Uncategorized – Barnes Disability Advocates

Barnes Disability Gets a Big Win

In a very unusual move, the Utah Federal District Court ordered the Social Security Administration to pay benefits to Jerry S. after fighting for disability benefits for more than 10 years. The court stated that “the tortured history of [Jerry’s] claim and the sheer number of errors over the years by the agency weigh in favor of an immediate award of benefits.”

Jerry was working as a diesel and heavy equipment mechanic in October of 2011 when his dominant left hand was caught in a radiator fan. He sustained severe injuries to his hand including a partial finger amputation. He was eventually diagnosed with Complex Regional Pain Syndrome, a nerve condition that caused chronic, severe pain in his left hand.

With the help of Barnes Disability Advocates, Jerry filed for Social Security disability insurance benefits in February of 2012. His claim was denied at the initial and reconsideration levels. A hearing was held in front of an administrative law judge in February of 2014. That judge denied benefits, but in doing so found that Jerry had significant limitations in using his dominant left hand.

In the ensuing years, Jerry’s claim would be denied by Social Security three more times, with two intervening appeals to the Utah Federal District Court. In both of those appeals the Social Security Administration agreed that it could not defend the denials and voluntarily set the Jerry’s claim back to correct errors.

The last time Social Security denied Jerry’s claim, the judge found that he had no limitations in using his badly damaged left hand despite every prior judge finding that he did have significant limitations. Jerry appealed again to the Utah Federal District Court for a third time. Natalie Bolli, a Barnes Disability attorney whose practice focuses on federal court cases argued the case.

The District Court judge found that the overwhelming evidence demonstrated that Jerry’s left hand injury resulted in manipulative limitations in both handling and fingering. The Court also found that evidence from multiple vocational experts showed that there were no jobs available to Jerry in the national economy because those manipulative limitations. The Court concluded that “there is simply no evidence that there are jobs that exist in significant numbers in the national economy that [Jerry] could perform given his combination of impairments.”

In ordering an award of benefits the Court noted that Social Security is not entitled to litigate a claim forever until it finally applies the proper legal standard and gets the necessary evidence to support its decision. The Court also noted that Jerry’s claim had been pending for over a decade and throughout that time, include four hearings by administrative law judges, Social Security had made many errors. The Court therefore ordered that Social Security award benefits to Jerry going all the way back to his injury in October 2011.

Most cases do not take as long as Jerry’s, which is one reason this win is so significant. It is also quite rare for the Utah Federal District Court to order the Social Security Administration to award benefits. Usually, the Court prefers to point out errors and give the agency the opportunity to correct them. Jerry has been forced to rely on family and friends during the extended period of this claim and those resources were essentially exhausted. He has not returned to work since the October 2011 accident that so severely injured his hand. This decision will ensure that he gets the benefits he needs to help get his life back in order.

Student Loan Forgiveness for the Disabled Easier than Ever

One of the most frequent questions I get from my clients is whether their student loan debt can be forgiven if they are found disabled. The short answer to this question is YES.

First, this article applies to forgiveness of federal student loan debt because of a disability finding by the Social Security Administration only. There are many ways that federal student loan debt can be forgiven, so if this article doesn’t apply to you, keep looking, there may still be something out there that can help.

When a person is found disabled by the Social Security Administration they become eligible for federal student loan forgiveness. However, they must apply to receive that forgiveness and there are a lot of exceptions that can apply. You can learn more about how to apply here. Once they receive forgiveness they are subject to a three-year monitoring period. During this time the borrower is required to submit if annual earnings are to high, a new student loan is issued to the borrower, SSA determines that the borrower is no longer disabled, SSA determines that it will schedule a continuing disability review sooner that five to seven years.

On March 29th, the U.S. Department of Education announced that it will waive those post-discharge monitoring requirements for more than 230,000 borrowers during the COVID-19 emergency. More than 41,000 of these individuals who have already had the loans reinstated will have their loans put back into discharge status and have any payments made during the COVID-19 emergency refunded.

More recently, three advocacy groups, the National Student Legal Defense Network, Community Legal Aid Society of Delaware, and Justice in Aging filed a petition with the Department of Education requesting that it automatically forgive the student loan debt of borrowers who are awarded Social Security disability benefits. According to the press release “[a]s of 2020, SSA has identified over 625,000 individuals with disabilities who are entitled to a TPD discharge and has provided that information to the Department,” but two-thirds of those people have not had their loans discharged. Their petition asks the Department of Education to drop the requirement that Social Security disability recipients file a separate application for student loan forgiveness. This would be a huge benefit to those individuals by providing more than $14 billion in loan relief to about 400,000 borrowers.

Whether this petition is adopted or not, the recent changes to Department of Education policy will certainly provide significant relief to a lot of student loan borrowers who could use the help.

