From a human standpoint, and not just from the standpoint of my work as a Social Security disability lawyer, I want to ensure that my clients are getting the help they need from a medical standpoint so as to not to mention a Social Security disability standpoint, it is always in one’s best interest to exhaust treatment avenues for getting better.  But that being said, 20 C.F.R. §404.1529 provides:

There must be objective evidence from an acceptable medical source that shows you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and that, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), which lead to a conclusion that you are disabled.

And so if one is failing to exhaust treatment avenues, they are in essence doing both themselves and their case a disservice.  Without availing oneself of treatment options, one cannot be said to be doing everything possible to get better.  And by the same token, there will not be 1) the objective evidence necessary to show that a condition remains which would be expected to cause persistence of pain or other symptoms and 2) the treatment evidence making evident the complaints of continued pain or other symptoms.

With regard to treatment for persistent low back and/or cervical disk-related symptoms, including pain, many individuals are not aware of the many treatment options that remain available.  Many are rightly wary of taking opioid medication for fear of addiction issues.  And yet, there are medications such as neurolytics (gabapentin/name brand Neurontin, duloxetine/Cymbalta, pregabalin/Lyrica, Savella) which can provide substantial relief of nerve pain with no addiction issues.  Additional treatment modalities may include various forms of injection therapy that might include steroid injections or potentially nerve blocks, not to mention physical therapy, prescription of a TENS unit or implantation of a spinal cord stimulator.

What we make clear to our clients, however, is that pain management through specialist care and not simply their primary care physician is certainly both appropriate and essential if they believe their problems truly remain severe and disabling (and wish to argue so in support of a claim for long term disability benefits).   If recommended for a pain management evaluation for potential injection therapy and/or physical therapy or for one of a number of different treatment modality options, then at the very least one should be particularly interested in learning more about the different treatment options  available that might indeed make them better.  And, in keeping with this, the Social Security regulations, and, most recently, Social Security Ruling 18-3P, require that one follow prescribed treatment (that is, the recommendations of their doctor) .   This means exploring available treatment options: and that means, at the very least showing an interest in, and looking into, options that their providers might feel would assist them.  It is certainly understood that some treatment options may come with inherent risks or potential side effects to medications, for instance, which can be discussed with the specialist at the time so that a considered decision can be made as to whether to proceed with perhaps one option over another.

If you or someone you love has been long-term disabled from working and simply is at a loss where to turn next for either their treatment or for disability benefit assistance, suggest they call the Law Offices of Russell J. Goldsmith at 1-800-773-8622 for the guidance they need.

The post Social Security Disability and Back Pain: The Importance of Remaining in Treatment with Specialists appeared first on Social Security Disability Lawyer Blog.

As of March 17, 2020, the Social Security Administration suspended in person disability appeal hearings at their hearing office sites due to COVID-19: and this was late in the game compared to other courts.   Since that time, disability hearings have only taken place if counsel and the disabled claimant agree to a telephone hearing: a process that took some weeks to put into order, and which process could not have been any more impersonal or disjointed upon its initiation.   During my first hearing, it was the judge himself who happened to have connection issues during the hearing, causing the claimant and I to wonder whether we would be able to get through the remainder of the hearing with sufficient attention paid to her disabling issues versus the phone connections.  Fortunately, my client was granted a favorable decision in her claim.

That being said, if not for my clients’ desperate need for money, I would not have advised her to proceed with the telephone hearing process and I have similarly advised all but one other of my clients to do the same: suggesting they put off their hearings until such time as we could both look the judge in the face: in person.   That being said, there is a limit to how long one can afford to wait for in person hearings to resume.  And, fortunately, the Social Security Administration began the work of developing a hearing process with Microsoft Office Teams which is finally being rolled out at the Portland, Maine Office of Hearing Operations as of March, 2021.   Notices have now gone out providing claimants with the option to proceed from the comfort of their own home by way of Microsoft Office Teams Video conferencing.   The hearing notice has provided a link (although one letter off) to the Social Security Appeal hearing video process, where one can find a youtube video that provides a visual guide to how the video hearing process will work along with a helpful user manual for what one will require in order to participate in a hearing by video: 1) access to email (so that the information regarding one’s particular hearing session can be received leading up to hearing), 2) a camera enabled device (which can be a laptop, tablet, smartphone or desktop) that can download and install the MS Teams Application and has a camera, microphone and speakers, and which can connect to a secure high speed or WIFI data connection and 3) a quiet private place where one can participate in the hearing without interruption and disruption.

