The Social Security Administration defines obesity as “a complex, chronic disease characterized by excessive accumulation of body fat.” SSR 02-1p. Medical criteria have been established to determine whether an individual is overweight based upon their body mass index (BMI). Social Security uses this criteria to help determine whether an individual is obese, but also uses other evidence in determining obesity.
Social Security originally had a listing specifically for obesity; however this listing was removed in 1999 because Social Security felt that it did not represent a degree of functional limitation that would prevent an individual from working. Despite removing obesity as a listing, Social Security still evaluates obesity in determining whether an individual is disabled.
Obesity will be considered in four different parts of the evaluation process. It will be considered in determining:
1. Whether the individual has a medically determinable impairment;
2. Whether the impairment is severe;
3. Whether the impairment meets or equals a listing; and
4. Whether the impairment(s) prevent the individual from doing past relevant work or any other work.
Medically Determinable Impairment
When determining whether an individual’s obesity constitutes a medically determinable impairment Social Security will look at the evidence in the record. If the evidence in the record includes a diagnosis of obesity then Social Security will accept this diagnosis unless there is other evidence in the record to the contrary. When the evidence in the record does not include a diagnosis, but does include consistent notes about high body weight or BMI the Social Security Administration will use its own judgment to determine whether obesity exists.
Impairment is Severe
Obesity is considered to be severe when it alone or with other conditions, significantly limits an individual’s physical or mental ability to do basic work activities. If it is a slight abnormality that has no more than a minimal effect on the individual’s ability to do basic work activities, than the impairment is not severe. There is no specific BMI that equates with a finding of severe or not severe, instead it is an individualized assessment of the impact of obesity on an individual’s functioning.
If an individual’s obesity is determined to be severe, then the Social Security Administration may find that the obesity medically equals a listing.
Impairment Meets or Equals a Listing
Obesity may be a factor in both meeting and equaling a listing. Since there is no longer a listing for obesity you cannot meet a listing without having another condition that either, by itself or in combination with obesity, meets the requirements of a listing.
The Social Security Administration can find an individual’s obesity to be medically equivalent or equal a listed impairment. For example if the obesity is of such a level that it results in the inability to ambulate effectively then it may equal listing 1.02A. Obesity can also be combined with other impairments to equal a listing.
Whether the Impairment(s) prevent the individual from doing past relevant work or other work obesity can cause limitation of function. When determining whether obesity by itself or in combination with other conditions prevents an individual from returning to their previous work or other work the Social Security Administration will determine an individual’s residual functioning capacity. To do this an assessment will be made of the effect obesity has upon the individual’s ability to perform routine movement and necessary activity within the work environment. Social Security will then use this information to determine whether an individual can return to their previous work or do any other work.
Even though obesity is no longer a listing it is still a very important factor to be evaluated in determining whether an individual is disabled. Obesity can make the difference between a favorable and unfavorable determination, so if you suffer from obesity it is important to mention it in your application.
Wednesday, December 15, 2010
Tuesday, December 14, 2010
The Patient Protection and Affordable Care Act: What Health Care Reform Means to You
On March 23rd, 2010, President Obama signed into law the Patient Protection and Affordable Care Act, designed to reduce health care costs for American families and small businesses, expand coverage to millions of Americans and end certain practices of insurance companies.
Although some provisions of the act do not become effective until 2014, many take effect immediately.
For example, certain persons with pre-existing conditions can get coverage this year.
If you have been uninsured for 6 months and have a pre-existing condition, you will gain access to health insurance that was not previously available to you. A new program known as the interim high-risk pool will provide insurance for Americans who are uninsured because of a pre-existing condition through a temporary subsidized high‐risk pool, to provide temporary protection for people with pre-existing conditions until 2014, at which time insurance companies can no longer deny coverage based on your health.
Effective 6 months after enactment (approximately September, 2010):
• No discrimination against children with pre-existing conditions. The law prohibits new health plans from denying coverage to children with pre‐existing conditions. Beginning in 2014, this prohibition would apply to all persons.
• Insurance companies are banned from dropping people from coverage when they become sick.
• New health plans must allow children up to age 26 to remain on their parents’ insurance policy (at their parents’ choice). Both married and unmarried dependents qualify for this dependent coverage. Beginning in 2014, children up to age 26 can stay on their parent’s employer plan even if they have an offer of coverage through their employer.
