Disability Newsletter – Summer 2016
The Law Firm of Dempsey & Dempsey, P.C.
Disability Advocates in Illinois and Missouri
Social Security Hearings
One of the things we do in our semiannual newsletter is to try to keep you apprised to some extent of what is going on in the region in Social Security Disability. For the first time in several years, we actually have some good news on the time in which Social Security Disability and SSI cases are being set for hearing. Things are accelerating! There are several factors which explain this and, of course, there is a down side to the changes as well – but the fact remains, we had as many hearings in the first half of 2016 as we had in the entire year of 2015! And further good news is that the pace appears to be holdings steady.
Our area is back being handled by the Columbia Missouri Office of Disability Adjudication and Review (ODAR).
For a year or so we were being handled by the St. Louis office. West Central Illinois and Northeast Missouri have always been the unloved child of the Social Security Administration being shuttled back and forth between offices as judges weary of driving to Hannibal to hear cases. It looks like we will be dealing with Columbia for the foreseeable future. But back to the acceleration of hearings.
The first factor at play here is that the Social Security Administration has hired new administrative law judges. The Columbia Missouri Office of Disability Adjudication and Review has eight judges on staff. Last year they were down to two! Also, there is a much brighter prospect of the judges staying around for a while. Social Security now requires the judges to stay in place for a while before they can bid on another opening. Judges came and went so quickly in past years that we never even met them. As Mizzou grads we never understood why anyone could be unhappy living in Columbia, Missouri! Many of the new judges have regional roots and it appears likely they may stay for some time. Though the vast majority of the new judges don’t know much medicine, for the most part, most of them don’t seem to have an ax to grind with claimants.
The second factor is that the Social Security Administration is imposing a production quota – expectation might be a better word – on judges. They are told that they should be deciding and issuing fifty cases a month. The judges union (yes, they really have one) challenged this in court, but the law judges sided with the administration. The result is we are seeing more decisions.
The Social Security Administration has also changed the way in which it sets cases. They are now supposed to give us 90 to 120 day notice of hearings. That provides us more time to gather the medical evidence and get opinion evidence from healthcare providers.
The idea is that this will result in fewer supplemental hearings and in judges having to await medical records that have been ordered but not received.
The Administration is pressing us attorneys to do video-teleconference hearings instead of live hearings. They really don’t like having to drive to the Hannibal Remote Hearing Site (so-called because there are no judges assigned there.) However, we, like most experienced Social Security practitioners will not do them. The reason is quite simple. It is important for the judge to see the claimant in person. We did several hundred of these when Social Security first offered them, but the result was very bad. Our success rate dropped twenty percent! We did nothing differently with these cases. It just was very obvious – that at least in this context – the claimant was not real to the judge. It was far too easy to say no to an image on a television screen.
So what are the current times? We are down to a little less than two years on an Illinois case from application to hearing. In Missouri, the time is probably three to six months less. That is too long to go without income, but it is better than it has been. There is still nothing in place like the old Pay-the-case-on-the-record system. Virtually everything other than compassionate allowance cases (really nasty things like terminal cancers) is going to a hearing. This is really terrible. In the past, nearly two-thirds of our cases were paid without a hearing. Social Security quit this because of a couple of crooked judges and lawyers. We think they over-reacted, but that seems to be what bureaucracies do. The result was a million people waiting to have a hearing.
We are Handling Children’s SSI Cases
You probably noticed the change in our name in the last newsletter. After twenty years a partner of ours decided they wanted to leave. That has necessitated a couple of small changes. We are restricting our cases to Social Security Disability and Bankruptcy. Though we will be adding an additional attorney in the future, we have had no trouble handling the Social Security practice.
One decision that we made in December after having the ex-partner announce she was leaving was that we probably couldn’t continue to do Children’s SSI cases. We didn’t know if we had the time to handle the volume. Frankly, a considerable amount of time is spent meeting with families of children with fairly minor health issues that do not qualify for the program. However, we have decided that the area must have someone who will provide the service. We have had great success with the child cases we have taken to hearing this year (100%), but they are quite difficult – more difficult than adult cases where the issues involve only employability – not developmental delays. Some parents think that merely having an Individualized Education Plan (I.E.P.) qualifies their child for SSI. It doesn’t.
If you have a child client or patient with marked impairments, feel free to refer them to us. We will do our best to help them.
