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Gastroparesis

According to the Mayo Clinic, Gastroparesis is a condition in which the muscles in the stomach don’t function normally. While strong muscular contractions are supposed to propel food through the digestive tract, in gastroparesis, the muscles in the stomach wall do not, which prevents the stomach from emptying properly. Gastroparesis can interfere with digestion, cause nausea and vomiting, and play havoc with blood sugar levels and nutrition.

I represent a 37 year woman with gastroparesis, who worked as a pastry chef and waitress. She retained me to obtain her Social Security Disability benefits right before her hearing, at which the ALJ scheduled Dr. Michael Falkove to testify as a medical expert. I argued that it was the synergistic effect between the claimant’s gastroparesis and diabetes that made her condition particularly disabling. Dr. Falkove then testified that he agreed, and took the issue one step further.

Dr. Falkove stated that while the claimant did not meet the listing for diabetes, he believed the claimant equaled that part of the listing that requires association with neuropathy. If a listing is met or equaled, then the claimant is presumed disabled, and there is no need to address the claimant’s ability to perform past or other work. Dr. Falkove explained that the claimant equalled the diabetes listing because the nutritional malabsorption from gastroparesis was a neurological manifestation that resulted in severe symptoms, as evidenced by the claimant’s hospitalizations.

When the disabling condition is somewhat atypical, you need to do some medical research to understand the nature of the problem. Diabetes is not usually disabling when it is controlled. By investigating the nature of the claimant’s medical conditions, I was able to explain why the claimant’s diabetes could not be well-controlled, which helped the medical expert explain why a listing was equaled.

Sjogren’s Syndrome

Sjogren’s Syndrome is an autoimmune condition in which the immune system destroys moisture-producing glands, such as tear glands and salivary glands. Symptoms include dry eyes, dry mouth, difficulty swallowing, loss of taste and smell, swollen salivary glands, severe dental cavities caused by dry mouth, and oral yeast infections. Fatigue and joint pain may occur as well, ranging in intensity from mild to disabling.

I represent a 56 year old woman who worked as a home health aide until she had to stop working due to her Sjogren’s. Her Sjogren’s was confirmed by biopsy and blood testing. The claimant’s fatigue, joint pain, and recurrent infections rendered her unable to continue working. I was retained after the claimant’s Social Security Disability (“SSD”) application had been denied, and she had been scheduled for a hearing. The claimant started receiving her SSD benefits today.

I had obtained a report from the claimant’s treating rheumatologist that showed the claimant lacked the ability to perform any type of work on a full time basis. Nonetheless, I argued that because the claimant met the “listing” for Sjogren’s, she did not need to establish her ability to perform the physical demands of working. The Social Security medical expert at the hearing insisted that there was no listing for Sjogren’s, at which point I insisted that he use a more current handbook containing the listings. The Sjogren’s listed was added in March 2008.

Benefits After A Federal Court Remand

In the last month, I received fully favorable decisions for two Social Security Disability (“SSD”) claimants whose application denials I got reversed in federal court. On remand, each Administrative Law Judge (“ALJ”) not only approved SSD benefits, but also approved a fee agreement between myself and the claimant. However, the fee agreement expressly states that it is not valid following a federal court remand, and that a fee petition would be submitted.

When the first fee agreement was mistakenly approved, it resulted in a delay of the releasing of benefits to the claimant and myself. I wanted to ensure that a similar mistake would not happen again. Therefore, the day after a hearing before ALJ Seymour Fier, which was a federal court remand, I sent him a letter notifying him that I would be submitting a fee petition and not a fee agreement. I attached a copy of the fee petition, signed by the claimant, agreeing to the 25% contingency fee.

Despite having fax and electronic filing confirmation that ALJ Fier received my letter advising him that I was proceeding via fee petition, he approved a fee agreement. Since the fee petition seeks a larger fee than the fee agreement, it could be that the ALJ is seeking to drive a wedge between the claimant and myself. In order to try to prevent that very scenario, I submitted the claimant’s signed petition agreeing to the contingent fee, but ALJ Fier inexplicably ignored it, which unfortunately, may delay the release of the claimant’s benefits.

Firefighter Gets SSD Benefits

It is common knowledge among firefighters that if they become unable to work because of an injury or illness, then they may apply for a monthly disability retirement benefit from their pension. However, many firefighters are surprised to learn that they may also be eligible for a monthly Social Security Disability (“SSD”) benefit.