• Health insurance companies are prohibited from placing lifetime caps on coverage. Annual limits will also be restricted, and will be prohibited all together by 2014.
• New private plans must cover preventative services with no co-payments, and preventive services must be exempt from deductibles.
• Consumers in new plans must be ensured access to an effective internal and external appeals process to appeal decisions by their health insurance plan.
• New group health plans are prohibited from establishing eligibility rules for health care coverage that have the effect of discriminating in favor of higher wage employees.
Other provision that become effective this year:
• The act provides a $250 rebate to Medicare Beneficiaries who hit the “donut hole” (the gap in Medicare prescription drug coverage). Beginning 2011, there will be a 50% discount on prescription drugs in the donut hole, which is to be completely closed by 2020.
• There is help for early retirees through the creation of a temporary re-insurance program (until the Exchanges are available) to help offset premiums for retirees ages 55-64.
• States will be provided aid to establish offices of health insurance consumer assistance in order to help individuals with the filing of complaints and appeals.
Beginning in 2011:
• Copayments for preventive services under the Medicare program are eliminated, and preventive services are exempt from deductibles.
• Individual and small group plans are required to spend 80 percent of premium dollars on medical services (85% for larger group plans). Insurers who do not meet this threshold must give rebates to policyholders.
• Increased funding for community health centers will allow for nearly double the number patients served by the centers over the next 5 years.
• New investments will be implemented to increase the number of primary care practitioners, including doctors, nurses, nurse practitioners, and physician assistants.
• Health insurance companies will be required to submit justification for all requested premium increases, and insurance companies with excessive or unjustified premium exchanges may not be able to participate in the new Health Insurance Exchanges.
Nothing in the health reform bill requires anyone to change their existing coverage. If you like the health plan you have, you will be able to keep it. There is also no “employer mandate” in the legislation, so your employer is not required to provide you with medical insurance, but those who do may be eligible for tax incentives.
Although some provisions of the act do not become effective until 2014, many take effect immediately.
For example, certain persons with pre-existing conditions can get coverage this year.
If you have been uninsured for 6 months and have a pre-existing condition, you will gain access to health insurance that was not previously available to you. A new program known as the interim high-risk pool will provide insurance for Americans who are uninsured because of a pre-existing condition through a temporary subsidized high‐risk pool, to provide temporary protection for people with pre-existing conditions until 2014, at which time insurance companies can no longer deny coverage based on your health.
Effective 6 months after enactment (approximately September, 2010):
• No discrimination against children with pre-existing conditions. The law prohibits new health plans from denying coverage to children with pre‐existing conditions. Beginning in 2014, this prohibition would apply to all persons.
• Insurance companies are banned from dropping people from coverage when they become sick.
• New health plans must allow children up to age 26 to remain on their parents’ insurance policy (at their parents’ choice). Both married and unmarried dependents qualify for this dependent coverage. Beginning in 2014, children up to age 26 can stay on their parent’s employer plan even if they have an offer of coverage through their employer.
• Health insurance companies are prohibited from placing lifetime caps on coverage. Annual limits will also be restricted, and will be prohibited all together by 2014.
• New private plans must cover preventative services with no co-payments, and preventive services must be exempt from deductibles.
• Consumers in new plans must be ensured access to an effective internal and external appeals process to appeal decisions by their health insurance plan.
• New group health plans are prohibited from establishing eligibility rules for health care coverage that have the effect of discriminating in favor of higher wage employees.
Other provision that become effective this year:
• The act provides a $250 rebate to Medicare Beneficiaries who hit the “donut hole” (the gap in Medicare prescription drug coverage). Beginning 2011, there will be a 50% discount on prescription drugs in the donut hole, which is to be completely closed by 2020.
• There is help for early retirees through the creation of a temporary re-insurance program (until the Exchanges are available) to help offset premiums for retirees ages 55-64.
• States will be provided aid to establish offices of health insurance consumer assistance in order to help individuals with the filing of complaints and appeals.
Beginning in 2011:
• Copayments for preventive services under the Medicare program are eliminated, and preventive services are exempt from deductibles.
• Individual and small group plans are required to spend 80 percent of premium dollars on medical services (85% for larger group plans). Insurers who do not meet this threshold must give rebates to policyholders.
