Massachusetts Social Security Disability Lawyers Blog

In this second of our three-part series on the changes to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5), our Boston Social Security Disability Insurance Lawyers continue to parse those details and what they mean for applicants seeking disability benefits.

In our previous entry, we discussed Neurodevelopmental Disorders and Schizophrenia and related disorders.

Here, we want to start with Bipolar and related disorders. The association has relaxed its criteria on bipolar disorder ,which is listed in the Social Security Disability Impairment Section 12.04 Affective Disorders. Now, a diagnosis focuses as much on fluctuations of mood as it does on dramatic changes in energy and activity. Additionally, the requirement that someone with a diagnosis of bipolar I disorder had to meet the full criteria for both a major depressive and mania episode has been removed. There is now a new specifier of “mixed features,” so that a patient doesn’t necessarily need to strictly fit into one category or the other.

Next with regard to Depressive Disorders, DSM-5 actually added a number of new ones, including: disruptive mood dysregulation disorder and premenstrual dysphoric disorder. Additionally, dysthymia, formerly known as a type of neurotic depression, now simply falls under the category of major depressive disorder. This could be good news for dysthymia sufferers, as major depressive disorder is among the specific SSDI impairment listings, while dysthymia is not.

Another interesting change on the subject of Depressive Disorders was the removal of the Bereavement Exclusion. Before, you couldn’t be diagnosed with depression in the two months following the death of a loved one. This criteria was removed, the APA said, to first of all belie the myth that bereavement only lasts two months. (Physicians and grief counselors say it is closer to one to two years.) But secondly, bereavement should be given recognition as a severe psychosocial stressor, which can certainly precipitate a major depressive episode, beginning soon after the loss. This is important for those applying for SSDI on the basis of depression because usually the condition has to have lasted for at least a year. If you have to chop off two months of that time because you lost a loved one right around the time your depression began, that’s more time you have to wait to receive benefits – which isn’t fair.

Next were the changes to the Anxiety Disorders, which are found in Section 12.06 of the Social Security Disability Insurance Impairment Listings. These included Social Phobias, Panic Attacks, Separation Anxiety Disorder and Selective Mutism.

With regard to the social phobias, the APA deleted the requirement that patients over the age of 18 must realize that their anxiety is unreasonable or excessive. This change is based on the fact that most people with these disorders inherently overestimate the dangers associated with these situations. All that is now required is that the anxiety be out of proportion to the actual danger or threat. In one way, it is more restrictive in that it must now last a minimum of six months. That won’t likely affect SSDI applicants, as qualifying for disability benefits means the condition has to have been ongoing for at least a year anyway.

And finally for this entry were the changes made to Obsessive-Compulsive and other related disorders. This includes Body Dysmorphic Disorder, Hoarding Disorder and Substance or Medication-Induced Obsessive Compulsion. Previously, it was a requirement for a diagnosis of obsessive-compulsive disorder that individuals have poor insight into the fact that the condition was delusional. However, that is no longer necessary. Individuals can understand that the condition is not normal, and still have limited power to change it.

These kinds of obsessions can include everything from hoarding trash to pulling out hair to skin picking to hand washing to delusional jealousy.

Many of these conditions can be treated, but sometimes they can’t. When they begin to severely inhibit a person’s ability to work and carry out normal social functions, the patient may qualify for SSDI benefits.

In our final entry on the DSM-5 changes, we’ll focus on Trauma Disorders, Dissociative Disorders, Somatic Symptom Disorders, Eating Disorders, Sleep Disorders and finally Disruptive and Impulse-Control Disorders.
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In a recent blog entry, our Boston Social Security Disability Insurance Lawyers mentioned the release of the DSM-5, which is the latest version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

It was a controversial document before, made even more so by a number of changes from the previous edition, issued back in 1994. Our understanding of both the brain and mental disorders has evolved since then, so it makes sense that we would want our official reference materials to reflect that evolution.

In this three-part series on the new DSM-5, we want to focus less on the controversy and more on the key changes that have arisen. Specifically, we want to note the DSM-5 alterations that could have an impact on future SSDI claims in Massachusetts and across the country.

