“Do I have to have back surgery to get disability?”

Social security disability applicants are often in the process of considering various medical procedures that have been recommended by doctors.  For example, the back surgeon wants to do a lumbar fusion or the pain management doctor wants to implant a spinal stimulator.  Sometimes disability claimants can feel a little like the strawman in the Wizard of Oz when the Wicked-Witch-of-the-West jabbed the flaming broom his way saying “How about a little fire scarecrow?”.

I am often asked about the implications that a decision to have or forego medical surgery or procedures will have on the pending social security disability claim.  There unfortunately is no easy answer.  Here, however, are a few guidelines:

  1. The social security disability assessment system looks at the ability to work inspite of medical efforts to return functioning to normal.  So the failure to secure medical treatment, the failure to take prescribed medications, and ignoring medical advise is not helpful to a social security disability case.
  2. Claimants are NOT required to undergo risky surgeries to be approved for social security disability benefits.  This is particularly true for claimants who have already had several surgeries that have not been successful.
  3. My experience is that claimants usually refuse surgeries such as spinal fusions out of fear:  they know someone who has not been successful, or have an unreasonable fear of dying in what are fairly routine procedures.  These are “fear-based” reasons to not have surgery, and will not help your disability claim.
  4. If you decide against a surgery that is offered, have (i) a well thought-out reason, and (ii) chart an alternative path to better functioning with your doctor(s).
7 Key Features of a Winning Social Security Disability Case

7 Key Features of a Winning Social Security Disability Case

Social security disability insurance is a big and bureaucratic government program, and it is far from perfect.  Cases that “ought” to be approved get turned down, and, unfortunately, many claimants that do not deserve benefits receive approval.  But there are key hallmarks of winning disability cases that you should keep in mind. 

Your last job ended because of your health

The Administrative Law Judge that hears your disability claim – if you have to appeal your claim that far – will want to know the answer to this question: “How did your last job end?”

In a winning disability case, the answer to that question shows the judge that your job ended because of the symptoms and limitations of the condition(s) that you claim keep you from working.

Consider this example.  Let’s say you are a 52-year-old assembly worker who ruptures a lumbar disc and undergoes a lumbar spinal fusion. After recovery time and completing physical therapy, your doctor releases you to return to work.  Compare these two different answers to the “How did your last job end?” question:

Explanation 1 Explanation 2
“I came back to work for a few weeks,and everything was going fine. But then the company announced that the assembly plant would be closed and moved to Mexico.  Everyone was laid off.” “I came back to work for two weeks but I was having great difficulty doing my job. I could not lift what I was expected to, so my co-workers were always having to help me.  I was having great difficulty sleeping because of the pain.  My boss came to me and said he was sorry but he would have to let me go because I clearly could not do the job” 

 Explanation 2 is a feature of a winning social security disability case because the ALJ can clearly see the connection between medical impairment and inability to work. Explanation 1 leaves her wondering: “if the plant had not moved to Mexico would you still be working there?”

You have a legitimate medical diagnosis that explains your symptoms

To win disability, you need a medical diagnosis.  The condition needs to be widely recognized in the medical community, and the diagnosis needs to come from a qualified medical professional, preferably a specialist in the field concerned. Perhaps most importantly, the diagnosis needs to explain the symptoms you experience and that keeps you from working.  Let’s illustrate with some contrasting situations:

Claimant 1: 45-year-old with malaise and chronic headaches.  No doctor has come to a diagnosis until the claimant consulted with a homeopathic doctor who diagnosed him to suffer from Wind Turbine Syndrome.
Claimant 2: 55-year-old who alleges disability due to back pain but who only has a diagnosis is schizoaffective disorder from a psychiatrist.
Claimant 3: 35-year-old diagnosed with lupus by a rheumatologist alleging disability due to malaise, fatigue, brain fog, and joint pain.

Who fits the profile for a winning disability case?  Claimant 3.  Lupus is a well-recognized medical condition, it was diagnosed by the appropriate specialist, a rheumatologist, and the symptoms – malaise, fatigue, brain fog, and joint pain – are all typical for Lupus patients. 

Claimant 1 does not: Wind Turbine Syndrome is not a legitimate and recognized medical diagnosis. Claimant 2 also does not fit the ideal profile for a winning disability claim either because back pain is not a symptom of schizoaffective disorder.  