• Increased funding for community health centers will allow for nearly double the number patients served by the centers over the next 5 years.
• New investments will be implemented to increase the number of primary care practitioners, including doctors, nurses, nurse practitioners, and physician assistants.
• Health insurance companies will be required to submit justification for all requested premium increases, and insurance companies with excessive or unjustified premium exchanges may not be able to participate in the new Health Insurance Exchanges.
Nothing in the health reform bill requires anyone to change their existing coverage. If you like the health plan you have, you will be able to keep it. There is also no “employer mandate” in the legislation, so your employer is not required to provide you with medical insurance, but those who do may be eligible for tax incentives.
Thursday, December 9, 2010
Social Security Disability: Myths About The Social Security Claims Process
Applying for Social Security disability benefits can often be an intimidating and time-consuming process. Understanding how the Social Security disability system works can make the difference between winning or not winning the disability benefits and back pay to which a person is entitled. To that end, following are some common Social Security disability myths and misconceptions.
Myth: The Social Security Administration denies everyone the first time they apply for disability.
This is absolutely not true! The Social Security Administration has no social security law (regulation, policy, or formula) that influences the disability system in such a way that every first application for social security disability benefits is automatically denied. It is easy to see, however, why people would believe that such a policy exists. Nationwide, about seventy percent of all disability claims are denied on the first application filed. Seventy percent is not a small number! Your social security lawyer can be helpful to prevent unnecessary denials. Because of the amount of paperwork that associated with these claims, often times, claimants are denied because they do not comply with request for documentation by the Social Security disability reviewer. It is the role of the attorney to ensure that this does not occur.
Myth: The Social Security Administration will deny you a certain number of times before you are approved.
Also not true! Just as social security disability cases are not automatically denied on the very first application, neither are thy denied a certain number of times before they are approved. But with seventy percent of initial claims being denied, what can you do to improve the chances of getting approved? Many people simply file applications over and over again, hoping to be approved. This is not the answer. If you continue to file and initial application for disability benefits, and continue to get denied at first stage, you are denying yourself the right to having those decisions appealed. It is the role of the disability lawyer to make sure that you follow the appeals process up to the highest level of appeal. The social security attorney is also responsible for making sure that you do so in a timely manner, meeting all deadlines.
Myth: The best way to appeal a Social Security claim denial is to file a brand new application.
No. In fact, filing a new claim is often the worst thing you can do. Why? Remember that almost seventy percent of initial applications are denied. Most disability claimants will be denied on the initial application. Repeated new applications will most likely be denied, and for the same reasons. Further, historically, and statistically, if a disability case is not approved at the initial claim level, it will probably also be denied at the reconsideration level (in some states, the reconsideration step has been suspended as part of a test project) and eventually have to be heard by an administrative law judge to be approved for disability benefits. As noted above, a social security disability claim, however, will never get that far in the process if a claimant continually files new applications instead of pursuing right to appeal.
In short, to improve your chances of winning your disability case, you should:
1) Follow the appeals process; and
2) Find representation.
Myth: Certain medical conditions or mental health problems can get you automatically approved for benefits.
The answer to this is both yes and no. Certain impairments are singled out and specified in the Social Security Administration’s Impairment Listing Manual. Claimants, who have listed medical problems at the level specified in the manual, can be approved for benefits somewhat easier than those who do not. The disability evaluation process, however, even for listing level impairments, is never automatic. All claims are evaluated according to the medical evidence; gathered first by the Disability Determination Services at the initial claim and reconsideration levels, and then by a staff attorney or Judge at the hearing level. Claims are decided by the information held by medical providers.
It is important to remember, therefore, that disability claimants should seek regular medical treatment throughout the entire time their claim is pending. This is to ensure proper documentation for evaluation purposes. Disability cases in which the medical evidence is scant and doctor visits are sporadic, will, generally, have little chance of approval. Conversely, claimants who get regular medical care will usually have more solid cases and a better chance of obtaining social security disability benefits.
Myth: You cannot get Social Security Disability if you have used drugs or alcohol.
This is not true. It will depend on the extent of the use and how recent the use was. Currently, it is not possible to receive disability benefits based solely on addiction. But, whether such use will affect a claimant’s eligibility for benefits depends on materiality. If a claimant’s drug or alcohol abuse is found to be material, in other words relevant, to the case, the case will not win.
