Downs Law Firm is Your Social Security Disability & Personal Injury Attorney

FAQ's

Level Of Pain

Question: My husband has had two back surgeries were unsuccessful and he is in constant pain. Is his pain a factor that is considered in his Social Security disability claim?

A: Rules and regulations of the Social Security Administration provide that pain must be considered in evaluating whether or not a person is disabled. The Regulation states:

 “In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. Section 404.1529 (a).

 The Regulations further state, however, that statements about a person’s pain or other symptoms will not alone establish that they are disabled. There must be objective medical evidence from an acceptable medical source that shows you have a medical impairment (s) which could reasonably be expected to produce the pain or other symptoms alleged.

 The Administration wil then determine how your symptoms such as pain affect your ability to work.

 For instance, if the pain that your husband suffers is only mild or moderate pain, then he generally is considered able to work. If, on the other hand, your husband has pain which is at the moderately severe or severe level, then he generally is not able to work. Pain at this higher level makes it difficult for a person to focus or concentrate on their work, and it may also involve the individual having to constantly shift or move around to try to obtain relief from the pain.

Many physicians often ask their patients to rate the pain level on a scale from 1 to 10. For instance, pain at the level of 2 or 3 would normally be considered slight or mild pain, and pain at the 7 or 8 level would typically be considered moderately severe or severe pain. Judges and attorneys in Social Security disability hearings will often ask the patient to rate his pain on the “1 to 10” scale.

  • 12 Month Period

    Question: I broke my leg and had to have surgery. My doctor says I will be out of work for six to eight months. He thinks I should apply for Social Security disability. Should I?

    Answer: In order to be entitled to Social Security disability benefits, the regulations require that you have a physical or mental impairment which can be expected to last for a continuous period of not less than twelve (12) months.

     Often times, in a situation such as yours, it is difficult to know whether your condition will actually last 12 months. In my practice, I have seen individuals who have had surgery performed who make a great recovery, and are able to return to work before the end of the 12 months. If they are able to work before the 12 months ends, then they are not entitled to Social Security disability benefits. In other words, the 12 month period is the minimum period that you must be unable to work.

     On other occasions, I have seen individuals who had an injury which you would have assumed would resolve itself within 12 months; but, for some reason, did not. Mother Nature is extremely unpredictable; and, sometimes, an injury does not heal as quickly or as satisfactorily as you and the doctor would want. Situations such as infections or re-injury can result in an individual being out of work past the 12 month period.

     Typically, however, if you file shortly after you have had a routine-type surgery, the Social Security Administration will deny your claim, based on the fact that you would be expected to recover before the 12 month period runs out.

     As there is no cost for filing a Social Security disability claim, you may want to go ahead and file a claim shortly after the surgery, unless the doctor is 100 percent certain that you will be able to return to work before the 12 month period runs out. If you file a claim and you, in fact, are able to return to work prior to the time the 12 months ends, you can always dismiss your claim for benefits.
  • Appeals Council

    Question: The Administrative Law Judge turned down my claim for Social Security disability benefits. His Order says that I have a right to appeal to the Appeals Council. What is that, and what happens if I appeal there?

    Answer: The Appeals Council is located in Falls Church, Virginia. The Appeals Council review process generally begins after an application for benefits has been denied at the hearing level. If you disagree with the decision of the Administrative Law Judge, you may file a request for a review with the Appeals Council.

     If your case is presented to the Appeals Council, you do not actually appear, and you do not have another hearing. The Appeals Council will review the decision made by the Administrative Law Judge in your case. The Appeals Council looks at all requests for a review, but it may deny a request if it believes the hearing decision was correct. If the Appeals Council decides to review your case, it will either decide your case itself; or, return it to an Administrative Law Judge for further review.

     The Appeals Council will send you a written decision, letting you know what they have decided in your case.

  • Appeals Deadline

    Question:  Help! My time for an appeal ran out today and I did not get my appeal papers filed! Do I have to start over?

    Answer: It depends on why you failed to get your appeal filed. Generally, when your initial application is denied, you are given 60 days in which to appeal your case and ask for a hearing before an Administrative Law Judge. Normally, the denial letter you receive will contain this information.

