Wednesday, August 29, 2012

My back condition prevents me from working: Can I get SSD benefits?

Studies have shown that 8 out of 10 Americans will experience back pain at some point in their lives. For most people, such pain can be treated with a massage, a trip to the chiropractor, physical therapy, or anti-inflammatory medicine. For some, however, back pain could be a sign of serious conditions, which can eventually lead to significant disability. In fact, some people are so disabled by back problems that they are no longer able to work. These people often face financial hardships and apply for Social Security Disability (SSD) benefits only to be rejected because their conditions do not meet the specific medical criteria necessary to receive SSD benefits. In this post, I will review some of the specific back conditions eligible for SSD benefits.

Medical Listing
Claimants can be found eligible for SSD benefits if they can demonstrate that their medical condition meets all the requirements of a medical listing. This listing is a very detailed comprehensive description of the exact criteria that must be met to qualify a specific condition for SSD consideration. All of this information can be quickly and easily found on the SSA.GOV website. The problem, however, is that the criteria provided is heavily laden with medical terminology, making it nearly impossible for lay people to understand. It took me many days with a medical dictionary and discussions with physician friends and colleagues to get a clear understanding of this very technical terminology. I will try to explain the criteria for a medical listing for a back condition without resorting to all of this medical language to the extent that is possible.
It is important to note that a person can be found eligible for SSD benefits even if their condition does not meet a medical listing.  I will discuss this further in another post.  This post will focus on getting SSD benefits for a back condition based on meeting a medical listing.

Back Conditions Specifically Recognized by the SSA
In describing the medical listing for back problems on its website, the SSA lists several specific conditions that it recognizes. These are important to understand:

1. Herniated Nucleus Palposus: This is what in lay language is called a slipped disk. The spine is composed of interlocking bones (vertebrae) spaced apart by softer cushions called discs. These discs are made of a hard outer surface called the annulus fibrosis which surrounds a soft central component called the nucleus palposus. Occasionally, the outer covering gets worn down allowing the nucleus palposus to bulge out from the spine. Sometimes the nucleus palposus can bulge out so far as to “herniate” or fall onto the nerves of the spinal cord which travel right behind it. This pressure on the nerves can cause back pain, sciatica (pain travelling down one or both legs) as well as weakness or numbness of the legs. Depending on the location along the spinal cord, the damage to nerves can cause problems with walking, urinating, or having bowel movements.

2. Spinal Stenosis: The nerves of the spinal cord travel within a canal formed by the vertebrae of the spine. Sometimes this canal is too narrow (stenosis), placing pressure on the nerves. This narrowness could be something that you are born with or can be due to a variety of problems ranging from trauma to bone spurs. Regardless of the cause, the pressure on the nerves damages them, leading to symptoms similar to those of a herniated nucleus palposus.

3. Facet Arthritis: As I previously mentioned, the spinal cord travels in a canal created by the bones of the spine. At each level of the spinal cord, the two bones surrounding the cord to form the canal are kept together by small joints called facet joints. These joints allow for movement of the spine. As a result, they can face some significant wear and tear leading to arthritis. When the arthritis is mild or moderate, it can cause back pain and stiffness. When it is severe, facet arthritis can create swelling of the area, which puts pressure on the nerves and causes nerve damage and the associated symptoms I previously mentioned.

4. Degenerative Disc Disease: As I mentioned previously, the vertebrae of the spine are cushioned by discs that sit between them. These discs provide padding so the bones don’t rub against each other during movement. With time and use, these disks wear down, allowing the vertebrae to rub against each other. This rubbing can cause severe pain particularly with sitting, twisting, or bending.

5. Osteoarthritis: Osteoarthritis, and specifically Spinal Arthritis, is the generic term for the Facet Arthritis described above.

6. Vertebral Fracture: Like an arm or leg, the bones of the spinal column can also break due to trauma. Such breaks or fractures can cause significant pain. Occasionally the fracture can also cause damage to the nerves of the spinal cord with the associated symptoms I previously mentioned.