For example, a claimant applies for disability based on liver dysfunction and hepatitis. The claimant also has a history of alcohol abuse, some of it recent. Is the claimant contributing to their own illness by abusing alcohol abuse? Are the claimant’s symptoms due to alcohol abuse or drug abuse or to their impairment?
If the claimant’s liver damage were so pronounced that ceasing alcohol use completely would make no difference to the claimant’s medical condition, then alcohol abuse would be immaterial, or irrelevant, to the case. Conversely, if ceasing alcohol use would result in medical improvement, then the alcohol abuse is material to the disability case and the claim would be denied. Simply put, Social Security will not pay benefits to claimants whose disabling conditions are brought on and exacerbated by, drug and alcohol abuse. Claimant’s who have a history of abuse but who are not currently using substances should carefully review their medical records before filing for disability.
Further, medical doctors and mental health professionals will often indicate “suspected use” in their treatment notes. Such indications, proven or not, can have a damaging effect on a disability case. Claimants, whose disabling conditions are psychiatric in nature, should especially heed this since mental cases are more likely to be denied when substance abuse is involved.
Each case is different but it is certainly true that the applicant has a better chance of obtaining benefits if they have maintained at least six month of sobriety.
You may have many questions as the process and or perhaps why you are being denied. It is advisable that you contact a disability lawyer to help you navigate this process. While there are many myths about the Social Security claim process that are untrue, the process does include a fair amount of rules and regulations to navigate that are better suited for a social security attorney.
Myth: The Social Security Administration denies everyone the first time they apply for disability.
This is absolutely not true! The Social Security Administration has no social security law (regulation, policy, or formula) that influences the disability system in such a way that every first application for social security disability benefits is automatically denied. It is easy to see, however, why people would believe that such a policy exists. Nationwide, about seventy percent of all disability claims are denied on the first application filed. Seventy percent is not a small number! Your social security lawyer can be helpful to prevent unnecessary denials. Because of the amount of paperwork that associated with these claims, often times, claimants are denied because they do not comply with request for documentation by the Social Security disability reviewer. It is the role of the attorney to ensure that this does not occur.
Myth: The Social Security Administration will deny you a certain number of times before you are approved.
Also not true! Just as social security disability cases are not automatically denied on the very first application, neither are thy denied a certain number of times before they are approved. But with seventy percent of initial claims being denied, what can you do to improve the chances of getting approved? Many people simply file applications over and over again, hoping to be approved. This is not the answer. If you continue to file and initial application for disability benefits, and continue to get denied at first stage, you are denying yourself the right to having those decisions appealed. It is the role of the disability lawyer to make sure that you follow the appeals process up to the highest level of appeal. The social security attorney is also responsible for making sure that you do so in a timely manner, meeting all deadlines.
Myth: The best way to appeal a Social Security claim denial is to file a brand new application.
No. In fact, filing a new claim is often the worst thing you can do. Why? Remember that almost seventy percent of initial applications are denied. Most disability claimants will be denied on the initial application. Repeated new applications will most likely be denied, and for the same reasons. Further, historically, and statistically, if a disability case is not approved at the initial claim level, it will probably also be denied at the reconsideration level (in some states, the reconsideration step has been suspended as part of a test project) and eventually have to be heard by an administrative law judge to be approved for disability benefits. As noted above, a social security disability claim, however, will never get that far in the process if a claimant continually files new applications instead of pursuing right to appeal.
In short, to improve your chances of winning your disability case, you should:
1) Follow the appeals process; and
2) Find representation.
Myth: Certain medical conditions or mental health problems can get you automatically approved for benefits.
The answer to this is both yes and no. Certain impairments are singled out and specified in the Social Security Administration’s Impairment Listing Manual. Claimants, who have listed medical problems at the level specified in the manual, can be approved for benefits somewhat easier than those who do not. The disability evaluation process, however, even for listing level impairments, is never automatic. All claims are evaluated according to the medical evidence; gathered first by the Disability Determination Services at the initial claim and reconsideration levels, and then by a staff attorney or Judge at the hearing level. Claims are decided by the information held by medical providers.
It is important to remember, therefore, that disability claimants should seek regular medical treatment throughout the entire time their claim is pending. This is to ensure proper documentation for evaluation purposes. Disability cases in which the medical evidence is scant and doctor visits are sporadic, will, generally, have little chance of approval. Conversely, claimants who get regular medical care will usually have more solid cases and a better chance of obtaining social security disability benefits.