SSR-2p – Obesity

Obesity is an impairment that can contribute to disability in a variety of ways depending on the individual and the specific impairments. While obesity alone may be a severe impairment, it also often makes other conditions worse. Examples of this include increased pain and mobility issues with degenerative joint disease or degenerative disc disease. Obesity may make it more difficult to control blood sugar in those with Type II diabetes. Obesity can impact mental impairments. The increased body size with obesity can also make breathing difficulties worse. The Social Security Administration (“SSA”) must consider a claimant’s obesity if it causes or contributes to an inability to work. In 2019, SSA issued Social Security Ruling 19-2p (“Ruling) to clarify how obesity should be evaluated.

How does SSA define obesity?

Obesity is a complex disorder that results from a number of factors including environment, genetics, and behavior. Health care providers will generally diagnose obesity based on your medical history, physical exams, and your body mass index (“BMI”). BMI is a calculation based on your weight and height. In the medical community, a BMI of 30.0 or higher is considered obese. However, as discussed further below, SSA does not just look at a specific weight or BMI to determine if your obesity contributes to your disability.

What kinds of impairments are associated with obesity?

Impairments that are associated with obesity include, but are not limited to:

Endocrine disorders, such as Type II diabetes mellitus
Disease of the heart and blood vessels, such as high blood pressure or heart attacks
Respiratory impairments, such as sleep apnea or asthma
Osteoarthritis
Mental impairments, such as depression or anxiety
Cancers of the esophagus, pancreas, colon, rectum, kidney, endometrium, ovaries, gallbladder, breast, or liver.

How do I show obesity is a medically determinable impairment?

SSA must determine if obesity is a medically determinable impairment. This means the record must contain objective evidence from an acceptable medical source about your height and weight. It is not enough to have a diagnosis of obesity, the record must contain findings from an acceptable medical source such as height and weight, measured waist size, and BMI measurements over time. It is important that your medical provider consistently tracks these kinds of findings as SSA will look at these measurements over time to determine if obesity is a medically determinable impairment. SSA does not rely on a specific BMI, but looks at the entire case record to determine if obesity is a medically determinable impairment.

How do I show obesity is a severe?

If SSA determines that obesity is a medically determinable impairment, then they evaluate the severity of this impairment. It will be important that your medical records reflect any symptoms associated with your obesity such as fatigue or pain that can affect your ability to function. It is important that the record demonstrate that your obesity, either by itself or in combination with other impairments, significantly limits your ability to perform basic work activities. Examples of ways obesity may impact functioning include limitations in sitting, standing, walking, and lifting, climbing, balancing, stooping, kneeling, or crouching. It increases stress on weight bearing joints. It can also affect a person’s ability to use their hands and fingers in manipulating objects or decrease tolerance to heat and humidity.

Again, no specific weight or BMI establishes that obesity is “severe”. SSA will do an individualized evaluation of the effect of obesity on a person’s functioning. Therefore, consistent and supportable evidence of your weight, BMI, and any related symptoms over time will be key in SSA’s evaluation of your claim.

What can I do right now?

Make sure your provider is consistently taking note of your weight, BMI, and/or waist size. While you will be asked some of this information in the documents you fill out for SSA, they will evaluate obesity based on the findings of a medical provider, not from self-reported measurements.
Communicate with your provider as to any functional limitations you feel your obesity causes or any impairments it exacerbates. As noted above, this includes issues such as pain and fatigue. It is important that any impairment due to obesity is noted in your medical records.
Please be compliant with medication and treatment. If you are not willing to take medications or otherwise comply with your provider’s recommended treatment for your obesity, please let us know why. Medications and surgeries that are sometimes recommended for weight loss may not work for you. We want to make sure SSA understands your specific situation.

Remember, obesity does not impact everyone in the same way. It is important for us to help SSA understand the specific way your obesity contributes to your impairments or your work-related limitations.

SSR-19-4p – Headaches including Migraines

Headaches can be very debilitating and even prevent a person from working full-time. As debilitating as headaches can be, it is difficult to prove to the Social Security Administration (“SSA”) that they make you disabled because there is no way to objectively measure how severe your headaches are or even that you have them. In 2019, SSA issued Social Security Ruling 19-4p (“Ruling) to clarify how headaches should be evaluated.

What kind of headaches does this Ruling apply to?

First, the Ruling applies to primary headache disorders. Primary headache disorders are migraines, tension headaches, or trigeminal neuralgia. They are called primary headache disorders because there is no underlying disease or injury causing the headache. There are also secondary headaches disorders. A secondary headache disorder is a headache that is the symptom of another condition like a neck injury or sinus issues. If you have a secondary headache disorder, this Ruling still provides some guidance, but they are not the main focus of this Ruling. It is also possible to have both primary and secondary headaches.

How can I show a diagnosis of a primary headache disorder?