The DSM-5 is integral in SSDI cases because psychiatrists and other medical specialists rely heavily on this document when diagnosing and treating patients with mental illness and emotional disorders. Some of those involve organic brain dysfunctions, but the guidelines also offer direction with regard to many less objectively quantifiable conditions. SSDI reviewers and judges will in turn take into account the professional opinions of those psychiatrists and other mental health specialists.

So changes in this document could mean changes in the way that your claim is evaluated.

To point out the key issues of relevancy, the APA issued a 19-page Highlights of Changes to make it easier to identify the major differences.

Let’s start with Neurodevelopmental Disorders. One of the bigger changes under this subsection deals with Autism Spectrum Disorder. This is a new name that reflects modern scientific consensus that four previously-separate disorders – autistic disorder, Asperger’s disorder, childhood disintegrative disorder and pervasive developmental disorder – are in fact all part of the same condition, although each displays differing levels of severity. As it now stands, the level of severity of an autism spectrum disorder will determine one’s eligibility for benefits. The exact details are defined in Social Security Impairment Listing 12.10, Autism disorder and other pervasive developmental disorders.

Generally, one would need to show deficits in reciprocal social interaction, deficits in verbal and non-verbal communication and markedly restricted repertoire of interests and activities, as well as marked restriction of daily living, difficulties maintaining social functioning or concentration and repeated episodes of decompensation.

Another neurodevelopmental disorder definition that has changed slightly is the one for attention-deficit-hyperactivity disorder. One of the key changes in this entry is that it eliminates the requirement that a diagnosis be made in adolescents or earlier. A diagnosis of ADD or ADHD alone probably won’t be enough to secure SSDI benefits. However, in conjunction with other conditions, it could certainly contribute to one’s diminished work function. The fact that we have expanded the timeline of diagnoses may bode well for some SSDI applicants.

Similar expansions were made for those with Schizophrenia Spectrum and other psychotic disorders. For example, someone with schizophrenia need no longer indicate “first-rank auditory hallucinations” to qualify for the condition. A first-rank auditory hallucination is one in which two or more voices are conversing. Additionally, sufferers need no longer prove that their delusions are “bizarre.” The APA said there had been poor reliability in distinguishing the difference between “bizarre” delusions and “non-bizarre” delusions.

In our next entry, we’ll discuss DSM-5 changes made for Bipolar and related disorders, as well as those for Depressive and Anxiety Disorders and Obsessive-Compulsive disorders.
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In most cases, diagnosis of mental disorders are the result of highly-educated guesses.

It’s for this reason that our Boston Social Security Disability Insurance attorneys know that it can be so tough to get an approval for federal benefits on the basis of one of these conditions.

Disorders like depression or bipolar are no less real – or less debilitating – than cancer or paralysis. However, they are undoubtedly tougher to prove.

Usually, psychiatrists rely on the standards as set forth by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders when determining a diagnosis. In turn, the Social Security Administration ends up also relying heavily on these same standards when determining the severity of the condition relative to an individual’s ability or inability to continue working.

Recently, the APA updated its manual – the first update since 1994 and the fifth edition since its inception in 1952. As such, it’s being referred to as DSM-5.

It contains a detailed list of psychiatric disorders that are used as a guide not only for treatment by the health care system, but also for insurance coverage and disability claims.

With so much at stake, revisions have naturally been met with a firestorm of controversy – despite the fact that it took some 1,500 experts, thousands of patient interviews and more than a decade to compile.

However, all of this has sparked a greater discussion over whether the medical community at-large is truly doing enough to research and understand these conditions and how often we we might encounter misdiagnoses.

The director of the National Institute of Mental Health has written that while the changes made to the new manual were mostly “modest alterations,” the problem is – and has always been – that this manual, like the field itself, lacks the same kind of scientific credibility that the biological medical field holds.

As one psychotherapist was quoted as saying, not a single diagnosis in DSM is going to hold up to the standard that we apply to medical diseases.

