September, 2015: Stacey’s Case, the Duration Requirement and Obtaining a Fully Favorable Decision at the Boston, MA Office of Disability Adjudication and Review,

Stacey’s case is an example as to how proceeding with a claim too early can actually hurt one’s chances at avoiding a protracted claim and appeals process. Having an experienced Massachusetts Social Security Lawyer review matters early on may have avoided for Shirley what would turn out to be a 2 year process.

Stacey is a fifty-eight (58) year woman who ended up going to the emergency room in the fall of 2013 for low back and leg pain that, after a week, had not gone away. It was determined over the course of the first month of treatment that she was suffering from what was likely a herniated disk that was initially treated with medication management and rest. When medication management did not provide much in the way of relief, she was provided with injection therapy and a referral for physical therapy. In the meantime, while she’s going through physical therapy, she decided to file for Social Security disability benefits not realizing what she would need to prove in order to succeed with the claim.

Given Stacey had sufficient income in the household to bring her above the poverty line, and so as to disqualify her from collecting ultimately a welfare SSI benefit (she had both short term disability and long term disability benefits available to her through her employer), there was no reason that Stacey needed to apply this early on in the process. Both Social Security disability insurance and Supplement Security Income would require her to show that she has remained totally disabled from all forms of gainful employment for a year or longer. Applying so soon into the process would likely result in a denial given her inability to satisfy the duration requirement: this is not to mention the fact that Social Security disability insurance would not pay until she had met a 5 full month waiting period. The other issue Stacey failed to understand is that the money she would be obtaining from the Social Security Administration was ultimately going to go back to the long term disability insurance carrier that had been paying her in the interim.

It was not until after she had applied, and had been out of work for only 3 months, that Stacey discovered through an MRI that she was suffering from a cyst that was quite large and was compressing one of her low back nerve roots. She underwent surgery to remove the cyst just 4 months after going out of work, and was subsequently seen in follow-up with continuing nerve root pain. Pain management was subsequently initiated over a series of months with both medication management and injection therapy. In the meantime, the Social Security Administration denied Stacey at both the initial and reconsideration levels, finding that although her condition remained severe and disabling, they had no reason to believe that her condition would remain disabling for a year or longer. Improvement was anticipated.

Upon getting involved, we were able to obtain from Stacey’s primary care physician a very telling Physical Residual Functional Capacity Questionnaire that was undertaken by the doctor right around the 1 year period of time Stacey had been out of work. Unfortunately, despite providing what we believed to be a very compelling argument brief on Stacey’s behalf, the Administrative Law Judge assigned to hear her case did require us to go to hearing before providing Stacey with a fully favorable decision. Assuming Stacey had waited to apply, after being out of work for the better part of a year, there would have been a decent chance that SSA would have recognized her condition was indeed going to last a year or longer. Thus, the correct timing of an application for disability benefits can make a huge difference.

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