Likewise, the SSA site has a test link whereby one can test their device ahead of time to ensure it will interact correctly with the Microsoft Office Teams video service.   It is important to note that without a smart phone at a minimum (a simple data cell phone will not suffice) and a high speed connection to the internet that is reliable is going to be necessary in order to take advantage of this new process.  The other consideration is that the same sense of being in person and looking the judge in the eye will be lost.  The judge’s inability to see the nuanced movements and facial reactions on one’s face may be lost.  And in some cases, this may translate to a lack of personal connection between the judge and the claimant and vice-versa.   How seamlessly the connection will work and how clear and continuous the audio will turn out to be remains to be seen until the day and time of the hearing.  Needless to say, it’s a far cry better than a telephone hearing, but a far cry from ideal.  And we are all left to wonder how many more months beyond March of 2021 it may be before an in person hearing can once again take place.

If you or someone you care for is long-term disabled and coming up on a hearing, have them contact our office (the Law Offices of Russell J. Goldsmith) at 1-800-773-8622 so we can discuss with them how we can help prepare them for their upcoming hearing.

The post Maine Social Security Disability Hearings during COVID-19 appeared first on Social Security Disability Lawyer Blog.

In evaluating the pros and cons of reinstating the reconsideration process as of January 7, 2019, it certainly is important to take a hard look at the numbers associated with what have been the approval and denial rates at each stage of the process. Likewise, it’s important to understand the practicalities of the review process itself at reconsideration process, and to what extent it may or may not serve a useful purpose.

As a Social Security Lawyer practicing out of Maine, Massachusetts and New Hampshire, I’m familiar with how the approval rates differ not only between the states but between different areas of the state.   When taking the national approval numbers for Social Security disability insurance claims for worker disability insurance claims between the years of 2007 to 2016, it is notable that the total overall award rate for disabled workers is 33%.   Over that same period of time, the percentage associated with those that won their claims at the initial level has ranged between 20 to 25%, but has averaged 22%.   And so, in essence, 2/3 of those approved ultimately were approved at the initial level.  The percentage of those nationally that were awarded benefits at the reconsideration level was 2%, while the remaining 9% were awards that took place at the hearing level.   And so indeed it is a very small number of individuals that prevail at the reconsideration level.   And, yet, it’s important to remember that 10 out of the 50 states have not had a reconsideration process and so this has skewed the results somewhat.   The SSA statistics with respect to the overall approval rate at reconsideration for worker disability insurance claims at the reconsideration level ran between 13.2 and 17%, with the percentage approval rate decreasing from a high of 14.5% in 2000 to 11.1% in 2016.   This representing the fact that the reconsideration process has become a very rubber stamp denial process.

And yet the approval rates at the hearing level during the pre-prototype period (1992 to 1999)  was between 73.7 and 80.1 during the period of 1992 to 1999.   While initially seeing an uptake in approval rates for the 6 years after the institution of the prototype program given a curtailment of reconsideration in 10 states, there was subsequently a precipitous decline beginning in 2005 (from a high of 81.7% down to a low of 51.3% in 2016), which may very well speak to the very employment friendly economic climate for those remaining somewhat limited by their disabling conditions.

And so, while one might draw the conclusion that where there is only a very small approval rate at reconsideration as compared to the hearing process, why even bother requiring individuals to go through this process.  In practical terms,  while the Social Security POMS (Program Operation Manual) suggests that a new adjudicator undertake a reexamination of all evidence and make a new determination, in practice, even when there is compelling new evidence, the new adjudicator is ordinarily deferring to the initial decision by stating that the prior determination technically resolved all adjudicative issues.   This has led to what I describe as a rubber stamp denial.