That’s because our understanding of medical disorders is not rooted in biological markers like blood counts or some objective laboratory test. Instead, it stems primarily from the professional consensus on what clusters of symptoms may be indicative of certain diseases.

For this reason, the mental health institute two years ago founded a program that would finance research in the fields of genetics, neuroscience, biology, cognitive science and other disciplines that would ultimately help scientists to identify a disorder by its cause, rather than by its symptoms.

The new system would ultimately be termed the Research Domain Criteria.

But herein is the underlying problem: Our brains are incredibly complex. Breaking down function into simple markers that would identify mental health conditions is something that could be many, many years off.

One good start was President Barack Obama’s recent announcement to dedicate some $100 million in the next fiscal year budget to a new brain research initiative. This may seem like a lot, but it’s actually a fairly modest sum, as far as research goes. Some say that he would need to pledge $300 million annually for the next decade to have any real impact.

But again, this is a start.

The ultimate goal is to learn how the brain generates perceptions, thoughts, memories, dreams and other mental images, how it stores and retrieves so much information and how it learns.

Hopefully, this will provide a solid foundation to try to more easily identify mental health conditions through biological indicators. Ultimately, this would help boost success rates for SSDI claimants with mental disorders.

For now, Social Security disability examiner’s and administrative law judges will continue to rely on DSM standards – and the arguments made by your disability representative.
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While a number of administrative disability law judges have filed suit alleging they have been forced to decide disability cases in favor of claimants, another suit, alleging the exact opposite, is poised to be settled.

Our Boston Social Security Disability attorneys understand that a federal judge has granted preliminary approval to a suggested settlement deal that could affect potentially thousands of SSDI claimants who were reportedly treated unfairly.

The turbulent case started with allegations that five disability judges in Queens had been systematically hostile and displayed a negative bias in their handling of claims from people seeking financial relief due to debilitating conditions that rendered them unable to work.

The U.S. District Judge handling the complaint conditionally certified the case as a class action, meaning any one of the thousands of individuals whose claims were partially or totally rejected by one of these five judges since 2008 could be eligible for recourse.

Under the terms of the proposed settlement in Padro v. Astrue, the five judges – Marilyn Hoppenfeld, Michael Cofresi, Seymour Fier, Hazel Strauss and David Nisnewitz – would still get to keep their jobs. However, about 4,000 people whose disability claims were denied by one of these judges over the last five years would be entitled to a new disability hearing before a different judge.

Additionally, the five judges in question would have to be retrained, and their decisions will need to be closely monitored for any indication of legal error or misconduct.

The case isn’t quite over yet, as there is still a fairness hearing that needs to take place in late July.

Still, it appears as a light at the end of the tunnel, particularly for the eight individuals who originally filed a complaint with then-Social Security Administrator Michael Astrue back in 2011. The claimants described a “brick wall of bias” that involved the systematic disregard of medical evidence that would have proven disability, as well as a failure to adhere to the appropriate legal standards that would have ensured they received a fair disability hearing.

Among the specific allegations:

• The denial rate in Queens was double what it was nearby Brooklyn;
• Many of those denied were immigrants, raising questions as to potential racial or ethnic bias;
• The judges subjected the claimants to harsh questioning that frequently brought them to tears.

In reviewing the practices of one judge in particular, a federal appellate panel called him not only unhelpful and intemperate, but a “study in combative questioning, which hampered the truth-seeking process.”

The claimants noted that these judges routinely denied anywhere from 60 to 90 percent of the disability claims brought before them.

We are pleased to learn that those claimants will finally get a shot at a fair hearing.

The reality is, even when judges adhere to the proper standards, getting a claim approved is a rigorous process. While the actions of these judges is clearly unacceptable, there is no guarantee that the judge to whom your case is assigned won’t be a particularly rigid one.

The one sure protection you have against this is a skilled SSDI claims lawyer who is experienced in handling these types of cases, someone who will not only help guide you through the process but is also unafraid to become call out authority if you’ve been treated unfairly.
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There is no question that federal disability insurance is an important financial safety net to millions of Americans who, unable to work, would otherwise become destitute.