     The denial letter will also tell you that the Social Security Administration assumes that you got the letter within 5 days of the date that is on your letter. In order for you to request a hearing more than 60 days after the date of your denial, you must have a good reason.

     The following situations typically may be considered good cause for missing the deadline:

    1. You are seriously ill and were prevented from contacting the Social Security Administration in person, in writing, through a relative, friend or other person.
    2. There was a death or serious illness in your immediate family.
    3. Important records were destroyed or damaged by fire or other accidental cause.
    4. You are trying very hard to find necessary information to support your claim, but did not find the information within the stated time period.
    5. You did not receive the notice of determination or decision.
    These are only some of the reasons which may allow your appeal to be processed even though it was filed late.
  • Attorney’s Responsibility

    Question: Do I need an attorney in my Social Security case?

    Answer:
    1. This is probably your first Social Security case. Your Social Security attorney is experienced in guiding clients through the complicated steps of this process.
    2. Missed deadlines can lose your case. Your attorney knows what papers need to be filed, as well as where and when to do so.
    3. Your attorney will advise you on what medical information is needed to win your case.
    4. Your attorney will tell you what questions the Judge will ask you at the hearing.
    5. Your attorney will present your case to the Judge based on the rules and regulations that apply.
    6. Sometimes important records are left out of a file. Your attorney will make sure all your records are in your file.
    7. Your attorney can copy your file from the Social Security Administration, so an exact copy of your records can be studied in preparation for your hearing.
    8. Your attorney can encourage you not to give up through the long delays in the process.
    9. Your attorney will not charge you an attorney fee unless you win your case.
  • Depression

    Question: My husband has Depression, which keeps him from working. Could he receive disability based on Depression if he has no physical problems?

    Answer: Yes. The Social Security Administration recognizes that depression can prevent a person from being able to work, even though they may be physically able to work. Examples which would show the depression is severe enough for disability would be as follows:

    1. Depressive Disorder, characterized by five or more of the following:
    • Depressed Mood;
    • Diminished interest in almost all activities;
    • Appetite disturbance with change in weight;
    • Sleep disturbance;
    • Observable psychomotor agitation or retardation;
    • Decreased Energy;
    • Feelings of guilt or worthlessness;
    • Difficulty concentrating or thinking; or
    • Thoughts of death or suicide.
    2. Bipolar Disorder, characterized by three or more of the following:
    • Pressured Speech;
    • Flight of ideas;
    • Inflated self-esteem;
    • Decreased need for sleep;
    • Distractibility;
    • Involvement in activities that have a high probability of painful consequences that are not recognized; or
    • Increase in goal-oriented activity or psychomotor agitation.

    AND:

    Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:
    • Understand, remember, or apply information;
    • Interact with others;
    • Concentrate, persist, or maintain pace; or
    • Adapt or manage oneself.
    If your husband’s depression is this severe, he would normally be considered disabled.

  • Dire Need

    Question: I’ve been waiting for over a year for my Social Security disability. I can’t work, my utilities are being turned off, and I’m being evicted from my apartment. What can be done to speed up my case?

    Answer: The Social Security Administration recognizes several situations which can allow your case to be processed faster. One of the situations is referred to as dire need. A dire need situation exists when a person has insufficient income or resources to meet an immediate threat to health or safety such as lack of food, clothing, shelter or medical care.

     You must be able to show that you have specific, immediate circumstances such as (1) lack of food; (2) lack of medicine or medical care; and/or (3) lack of shelter, such as a situation where the utilities are shut off and the home becomes uninhabitable, etc. The threat of imminent eviction or foreclosure with no means to remedy the situation or obtain shelter would be an example.

     If you meet this dire need, then your case would be considered as a critical case, and it would be processed faster. In addition, the Staff would also try to determine if a decision could be made without the need for a hearing in your case. Your case would also have, attached to the front of the file, a note that it was a dire need case.

  • Level Of Pain

    Question: My husband has had two back surgeries were unsuccessful and he is in constant pain. Is his pain a factor that is considered in his Social Security disability claim?

    A: Rules and regulations of the Social Security Administration provide that pain must be considered in evaluating whether or not a person is disabled. The Regulation states:

     “In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. Section 404.1529 (a).

