December, 2011: One’s Doctors can make all the Difference

Sharon's case is another example of how one's doctors can make all of the difference when it comes to a successful conclusion in a Social Security disability claim. Sharon is 45 years old and became disabled from her job in sales following a discectomy and fusion she underwent in 2008. Unfortunately, Sharon's surgeon was not willing to address a functional capacity questionnaire addressing the extent of her ongoing functional limitations. To Sharon's credit, she maintained significant ongoing treatment with pain management and her primary care physician (trying every manner of treatment available: additional steroid injections and various pain medications). Yet, given the nature of Sharon's ongoing problems (deemed by her doctors to be axial problems) were not something objectively visible on MRI films (or other available testing), denials continued to come. Sharon's primary care physician remained unwilling to assist with an assessment of her functional capacity (and so did Sharon's pain management doctor, indicating that she should undergo a functional capacity evaluation, which is not typically covered by insurance and which she was in no position to pay). Given the doctors' failures to address Sharon's condition, she was denied at the initial decision level and was denied at reconsideration. We filed a request for hearing at the Boston Office of Disability Adjudication and Review. It was not until Sharon was able to get a second opinion with a physiatrist (which I will tell you is one of the best types of doctors to see when looking for answers to your physical problems and your surgeon, pain management doctor, primary care physician, etc. remain unable to give you answers) that she was able to get a good assessment of what was continuing to go wrong physiologically. Likewise, the physiatrist was more than willing to take the time to assess the extent of her functional limitations. This, in turn, allowed me to draft an argument brief on Sharon's behalf and avoid the need to go to a hearing. Sharon's case is yet another example of how important it is to maintain zealous treatment (and exhaust treatment options): given her efforts to get better and to try and return to work, the presiding Administrative Law Judge at the Boston Office of Disability Adjudication and Review provided Sharon a fully favorable on the record decision (meaning, there was no need for her to attend a hearing). It was fortunate for Sharon that she was receiving Long Term disability benefits in the meantime, as, otherwise, the delay caused by her treating physicians' failure to address the severity of her condition could have had disastrous financial consequences for her.

Cindy's case is another case that was pending before the Boston Office of Disability Adjudication and review. Cindy's sad circumstances (and, the answer is yes, I change the names in these stories unless the client has requested I use their first name) are that she was suffering from very severe mental health concerns that were hindering her ability to work. What is unfortunate is that the Social Security rulings cause opinions from one's psychiatrist or psychologist (which are categorized as treating source opinions) to be provided with much more weight than those of counselors or psychiatric nurse practitioners (as per Social Security Ruling 96-2P), and Cindy's insurance was not allowing her to be in treatment with either a psychologist or psychiatrist. Given the nature of healthcare today, it is becoming more and more difficult to see actual doctors (and patients/claimants have no choice but to treat with either nurse practitioner or a physician's assistant). What was fortunate for Cindy is that her psychiatric nurse practitioner did a very good job of documenting her problems in her continuing progress notes. It is very important that treatment providers note their objective findings when seeing their patients, as there needs to be objective support in the medical record supporting the treatment provider's findings. Unfortunately, Cindy had been denied her claim at the initial claim filing level and on reconsideration by the time she came to our office. Upon filing a request for hearing on her behalf with the Boston Office of Disability Adjudication and Review, we went about obtaining the additional assessments that had been undertaken by the state as part of her Mass Health and EAEDC applications. We were able to obtain very telling psychological evaluations that were undertaken by the Commonwealth of Massachusetts with a psychologist that were extremely supportive: in fact, the psychologist had seen Cindy on two separate occasions over the period of a year. Likewise, we were able to obtain a very helpful Mental Impairment Questionnaire from the psychiatric nurse practitioner addressing the severity of her medical conditions. Social Security Ruling 96-2P provides that information from such other acceptable medical sources “may be based on special knowledge of the individual and may provide insight into the severity of the impairment(s) and how it affects the individual's ability to function.” I am happy to say that we were able to avoid the need to go to hearing for Cindy and by way of an argument brief obtain for her a fully favorable on the record decision.

Cindy's case reminds me how a recent change in the policies of the hearing office (the Offices of Disability Adjudication and Review) is causing a detrimental affect to claimants and their attorneys. Unfortunately, the Social Security Administration has imposed a rule that attorneys will no longer be advised which Administrative Law Judge is assigned to a case. Given this, I'm not longer able to advise claimants who the judge will be and their manner of conducting a hearing. Given Cindy's diagnosed conditions of PTSD and anxiety (and especially when it comes to dealing with men she doesn't know), it is especially concerning that in the future I will not be able to provide someone in Cindy's circumstances some assurances as to what to expect at hearing. While concerns by representatives have been raised (with a letter being sent by the National Organization of Social Security Claimants' Representatives (NOSSCR), to date it appears that these concerns are falling on deaf ears.

It's been a very busy couple of months, which has made it very difficult to decide which cases to discuss.