Still, our Boston Social Security Disability Insurance claims lawyers know that often, these benefits alone are barely enough for recipients to subsist. What’s more, the struggle leading up to a claim approval can take a year or two.

During that time, it’s generally inadvisable to collect unemployment benefits or workers’ compensation or to continue working in any capacity – if that’s even possible – because it could be detrimental to the individual’s claim.

It’s a cruel twist that during this time claimants must survive off savings, credit cards, retirement earnings, loans from friends and family – whatever they can. It makes the journey very tough.

This is why we almost always recommend private disability insurance for those who are still healthy and able to work. These benefits will not affect your ability to later collect SSDI benefits, the way other certain benefits might. They may even be more substantial than what you might expect to get under the federal disability program. What’s more, they usually kick in sooner – especially if you have protection for both short and long-term disability.

Think about it: You insure your home, your vehicle and your valuables. But too often, people fail to protect one of their most important assets – their ability to work and make a living.

Look around at a group of 20-year-olds. Every fourth one will become disabled by the time he or she reaches the age of 67, according to the Social Security Administration. If that disability strikes early in one’s career, the cost will quickly add up to far more than your home or vehicle.

Consider that if a person earns $45,000 annually, over the course of 25 years, we’re talking $1.1 million in earnings.

For a lot of families, losing out on more than a few months of income or to suddenly be living on half a paycheck isn’t an option that will allow them to stay afloat financially. The average monthly disability payout is approximately $1,130, with an extra $300 or so per spouse and child. Most federal disability claims are initially rejected. From there, the average time it takes for an administrative review hearing is about 1 year.

And even if you were able to do some part-time, lower-level work, we usually advise against it because the eligibility process requires that you have a medical condition preventing you from working for at least 1 year.

All of this means you have few options when it comes to how you will manage your finances in the interim. Health Affairs, a health policy research journal, estimates that about half of all mortgage foreclosures (outside of the recent housing crisis) are kick-started by one of the homeowners becoming disabled.

Even if you are disciplined with your budget and smart with your investments, if you don’t protect your income – or at least a part of it – you could find yourself in deep trouble if you suddenly become one of the millions of folks who are struck by a disabling condition.

One of the best ways you can help yourself is through private disability insurance. Explore your options. Consider it an investment. Hope it’s something you’ll never need.
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If you are attempting to claim Social Security Disability Insurance benefits and are also collecting unemployment, you may have a tough time being approved for the former – which is why our Boston SSDI lawyers don’t advise it.

That has been the case for some time.

But now, the law may actually change to legally bar you from collecting both.

With the introduction of H.R. 1502, Rep. Sam Johnson (R-TX) made it clear that he intends to eliminate the possibility that one could get both.

With the Social Security Insurance and Unemployment Benefits Double Dip Elimination Act, Johnson said he hopes to initiate what he calls “common sense” legislation. The measure seems likely to gain significant support on both sides of the aisle, as a similar proposal was recently introduced as part of President Barack Obama’s FY2014 budget plan. The president’s plan estimated that over the course of 10 years, the measure would save an estimated $1 billion.

While the bill has a noble intention in that it seeks to eliminate waste and contribute to the overall preservation of the SSDI program, it may not be truly necessary. While there are certainly some individuals who may collect both, it is rare – and usually not for long, which is why we question the $1 billion over 10 years claim.

Consider this:
The Social Security Administration reports that the average processing time for a claim in Boston is 352 days, ranking us 68th in the country. That is nearly 1 year from the time your claim is denied until the time you are granted a hearing. Usually, you’ve already been waiting several months before that clock even starts ticking.

Now, consider that a recent report by the Wall Street Journal indicated that the maximum time an individual could collect unemployment benefits was 99 weeks, or a little less than 2 years. Many states have cut their unemployment benefit programs in the wake of the recession. Massachusetts wasn’t one of them, but the state only offered 54 weeks.