7. Spinal Arachnoiditis: No, this has nothing to do with spiders. The Arachnoid Mater is a covering of the brain and the spinal cord. Sometimes this covering can get inflamed due to chemicals, infections, trauma, chronic compression, or surgery. This inflammation, called Arachnoiditis, can subsequently lead to the formation of scar tissue, which can make the nerves of the spinal cord stick together and get damaged. Symptoms caused by this condition include pain and tingling of the legs, trouble controlling the legs, pain with sitting, and, depending on the location of the injury, trouble with urination or bowel movements.

Criteria For Eligibility for SSD by meeting a medical listing
Simply being diagnosed with one of the above conditions is not enough to meet a medical listing for SSD. In order to meet a medical listing, claimants with one of these spinal conditions must also demonstrate that the condition led to impairment of a nerve or the spinal cord in ONE of the following scenarios
1. Compression of a spinal nerve (through slipped disk, facet arthritis, vertebral fracture, degenerative disk disease etc.) as demonstrated by ALL of the following:

a. Neuroanatomic distribution of pain: every nerve of the spinal cord is responsible for making specific muscles move and for making specific areas of the body “feel.” As a result, doctors can often determine which spinal nerve is injured based on which muscles are not working and which parts of the body are numb. In order to meet a medical listing, the SSA requires that the area of pain and weakness described by the claimant should correspond to the expected neuroanatomic distribution of a damaged nerve or nerves as seen on an imaging test(MRI, etc.).

b. Limitation of motion of the spine: pain or stiffness of the back which significantly limits a claimant from bending or twisting .

c. Motor Loss: As I mentioned before, each nerve of the spinal cord is responsible for specific muscles. When the nerve is damaged, doctors often see a decrease in size (atrophy) and weakness of the muscles corresponding to that nerve. To meet a medical listing, a claimant should demonstrate weakness and atrophy of the muscles corresponding to damaged spinal nerve as seen on imaging tests.

d. Sensory Loss: Each nerve of the spinal cord also provides sensation, which is the ability to feel something. With nerve damage, this ability to feel the corresponding parts of the body is also decreased. Again, the area of decreased sensation documented for a claimant needs to match an appropriate nerve seen to be damaged on an imaging test.

e. Loss of reflexes: The health of certain nerves of the spinal cord is also determined by a test of reflexes. This is the test performed by doctors when they hit your knee with a hammer and look for your leg to jump. Some areas of damage to the spinal cord can cause these reflexes to either be more or less noticeable. As always, such changes in reflexes need to correspond to the appropriate damaged spinal nerve as evidenced through imaging.

f. Positive straight leg raising test: This criteria applies only for those claimants with lower back problems. This test is performed with the claimant lying down and sitting up. The doctor lifts each leg with the knee straight. If pain shooting down the raised leg occurs during this procedure, the test is considered positive , signaling a significant back problem.

2. Spinal Arachnoiditis: As I describe above, this condition is an inflammation of the covering of the spinal cord. In order to meet a medical listing for SSD, spinal arachnoiditis needs to be clearly documented in the claimant’s medical record through at least ONE of the following:
a. Operative Report: Documentation of the condition in an operative report in which a surgeon performing back surgery on the claimant clearly states that evidence of spinal arachnioiditis was seen once the spinal cord was visualized during the surgery

b. Pathology Report: Verification on a pathology report that spinal arachnoiditis was found during a biopsy of the spinal cord.

c. Imaging: The presence of spinal arachnoiditis needs to be demonstrated on a medically appropriate imaging test like and MRI.
In addition to the documentation of the presence of the condition in the medical record, the claimant must also demonstrate that spinal arachnoiditis causes:
a. Dyesthesia: This is an abnormal sensation that feels like burning under the skin which subsequently causes the claimant to need a

b. Repeated Change of Posture or Position: The burning sensation caused by spinal arachnoiditis can often cause people with the condition to constantly change their position so as to avoid it. For the purpose of a medical listing, the claimant needs to demonstrate that he needs to change position at least every 2 hours due to this burning sensation caused by the condition.


