If you have earnings at the SGA levels in the chart above and think that one of these exceptions apply to you, please contact the Law Office of Kathleen Flynn at 404-479-4431 or visit our website at www.kathleenflynnlaw.com for further clarification to determine if you might still be eligible for social security disability benefits.

Compassionate allowance cases result in faster favorable decisions

September 12th, 2010 by admin

The Social Security Administration (SSA) classifies certain cases as compassionate allowances. Compassionate allowances have special electronic processing procedures for speedy favorable decisions. SSA’s compassionate allowance list includes very serious medical conditions that clearly meet social security disability standards. Compassionate allowances can be targeted to expedite the disability determination at the Initial, Reconsideration, Hearing and Appeals Council levels.

The list of compassionate allowance conditions includes certain types of cancers, lymphomas, mesotheliomas, congenital disorders, Alzheimer’s Disease, and dementia. A complete list of the Compassionate allowance conditions can be found at www.socialsecurity.gov/ compassionateallowances. In order to create this list, SSA held public hearings and worked closely with the National Institutes of Health, the Alzheimer’s Association, the National Organization for Rare Disorders, and other groups.

Compassionate allowance conditions listed alphabetically include the following:
Acute Leukemia; Adrenal Cancer – with distant metastases or inoperable, unresectable, or recurrent; Alexander Disease (ALX) – Neonatal and Infantile; Alstrom SyndromeAmegakaryocytic Thrombocytopenia; Amyotrophic Lateral Sclerosis (ALS);Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable, or recurrent; Astrocytoma – GRADE III and IV; Ataxia Telangiectasi; Batten Disease; Bilateral Retinoblastoma; Bladder Cancer – with distant metastases or inoperable or unresectable; Bone Cancer – with distant metastases or inoperable or unresectable; Breast Cancer – with distant metastases or inoperable or unresectable; Canavan Disease (CD);Cerebro Oculo Facio Skeletal (COFS) Syndrome; Chronic Myelogenous Leukemia – Blast Phase; Creutzfeldt-Jakob Disease (CJD) – Adult; Cri du Chat Syndrome; Degos Disease, Systemic; Early-Onset Alzheimer’s Disease; Edwards Syndrome (Trisomy 18);Ependymoblastoma (Child Brain Tumor); Esophageal Cancer; Farber’s Disease (FD) – Infantile; Fibrodysplasia Ossificans Progressiva: Friedreichs Ataxia (FRDA); Frontotemporal Dementia (FTD) Picks Disease – Type A – Adult; Fukuyama Congenital Muscular Dystrophy; Gallbladder Cancer; Gaucher Disease (GD) – Type 2;Glioblastoma Multiforme (Brain Tumor); Head and Neck Cancers – with distant metastasis or inoperable or uresectable; Hemophagocytic Lymphohistiocytosis; Hunter Syndrome; Hurler Syndrome; Idiopathic Pulmonary Fibrosis; Infantile Neuroaxonal Dystrophy (INAD); Infantile Neuronal Ceroid-Lipofuscinoses; Inflammatory Breast Cancer (IBC); Junctional Epidermolysis Bullosa Lethal Type; Kidney Cancer – inoperable or unresectable; Krabbe Disease (KD) – Infantile; Large Intestine Cancer – with distant metastasis or inoperable, unresectable, or recurrent; Late Infantile Neuronal Ceroid-Lipofuscinoses; Leigh’s Disease; Lesch-Nyhan Syndrome (LNS); Liver Cancer;Mantle Cell Lymphoma (MCL); Maple Syrup Urine Disease; Merosin Deficient Congenital Muscular Dystrophy; Metachromatic Leukodystrophy – Late Infantile; Mixed Dementia; Mucosal Melanoma; Neonatal Adrenoleukodystrophy; (Neonatal) Glutaric Acidemia; Niemann-Pick Disease (NPD) – Type A; Niemann-Pick Disease Type C; Non-Small Cell Lung Cancer – with metastases to, or beyond, the hilar nodes or inoperable, unresectable, or recurrent; Ornithine Transcarbamylase (OTC) Deficiency; Osteogenesis Imperfecta (OI) – Type II; Ovarian Cancer – with distant metastases or inoperable or unresectable; Pancreatic Cancer; Patau Syndrome (Trisomy 13); Peritoneal Mesothelioma;Pleural Mesothelioma; Pompe Disease – Infantile; Primary Progressive Aphasia; Progressive Multifocal Leukoencephalopathy; Rett (RTT) Syndrome; Salivary Tumors; Sandhoff Disease; Sanfilippo Syndrome; Small Cell Cancer of the Large Intestine; Small Cell Cancer of the Ovary; Small Cell Cancer of the Prostate; Small Cell Cancer of the Uterus;Small Cell Lung Cancer; Small Intestine Cancer – with distant metastases or inoperable, unresectable, or recurrent; Spinal Muscular Atrophy (SMA) – Types 0 and 1;Spinocerebellar Ataxia; Stomach Cancer – with distant metastases or inoperable, unresectable, or recurrent; Subacute Sclerosing Panencephalitis; Tay Sachs Disease, Infantile Type; Thanatophoric Dysplasia, Type 1; Thyroid Cancer; Ullrich Congenital Muscular Dystrophy; Ureter Cancer – with distant metastases or inoperable, unresectable, or recurrent; Walker Warburg Syndrome; Wolman Disease; and Zellweger Syndrome.

For help with your Social Security Disability Claim, call the Law Offices of Kathleen Flynn at 404-479-4431 or visit our website at www.kathleenflynnlaw.com

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