Your disability is chronic, not acute 

Claimants often wrongly assume that a very serious medical condition should qualify for social security disability benefits.  But to win disability benefits your medical condition and disability must either have lasted, or be expected to last, at least 12 months.  So for example, you may have a critical illness that requires hospitalization such as congestive heart failure.  But congestive heart failure is an acute condition: doctors are either going to get you better (and they usually do) or you are going to die.  In the example of congestive heart failure, the question will be whether you are able to return to work or work at all once doctors have done their best to improve your condition.

A key feature of a winning disability case is that it is based upon a long-term, chronic condition that does not respond sufficiently to medical treatment so as to allow a return to work.

You receive regular and specialized medical care and you follow your doctor’s orders

It follows from the point above, that you simply cannot have a long-term, chronic medical condition that has not responded to all the alternatives available if you don’t see doctors that specialized in your condition on a regular basis. 

Since most medical insurance is tied to employment, however, continuing to get medical treatment when disabled is a challenge.  Unfortunately, a winning disability claim requires medical treatment and should be your highest priority if you want to be approved.

Following doctor’s orders is also a common feature in winning disability cases.  If you don’t take your doctor’s advice, the social security administration will wonder whether medical compliance could have returned you to work.  While it is true that you do not need to agree to all suggested medical treatment, like surgery to win disability benefits,  there is no escaping this reality: a winning disability case usually includes a claimant who has faithfully followed medical advice in trying to get well.

You stay away from alcohol and drug abuse, and bad lifestyle choices

Nobody is perfect.  Many Americans have or continue to struggle with alcohol and drugs – does that mean they can’t get disability? No, but drug and alcohol abuse (DAA) can limit your chances of winning disability benefits, and in many instances be the reason you are denied disability.  Here are factors to consider:

Remote and resolved DAA is unlikely to hurt your disability case.

If you had an alcohol problem in the past, and the medical records clearly reflect that alcohol abuse is no longer an issue, you should not be worried. This is particularly true when the medical records show a clear end to your substance abuse.  However, if you continue to use drugs and alcohol – even if the records don’t indicate you have recently experienced negative health or legal consequences from using drugs or alcohol – drug and substance usage could be an issue.  Consider this example:

You had 3 DUIs in the early 2000s, and you went to alcohol rehab in 2009.  Though you have no legal issues related to alcohol after leaving rehab, the medical records indicate that you continue to drink alcohol.  In this situation, the social security administration might wonder if you are still abusing alcohol.  There is a widely held ( and well-founded) belief that it is not possible to return to “social drinking” once alcohol use turns into alcohol abuse.

DAA is more important for certain disabilities.

Consider these two persons seeking disability benefits-both of whom abuse drugs and alcohol on an ongoing basis:

Claimant 1: 55-year-old truck driver who has had multiple lumbar spine surgeries but remains unable to sit for any length of time due to pain, muscle spasms, and numbness in his leg. Claimant 2: 35 year old with schizoaffective disorder claiming disability due to inability to get along with others, control temper, and visual and auditory hallucinations.

Your common sense has probably led you to conclude that DAA is less likely to hurt the disability case of Claimant 1 because DAA has little to do with his back problems.  But for Claimant 2, drug and alcohol use can make his psychological symptoms worse- the symptoms he claims to keep him from working.  DAA is widely thought to limit the effectiveness of psychotropic medications – the medicines typically prescribed for mental problems.

Medical marijuana use is not a feature of a winning disability case.

In the state of Texas, where I practice social security disability, marijuana use is not legal, and there is no medical marijuana provision.  I remember a conversation some years ago with a disability claimant that I declined to represent because he alleged a mental disability and he was a chronic marijuana user. He pointed to the fact that marijuana was legal in many states, and that his psychiatrist knew about his pot-smoking. For the social security administration, the issue is not whether it is or is not legal in the state where you live. Marijuana is a psychoactive drug that can make psychological symptoms worse, and limit the effectiveness of prescribed medication.   Marijuana may be available by prescription in your state, but the fact remains that marijuana use is not the standard of care for the treatment of mental conditions in the psychiatric community.