However, there are instances when the reconsideration can prove useful for both claimants and the hearing offices.  Many claimants file their claims too early on, shortly after going out of work,  receive a quick denial, and then find themselves at the doorstep of a hearing well prior to being out of work for a year.  Many times, claimants fail to understand that Social Security disability is for those suffering from a medical condition that keeps the from working long-term (i.e., a year or longer).   Facing this additional hurdle called reconsideration can cause some to turn back, and appropriately so: perhaps reapplying later on if in fact they do find themselves longer-term disabled.   In practice, counsel likewise sees the need for claimants in NH to apply for both Medicaid (for absolutely essential health insurance) for treatment of their conditions along with APTD (Aid to the Permanently and Totally Disabled) for cash assistance.  Applications for these programs require an active application for Social Security.   Ending up at a hearing in front of a judge well shy of a year creates a serious dilemma at that point as to whether the claimant goes forward prematurely with the ALJ hearing as, if they turn back, they risk losing the APTD and Medicaid benefits they have.   An interim process called reconsideration helps solve that dilemma.

And so there are certainly pros and cons to reinstatement of the reconsideration process in New Hampshire.  However, reinstatement of this process will in no way harm one’s ultimate ability to receive benefits: and perhaps it will shorten for some the need to wait out what can be a year or longer to get to hearing.

If you or someone you love remains disabled from working and needs legal advice or assistance, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622.

The post The Social Security Disability Reconsideration Appeal Process Returns to New Hampshire appeared first on Social Security Disability Lawyer Blog.

The Social Security disability regulatory process used to determine which Social Security disability claimants meet the definition of “disabled” under Social Security’s rules is not what one typically sees in a court room, or for that matter on TV, depicting a court room.  Instead of it being an “adversarial” process where opposing sides argue it out in front of a neutral judge who is meant to be an arbiter of a dispute, the Social Security disability determination process is an administrative one that is a fact finding process where there is only one side arguing their position to a neutral judge who is meant to be a neutral finder of fact.

On April 20, 2015, the Social Security Administration (SSA) put into effect new adverse evidence regulations which laid out both an attorney’s, and a disability claimant’s, obligation to submit evidence.  Prior to those rules going into effect, the professional rules required claimants and their representative to furnish medical and non-medical evidence that is “material” to a determination of disability.   However, given this rule allowed attorneys to make a legal assessment as to what constitutes “material” evidence, the new rule clarified any ambiguity by requiring both lawyers and their disability claimants present any evidence, medical or non-medical, which “relates” to their disability claim.

The most recent Rules of Conduct and Standards of Responsibility for Representatives promulgated by SSA regulating the conduct of Social Security lawyers in Massachusetts, Maine and New Hampshire is meant to address the manner in which attorneys deal with their disability claimant clients, and with the the SSA itself.   The new rules require attorneys to “maintain prompt and timely communication” with their client such that consultation with the client continues throughout the course of the representation.  Similarly, requiring that attorneys provide prompt responses to requests for information.  While one would think it is “par for the course,” I can tell you that this is many times not the case given the calls we many times receive from individuals who are becoming frustrated with their representatives after being unable to receive a return call after placing multiple calls.  Certainly, this is not how we handle matters in our office, as we believe in providing answers to our clients the same day, if possible, but certainly with an idea as to when they can expect to receive that answer.

Another concern that is addressed in the new rules has to do with last minute withdrawals from representation that occur within days of a scheduled hearing (which has been scheduled for almost 3 months).   We have heard of withdrawals taking place within days of the pending hearing (and, even recently, of someone being told the day of the hearing that their attorney would not be showing up as they are withdrawing form the case).   This is certainly unethical behavior, without SSA clarifying the inappropriateness  of such conduct.  The new rule mandates that once a hearing is scheduled, an attorney may only withdraw from representation “for extraordinary circumstances.”

Of interest, SSA is suddenly requiring for purposes of submitting any medical or vocational reports that attorneys inform SSA if they have “drafted, prepared or issues the medical or vocational opinion.”  Likewise, one’s Social Security lawyer must also inform SSA if they referred or even suggested that one seek a medical opinion from their provider.  Our office finds this particularly troublesome as it should be irrelevant (and should have no bearing as to how SSA views a medical report from a treating physician) whether the suggestion for such a report came from the disabled claimant’s attorney.

Finally, it’s important to remember (and these new rules continue to reflect the fact) that one’s lawyer is considered officer of the court, and is thereby responsible for maintaining the integrity of the fact finding process in much the same manner as a Social Security Administrative Law Judge.  This means an attorney cannot allow false or misleading statements to take place in either applications or at hearings, and maintains a duty to correct such statements should they take place.

