Indiana Injury Lawyer Blog

Amyotrophic Lateral Sclerosis (ALS)

Mon, 30 Apr 2012 09:49:29 -0500

According to the National Institutes of Health, 20,000-30,000 adults are afflicted with amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease (named after its most famous sufferer). The disease is described as “rapidly progressive, invariably fatal neurological disease.” Usually sufferers of the disease will succumb within 3 to 5 years of diagnosis, though 10% of those afflicted have survived up to ten years. Most diagnoses occur in patients between the ages of 40 and 60, and men tend to suffer from the disease more than women.

For people with a properly functional nervous system, voluntary movements are caused by the motor neurons of the brain relaying signals to the motor neurons of the spinal cord, which in turn relay the signals to the muscles. In sufferers of ALS, these motor neurons rapidly degenerate and die, essentially cutting off the part of the brain that controls voluntary movement from the rest of the body. If a person’s muscles do not receive the signals to move or perform other actions from the brain, they degenerate, or atrophy, from lack of use. Typically, the earliest symptoms of ALS include twitching or stiffness of muscles, random muscle weakness in the arms and legs, and slurred speech.

Eventually, those afflicted with the disease lose all strength in their muscles, therefore losing the ability to voluntarily move their extremities. Once the neurons connecting the brain to the diaphragm (the muscle beneath the lungs that controls breathing) degenerate, the sufferer will be required to go on a ventilator. Most deaths from ALS occur due to respiratory failure.

There is no one test that definitively diagnoses a person with ALS. Instead, those suspected of having the disease will undergo various tests, such as electrophysiological and neuroimaging studies. These tests serve to both confirm a physician’s initial diagnosis based on his observations of the patient’s symptoms, and to rule out possible other causes for the muscle weakness or stiffness that are hallmarks of early stage ALS.

The Social Security Administration recognizes that the current state of medical knowledge does not allow for one definitive test to confirm or deny an ALS diagnosis. The evidence required to qualify for disability for ALS includes “documentation of a clinically appropriate medical history, neurological findings consistent with the diagnosis of ALS, and the results of any electrophysiological and neuroimaging testing.”

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com.

Testing for Disability—Exercise Tests

Mon, 16 Apr 2012 09:48:04 -0500

Section 4.00 lists several cardiovascular ailments that could potentially qualify a person for disability. There are number of tests used to make such a determination. One such test that the Social Security Administration explains thoroughly is the exercise test.

Exercise tests are for the most part exactly what they sound like. They involve using machines commonly found in the local gym, such as treadmills and exercise bicycles, to measure how the cardiovascular system responds to physical activity. Such tests can tell doctors about both the severity of preexisting cardiovascular disease or allow these same doctors to measure recovery after a cardiac event such as a myocardial infarction (heart attack). The SSA requires that all exercise tests that it purchases follow acceptable protocols.

One type of exercise test is the exercise tolerance test (ETT), which is used to determine whether a claimant qualifies for disability by virtue of having ischemic heart disease or chronic heart failure. Ischemic heart disease is when normal blood flow to the heart is inhibited due to one or more coronary arteries becoming constricted. When heart muscle tissue dies due to this impaired blood flow, the result is a heart attack. Chronic heart failure is when the heart is unable to provide the other body tissues with a sufficient amount of oxygenated blood. The SSA requires that all exercise tolerance tests have specifically documented parameters and be paced to the patient’s capabilities.

Another kind of exercise test is the Doppler test. The Doppler test uses ultrasound to measure blood flow in the legs while the patient is walking on a treadmill. When the SSA purchases a Doppler test, the patient must walk on a treadmill at a 12% slope going at least 2 miles per hour for up to five minutes. This test is primarily use do determine if a patient has peripheral vascular or peripheral arterial disease, though it is an acceptable test to determine if a patient suffers from chronic heart failure.

While an exercise test is useful for determining whether your cardiovascular disease is severe enough to qualify for disability, there are some circumstances under which a doctor will not perform it. They include factors such as:

(1) Unstable angina not previously stabilized by medical treatment.
(2) Uncontrolled cardiac arrhythmias causing symptoms or hemodynamic compromise.
(3) An implanted cardiac defibrillator.
(4) Hypertrophic cardiomyopathy with a systolic gradient of 50 mm Hg or greater.
(5) Other impairment affecting ability to use arms or legs

Other times, the purchase of an exercise test is delayed by three months to allow for “maximal, attainable restoration of functional capacity.” Reasons for a delay in purchasing such a test include acute myocardial infarctions and bypass surgeries.