I represent a retired firefighter who reluctantly came to see me after he was referred by another retired firefighter whose SSD benefits I secured. The firefighter was under the impression that he was not entitled to SSD benefits because he was not “totally disabled,” which he equated with being an invalid or bedridden. I explained why he misunderstood the standard for receiving SSD benefits, and subsequently submitted his application.

Yesterday, I received the firefighter’s fully favorable decision. My “on-the-record” request to approve his application was granted, which meant that he was not required to testify at a hearing. Unfortunately, because of the firefighter’s misapprehension regarding his rights, he applied for SSD benefits four and a half years after he became disabled and unable to work. Consequently, the firefighter forfeited a large five figure sum worth of SSD benefits.

Prudential Approved LTD, For Now

I represent a 37 year old woman from Wisconsin with back and neck impairments who worked as a territory manager for a food distribution company until October 2007. Prudential initially determined that the claimant was unable to resume working at her own job and approved benefits under a group long term disability (“LTD”) policy based on the opinions of the treating specialists. Subsequently, Prudential terminated the LTD benefits based upon the conclusions of three “independent” doctors from MES Solutions who never examined the claimant.

On appeal, I showed that the conclusions of the MES doctors could not be sustained. First, I obtained narrative reports and functional assessments from the treating doctors rebutting the MES doctors’ reviews. Second, I sent the claimant for a functional capacity evaluation that yielded test results consistent with the opinions of the treating physicians. Third, I also sent the claimant for an independent medical exam, which also corroborated the findings and conclusions of the treating physicians.

Because I had anticipated that Prudential would conduct a protracted review, I advised the claimant to ensure that her doctors specified that not only was she incapable of performing her regular occupation, but also that they address her inability to perform even less strenuous sedentary work on a sustained basis. After 24 months of receiving LTD benefits, the claimant’s group LTD policy redefined disability from being unable to do past work, to being unable to do any work.

It took a year and four months to get Prudential to reverse its termination of benefits. Today I received Prudential’s letter approving benefits for “a minimum of 24 months of benefits,” which leaves the claim for LTD benefits after April 8, 2010 unresolved. In other words, just as I had warned the claimant, once she forced Prudential to concede that she would be unable to return to her job, Prudential would then turn to its fall back position and contend that her ability to perform any other work had yet to be established.

Chronic Fatigue Syndrome

The Social Security Administration (the “SSA) issued a ruling which recognizes that the symptoms of Chronic Fatigue Syndrome (“CFS”) significantly overlap with the symptoms of fibromyalgia. The SSA also acknowledges that a rheumatologist is an appropriate specialist for treating those conditions. Since CFS, and fibromyalgia, are usually diagnosed without objective evidence, the opinion of a treating rheumatologist is particularly important.

I represent a 59 year old florist who applied for Social Security Disability benefits because his CFS left him without the stamina to work on a full time basis. The treating rheumatologist described the incapacitating fatigue and exhaustion the claimant suffered, and explained how it affected his functionality. The SSA approved the claimant’s application today without a hearing based on the rheumatologist’s opinion because “he is a specialist in the area of concern.”

Because of the absence of applicable diagnostic testing for CFS it is advisable to consult with a disability attorney before applying for any type of disability benefit to ensure that the appropriate medical evidence is submitted.

Getting Benefits While Working

There are various scenarios in which a person can work, yet still be entitled to receive Social Security Disability (“SSD”) benefits. One of those situations involves the concept of a trial work period (“TWP”). The purpose of a TWP is to allow an individual to test his or her ability to work without losing SSD benefits. The idea is to provide an incentive to encourage people to try to resume working.

A TWP can last for a total of nine months, which need not be consecutive. The money a claimant earns for working those months is not considered to be evidence showing that a claimant’s disability has ended, until the claimant has performed more than nine months of TWP activity.

I represent a 41 year old custodian whose SSD benefits were disputed because his annual earnings statement reflected that he received income after his disability onset date. I contended that none of the income after the onset date contradicted the claimant’s disability. As a factual matter, I stated that part of the income was from accrued sick and vacation time, which had nothing to do with work activity. As a legal matter, I argued that the remaining income after the disability onset date was attributable to a TWP.

In a decision received today, the Administrative Law Judge accepted my arguments. The result was that the claimant received an additional five figure sum as part of his retroactive SSD benefits.