If you or someone you love is in need of a Social Security disability lawyer who works hard to obtain for you the benefits you deserve, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622.

The post Your Social Security Lawyer’s Ethical Obligations under the New Rules of Professional Conduct appeared first on Social Security Disability Lawyer Blog.

Before I begin, I think it’s important to set forth for those who may not understand whom the Social Security disability program is meant to assist.  It for those who have been suffering from a severe medically determinable impairment which, despite prescribed treatment is expected to keep one disabled from working for what has been (or is likely to be) a year or longer (or, in the alternative, result in death).  

Mark called our office looking for a Boston, MA Social Security lawyer after losing 2 different attorneys while awaiting hearing before an administrative law judge at the Boston, MA Office of Hearing Operations.  He is a fifty-four (54) year old Boston, MA resident who has worked hard his entire life: first, working many years in housekeeping before choosing to work as a deli clerk and stocker at a large chain grocery store in Boston.  As a result of his hard work, he had significant shoulder problems to show for it, requiring rotator cuff repair on one shoulder and then, once healed, he attempted to go back to work at his old position.

Unfortunately, the first attorney that agreed to represent Mark in his claim earlier on in his claim didn’t appear to notice that Mark filed very shortly after going out of work and that it remained unclear whether his condition would last for what would be a year or longer.   Upon discovering that Mark had returned to work, he failed to provide him with any advice as to how this might impact his pending case.  Mark’s first lawyer should have informed him is that if he is able to return to work inside of a year’s time, and the attempt to return to work lasts longer than 6 months, then he has undertaken what is deemed a “successful” return to work.  In that event, he should no longer pursue his claim at the point in time he’s shown an ability to earn gainful wages (what is $1180.00 per month in 2018) on a regular and continuing basis for what has been longer 6 months.   In order to qualify for what would be an unsuccessful work attempt (in which case the return to work would not interrupt the period of time that was counting towards one year), Mark would have had to go back out of work as a result of his disabling condition within 6 months.   He was never informed about any of this: instead he was simply dumped by the wayside.

The second lawyer took on the case, seemingly after getting a history of his circumstances, just a month or two later, and understanding that Mark was continuing to work.   At the point in time they determined that Mark had in fact returned to work for longer than 6 months (in fact, it had been 9 months), they, too, dumped Mark by the wayside with no explanation.  Instead, Mark was left to go to the hearing by himself with the judge explaining to him that he had only gone back out of work the month before and so he was wondering why Mark was even in front of him at that point.

It was thus left to our office to explain to Mark about his need to show he’s remained disabled from working for what has been or would be a year or longer (and that his first period of disability had been interrupted by a successful return to work).  Likewise, we had to advise him that he was now dealing with a new period of disability starting from when he had to go back out of work for what was additional rotator cuff surgery on his opposite hand.  And now that he was only 4 months disabled from working (and in recovery), it was not entirely clear that he would remain out of work for what would be a year or longer.   Mark was advised of his right to consider withdrawing his request for hearing and potentially start a new claim if and when it becomes more apparent that his most recent surgery will keep him out of work (and we likewise had to clarify for him, any work for which he’s reasonably suited by age, education and experience, for what will be a year or longer).

Needless to say, Mark was provided a disservice by any attorney not willing to explain to him the rules that would apply to his Social Security disability claim.    If you are seeking representation, ensure that your attorney is communicating to you what needs to be proven in your case, and how any medical or vocational developments may be impacting it.

For a legal analysis of your Social Security disability claim, with no cost or obligation to you, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622.

The post Understanding Why Your Social Security Disability Claim was Denied appeared first on Social Security Disability Lawyer Blog.

It is important to understand that in order to establish a claim for Social Security disability benefits it’s necessary that a disability claimant establish that they have been objectively diagnosed as suffering from a severe, medically determinable impairment that described treatment causes one to remain totally disabled from all forms of gainful employment.  The difficulty lies in establishing the diagnosis objectively of a severe medically determinable impairment.

