Justia Lawyer Rating
Massachussets Bar Association
Maine state Bar

July, 2012: The Social Security Disability Process is not an Easy One

his past month has been quite a rewarding month for a number of our deserving clients, including Jill and Sally. Their cases are instructive as to how difficult it can be to obtain Social Security benefits, but for very different reasons.

Jill is a thirty-five (35) year old woman who has been suffering from back problems that go back several years. Given her young age, however, theSocial Security Administration was not about to give Jill the benefit of the doubt when it came to providing her with long term disability benefits. She had sustained an automobile accident back in 2007 which brought about shoulder and back problems that only worsened for her over time. She required initially cortisone injections in her shoulder followed by a surgical procedure. Unfortunately, what became apparent over time is that while her shoulder problems may have been somewhat alleviated, her back problems were only getting more severe. Since the shoulder problems had been the more severe of the conditions initially, not as much attention was being paid to diagnosing and treating her back problems. Ultimately, it became apparent that there was disk involvement that could not be addressed by more conservative measures (attempts were made with narcotics, physical therapy and a TENS unit). Epidural steroid injections were attempted next, again with no significant relief. Finally, it becomes necessary for Jill to undergo a two-level fusion surgery on her back. Notwithstanding what appears to be a successful surgery from the standpoint of the fusion, Jill remained in severe pain. She required continued narcotics, lidoderm patches, additional physical therapy: unfortunately, nothing served to provide her with any relief. Finally, the pain got to the point where Jill ended up hospitalized for psychiatric issues.

Unfortunately, the Social Security Administration did not seem to understand the severity of Jill's condition. Unfortunately, when one has undergone a surgical procedure, unless one can show that they are continuing to experience objectively identifiable problems with their back, it can be quite difficult for the Social Security Administration to acknowledge that the surgery/surgeries did not resolve their pain and dysfunction issues. In the case of back surgery, many individuals simply do not recover well from fusion surgery and can simply continue to suffer from unrelenting pain and activity restrictions. In Jill's case, she was denied on her initial application for benefits, and again on request for reconsideration. It then became necessary that we request a hearing on Jill's behalf to the Springfield, Massachusetts Office of Disability Adjudication and Review. Fortunately, Jill had continued to maintain consistent treatment with her orthopedic surgeon, who was willing to assist by addressing the severity of Jill's condition by way of medical questionnaires. What was unfortunate for Jill, however, is that no one was assisting her at the prior levels of review with obtaining helpful documentation from the treating surgeon. Upon our involvement at the hearing level, we ensured that the treating surgeon addressed not only the extent of the objective, physical findings he was making on examination that provided further evidence of the extent to which she was suffering from a severe, debilitating condition notwithstanding the fusion surgery, but also the extent to which she was correspondingly experiencing significant functional limitations that would make it impossible for her to function in a meaningful manner at a work site.

In what is very uncharacteristic, I received an unexpected, but very welcome telephone call from the administrative law judge assigned to the case in Springfield, MA, who was calling as he wished to tell me personally that he was granting my On the Record request (that is to say, granting a fully favorable decision) on Jill's behalf. He further let me know that he was calling himself as he wanted to share with me his thoughts as to what a great job he felt our office had done on her behalf (indicating I should be sure to share the good news with Jill). Needless to say, hearing from the judge such kind words was quite gratifying. Of course, Jill was even more thrilled to hear that help was finally on the way.

Sally's case

Sally is a forty-one (41) year old woman whose case provides a good example of how difficult mental health cases can be, especially when the disabling condition corresponds with the birth of a child (whose care and needs serve as one of the precipitating factors of the mental health condition from which they suffer). It is likewise instructive as to how the Administrative Law Judge assigned to the case can make a big difference.

Sally had worked for years in a professional setting. She had discontinued her work as a result of difficulties with her employer that were unrelated to any disabling conditions. It was following the birth of her second child that she began to have panic attacks and anxiety related to the stress of being the sole caretaker of her two children (who both happened to be special needs children). Treatment initially consisted of medications provided by way of her primary care physician. No hospitalizations were required for her condition. Likewise, the record was replete with references to the fact that her anxiety and depression were stemming from the demands being placed upon her at home. It was not until a number of years into her mental health difficulties that she was referred for further evaluation and treatment with both a counselor and a psychiatrist. Both of these treatment providers continued to make reference to the fact that Sally's life at home was causing her great anxiety and depression. There was no hospitalization for her condition until much later in time. These facts posed some potential barriers in the case. Fortunately, the treating psychiatrist was sympathetic to Sally's circumstances and was very detailed in her objective observations of Sally during their office visits. She undertook a very telling Mental Impairment Questionnaire on her behalf. Likewise, helpful to Sally's case was the fact that one of the medical experts called to testify in the matter (who I am aware of from many prior hearings with this gentleman, and is known as a less than sympathetic individual when it comes to his testimony concerning the claimant) was not able to attend the hearing. Even more fortunate for Sally was the fact that the presiding Administrative Law Judge at the Portland Office of Disability Adjudication and Review is a very fair-minded individual. In reviewing the file, the ALJ informed me that while she was in agreement that the record was supportive from the time of the psychiatric involvement (and that the treating psychiatrist's report and records did support a favorable decision), she did not feel that there was a sufficient record based on the counseling and primary care physician records prior to that time. This case again reminds me how important it is that my clients seek the help of a specialist for any condition they believe is seriously impairing their ability to function. The ALJ consequently offered Sally what is called a partially favorable decision, providing benefits from the point in time she initiated treatment with her psychiatrist. She likewise offered Sally the opportunity to go forward with a hearing where she would once again call a medical expert and then make a determination concerning the entire period of time Sally was seeking benefits. Given the potential risks associated with proceeding to hearing (at which time the Judge could decide unfavorably after hearing from the medical expert), Sally chose to accept the partially favorable decision. Sally is receiving 2 years of retroactive benefits for her family and herself, a result which will allow Sally and her family to regain their financial footing and will allow Sally to feel as though she is contributing to the family's financial needs (which I know has been a real concern for her).