You have fully explored whether you could do any work

The loss of one’s job due to a medical condition is a big trauma.  Many wrongfully assume social security disability is the only alternative if they cannot do their old job.  But a winning disability case requires the inability to do any work.  A few facts to keep in mind:

  • Social security disability benefits are not available simply because you can no longer earn a specific income.  It is common, for example, for claimants to say things like, “well I guess I could work at McDonald’s”.  The sad reality is that this person is unlikely to qualify for disability.  Disability benefits are not intended to replace your prior income level.
  • Younger workers, in particular, cannot argue that a lack of skills keeps them from employment.  The government assumes younger workers retain the mental ability and flexibility to acquire new skills.

You don’t want to be on disability, but it is your only alternative – and you don’t feel “entitled”

Many of the disability applicants who come before Administrative Law Judges present an air of ‘entitlement’ to disability and have given up all hope of returning to work in the future. These claimants often come across as “trying too hard” to convince the ALJ that they deserve disability. Moreover, these applicants have easily assumed the identity of a “disabled person”.  For many that come before ALJs, disability looks to have been their way to resolve their chronic employment problems.

A winning disability claimant does not exaggerate or try to “sell” the ALJ on their disability case.

Fort Worth and Dallas Disability Attorney

If you can’t work due to physical or mental disability, we’re here to help. Contact Denman Law Office to set up a free and confidential case evaluation.

Your Social Security Disability “Theory of the Case”: 5 Ways to “Filter” Your Testimony To Get Good Results

Your Social Security Disability “Theory of the Case”: 5 Ways to “Filter” Your Testimony To Get Good Results

Your social security disability lawyer’s job in the administrative law judge hearing is to present the “theory of  the case “.  This is a cogent, compelling and concise statement of why the administrative law judge should approve your case.  Obviously this includes reference to the specific regulations that support your claim.

But your disability attorney’s “theory of the case”  is supported by your testimony about the limitations that keep you from working.   Your case is built on your answer to a simple question:

Why can’t you work?

In other words, what are the limitations that keep you from working?

Unfortunately, not all limitations are of equal import, and often the limitations that disability claimants are important in winning their disability are in fact – not.    To prepare for your administrative law judge hearing you need to “filter out” those limitations that are not helpful to your claim, leaving you with the limitations that are key to success.  Here’s my quick “down and dirty” flow chart for how to do just that:

Does the limitation affect:

Your ability to do "work-related activities" OR
Your ability to "sustain and maintain" work
Your limitation must erode or eliminate your ability to do work activities. These include the basics of sitting, standing, walking, lifting, carrying, reaching. Limitations such as chronic absenteeism due to your illness do not impact the ability to do work activities, but do impact the ability to "sustain and maintain" work: no one with chronic and excessive absences will keep their job for long.You are young with clerical work background but cannot drive due to epilepsy. Driving is not a part of your prior clerical work. Epilepsy may adversely affect your ability to do your job, but driving is not a part of clerical work.
Is the limitation - both its existence and its nature and severity - an expected limitation of a diagnosed medical condition?
Your limitation has to be the result of your diagnosed medical condition. And perhaps more importantly, the extent of your limitation (the frequency, intensity, and duration) must be a reasonable result of your diagnosed condition.Pain that is unexplained (i.e., there is no diagnosis or reason for the pain), or pain that is out of proportion to the medical findings.

For Example : Pain in the neck and finger numbness when the diagnosed condition is lumbar spine spondylolisthesis. Neck and finger problems are typically the result of a cervical spine (neck) problem not a low back abnormality.
Does objective medical evidence support the nature, severity and duration of your limitation?Diagnostic testing - radiographic studies such as X-Rays, or laboratory findings - must be consistent with just "how bad" you say your limitation is.Constant low back and leg pain rated 10 on a scale of 1-10 where the lumbar MRI shows only "mild" spondylolysis.
Do your medical records reflect that this limitation is a big problem for you?Social security will want to see support for your limitations in the medical records. It would not make sense, for example, that there is no indication you have told your doctor about the significant limitations that keep you from working.Complaints that you must lay down everyday for 1-2 hours to relieve back pain, but the pain management doctor records you have never complained of this problem to your doctors.
Are you doing all you can to reduce the impact of this limitation?Nearly all medical conditions can be treated to at least some extent. Even if you are frustrated with medical treatment, your failure to get medical care will cause social security to wonder if you would be able to work if you just followed medical advice.Complaints if unremitting low back pain but you refuse surgery and quit physical therapy "because it is not doing any good".