When we were contacted for purposes of assisting with a potential Social Security disability claim, we were informed by our potential client’s daughter that her mother had to discontinue work over a year prior as a result of issues revolving around her memory and concentration.  Tammy (we’ll call her daughter) informed us that her mother was embarrassed by the problems she was having and instead of going out on disability benefits with her company (and determining what could be done), she had instead gone out on early retirement.   I then asked Tammy about what follow-up her mother did have at that time with her primary care physician, and she informed me that while she was seeing her primary care physician during that time, she would forget to mention her issues with her memory (and, unfortunately, her family was not accompanying her to the appointments).

Given the fact that there was no discussion or assessment of her condition at the time of her primary care physician’s visits up until this past spring, there would be no documentation in his chart that she was having these concerns.  Once she did convey to the doctor the problems she was having, while he did undertake some testing within the office, this was only a first step towards establishing a diagnosis.

Most general practitioners will not undertake the battery of testing, which would include as well a mental status examination.   Ordinarily, an evaluation with a neurologist may very well be suggested, in which case they might suggest brain imaging studies to determine whether there might be organic causes such as a stroke or a tumor, for example, causing cognitive dysfunction.  Similarly, a referral for an evaluation with a neuropsychologist might be recommended, who would undertake a very extensive battery of testing, referred to as a neuropsychological evaluation, with respect to ones cognitive function.  A neuropsychological evaluation can take up to 8 hours ordinarily, and would help detail the extent to which there are specific cognitive deficits with respect to different cognitive areas of function such as executive functioning, memory, attention and concentration, etc.

Once a determination can take place as to whether dementia is indeed an appropriate diagnosis (whether that be in the form of Alzheimer’s or a more general dementia),  medical providers can determine the appropriateness of certain medications that may be used to ease the symptoms of the condition.     Treatment for Dementia can include medications referred to as cholinesterase inhibitors (with name brand medications such as Aricept, Razadyne, Reminyl and Exelon) which can, in some circumstances, provide some benefit to those suffering from some form of dementia, such as “less anxiety, improved motivation, and better concentration and memory.  And some are able to continue with their regular activities.”

With the above testing and treatment underway, a disabled claimant will stand a much better chance of establishing a disability claim for dementia.  Follow-up treatment with continued cognitive testing, however, will be essential in order to show that the condition does remain severe and disabling such  the deficits would serve to preclude the individual claimant from being able to perform gainful employment.

If a loved one is feeling lost as a result of difficulties with cognition, give a call on their behalf to the Law Offices of  Russell J. Goldsmith at 1-800-773-8622 so that together we can determine whether they appear to  be receiving appropriate treatment, and, given the problems they are still experiencing, whether an application for Social Security disability might be appropriate for them.

The post Establishing a Social Security Disability Claim for early onset dementia appeared first on Social Security Disability Lawyer Blog.

Since that time, the present governor, Paul LePage, has refused to order the Department of Health and Human Services (DHHS) to implement Question 2.    Governor LePage, who had vetoed on 5 previous occasions the expansion of Medicaid coverage (which expansion cost would initially be covered by Federal funds to the tune of 90% of the cost), has refused to allow this citizen passed bill to go into effect, thereby thwarting the will of the people.   What elected officials had previously passed on 5 occasions, was now passed by a significant majority (60%) of the citizenry so as to allow individuals making up to approximately $16,000.00 and families of four with an income of up to $34,000.00 obtain health insurance (thereby allowing  anywhere from 70-80,000 indigent Mainers health insurance the can’t otherwise afford to obtain).   

As a Maine Social Security disability lawyer assisting the long-term injured and disabled for almost 30 years, I have seen first hand how the lack of health insurance coverage and available health care has impacted those with the least in this state.  Every day, disabled individuals call our offices seeking assistance with a potential Social Security disability claim, and yet they remain unable to receive the types of treatment that might allow them 1) to get better and return to work, or 2) make evident to the Social Security Administration just how serious their condition would remain despite treatment.  In either event, these individuals are looking for treatment which will allow them to lead a better quality of life.

The Social Security disability system is meant to address financial support to those suffering from a “severe medically determinable impairment,” and who have remained or will remain totally disabled from all forms of gainful employment for what will be a year or longer despite prescribed treatment.   Day in and day out, we have to advise individuals who do not have health insurance to try and find care (many of whom have applied for “disabled status” Mainecare, only to be told that they do not qualify as they do not have a doctor whose treatment records reflect the fact that their condition remains severe and disabling).    It remains a catch 22, however, for many of these individuals: they can’t prove they remain disabled from a severe “medically determinable impairment” if they can’t be seen by a doctor.  And yet, they can’t prove they remain disabled “despite prescribed treatment” if they can’t be in treatment.