For SSA to consider your headaches a primary headache disorder, they must be diagnosed by a medical provider who has reviewed your medical and headache history. This should include a review of your specific headache symptoms. Your provider may perform a physical and neurological examination. Often with headache disorders, testing such as an MRI or a CT scan of the head is done to see if your headaches are the result of another condition. Even if these tests are negative, they are still important because they rule out other causes for your headaches. The Ruling makes clear that positive imaging is not necessary to diagnose a primary headache disorder. It is important that the treatment notes from your provider are consistent with a primary headache disorder, so they should contain not only your report of symptoms, but any pain behaviors your medical provider may have observed such as difficulty concentrating, need for a dark room, neck stiffness, or tremors. Also, while not required, your case will be stronger if you headaches are evaluated and treated by a specialist such as a neurologist.

How can I show the severity of a primary headache disorder?

Your medical records need to document any symptoms such as difficulty concentrating, light sensitivity, sound sensitivity, or nausea that accompany your headaches. SSA will also want to understand how often you have headaches, how long they last, and how they affect your ability to perform work-related limitations. Particularly with headaches, work-related limitations may include absences from work, difficulty maintaining a schedule, or difficulty focusing and concentrating. We also need to understand if you have sensitivities to noise or light that may make it difficult to work in some environments. It is important that you discuss any limitations related to your headaches not only in your statements to SSA, but also in discussions with your medial provider. A headache journal that documents all of this information can be very helpful, especially if it is shared with your doctor.

When describing your headaches to SSA it is important to discuss issues such as headache frequency, accompanying symptoms, and how long it takes you to recover from a headache. SSA also wants to know what medications you have tried or are currently using for your headaches. Treatment notes should show if these medications are effective or not. They should also show if you have any side-effects from the medications. SSA will consider if your headaches improve with medication or if there are reasons you cannot use medications or follow-through with recommended treatment. Consistency and supportability between your reported headache symptoms and the medical evidence will be key in SSA’s evaluation of your claim.

What can I do right now?

Keep a headache diary. This allows you to help the Agency understand how often you experience headaches, what kind of symptoms your headaches cause, and how long it takes you to recover. A headache diary allows you to also document any activities you had to miss due to your headaches.
Communicate with your provider as to the frequency and severity of your headaches. As is discussed above, SSA will not simply take your word for the frequency and severity of your headaches. They also want to see this reflected in the medical record. Make your doctor aware of not only the frequency of your headaches, but also your accompanying symptoms, and any reactions to medications.
Stay compliant with medication and treatment. If you are not willing to take medications or otherwise comply with your provider’s recommended treatment for your headaches, please let us know why. A failure to follow through with recommended treatment can be seen as an indication that your headaches are not as severe as you say. We want to make sure SSA understands your specific situation.
If possible, undergo any testing recommended by your provider. As discussed above, SSA will be looking to see if your headaches are actually due to other conditions. Always let us know if you are unable to undergo any recommended testing due to issues such as finances.

Remember not everyone experiences headaches the same way or has the same symptoms, it is important for us to help SSA understand the specific way you are affected by your headaches. SSR 19-4p, helps clarify how a disability claim that includes headaches should be evaluated.

Proposed Budget Harms and Further Impoverishes the Disabled

The President promised many times during the campaign not to make cuts to the Social Security program. Now, his proposed budget breaks that promise on a massive scale. Some of the most significant cuts to the SSI and SSDI Social Security Disability programs include:

Reducing SSDI retroactive payments to six months rather than 12 months before the protected filing date. This will take an estimated $9.9 billion over the next ten years from people with disabilities.
Reinstating reconsideration in ten “prototype” states This is expected to result in more claimants being denied and some dying or becoming discouraged without appealing.
Creating an “expert panel” to recommend program changes to SSI and SSDI, with the goal of a 5% reduction in benefits by 2027. The budget proposal suggests requiring claimants to receive specific medical treatments or prove they looked for work, or limiting the amount of time beneficiaries can receive benefits, among the possible changes.
Reducing SSDI benefits when an individual attempts to work, is laid off, and then receives unemployment benefits. This disincentives people with disabilities from trying to work.
Changing workers’ compensation laws to save the DI trust funds money at the expense of state workers’ compensation programs.
Establishing a one-year probationary period for new ALJs, which could interfere with their decisional independence.
Limiting SSI payments for individuals living with other SSI recipients. This would interfere with families’ choices about living arrangements, add complexity to the SSI program (increasing overpayments), and increase poverty.
Excluding Social Security overpayments from discharge in bankruptcy proceedings, and increasing the minimum withholding to repay overpayments from $10 a month to 10% of benefits.

I frequently meet with people who wonder, even after they have endured the lengthy, often years long, process to get disability benefits, how they will be able to survive on their benefit amount. They lose homes, assets, marriages, and suffer further declines in thier health because of the stress.

These proposed cuts to Social Security will amount to $72 billion over the next ten years. That is $72 billion less for people with disabilities to use for basic needs like food and shelter. When combined with reductions in Medicaid, Food Stamps (SNAP), TANF, and other critical programs, many people with disabilities will not be able to meet their basic needs.

I urge you to write or phone your senators (https://www.senate.gov) and representatives (https://www.house.gov) to oppose these cuts.

Sincerely,

Jay Barnes, Esq.