Tips for Winning a Multiple Sclerosis Disability Case

by Jonathan Ginsberg, Attorney - Atlanta, Georgia

The Main Issue in Your Case

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.

What Actually Happens at Your Social Security Disability Hearing.

Are Your Medical Records Sufficient?

Many multiple sclerosis cases include handwritten notes from either a primary care physician or a neurologist. The good new 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

When I am preparing an M.S. case, I would approach this problem by studying your medical record, then creating a checklist form (called a “functional capacity” form) that tracks most of your symptoms, My firm's 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 have a sense about which vocational factors carry the most weight with judges.

For example, a 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 seen 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.

Sometimes a claimant’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.

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, I have had to work with nurses and secretaries in 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, in many respects, your attorney's role is to "translate” medical findings into work limitations.

How You Should Prepare for your Hearing

As a practicing Social Security lawyer, I 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.

• - my practice is to prepare for hearings by reviewing my clients' 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.

  Here is a case study of an MS claim I handled recently. All client names and other identifying information has been changed to preserve client confidentiality.

  Case A.

  Debbie W. is a 42 year old female, married with a 13 year old daughter. Three years ago, her husband, who works for a large corporation, was given a work assignment that kept him out of town for weeks at a time. At this same time, Debbie’s daughter was attacked at school and her mother became ill with a terminal disease. Debbie and her family were living in California at this time.

  Debbie is convinced that her MS was brought on by intense stress - the stress of dealing with her daughter’s school and social issues; the stress of her mother’s illness and the stress of having to deal with these problems alone. In any case, Debbie reports that about three months into this stressful period, she woke up one morning with a painful “pins and needles” sensation in both her legs. By the end of that week, she was bedridden, completely unable to walk.

  Debbie’s primary care physician ran a number of lab tests, sent her for diagnostic tests and referred her to various specialists. Within two months, she was diagnosed with MS.

  At the time Debbie fell ill, her husband returned home and eventually requested a transfer - which brought the family to Atlanta. Debbie’s condition stabilized to the point where she was able to move around with large metal braces. When she arrived in Atlanta, Debbie obtained a job as a staff coordinator at a temporary staffing service.

  Debbie worked for about a year. Although she was no longer under intense and direct stress, she had at least three MS “episodes” that were characterized by the onset of new symptoms. Each of these episodes lasted approximately three weeks before subsiding, although each left her with residual symptoms from that episode. Debbie left her job because of frequent absences and increasing visual problems.

  Debbie applied for benefits shortly after leaving her job. In her application she reported symptoms that included difficulty standing and walking, loss of muscle strength in her left ((non-dominant) arm, problems sleeping because of shallow breathing, and periodic episodes of blurred vision.

  After applying, the State Agency adjudicator scheduled Debbie for a consultative exam with an internist. On the day that Debbie went to her appointment, she was having a good day - she still needed to use her braces to walk, but her vision was fine and her left arm was not bothering her much.

  For more information about the State Agency adjudication process, read our discussion about the initial and reconsideration appeal process. Click here to go to that part of our web site.

  The consultative physician, who is employed by a clinic that derives most of its income from independent medical reviews (for worker’s comp and auto accident insurance carriers) wrote that Debbie’s MS was “mild” and that she could perform simple or complex tasks. He further wrote that her vision test was “normal” and that while he did not doubt that Debbie experienced her claimed symptoms occasionally, he did not see these problems as inconsistent with work activity. He also noted that Debbie could sit for an unlimited time although she should avoid heights, ladders and scaffolds because of her leg braces.

  In the meantime, the State Agency adjudicator requested copies of Debbie’s medical records from both her California doctor as well as the primary care physician she had found in Atlanta. Both of these doctors mailed copies of their largely handwritten notes to the adjudicator.

  Upon receipt of the doctors’ notes and the report from the consultative physician, the State Agency Adjudicator sent the file to a staff physician employed by the State Agency. This staff physician, who has never actually met Debbie, reviewed the records then completed a physical functional capacity form in which he determined that Debbie’s symptoms were mild and would not cause any significant limitations in the performance of various work activity functions.

  The file was then returned to the Adjudicator, who issued a form denial to Debbie stating that the Social Security Agency had determined that Debbie’s condition was not severe enough to prevent her from returning to her previous job as a “receptionist/secretary.”

  Upon receipt of the denial, Debbie retained our law firm to assist her with her case. During our initial interview, I discussed with Debbie and her husband all of the symptoms she had had. We pulled up the web site for the National Multiple Sclerosis Society and reviewed a discussion of other symptoms common to the disease.

  During our discussion, Debbie described symptoms of depression including crying spells and occasional thoughts of suicide. Although she had never received any specific psychological treatment, her primary care doctor had prescribed Paxil, a psychotropic medicine. Debbie and her husband also noted that Debbie seemed to be suffering some cognitive loss, including such problems as memory loss, difficulty adding in her head and mood swings.

  Following our interview, my paralegal and I completed the request for reconsideration and the reconsideration disability report. We included in this report allegations of disability arising from depression, cognitive loss as well as other MS symptoms described by Debbie.

  The State Agency adjudicator assigned to the reconsideration file did send Debbie out for a neuropsychological evaluation that was not entirely conclusive but that did note cognitive dysfunction. The examining psychologist concluded by stating that Debbie should be more thoroughly evaluated by a treating physician.

  As is the case in most reconsideration appeals, Debbie was denied. We then filed for a hearing.

  At the time I received the neuropsychologist’s report, I copied it and sent it to Debbie’s primary care physician. I also sent him a functional capacity evaluation I had drafted. Thereafter, the primary care doctor referred Debbie to a neurologist and to a psychologist, both of whom began treatment.

  By the time the hearing was scheduled, I was able to provide to the Judge treatment records from three doctors - the primary care physician, the neurologist and the psychologist. I also had three functional capacity evaluations all of which identified limitations I knew to be significant. One of the treating physicians was kind enough to state on the form that in his opinion Debbie’s condition was at a significant level of severity prior to the date she last worked. Debbie subsequently testified that during the last three months of her employment, she missed more time than she was there.

  The Judge permitted us to amend out “onset date” and Debbie was awarded benefits as of our amended onset date. The hearing lasted about ten minutes - the only real issue was the onset date question. After taking Debbie’s testimony about her last few weeks of employment, he turned to the Vocational Expert and asked the following:
  

  • Judge: “Ms. ___, have you reviewed the functional capacity forms completed by the claimant’s treating physicians?
    
  • VE: Yes.
    
  • Judge: If I accept any one of these evaluations as an accurate representation of this claimant’s condition, could she return to past work or any work?
    
  • VE: I do not believe so, Judge.
    
  • Judge: Why not?
    
  • VE: Well, Judge, let’s take Exhibit 17F, which is the functional capacity form completed by Dr. _______. In it he says that this claimant would have to take unscheduled 15 minute breaks every 60 to 90 minutes. In my view, this is not consistent with competitive employment.
    
  • Judge: Thank you. Mr. Ginsberg, do you have any questions?
    
  • Ginsberg (knowing that this is a good time to keep my mouth shut): No, your Honor.
    
• This case is only an example - not every case involves cooperative doctors and extensive records, but I hope you get the idea - medical records alone are not enough - they have to be translated into a language understood by Social Security and the case has to be prepared for the Judge. If we make the Judge’s life easier, your results will be better.

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