These individuals remain in an impossible situation.   Many are being denied the health insurance they need to get better because they haven’t been able to see a doctor who first confirms that their condition has remained severe and disabling.  By the same token, these individuals find themselves attempting to apply for Social Security disability benefits given the fact that they remain disabled given they remain incapable of  obtaining the ongoing treatment and medication their conditions call for.

Ultimately, with proper care, many of these same individuals’ health might improve to the point where they could attempt to return to work if they were able to obtain the ongoing treatment they require for their conditions.  By the same token, there is a certain share of these individuals who simply will not be able to get better to the point where they are employable.  However, the availability of Mainecare would allow these individuals to come out from the shadows of disability and actually be seen and heard when applying for Social Security disability benefits.  Many Social Security disability applicants are denied simply because there remains “insufficient evidence” as to the nature and severity of their medical conditions because they cannot be seen or treated.

Given the Governor’s failure to order DHHS to begin implementation of Question 2,  and as required under the terms of the bill notify the Federal government of its opting to expand Medicaid coverage within the state by an early April deadline so as to secure the Federal funding for the expansion, the Medicaid expansion which should be taking effect as of July 2, 2018 remains in doubt.   A superior court judge has now ruled that the LePage administration must comply with the results of the election ballot initiative and file its plan for Medicaid expansion with the Federal Department Health and Human Services by June 11, 2018.   We at the Law Offices of Russell J. Goldsmith certainly hope that expanded Mainecare will be available soon for both our clients and those around the State of Maine suffering from disabilities.

The post The Importance of Maine Medicaid Expansion for the Disabled appeared first on Social Security Disability Lawyer Blog.

Every claim requires that an individual begin by showing that they are suffering from a medically determinable severe impairment.  The Social Security regulations (and, specifically, 20 C.F.R. §404.1521) requires as follows: “[y]our impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source.”  This can be easier said than done when it comes to headaches.

There are a panoply of medical conditions that can result in headaches.  However, the more difficult circumstance is where the diagnosis itself is simply that of simply experiencing chronic headaches.

As a Social Security lawyer handling disability claims out of Maine, Massachusetts and New Hampshire for the last 36 years, we frequently represent individuals in claims that involve, for example migraine headaches or what are referred to as cluster headaches.  Proving objectively that such headaches do indeed exist, and remain severe and disabling, requires appropriate documentation from one’s treatment provider.  First and foremost, we recommend that treatment take place with a specialist, which would be a neurologist, and that visits take place consistently so that the frequency, severity, location and duration can be properly documented.  An initial diagnosis will require significant history taking and objective testing to rule out organic causes for one’s condition.

One type of severe headache, referred to as migraines do have certain tell tale signs and symptoms that ideally are detailed by one’s treating neurologist throughout their notes.  Migraine episodes or attacks, sometimes referred to as “suicide headaches” as the level of pain can be so severe,  can last for hours or even days.   Many individuals experience warning signs known as an “aura” that can be in the form of blind spots, or other visual disturbances such as light flashes or seeing shapes or bright spots, tingling on one side of one’s face or down an extremity, difficulty speaking, hearing noises or music, among others.  A migraine might also be accompanied by nausea and vomiting, and with a period following the seizure referred to as “post-drome,” that may include feeling exhausted/drained following the migraine.

Triggers can include certain types of foods, alcohol, highly caffeinated beverages and stress, and following one’s treatment providers’ recommendations with reference to avoiding certain triggers is very important (both personally and in terms of showing the Social Security Administration (SSA) that one remains disabled despite prescribed treatment).  Likewise, attempts at medication management for migraines would be anticipated by SSA, with efforts at migraine prophylactics such as beta blockers, or SSRI (for example, Zoloft, Prozac and Paxil) and/or SNRI inhibitors (Cymbalta and Effexor) be expected, along with the prescriptions for Triptan medications (such as Imitrex and Zomig) once a migraine is occurring.