Myth: You cannot get Social Security Disability if you have used drugs or alcohol.
This is not true. It will depend on the extent of the use and how recent the use was. Currently, it is not possible to receive disability benefits based solely on addiction. But, whether such use will affect a claimant’s eligibility for benefits depends on materiality. If a claimant’s drug or alcohol abuse is found to be material, in other words relevant, to the case, the case will not win.
For example, a claimant applies for disability based on liver dysfunction and hepatitis. The claimant also has a history of alcohol abuse, some of it recent. Is the claimant contributing to their own illness by abusing alcohol abuse? Are the claimant’s symptoms due to alcohol abuse or drug abuse or to their impairment?
If the claimant’s liver damage were so pronounced that ceasing alcohol use completely would make no difference to the claimant’s medical condition, then alcohol abuse would be immaterial, or irrelevant, to the case. Conversely, if ceasing alcohol use would result in medical improvement, then the alcohol abuse is material to the disability case and the claim would be denied. Simply put, Social Security will not pay benefits to claimants whose disabling conditions are brought on and exacerbated by, drug and alcohol abuse. Claimant’s who have a history of abuse but who are not currently using substances should carefully review their medical records before filing for disability.
Further, medical doctors and mental health professionals will often indicate “suspected use” in their treatment notes. Such indications, proven or not, can have a damaging effect on a disability case. Claimants, whose disabling conditions are psychiatric in nature, should especially heed this since mental cases are more likely to be denied when substance abuse is involved.
Each case is different but it is certainly true that the applicant has a better chance of obtaining benefits if they have maintained at least six month of sobriety.
You may have many questions as the process and or perhaps why you are being denied. It is advisable that you contact a disability lawyer to help you navigate this process. While there are many myths about the Social Security claim process that are untrue, the process does include a fair amount of rules and regulations to navigate that are better suited for a social security attorney.
Wednesday, December 8, 2010
Preparing a Strong Seizure Case for Disability Benefits
There are approximately 2.5 million individuals in the United States that have some form of epilepsy. Epilepsy is a chronic neurological condition. The brain is able to control how the body moves by sending out small electrical signals through the nerves to the muscles. Seizures occur when abnormal electrical discharges from the brain change the way the body functions. There are more than 29 different seizure disorders, and not all of them result in convulsions. In fact, seizures are experienced differently from person to person. Some individuals have only slight shaking of a hand and there is no loss of consciousness. Others do not have any shaking at all, but may experience brief moments where they lose touch with their surroundings and appear to stare into space. However, others may have total loss of consciousness and exhibit violent shaking of the body and even incontinence.
Many individuals with chronic seizure disorders are able to control seizures with medications and are able to function very well. However, if an indivual who takes medicaitons as directed, but continues to experience seizures that prevent him/her from working, they may qualify for Social Security disability benefits.
When evaluating a seizure case for disbailty benefits, Social Secuity decision makers check to see if an indivual is treating with a neuolgist, and they check for complaince with all medicaitons and recommendations by the doctor. They check to make sure the seizures are not a cause of drug or alcohol abuse, and then lastly check if the seizures are occurring despite medication. Often times, when a seizure occrs, an individual will go to the emrgnecy department and have blood work, an MRI, a CT scan or an EEG test administered. Sometimes, seizure activity can be seen on these tests, but other times the tests will be normal despite the fact a seizure has occurred. Therefore, it’s difficult to present objective evidence to Social Security which can prove that seizures are actually occuring. In order to prepare a strong case for disability benefits, it is important to go to the hosotial after every seizure and report the seizures to your neuorligist so there is a record and also so that medications can be adjusted to better control the seizures. Also, keeping a seizure diary which tracks the occurance of seizure and includes witness statments may also strengthen a case. The diary should include the date and time of the seizure, and what happened. For example, document if there were convulsions, loss of consciousness, incontinence, or injury.
Though the seizure itself may only last a few seconds, there are residuals from a seizure that can be debilitating and last hours or days. For example after a seizure, an individual may feel very sick or tired, or need to sleep. If a serious injury occurred during convulsions, they may need medical attention. These residuals should also be documented in the diary and/or medical notes, and it should be recorded approximately how long the residuals lasted.