Exercise tests, also called exercise tolerance tests (ETTs ) are specifically listed under the entries for ischemic heart disease and chronic heart failure.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com today.

The Mental Health Disability Series - Organic Medical Disorders

Tue, 10 Apr 2012 08:36:19 -0500

The Social Security Administration (SSA) has a broad category of mental impairments called “Organic Mental Disorders.” What makes “organic” mental disorders different from the Affective Disorders and Anxiety Disorders that have been discussed earlier on this blog?

“Organic Medical Disorders” as described in Listing 12.02 are “psychological or behavioral abnormalities associated with a dysfunction in the brain.” Specifically, they are mental ailments that can be traced to something amiss in the brain, detectable in laboratory tests such as MRIs. This is in contrast with “psychiatric disorders” which are diagnosed behaviorally. While the term “organic mental disorder” and its various permutations are virtually obsolete in the practice of psychiatry (including being removed from the DSM-IV), the SSA still uses the term when describing the category.

To prove that that one’s organic medical disorder is severe enough to merit disability, an applicant must demonstrate that certain requirements are present. List A the many ways the loss of “specific cognitive abilities” or “affective changes” characteristic of an organic mental disorder can manifest. They are:

1. Disorientation to time and place; or
2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or
3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional instability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or
7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., Luria-Nebraska, Halstead-Reitan, etc;

List B describes the effects of these manifestations, including:

1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;

List C refers to having a documented history of a chronic mental disorder. The history must date back at least two years, and cause more than a “minimal limitation of ability to do basic work activities.” In addition, an applicant must have one additional List C qualification such as:

1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

To qualify for SSD under Listing 12.02, an applicant must show either:

1. One symptom from List A AND two symptoms from List B; OR
2. Fulfill all the requirements of List C.

Organic medical disorders have multiple causes. One major cause, especially in young people, is alcoholism and drug addiction. Other causes include repeated head trauma (i.e. being “punch drunk”) and old age. Strokes and Alzheimer’s disease are two of the major causes of organic brain disorders in the elderly.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com today

Social Security Disability - Lupus and other Autoimmune disorders

Tue, 03 Apr 2012 08:33:36 -0500

Section 14 of the Social Security Disability listings describe diseases of the immune system. The SSA organizes Immune System Disorders into three categories: autoimmune disorders, immune deficiency disorders that are not HIV, and HIV. An autoimmune disorder occurs when the body literally starts attacking itself. The immune system mistakes healthy tissues for hostile, rendering multiple body systems impaired. One of the most common autoimmune disorders is systemic lupus erythematosus (SLE), also known as “lupus.”

SLE primarily strikes people between the ages of ten and fifty. Women are ten times more likely to be affected than men. African Americans and Asians are afflicted more often than those of other races.

SLE can affect any organ or body system. It is a chronic inflammatory disease that’s accompanied by constitutional symptoms such as severe fatigue, fever, malaise, and involuntary weight loss. Some sufferers of lupus develop severe chronic arthritis and extreme photosensitivity. Other complications resulting from SLE potentially include blood clots, anemia, fluid around the heart or lungs, and fluctuating cognition a.k.a. the “lupus fog.” The American College of Rheumatology lists eleven criteria—symptoms that commonly manifest in those with SLE. Having at least four of the eleven problems with no other explanation will often lead to a diagnosis of SLE. The SSA specifically cites the College’s criteria as a guide to proper diagnosis and documentation of SLE.
Systemic lupus erythematous can be demonstrated in the following ways:

A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).

B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

While SLE is probably the most well known of the autoimmune disorders, several others are listed under Section 14 as potential qualifiers for SSD. They are:

• Systemic Vasculitis (14.03)—inflammation of the blood vessels
• Systemic Sclerosis (Scleroderma) (14.04)—thickening of the skin, often a manifestation of abnormalities in the heart, lungs, or kidneys
• Polymyositis and Dermatomyositis (14.05)—inflammation of the striated muscles
• Undifferentiated and Mixed Connective Tissue Disease(14.06)—a catchall for afflictions that have the features of several autoimmune disorders, but not enough to satisfy the criteria for any specific one.

