You may have read in the news that the Social Security Disability trust fund (not the retirement trust fund) is scheduled to run out of money in 2016, just four years from now. If Congress does not act, benefits to existing claimants will automatically be cut 21%.
While Congress will most likely wait until the last minute to shore up the disability trust fund, I can already see a change in the level of scrutiny that some judges are applying to disability cases.
A colleague of mine who attended a recent disability claims representative conference tells me that a major topic of discussion at this conference was a rumor that Social Security Administration Commissioner Astrue has established a goal for judges to approve only 30% of the cases they consider. By contrast, judges nationally now approve close to 60% of all cases at ALJ hearings. The National Association of Social Security Claimant’s Representatives has apparently filed a freedom of information request to investigate this rumor.
Whether this approval rate goal is true or not, I can tell you that I have definitely noticed a trend whereby disability judges are scrutinizing cases much more carefully. During several of my hearings, judges have referenced my client’s age relative to age 50 – in other words, I think that claimants over the age of 50 have a better chance for approval than younger claimants.
Another area where judges are clamping down has to do with fibromyalgia cases. I first starting seeing a significant number of fibromyalgia cases about 15 years ago. Initially, judges did not know what to do with a condition that could not be confirmed by objective tests, but that affected claimants (especially women) in a very dramatic and consistent fashion.
Back in the mid-1990′s judges would call medical witnesses to help them understand this chronic pain condition – it was not uncommon to see psychiatrists, psychologists, orthopedists, neurologists and even orthopedic surgeons appear as expert witnesses to offer theories about what was going on with these claimants.
By the early 2000′s I was consistently winning fibromyalgia cases for claimants who met “the profile:”
- females, age 40+
- type A personalities
- past work at fast paced stressful jobs
- consistent and extensive work history
- some form of physical and/or emotional trauma in the past
- employment at a level often exceeding their education level
- visits to multiple medical providers and extensive medical records
- problems with digestion and balance
- short term memory problems (i.e., fibro fog)
- myofascial pain
- crushing fatigue
- deep joint and muscle pain
- pain that seemed to travel around the body
I think for the most part, a claimant who meets this profile will get approved, but I am noticing that judges are starting to deny cases when:
- medical treatment is less consistent (judges do not seem receptive to the argument that claimants without insurance who are private pay patients do not wan to use scarce financial resources for treatment that generally does not provide any meaningful relief)
- the medical record does not reflect impairments in activities of daily living
- there is no supportive functional capacity evaluation form from a treating physician
I am also noting that judges seem very resistant to awarding benefits to male fibromyalgia claimants. Perhaps there is not yet an established “profile” for male fibro claimants, but this condition does express itself differently in men.
In men, fibromyalgia seems to set in after some severe physical trauma, such as a fall or a severe back injury. The resulting residual pain almost functions like a full body form of RSD/CRPS.
Judges in the Atlanta area have not been at all receptive to approving male fibro claimants, at least not so far. I wonder if SSDI’s budget crunch has anything to do with this.
Because fibromyalgia cannot be seen on an X-ray or MRI, or detected by a blood test, it would seem that this condition might be flagged for extra scrutiny by Social Security accountants. At this point, at least I am telling my clients that fibromyalgia claims remain viable but that consistent and on-going medical care are especially necessary.
Post by Jonathan Ginsberg