The main issue in your Social Security disability case is whether or not you are able to work. Although you have to identify a medical reason for your inability to work, you will not win if you focus on the details of your medical condition. Instead, your focus must be the specific ways in which your ability to function has been limited by your condition.
In many multiple sclerosis cases, we we see handwritten notes from either a primary care physician or a neurologist. The good news about this is that most M.S. patients have a consistent history of regular visits to a doctor, as well as a solid professional relationship with that doctor.
In each office note, your doctor may write down how you reported feeling, his impressions as to the intensity of symptoms, the onset of new symptoms and your state of mind. Your doctor also may note what medications you are taking, how well they seem to be working and whether he intends to refer you to a specialist for more tests.
What is missing here? These notes are perfectly good as documentation of your illness and your treatment. However, they may not help you in your Social Security case.
Social Security, remember, focuses on work activity limitations. Often, there is nothing in these records about how much you can lift, how much you can carry, or how long you can sit. There is also no analysis of your pain in terms of the extent to which your pain interferes with concentration, or causes irritability that might cause tension with co-workers. If your treating physician is not a specialist, he may not note in detail some of the symptoms experienced by MS patients – such as visual problems, breathing problems, or depression.
A Social Security adjudicator would not give these notes a second look as they do not even begin to suggest limitations on your functioning. Even an experienced Social Security Judge will not presume to derive specific work limitations from this type of office note. Some judges may, however, recognize the significance of a long treatment history, and might be more inclined to accept limitations set out in your testimony. Other judges, however, are less inclined to believe anything unless it is in your record.
Using Social Security’s Special Language for MS Claims
As your attorney, I would approach this problem by studying your medical record, then make a decision as to whether I felt that we could make an argument that you met the 11.09 Multiple Sclerosis listing, or whether we also needed to argue that your “functional capacity” for work had been so reduced by your symptoms that you would not be a reliable worker.
Since both the Listing and the Functional Capacity argument look to activity limitations, I usually create a checklist form (called a “functional capacity” form) that tracks most of your symptoms. My forms (which are based on the official Social Security forms) also include the specific functional limitations set forth in the judge’s handbook used by your Social Security Judge. Further, after representing claimants at hundreds of hearings, I know which vocational factors carry the most weight with judges.
For example, a muscle pain limitation that causes interference with concentration such that you would not be able to understand and carry out complex job instructions is not particularly limiting, since many jobs exist that only require you to understand and carry out simple job instructions.
On the other hand a sitting and standing limitation that says you can stand only 5 minutes at a time and that you must lie down for 30 minutes every three hours is extremely significant since there are no jobs that would permit an unscheduled 30 minute break every three hours.
Special Problems in MS Cases
MS presents special problems in a Social Security case. On of the biggest issues we often see has to do with the onset of new symptoms. Remember, the first two levels of appeal (the initial application and the reconsideration) may take a year to work through the system. By the time you get to Court, you may have been waiting 18 months. As you know, MS is a disease that can produce different symptoms with each flare-up. If you now allege symptoms that were not identified in your initial application, the Judge may delay your case further by sending you to one or more consultative examinations (independent medical exams) with Social Security approved specialists. This is especially true if you have developed significant depression after you filed your application.
You can help your case and your lawyer by keeping copies of all the forms and applications you completed for Social Security. If you have, in fact, developed new symptoms, we can update your file early enough so that any consultative exams can be scheduled well in advance of your hearing – thus reducing any more delay.
Getting Cooperation from your Doctor
Your doctor may truly feel that you cannot work, but if he is not familiar with Social Security practice and procedure, he may not think to complete the most important questions contained in a functional capacity form. Every case is different, however, there are certain activity limitations that seem especially important to Social Security judges. As you might expect, these “threshold” activities relate to job reliability and minimal physical activities.
Over the years, we have run into some situations in which a client’s doctor “does not want to get involved.” Often this is the result of a bad experience with a legal case in the past – perhaps the doctor was forced to wait around the courthouse for hours, only to be brutally cross-examined by an aggressive lawyer. If your doctor expresses concern about getting involved in a Social Security case, you should explain to him that Social Security judges follow relaxed rules of evidence. Written reports or letters are almost always accepted. Live testimony by the doctor is extremely rare. Further, there is no cross-examination by a hostile lawyer – at the Administrative Law Judge level, there is no “government lawyer” on the other side.
In addition, if you are approved for Disability (Title II) benefits, you will become eligible for Medicare 24 months after your first date of Title II entitlement. Medicare, of course, can be a source of payment for your doctor, and may result in more cooperation.
As attorney representatives, our experience has been that most caring physicians will agree to spend ten or fifteen minutes to complete a form that can dramatically better your life. If your doctor refuses to cooperate or if he wants to charge you more than $50 to complete a functional capacity form, you may want to think about finding a more cooperative doctor.
Preparing your Case File for a Hearing
Would you be surprised to know that most doctor’s notes are handwritten and difficult to read? In several instances, we have had to work with a doctor’s office to “translate” notes so that they could be understood.
None of this is to suggest that a doctor with sloppy handwriting or sketchy office notes is not a good, caring physician. To the contrary, your doctor’s main focus is his treatment of you. His notes are simply reminders for him to review prior to your visits. For Social Security purposes, however, your doctor’s office notes can make or break your case – thus we see our role as one whereby we “translate” medical findings into work limitations.
How You Should Prepare for your Hearing
As attorney representatives, we obviously feel that Social Security claimants are better off with lawyers than without. Since most cases do not involve up-front fees money should not be an issue. However, you are permitted to appear and argue your case on your own or with a non-attorney representative. If you proceed without an attorney, you will get the best results if you do the following:
- Review your file thoroughly – make sure that all records of medical treatment are present and up to date.
- Decide on a theory of disability – why are you unable to work. You should be able to boil this down to two or three sentences.
- Give the Judge specific information. Testimony that “it hurts a lot” or “I can’t walk very far” doesn’t say much. Testimony that “I can only stand and walk for 15 minutes every three hours” gives the Judge a specific vocational limitation.
In our law office, we prepare for hearings by reviewing your claims file two to six weeks prior to the hearing and summarizing the claims information and medical records into a two or three page typewritten summary. By reviewing your file early, we have enough time to update records.
All relevant treatment notes are entered in date order and all are referenced by the Exhibit page number. Thus, if we are discussing a particular medical record, I can identify it specifically for the judge. At your hearing, therefore, you will note that my haring worksheet is a neat two or three page document rather than a bulky file. In many cases, I bring my laptop computer to the hearing and enter hearing notes directly. I use these annotated hearing notes to track the questions typically asked by a particular judge and the “hot buttons” that help us win cases. I would like to think that this method will help us serve you better.
I thought you might find it interesting to review some of my cases involving MS. All client names and other identifying information has been changed to preserve client confidentiality.
Multiple Sclerosis Social Security Disability Case #1 – 42 year old female
Multiple Sclerosis Social Security Disability Case #2 – 23 year old male with M.S. like demyelinating process.
Multiple Sclerosis Social Security Disability Case #3 – 49 year old female with 20+ year work history and definitive MS diagnosis.
Multiple Sclerosis Social Security Disability Case #4 – 52 year old female with long work history and increasingly serious MS symptoms
Multiple Sclerosis Social Security Disability Case #5 – 46 year old female with long work history and mild MS symptoms