To qualify for SSD with an autoimmune disorder, you will need to provide your medical history, a report of a physical examination, and reports of relevant laboratory findings. For lupus, blood tests, specifically the antinuclear antibody (ANA) test is considered the most important. Other autoimmune disorders may require medical imaging (MRIs, CAT scans, radionuclear bone scans, etc.) or tissue biopsies.

If you think you may be entitled to Social Security Disability benefits and have questions, give me a call toll free at 800-296-2290 or contact me at tsmith@tedsmithlaw.com today.

ANEMIA

Sun, 26 Feb 2012 14:40:09 -0500

It’s estimated that three million Americans suffer from anemia. That number is expected to increase as the population continues to age—almost 10% of people over sixty-five have some form of the disease.

Red blood cells are rich in a substance called hemoglobin, a protein that carries oxygen molecules to all other cells. In adults, hemoglobin-rich red blood cells comprise 35%-52% of a person’s blood; this percentage is known as the hematocrit level. Normal variations in the hematocrit level depend largely on factors such as gender and physical fitness. Anemia occurs when a person’s hematocrit levels drop too low, indicating that the red blood cells are not properly transporting oxygen to other parts of the body.

The American Society of Hematology traces anemia to two basic causes: anemia resulting from a too low amount of red blood cells and anemia resulting from red blood cells that do not function properly. Social Security has a section (Hematological Disorders, Section 7.00) that addresses both forms.

For anemia caused by low hematocrit levels, the key factors considered are “chronicity” and impairment. Chronicity is shown with evidence that the condition has persisted for at least three months. Such evidence can be shown by multiple (at least two) medically acceptable tests over a three month period—persistently 30% or less. Impairment is shown by proof that this low red blood cell count is actually affecting the proper functionality of other body systems. As the SSA website says, “a gradual reduction in red cell mass, even to very low values, is often well tolerated in individuals with a healthy cardiovascular system.” Impairment can be shown by either by an appropriate evaluation by a medical professional or documentation that the applicant needs blood transfusions on average of at least once every two months.

Sickle cell anemia falls into the second anemia category - anemia caused by malfunctioning red blood cells. Red blood cells are shaped like flexible discs, which allow them to travel through all blood vessels, including capillaries that are only one cell thick. Sickle cell anemia occurs when the red blood cell form more rigid C or “sickle shapes.” These abnormally shaped cells become stuck in the smaller blood vessels, blocking proper blood flow and causing immense pain. Sickle cell is an inherited trait with certain groups, such as African Americans, more likely to be carriers than others.

The sickle cell disease listing describes the evidence that must be shown to qualify for disability. The applicant must either show:
A. Documented painful (thrombotic) crises occurring at least three times during the 5 months prior to adjudication; or
B. Requiring extended hospitalization (beyond emergency care) at least three times during the 12 months prior to adjudication; or
C. Chronic, severe anemia with persistence of hematocrit of 26 percent or less; or
D. Evaluate the resulting impairment under the criteria for the affected body system.

Like with chronic anemia resulting from a persistently low hematocrit, the applicant must have documentation that this condition has recurred multiple times in a prescribed period.

If you think you may be entitled to Social Security Disability benefits and have questions, contact me at tsmith@tedsmithlaw.com attorney today.

Obesity, Respiratory Illnesses and Social Security Disabilty Benefits

Fri, 02 Dec 2011 22:42:41 -0500

Many people do not know that obesity is not a listed impairment under the Social Security Regulations. At one time, weight and height were considered in combination to be a reason for disability. However, on August 24, 1999, obesity was deleted from listing 9.09.

Now, SSR02-1p sets out how obesity must still be addressed within the listings. SSA recognizes that obesity has potential affects in causing or contributing to impairments in the respiratory system.

Even though obesity was deleted from the listings, SSA recognizes that obesity is a medically determinable impairment that is often associated with disturbance of the respiratory system, and disturbance of this system can be a major cause of disability in individuals with obesity. The combined effects of obesity with respiratory impairments can be greater than the effects of each of the impairments considered separately. Therefore, those deciding whether disability should be granted must consider any additional and cumulative effects of obesity.

3.6 % Increase in Social Security Beneifts To Occur Soon

Thu, 01 Dec 2011 20:03:26 -0500

The Social Security Administration recently announced that monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012.

The 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011.