     The Regulations further state, however, that statements about a person’s pain or other symptoms will not alone establish that they are disabled. There must be objective medical evidence from an acceptable medical source that shows you have a medical impairment (s) which could reasonably be expected to produce the pain or other symptoms alleged.

     The Administration wil then determine how your symptoms such as pain affect your ability to work.

     For instance, if the pain that your husband suffers is only mild or moderate pain, then he generally is considered able to work. If, on the other hand, your husband has pain which is at the moderately severe or severe level, then he generally is not able to work. Pain at this higher level makes it difficult for a person to focus or concentrate on their work, and it may also involve the individual having to constantly shift or move around to try to obtain relief from the pain.

    Many physicians often ask their patients to rate the pain level on a scale from 1 to 10. For instance, pain at the level of 2 or 3 would normally be considered slight or mild pain, and pain at the 7 or 8 level would typically be considered moderately severe or severe pain. Judges and attorneys in Social Security disability hearings will often ask the patient to rate his pain on the “1 to 10” scale.

  • Medical Side Effects

    Question: Medicine Side Effects (My medicine makes me sleepy-would that affect my case?)

    Answer: Effects such as sleepiness or drowsiness are often referred to as “side effects” of medications. Many medicines prescribed by doctors cause such side effects. How much you are affected can be important in your Social Security Disability case.

     Regulations of the Social Security system provide that medication side effects must be taken into consideration in your case. The Judge must decide how much the medicine affects you in a typical day. If the medicine causes you problems, such as having to lie down, you normally can’t work a job. Other problems, such as being unable to remember work instructions, can also prevent you from working.

    Side effects can be proved by your testimony, as well as by written records, such as the printout you receive from your pharmacist. The printout normally will talk about the medicine’s side effects, and may include warnings, such as avoiding hazardous machinery, etc.

  • Physical Capacity Evaluation

    Question: The Judge is going to send me for a PCE-will it hurt? And what is it?

    Answer: A PCE is a Physical Capacities Evaluation performed by a physician or physical therapist. It is a written report which describes your ability to do typical day-to-day activities such as sitting, standing, walking, lifting and/or carrying. (It usually will not hurt.)

     In the Social Security system, part of the Judge’s job is to determine whether you have the ability to work an 8 hour day at various levels of activity.

     The doctor or therapist will have you do a series of movements such as lifting or walking while he/she observes you. He/she will also try to be sure that you do your best in performing the activities. If you don’t put forth a good effort, the test would not show your true ability.

     The Judge will get a copy of the report and will also provide a copy to you or your attorney. The report then becomes a part of the evidence in your case.

     If you have any questions concerning this article, or any other matters relating to Social Security disability, please feel free to contact Attorney Mac Downs.

  • Treating Source

    Question: The Social Security doctor says that I can work, but my own doctor says I can’t. Which one will the Judge listen to?

    Answer: Actually, the Judge will listen to both doctors, but the important question is how much “weight” will he give to each doctor.

     Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s).

     The Social Security Administration normally will use two doctors in evaluating your case. One is the doctor that you actually go see in his office where you will be examined. The other doctor you will not actually see, but this doctor will review your medical records and prepare a report for your file. This doctor is known as a non-examining physician.

     Therefore, you may actually have three different sets of physician’s records and/or opinions in your file. One is from a non-examining physician that you have never seen; the other is from the doctor that you were sent to by Social Security; and the third will be the opinions and records of your treating physician. The Administrative Law Judge must consider all three physicians’ records and opinions.

     Generally, the treating physician is given the most weight in evaluating your impairments. This is due to the fact that he or she is usually more familiar with you and your problems. One of the factors that is typically looked at is the length of time the physician has treated you and the nature and extent of the treatment relationship.

     The Regulation states “If we find that a treating source’s opinion on the issue(s) of the nature and severity of your impairment(s) is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.”

     Therefore, typically, the opinions of the treating physician are going to be more important to the Administrative Law Judge than the opinions of consulting physicians and non-examining physicians.

     NOTE:

     The above information will not apply to cases filed on or after March 27, 2017. For cases filed from that date forward, the Social Security Administration will not give special weight to the opinions of the treating source. Instead, medical opinions will be evaluated equally for "persuasiveness," based on consistency and supportability.

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