Overall, seizure disorders are difficult to prove in a disability case because there are not always objective findings that prove they exist. Regular treatment and documentation by a specialist is of utmost importance in proving this disorder. Statements from your specialist about how often seizures, and the length of time residuals last which preclude the ability to function, are also vital to proving the case.
VISIT SOCIAL SECURITY LAW TODAY
Many individuals with chronic seizure disorders are able to control seizures with medications and are able to function very well. However, if an indivual who takes medicaitons as directed, but continues to experience seizures that prevent him/her from working, they may qualify for Social Security disability benefits.
When evaluating a seizure case for disbailty benefits, Social Secuity decision makers check to see if an indivual is treating with a neuolgist, and they check for complaince with all medicaitons and recommendations by the doctor. They check to make sure the seizures are not a cause of drug or alcohol abuse, and then lastly check if the seizures are occurring despite medication. Often times, when a seizure occrs, an individual will go to the emrgnecy department and have blood work, an MRI, a CT scan or an EEG test administered. Sometimes, seizure activity can be seen on these tests, but other times the tests will be normal despite the fact a seizure has occurred. Therefore, it’s difficult to present objective evidence to Social Security which can prove that seizures are actually occuring. In order to prepare a strong case for disability benefits, it is important to go to the hosotial after every seizure and report the seizures to your neuorligist so there is a record and also so that medications can be adjusted to better control the seizures. Also, keeping a seizure diary which tracks the occurance of seizure and includes witness statments may also strengthen a case. The diary should include the date and time of the seizure, and what happened. For example, document if there were convulsions, loss of consciousness, incontinence, or injury.
Though the seizure itself may only last a few seconds, there are residuals from a seizure that can be debilitating and last hours or days. For example after a seizure, an individual may feel very sick or tired, or need to sleep. If a serious injury occurred during convulsions, they may need medical attention. These residuals should also be documented in the diary and/or medical notes, and it should be recorded approximately how long the residuals lasted.
Overall, seizure disorders are difficult to prove in a disability case because there are not always objective findings that prove they exist. Regular treatment and documentation by a specialist is of utmost importance in proving this disorder. Statements from your specialist about how often seizures, and the length of time residuals last which preclude the ability to function, are also vital to proving the case.
Friday, December 3, 2010
Assessing Credibility in Social Security Disability Hearings
Social Security Regulations require claimants to prove they are disabled as a “result of anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.”
A symptom is an individual’s own description of his or her physical or mental impairment. SSA regulations make it clear that “statements about your pain or other symptoms will not alone establish that you are disabled.” So questions often arise as to how to prove disability in instances when subjective complaints such as pain, fatigue, shortness of breath, weakness, or nervousness prevent you from working, or when you can’t afford to go the doctor, or pay for medicines.
Make no mistake; SSA is assessing your credibility at every stage of the process. Nearly every file contains the opinions of medical and administrative personnel as to whether a claimant’s allegations are credible. But nowhere does that assessment become more apparent than at the hearing stage, when a judge has a chance to read the file and meet with the claimant face to face.
Adjudicators must consider whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the pain or other symptoms. Once that has been shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit ability to do basic work activities.
SSA acknowledges that objective medical evidence alone cannot always prove or disprove an individual’s symptoms exist at the level of severity alleged. So adjudicators are required to “make every reasonable effort to obtain available information that could shed light on the credibility of the individual’s statements.”
In general, SSA defines “credibility” as “the extent to which an individual’s statements about symptoms can be relied upon as probative evidence in determining whether the individual is disabled.”
In evaluating credibility, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual’s statements. The assessment cannot be based on an intangible or intuitive notion. It must be grounded in evidence and articulated in the decision.
Allegations concerning the intensity and persistence of pain or other symptoms may not be disregarded solely because they are not substantiated by objective medical evidence.
Consistency of a claimant’s statements with later statements, and with statements and observations of others all come into play. Medical treatment history must be considered.
But what if you can’t afford to go to the doctor, or pay for prescriptions?
SSR 96-7p provides insight, stating that an adjudicator “must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re contact the individual or question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations provided by the individual may provide insight into the individual's credibility. For example:
• The individual's daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms. The individual may be living with the symptoms, seeing a medical source only as needed for periodic evaluation and renewal of medications.