Another type of headache, called “cluster headaches,” has quite a different pattern than migraines.  The cluster period typically lasts 6 to 12 weeks headaches followed by periods of remission (with no headaches occurring for months).   These cluster periods many times occur the same time each year, and individuals may experience what are called episodic cluster headaches (with headaches occurring for a period of one week to a year, followed by a pain free period that can last up to 12 months) or what are called chronic cluster periods that can last for more than a year (with pain free periods lasting less than one month).  During the cluster period, headaches are usually daily, sometimes several times a day, can last 15 minutes to 3 hours, can occur at the same time each day and with most attacks occurring at night.  Signs and symptoms can include similar nausea and aura issues to migraines, with headaches involving excruciating pain around one eye, that may radiate, one-sided pain, redness and/or excessive tearing in one eye, forehead or facial sweating, facial flushing or pale skin, swelling around the affected eye or a drooping eyelid.

Once again, one of the triggers can be alcohol and so avoiding alcohol should be understood.  Treatment can include 100% Oxygen inhaled through a mask for brief periods during the course of a headache and once again Triptans (in injection, as well as inhaler and pill form).  Other treatment available includes or Octreotide (Sandostatin), which is injectable, Lidocaine (Xylocaine) as an inhalant, and Dihydroergotamine, which is available in injection and as an inhalant (Migranal).

Keeping a headache diary both for purposes of diagnosis and treatment and your Social Security disability claim can prove quite useful.

Certainly, in addition to the headache classifications listed above, headaches may also occur as a symptom of other objectively identifiable medical conditions that can be established through testing such as an MRI or CT scan, etc.  Headaches may be very well understood and explainable based on the nature of the underlying condition.  Examples of such conditions might include such objective conditions as a tumor or cyst in the brain, trigeminal neuralgia, a blood clot or other vascular disorder, or a cervical disk issue.

If in fact you or someone you care for has been experiencing headaches that persist to the point where their daily life, including their ability to work has been compromised, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 for advice as to whether Social Security disability benefits may be an appropriate resource to pursue.

The post Pursuing a Social Security Disability Claim for Headaches appeared first on Social Security Disability Lawyer Blog.

Once denied at hearing, claimants may then bring further administrative appeal before the agency (that is, the Social Security Administration (SSA)) by way of a Request for Review of Hearing Decision/Order before the Appeals Council. A denial by the Appeals Council, however, exhausts one’s administrative options.

At the point in time of an Appeals Council denial, a Social Security disability applicant has exhausted their administrative options.  It is important note that the failure to pursue further appeal of the ALJ denial at hearing will result in that decision becoming final under the doctrine of Res Judicata (which means the “matter having been decided”).  Should this take place, it becomes  very difficult, if not impossible, to bring a new claim that would succeed in providing you with benefits prior to date of the ALJ denial.   There are few exceptions to this rule of finality.

And so, the only only avenue left, whether in Massachusetts, New Hampshire or Maine, is for a Social Security lawyer and their claimant is the filing of an appeal to Federal District Court.  It is important to understand that the odds of a favorable decision at the Federal District Court level is quite small, with success rates at less than 30% (and with the vast majority of successful appeals involving simply a return of the claim (or what is called a remand) for additional hearing before what may be the very same ALJ that initially denied the claim.

In order to bring a Federal District Court action, one must pay both filing and service costs unless the court determines that there is a basis for a waiving of such costs based on an individual claimant’s inability to afford such costs.  In order to proceed in such a fashion, it’s necessary that the court approve a motion to proceed “in forma pauperis.”

It is important to understand that at the Federal District Court level of appeal the standard for review is whether the agency decision was in error as a matter of law or whether the decision by the ALJ was not supported by substantial evidence.  The Federal District Court is not tasked with reviewing additional medical records or evidence, as they are not a fact finder.  Instead, the Court looks to see whether the ALJ failed to follow the law in coming to its decision or the ALJ failed to base its decision on substantial evidence in the record.  For these reasons, the likely remedy is a remand of the case back to an ALJ for additional proceedings (and only rarely is there a direction by the Court that a favorable decision is to be instituted).