This increase is based on a cost of living adjustment or COLA. The specific formula for a COLA adjustment is based on the Consumer Price Index for Urban Wage Earners and Clerical Workers. The last COLA to effect Social Security benefits was in 2008.

Migraines and Social Security Disability

Thu, 20 Oct 2011 22:24:52 -0500

With regard to migraine headaches, SSA indicated in Q&A 09-036 that migraines cannot be considered a "medically determinable impairment” solely on a diagnosis in the evidence or on a claimant's reported symptoms. SSA requires that there must be clinical signs or laboratory findings to support a finding of migraine headaches.

Consequently, a diagnosis of migraine headaches requires a detailed description from the physician of a typical headache event (intense headache with more than moderate pain and with associated migraine characteristics and phenomena) that includes a description of all associated phenomena; for example, premonitory symptoms, aura, duration, intensity, accompanied symptoms, and effects of treatment. SSA cautions that the diagnosis should be made only after the claimant's history and neurological and any other appropriate examinations rule out other possible disorders that could be causing the symptoms. Clinically accepted indicators of the diagnosis for migraines include: a headache event that lasts from 4 to 72 hours if untreated or unsuccessfully treated; along with two of the following: unilateral, pulsating (throbbing in parentheses quality; moderate (inhibits but does not wholly prevent usual activity in the premises or severe (prevents all activity) pain intensity, worsened by routine physical activity (or causing avoidance of activity). At least one of the following must occur during a headache: nausea, vomiting, photophobia or phonophobia.

Reflex Sympathetic Dystrophy and Social Security Disability

Wed, 19 Oct 2011 20:29:32 -0500

While reflex sympathetic dystrophy is not a listed impairment under the Listings of Impairments, SSA recognizes that it could be a condition that may result in disability. Social Security Ruling 03-02p suggests that reflex sympathetic dystrophy is a chronic pain syndrome most often resulting from trauma to a single extremity. It can also result from diseases, surgery, or injury affecting other parts of the body. Even a minor injury can trigger RSD. According to SSA, the most common acute clinical manifestations include complaints of intense pain and findings indicative of autonomic dysfunction at the site of the precipitating trauma. Later, spontaneously occurring pain may be associated with abnormalities in the affected region involving the skin, subcutaneous tissue, and bone. It is characteristic of this syndrome that the degree of pain reported is out of proportion to the severity of the injury sustained by the individual. When left untreated, the signs and symptoms of the disorder may worsen over time

Obviously, RDS must be diagnosed by a qualified treating physician. After a diagnosis has been made, it is important to establish what limitations result from this condition. If the limitations are serious, pervasive and long lasting, this condition can serve as a basis for disability.

SSA Changes Rules for Filing A Subsequent Application

Thu, 28 Jul 2011 16:18:57 -0500

Effective July 28, 2011, the Social Security Administration changed its policy regarding the filing of subsequent applications for disability benefits. In 1999, SSA had in place a procedure which allowed for the filing of a new application for Social Security Disability benefits even though a prior application was on file. Under this procedure, the new application was processed by the disability determination service. SSA noted that it has "seen an increase in the number of subsequent disability claims in recent years". As a consequence, SSA believes that some decisions have been inconsistent. SSA also believes that this duplicate filing has caused increased administrative costs and higher workloads.

The new procedure does not allow for the filing of two claims for the same type of benefits pending at the same time. If the claimant wishes to file a new disability claim for the same matter and that same matter is pending at any level within the Social Security administrative system, then the claimant must either withdraw the prior claim in order to file a new one or not file a new claim and simply stand on the prior claim. This policy does not change SSA's policy where an appeal in pending in federal court. In those cases, the claimant may file a new application while the court case is pending.

Indiana Has New No Text Law

Sat, 02 Jul 2011 20:11:00 -0500

Effective July 1, 2011, people are not allowed to use phone or pager or personal digital assitn to text, email or read texts or emails while driving. An exception to the law permits texting and emailing or reading texts or emails if “used in conjunction with hands free or voice operated technology”. The law passed by the Indiana General Assembly was actually the result of a compromise. The sponsor of the legislation wished to avoid a constitutional challenges as well as insure its passage. As a consequence, other tasks which Smartphone users can perform such as surfing the internet and playing games are not illegal.

The new law makes a violation a class C infraction with a possible fine of up to $500. Importantly, if stopped for a violation, the arresting officer may not confiscate the devise to determine compliance with the law or retain the devise as evidence.

