Tips for Winning
an Arthritis Case
by Jonathan
Ginsberg, Attorney - Atlanta, Georgia
The Main Issue in Your Arthritis
Social Security Disability 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.
Are Your Medical Records
Sufficient?
Arthritis cases often
include medical records like this: your medical
records may consist twenty pages of office notes
describing thirty office visits over a three year period
of time. In each day’s entry, your doctor may write down
how you reported feeling, his impressions as to redness,
stiffness, or swelling. 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. 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.
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 guess about 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
In my law office, 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 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.
Here are some examples:
- a mild pain
limitation that causes some 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.
Sometimes, just having the
right wording by your doctor in a report can make a huge
difference in the outcome of your case.
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 in my
practice, I 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.
My 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.
Hearing Issues Unique to
Arthritis cases
You should also be aware
that many claimants
- perhaps as many as half the claims filed - involve
complaints of arthritis. Mild arthritis is a common
ailment in most of the population over the age of 40. As a
result, your Social Security Judge has seen a lot of
claimants who complain of arthritis pain. Because of this
experience, many judges tend to play down arthritis as a
disabling condition.
Thus, if arthritis is your
primary disabling condition, you and your attorney need to
carefully prepare testimony and evidence to prove that
your case is unusually severe and limiting.
If your case involves an
unusually advanced case of osteoarthritis, or rheumatoid
arthritis or inflammatory arthritis, or other rare forms
of the disease, you may need to educate your Judge in
order to win.
Preparing your Case File
for a Hearing
My experience has also been
that sometimes your doctor may simply use the term
“arthritis” when he really should use a specific medical
term that describes your specific diagnosis. Again, your
doctor may not realize that someone else will be reading
his office notes; thus terminology accuracy and
specificity may not be a priority. Either you or your
Social Security representative should review all office
notes thoroughly ahead of time to insure that the medical
records make sense.
Would you be surprised to
know that most doctor’s notes are handwritten and
difficult to read? In several instances, I have had to sit
down with a nurse 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 my practice, I see my role as one whereby I “translate” medical
findings into specific work limitations.
How You Should Prepare
for your Hearing
As a Social Security
disability attorney, I believe 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 my law office, I prepare for hearings by reviewing
the 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.
Summary: arthritis cases,
more than other types of cases, require the claimant and
attorney to clearly identify symptoms that limit
activities, and to find support for these limitations in
the medical record.
About Jonathan Ginsberg -
Jonathan is a practicing Social Security attorney in
Atlanta, Georgia, and he is the publisher of two "how
to" Social Security help books - the Disability
Answer Guide (how to fill out adult Social
Security disability forms) and the Child SSI Guide
(how to fill out child
Social Security disability forms). His comments
and opinions about "Tips for Winning an Arthritis
Case" should not be considered legal advice as every
Social Security disability case is different and depends
on your individual case information.
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