So 1 year would be the maximum amount of time you could potentially be collecting both benefits in Massachusetts. However, more than likely, one would receive unemployment benefits prior to receipt of Social Security Disability Insurance benefits, just by virtue of the processing time. Given the length of the time it takes to process SSDI claims in Boston, an individual would probably not be collecting both at the same time. The unemployment benefits would probably run out before SSDI benefits were ever granted – if they were granted – barring some severe or terminal condition that would warrant a fast-tracked Compassionate Allowance disability benefit grant.

So there are probably very few collecting both in Massachusetts.

Certainly, we can understand why someone would want to seek both. It can be a very rough financial ride when you are waiting for approval of SSDI benefits. You can’t work, but you still have bills and needs that require attention.

However, the reason we usually advise against collecting both is for this very simple reason: To do so is to claim two conflicting stances. By collecting unemployment, you are saying that you are willing and able to work, but the work is not available. However by seeking SSDI, you are saying that you may have available work, but you are unable to do it as a result of a debilitating medical condition.

When it comes time to evaluate your SSDI claim, your claim reviewer or administrative law judge is likely to question you on this conflict. It can be tough to explain, and in all likelihood, will result in the rejection of your claim. Considering that SSDI benefits last far longer than unemployment benefits, it’s usually not worth it, even for the short-term relief that the latter provides.
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“But you look so good!”

Normally, this might be a compliment. To someone with fibromyalgia, it feels like an attempt to discredit the very real pain and debilitation of an illness that is all but invisible to the outside world.

Our Boston Social Security Disability Insurance attorneys know that for many years, those who suffered with this disease often did so in silence. They were told the pain was in their mind, that they simply needed to be stronger.

With the 2013 Fibromyalgia Awareness Day slated for May 12, we must take a moment to be proud of the fact that we have come a long way since the days when physicians dismissed it as a psychological problem or a “wastebasket diagnosis,” due to the fact that there are no objective findings by way of imaging, laboratory or physical exam that can definitively provide a diagnosis.

That doesn’t make it any less real, and doctors are more apt today to recognize it.

Yet we still have a long way to go and this includes the arena of SSDI benefits.

The U.S. Centers for Disease Control and Prevention reports that some 5 million Americans suffer from this disease, with most diagnosed in middle age. In many cases, the intensity of the condition prohibits sufferers from being able to continue working. However, there is still a great gap in understanding this disease, which means getting disability benefits is often a struggle.

This is a disease for which symptoms include:

• Widespread pain;
• Extreme fatigue and loss of sleep;
• Numbness and tingling in the feet and hands;
• Intense headaches;
• Irritable bowel syndrome;
• Difficulty remembering and thinking;
• Depression.

Part of the problem with obtaining help for those suffering is that the symptoms mirror so many other possible conditions. Even getting a diagnosis can be an achievement. But it is the first step.

The Social Security Administration has no disability listing for fibromyalgia. However, very recently (last summer) the administration issued a ruling providing guidance to claims examiners and administrative law judges on how to handle cases in which fibromyalgia was the central diagnosis.

It used to be that unless fibromyalgia was accompanied by the confirmation of some other debilitating condition – such as degenerative disc disease or arthritis – disability examiners gave little weight to the claim. Part of this had to do with the fact that doctors were routinely handing out the diagnosis when they encountered these symptoms and had no other explanation. It was considered a “catch-all.”

But as the medical community has become more educated about fibromyalgia, this is happening less and less. One of the ways you can avoid having your diagnosis discredited is to have it come from a rheumatologist or orthopedist, as opposed to your family doctor. Having paperwork affirming the diagnosis from both certainly won’t hurt.

The recent administrative ruling on the issue directs disability examiners and judges to depend on the criteria as set forth by the American College of Rheumatology when determining whether to approve a disability claim for fibromyalgia. Those standards include:

• Evidence of widespread and severe pain in the chest, back or neck;
• Evidence that other diseases have been ruled out by your doctor;
• Tender point sites in at least 11 of 18 areas of the body;
• Repeated manifestations of symptoms, signs or conditions that typically occur with fibromyalgia.

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