Going to the Doctor in the Dark
We thought you might enjoy reading some of the sillier and more egregious things we’ve encountered in Social Security decisions recently. People don’t really understand how little medicine the judges and bureaucrats with the Social Security Administration understand, nor how callous they can be. We offer the following to give you an idea of what we encounter regularly.
Let there be light!
Our client is a young man who, in addition to suffering debilitating mental health issues, has discoid lupus. People with this condition develop discoid lupus lesions which are often red, scaly, and thick on their skin and scalp. They can produce scarring and discoloration. They can cause hair to fall out. Even more ominously, cancer can develop in discoid lesions over time.
This young man’s doctor advised him to avoid being out in sunlight, to use plenty of sunscreen when outdoors, wear sun-protective clothing and broad-brimmed hats, and to limit the amount of time spent under indoor fluorescent lights. The Administrative Law Judge actually wrote this in her decision:
“Furthermore, I note the claimant’s representative’s arguments that the claimant must not be exposed to sunlight or ultraviolent light; however, his treating physician has counseled the claimant about “protection” from ultraviolet light exposure” and not specifically “avoidance.” There is no evidence that the claimant’s Iupus disease activity is increased with exposure to fluorescent lights. Moreover, the claimant’s daily activities show that he chooses to allow such exposure when he goes to doctor’s appointments…”
Show me the brain x-ray!
And while we’re talking about being in the dark, here is an example of how poorly some of the judges with Social Security understand mental health medicine. We had a client with severe mental health problems. She had treated for years with her psychiatrist. She had the familiar work history of multiple short-term jobs that she held for a couple of months. She could always get hired on a good day, but was let go when she failed to make it into work or exploded on a customer, co-worker, or supervisor. She was a victim of sexual abuse as a child and is diagnosed with PTSD with well-documented flashbacks, recurring nightmares, and panic attacks. She is also Bipolar with lots of depressive symptoms. Her psychiatrist filled out a Medical Source Statement that indicated she had Marked Impairments in the ability to interact with the public, coworkers, and supervisors and would not be able to maintain employment on a sustained basis.
The judge wrote that he gave no weight to the doctor’s because it was based entirely on the subjective complaints of the claimant! The psychiatrist had treating the individual for several years.
Another judge dismissed a claimant’s mental health issues in their entirety because he was merely seeing the psychiatrist, “in order to learn coping skills to deal with his symptoms of depression and anxiety exacerbated by marital discord and financial concerns…”
The marital discord and financial anxiety included the suicide of the man’s wife.
Seriously, folks, your tax dollars paid for these decisions. These are just examples. Needless to say we are appealing all of these denials.
Unsuccessful Work Attempts
We encourage our clients to work if they are able. If the client is able to resume full time work and keep the job, we withdraw the request for hearing. However, frequently clients find out they are unable to do the work after a few weeks or months. If a person quits work within three months because of their impairments, that job can be considered an unsuccessful work attempt and it will not require our ending his/her social security disability case. If the individual works between three to six months, the matter is more complicated. It can still be considered an unsuccessful work attempt if we can document that 1) there were frequent absences from work because of impairment; or 2) the claimant performed the work unsatisfactorily due to the impairment, or 3) the claimant worked during a period of temporary remission of his or her impairment; or 4) the claimant worked under special conditions and those conditions were removed.
Obviously it is very difficult to prove the factors that make a work attempt of more than three months an unsuccessful work attempt. Therefore, we encourage our clients to decide within the first three months if they are going to be able to sustain work. The good news is that the Social Security Administration is proposing to extend the three-month rule to cover the full six months. An extended period would be more effective in encouraging people to try to return to work if their health allows it.
A problem we encounter is that our clients frequently will not communicate with us when they return to work. They are reluctant to tell us they are back at work because they fear we will discourage them from working or that they will owe us money. Neither of these fears are true. However, it is important that we explain to our clients the impact of their returning to work and the importance of keeping us advised. We have had multiple clients over the years decide they can’t sustain a work attempt after four or five months. They are terribly disappointed when they learn they have to start their claim all over again. If we represent one of your patients or clients, please tell them how important it is to communicate with us!
As always, we would like to say thank you to all the hard working physicians, nurses, healthcare workers, psychologists, counselors, social workers and their support staff who help our clients every day in their quest for a healthier life. Thank you for referring your patients to us. We will take good care of them.
The Law Firm of
Dempsey & Dempsey, P.C.
236 N. 6th, P.O. Box 331
Quincy, IL 62306
716 Broadway, P.O. Box 510
Hannibal, MO 63401