• The individual's symptoms may not be severe enough to prompt the individual to seek ongoing medical attention or may be relieved with over-the-counter medications.
• The individual may not take prescription medication because the side effects are less tolerable than the symptoms.
• The individual may be unable to afford treatment and may not have access to free or low-cost medical services.
• The individual may have been advised by a medical source that there is no further, effective treatment that can be prescribed and undertaken that would benefit the individual.
• Medical treatment may be contrary to the teaching and tenets of the individual's religion.”
The Seventh Circuit, in a recent case, held that the judge must not draw any inferences about a claimant’s condition from failure to follow a treatment plan or infrequent treatment unless the judge has explored the claimant’s explanations as to the lack of medical care. The Court cites inability to afford treatment a one reason that can ‘provide insight into the individual’s credibility.’ So a judge must question a claimant about lack of treatment or noncompliance, and failure to do so may be grounds for appeal.
The lesson for claimants, then, is to make sure these facts get into their records. Tell your doctor if you cannot afford the medications prescribed to you, or if you do not have insurance and cannot seek treatment as often as you need to. In the end, the key to credibility is consistency, but where the facts are inconsistent, some reasonable explanation needs to be offered.
VISIT SOCIAL SECURITY LAW TODAY
A symptom is an individual’s own description of his or her physical or mental impairment. SSA regulations make it clear that “statements about your pain or other symptoms will not alone establish that you are disabled.” So questions often arise as to how to prove disability in instances when subjective complaints such as pain, fatigue, shortness of breath, weakness, or nervousness prevent you from working, or when you can’t afford to go the doctor, or pay for medicines.
Make no mistake; SSA is assessing your credibility at every stage of the process. Nearly every file contains the opinions of medical and administrative personnel as to whether a claimant’s allegations are credible. But nowhere does that assessment become more apparent than at the hearing stage, when a judge has a chance to read the file and meet with the claimant face to face.
Adjudicators must consider whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the pain or other symptoms. Once that has been shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit ability to do basic work activities.
SSA acknowledges that objective medical evidence alone cannot always prove or disprove an individual’s symptoms exist at the level of severity alleged. So adjudicators are required to “make every reasonable effort to obtain available information that could shed light on the credibility of the individual’s statements.”
In general, SSA defines “credibility” as “the extent to which an individual’s statements about symptoms can be relied upon as probative evidence in determining whether the individual is disabled.”
In evaluating credibility, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual’s statements. The assessment cannot be based on an intangible or intuitive notion. It must be grounded in evidence and articulated in the decision.
Allegations concerning the intensity and persistence of pain or other symptoms may not be disregarded solely because they are not substantiated by objective medical evidence.
Consistency of a claimant’s statements with later statements, and with statements and observations of others all come into play. Medical treatment history must be considered.
But what if you can’t afford to go to the doctor, or pay for prescriptions?
SSR 96-7p provides insight, stating that an adjudicator “must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re contact the individual or question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations provided by the individual may provide insight into the individual's credibility. For example:
• The individual's daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms. The individual may be living with the symptoms, seeing a medical source only as needed for periodic evaluation and renewal of medications.
• The individual's symptoms may not be severe enough to prompt the individual to seek ongoing medical attention or may be relieved with over-the-counter medications.
• The individual may not take prescription medication because the side effects are less tolerable than the symptoms.
• The individual may be unable to afford treatment and may not have access to free or low-cost medical services.
• The individual may have been advised by a medical source that there is no further, effective treatment that can be prescribed and undertaken that would benefit the individual.
• Medical treatment may be contrary to the teaching and tenets of the individual's religion.”
The Seventh Circuit, in a recent case, held that the judge must not draw any inferences about a claimant’s condition from failure to follow a treatment plan or infrequent treatment unless the judge has explored the claimant’s explanations as to the lack of medical care. The Court cites inability to afford treatment a one reason that can ‘provide insight into the individual’s credibility.’ So a judge must question a claimant about lack of treatment or noncompliance, and failure to do so may be grounds for appeal.
The lesson for claimants, then, is to make sure these facts get into their records. Tell your doctor if you cannot afford the medications prescribed to you, or if you do not have insurance and cannot seek treatment as often as you need to. In the end, the key to credibility is consistency, but where the facts are inconsistent, some reasonable explanation needs to be offered.
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