Because of the extensive work involved in handling a Federal District Court action, which can run well in excess of $10,000.00 of an attorney’s time with what is a very low success rate, federal law (under what is called the Equal Access to Justice Act) does provide a mechanism whereby an attorney can be compensated on an hourly rate for the work performed at the Court level and for costs to be reimbursed.  In order for such time and  costs to reimbursed, however, it is necessary that the attorney and their disability claimant prevail against the Agency (that is, SSA) and must show that the Agency’s position was not substantially justified.

Unfortunately, not all Social Security disability claims can be said to justify the time and expense involved with proceeding to Federal District Court.  If you or someone you care about, has been facing multiple denials and simply doesn’t know how to proceed, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 for a free evaluation of their case.

The post Whether to Appeal Your Social Security Disability Denial to Federal District Court appeared first on Social Security Disability Lawyer Blog.

The effects of PTSD can be significant and crippling in terms of one’s ability to function from day to day at home (nonetheless in a work setting).   And yet, understanding the type of treatment and proof required to satisfy the requirements of the Social Security regulations may not be so obvious.

Just as with every manner of Social Security disability claim, it’s important to show that one is suffering from a severe medically determinable impairment which, despite prescribed treatment, has caused one to remain disabled from any manner of gainful employment for what has been, or will be, a year or longer.

As a Massachusetts Social Security disability lawyer licensed in Maine, Massachusetts and New Hampshire, we frequently see individuals who choose to insulate themselves from triggers of the PTSD to the point where the isolation causes them to avoid seeking help.  This means that sufficient evidence can be a major concern as clients may be unwilling to seek treatment in the form of counseling and/or psychiatric care .   Ultimately, without such treatment, we find that proving the condition exists and meets the criteria of the both the medical literature and the Social Security regulations may be lacking.

The American Psychiatric Association revised the diagnostic criteria for PTSD in 2013 in the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders, otherwise known as the DSM-V.  First and foremost, there must exist evidence that the individual was exposed to actual or threatened serious injury, sexual violence or death in one of the following ways: direct exposure, witnessing the trauma, learning that a close relative or friend was exposed to such a trauma , or indirect exposure to horrible details of such a trauma (such as is the case with first responders).  Likewise, there must be a re-experiencing of the event through one of the following: intrusive thoughts, nightmares, flashbacks, or emotional distress or physical reactions following exposure to traumatic reminders.  An example of some of the additional categories that must be addressed in order to satisfy the criteria include evidence of the need to avoid trauma-related stimulus after the trauma, the experience of negative thoughts or feeling following the trauma (that may include, for example, such issues as a sad or depressed emotional state, decreased interest in activities, feelings of isolation) and trauma-related reactions following  experience of the trauma (such as, irritability or aggression, hypervigilance, an increased startle reaction and difficulty concentrating or sleeping).

The Social Security Administration (SSA) set forth a new mental health listing of impairment with respect to PTSD that went into effect on January 17, 2017, entitled “Listing 12.15 Trauma and stressor-related disorders.”   The criteria required in section A appears very much tailored to match the DSM-V criteria, requiring that one show medical documentation of all of the following: 1) exposure to actual or threatened death, serious injury or violence, 2) subsequent involuntary re-experiencing of the traumatic event (for example, intrusive memories, dreams or flashbacks), 3) avoidance of external reminders of the event, 4) disturbances in mood and behavior; and 5) increases in arousal and reactivity (for exampled, exaggerated startle response, sleep disturbance).

Section B or C must likewise be met.  Section B requires a showing of either an extreme limitation in one category or marked limitation in two of the following categories: 1) understanding, remembering or applying information, 2) interacting with others, 3) concentrating, persisting and maintaining pace and/or 4) adapting or managing oneself.  Section C requires a showing that the condition has remained “serious and persistent” which is defined as a medically documented history of the disorder over a period of 2 years with evidence of both: 1) medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting (s) that is ongoing and that diminishes the symptoms and signs of your mental disorder and 2) that you have marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life.

Needless to say, in both establishing that one meets the diagnostic criteria and that the condition remains severe and disabling such that either mental health listing 12.15 is met or one remains incapable of undertaking gainful employment, consistent ongoing treatment with mental health specialists remains critical to establishing entitlement to Social Security disability benefits.  If you, or someone you know, is suffering from severe mental health trauma and remains unable to return to work, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 to see how we might be able to assist.

The post Considerations When Applying for Social Security Disability for PTSD appeared first on Social Security Disability Lawyer Blog.