About 34 other states have laws which prohibit texting or emailing while driving.

Death of a Disability Claimant

Tue, 14 Jun 2011 22:18:05 -0500

It does happen that a disability claimant dies before the appeal has been completed. In that case, if the claim is for Title II benefits, the surviving spouse of the claimant may claim the benefits due to the claimant up to the month of the date of death of the claimant. If the

claimant had no surviving spouse, then SSA distributes the money that would have been paid to the claimant in the following order:

> the child or children of the deceased claimant
> the parent or parents of the deceased claimant
> the representative of the estate of the deceased claimant

The Code of Federal Regulations, Title 20, Section 404.503 sets out the priority of the beneficiaries. The survivors must file form HA-539 along with the death certificate.

I have handled cases in which my client has died before the hearing. Death can make proof more of a challenge for a successful case. Despite the difficulties, with well documented medical records, these cases can still be won even with the death of the claimant.

When Is Best Time To File for Social Security Disability Benefits?

Thu, 09 Jun 2011 22:09:42 -0500

The simple answer is that when you are no longer working due to medical condition which you expect to last in excess of 2 months, you should file immediately. There is a “durational” component to disability claims. What that means is that in order to qualify for disability benefits, the medical problem causing you to be disabled must have lasted or must be expected to last for a time period of 12 months or more. The point here is that medical issues which cause someone to be unable to work but only for a short time (that is, less than 1 year) are not problems for which federal disability benefits can be awarded.

This often comes up when a person is injured, say a simple fracture, but the fracture is expected to heal before 12 months. Routine surgery is another example. A person who has had surgery, which is a very invasive procedure, is typically returned to their pre-surgery state of well being within less than 12 months. Another example is a severe case of the flu. Normally, this type of illness is resolved well within the 12 month period. If that matter is resolved within the 12 month period, then disability would not be awarded.

However, if the fracture results in a non-union causing an inability to weight bear; or if the surgery did not heal the illness or injury of if the flu developed into some other medical issue that did last more than 12 months, then in all of these instances the 12 month durational requirement may have been met.

If you do expect your illness, injury or surgery to cause you not to be able to do any job for a period in excess of 12 months, then you should consider filling for disability. This is true despite any remorse you may feel for not being able to work. A delay in filing may result in an inability to claim all of the back benefits to which you may be entitled.

Multiple Sclerosis, Fatigue and SSA

Wed, 08 Jun 2011 23:07:33 -0500

For those patients who have multiple sclerosis, fatigue is a common, if not predominate, symptom. As they know, fatigue is not the same thing as tiredness. Tiredness can be taken care of with rest or sleep. Fatigue on the other hand is really a lack of energy. The feeling or symptom is something that cannot be resolved with sleep. Often times it is chronic. Environmental factors such as wetness or heat, make fatigue worse.
When SSA evaluates a claimant with multiple sclerosis, it considers the fatigue of the person. SSA’s policy on looking at fatigue is:

The best means of assessing fatigue is by inference in terms of the claimant’s activities of daily living, the extent of physical activity before fatigue occurs, and the frequency at which the claimant requires periods of rest.
POMS DI 24580.015B (1-23-90)

Journaling is an excellent method of documenting the feelings and frequency of bouts of fatigue. If you do keep a journal, you should include how your daily activities have been affected or limited. Notes should also be made of how much rest was required on a particular day as a result of the fatigue.

Indiana Supreme Court Creates Resolves Confusion in Sport Cases

Tue, 07 Jun 2011 22:23:57 -0500

On May 18, 2011, the Indiana Supreme Court resolved the confusion surrounding in Indiana appellate case law in the area of sport injuries. The case which the high court reviewed and vacated was Pfenning vs. Lineman 2011 WL 1885261. In Pfenning, a minor was struck in the mouth by a golf ball while operating a beverage cart while at an golf outing. After reviewing the disparate holdings on which standard of care to apply to a bystander/participant at a sporting event when injured by a participant, the Court wrote:

“We hold that, in negligence claims against a participant in a sports activity, if the conduct of such participant is within the range of ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law and does not constitute a breach.”

In ruling in this manner, the Supreme Court indicated that it was dealing with this case within the framework of existing Indiana statutory law and jurisdiction. The consequence of this holding resulted in the minor losing her case to the golfer who struck her.