February 2017 is “American Heart Month”: Focus on Coronary Artery Disease & Disability

Heart disease is the cause of approximately 17% of all health costs today in the United States.  It can affect a person’s ability to work, depending on the severity of the condition and the new resulting limitations on basic work related abilities. According to the Texas Department of Aging and Disability Services in Texas it is also the number 1 cause of death in Texas (see graphic above).
The Centers of Disease Control has deemed February 2017 as American Heart Month to raise public awareness of the disease and its treatment options as well as to encourage life style changes that impact the source and severity of the disease. This is a good time to consider heart disease and social security disability.  Different types of heart conditions may make a person eligible for disability benefits under the Social Security Disability Insurance program. However, merely being diagnosed with a heart condition does not necessarily qualify a person for benefits.
 Let’s consider one heart condition, Coronary Artery Disease. This is a condition in which there is a buildup of fatty deposits in the coronary arteries of the heart muscle itself. It can be very serious because the arteries are responsible for supplying blood to your heart muscles. Coronary Artery Disease can result in a heart attack when the arteries are severely blocked, cutting off the supply of oxygen to the heart muscles.
In order to qualify for social security disability benefits because of Coronary Artery Disease, you must prove that you suffer from the symptoms such as severe chest discomfort during exertion, and shortness of breath and how these limitations effect the ability to stand, walk, carry, lift and sit.  Most claims for Social Security disability benefits are determined based on the severe challenges that restrict a person from working.  Therefore, you must be able to prove that you are unable to perform the work that you were performing in the past, and are not capable of doing a new job. You must provide strong medical evidence that you are incapable of substantial gainful activity, which would help you earn a sustainable income.
Like all disability claims, it is not sufficient to just prove that you in fact have the disease.  Qualifying for social security disability based upon Coronary Artery Disease requires inability to do any work despite medical treatment such as cardiologist prescribed medications, and surgery such as coronary bypass, or coronary artery stents.

 Lifestyle factors such as obesity, lack of exercise, smoking, and excessive alcohol consumption are extremely important in Coronary Artery Disease.  A survey titled “Cardiovascular Disease in Texas 2012” by the Texas Department of State Health Services reported the following rather troubling lifestyle facts for Texans in 2010:

  • About two in three adults (66.6%) in Texas were overweight or obese;
  • Texas had significantly higher prevalence of high blood cholesterol (2009), overweight and obesity (2010), no leisure time physical activity (2010) among adults than the U.S.;

While these lifestyle factors are important, it does not mean that in order to qualify for social security disability benefits due to Coronary Artery Disease you must have no bad health habits.  Its does mean, however, that a claimant taking no actions to help their condition such as trying to eat better, stop smoking, and get more physicial activity wil have more difficulty winning their case than one who is trying to address their condition wisely.

Many claims for Coronary Artery Disease are rejected at the initial stage. However, the probability of an award of benefits increases at the appeals stage. It’s important not to lose hope if your claim is first denied, and to go ahead and file an appeal with the help of an attorney.

Early Onset Alzheimer’s Disease & Social Security Disability

November 2014 is national Alzheimer’s Disease Awareness/Family Caregiver Month. In keeping with my habit of matching my Texas social security disability blog posts to disease awareness months, I would like to focus on Early-Onset Alzheimer’s Disease and Social Security Disability. Alzheimer’s Disease, we all know, is a degenerative brain condition associated with aging. It is a form of dementia: all Alzheimer’s is dementia, but not all dementia is Alzheimer’s. Since social security disability benefits are not available to those under full benefit social security retirement age (i.e, age 66), I confine this post to Early-Onset Alzheimer’s Disease, which affects people younger than age 65.  It is estimated that up to 5 percent of the more than 5 million Americans with Alzheimer’s have early onset Alzheimer’s. Actress Julianne Moore portrayal of an Early-Onset Alzheimer’s Disease victim in the coming movie “Still Alice” will be released in January 2015 and is already generating “Oscar buzz”.