3. Lumbar Spinal Stenosis: As I mentioned previously, spinal stenosis is a condition which causes compression of the nerves of the spinal cord due to the fact that the bony canal in which the spinal cord travels is too narrow. To meet a medical listing, claimants with spinal stenosis need to demonstrate the following:
a. Verification of the condition with appropriate medical imaging

b. Pseudoclaudication: This is a constellation of symptoms caused by spinal stenosis which includes weakness as well as chronic pain that does NOT follow the distribution of a single particular nerve or group of nerves but, rather, is diffuse. In order to meet a medical listing, a claimant must demonstrate that the pseudoclaudication from the spinal stenosis subsequently causes an

c. Inability to ambulate: The SSA has a specific definition for this: Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. Basically, the SSA is saying that to meet the medical listing for spinal stenosis, a claimant must demonstrate that the condition prevents him or her from walking without the aid of a walker. The SSA then goes on to elaborate:  Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.  Hence, the claimant must demonstrate that the spinal stenosis completely prevents him or her from getting around independently.
A Few Words On Documentation

As you can see, the criteria for a medical listing for back disorders are quite extensive and detailed. In my practice however, I have noticed that most people get denied a medical listing for back problems not because they do not meet the criteria but, rather, because their medical records are not adequate. All of the specific details I mentioned in the above criteria for medical listing need to be present in the medical records. For example, it is not enough to present documentation of a doctor’s visit in which the doctor states that the claimant complains of back pain. Rather, a detailed physical exam must be included which demonstrates the appropriate objective findings I previously mentioned like numbness, weakness, atrophy, positive leg raises, etc. In addition, particularly for back disorders, reports of appropriate imaging tests (like MRI) in the claimant’s medical record are crucial. It is so disappointing to see someone disabled from a back disorder be denied SSD benefits or need to go through an extensive appeals or reapplication process because of a lack of medical records. Understanding the criteria for a medical listing and appropriately presenting this criteria through extensive and appropriate medical records can be the difference between winning and losing an SSD claim for a back disorder.

This is NOT legal advice.  This blog provides general information about Social Security Disability cases.  To discuss your particular circumstances and claim, please contact a lawyer in your area.

Thursday, August 16, 2012

The ALJ denied my claim for Social Security Disability benefits. Now what should I do?

A common question I get from my clients is what to do if their claim is denied by an Administrative Law Judge (ALJ). This is a major decision point in the process for obtaining Social Security Disability benefits. The decision carries significant ramifications so it is important to consider the advantages and disadvantages before moving forward. In this post, I will discuss the options for someone whose claim for Social Security Disability benefits has been denied by an ALJ.

If the ALJ denied your claim for Social Security Disability benefits, you have one of two options:

1) You can decide to disregard your first claim and start fresh.


2) You can also decide to appeal.

Because this decision really does have significant consequences going forward, I do strongly recommend consulting with an experienced Social Security Disability attorney. Choosing one path versus another may mean giving up some rights. While each Social Security Disability claim has its unique issues, here are some basic things to consider in deciding which path to pursue:

Appealing the ALJ’s Decision. If you have received an unfavorable decision from the ALJ, you can appeal this decision to the Appeals Council. In submitting an appeal to the Appeals Council, your attorney should submit legal briefing discussing why the ALJ made mistakes in his decision regarding your eligibility for disability benefits. The advantage to this route is that you keep your alleged onset date (the date you told the Social Security Administration you could no longer work) and protective filing date (the date you filed your application for Social Security Disability benefits). This is important because it means that your back pay would be based on those dates rather than a new date in a new claim. This can be a substantial sum of money. In addition, your Medicare and Medicaid eligibility would be based on the alleged onset dates and protective filing dates rather than a new date in a new claim.

The disadvantage of this path is that the appeals process is a long process. The Appeals Council can take from 12-14 months to decide your case. During this time you are not receiving any benefits. In addition, if they agree with the ALJ, you would have waited a long time and still not been able to receive any Social Security Disability benefits. For many people, waiting this long for benefits can be very difficult, if not impossible.

It is important to note that if you have received an unfavorable decision from the Appeals Council, you will be able to file an appeal in Federal Court. With your Federal Court appeal you will be able to also file a new claim with the Social Security Administration for Social Security Disability benefits. However, this will take still more time without receiving any benefits.

Starting a New Claim. If you have received an unfavorable decision from the ALJ, you can also start a new claim with the Social Security Administration. Starting a new claim can be beneficial because it allows many claimants another opportunity to demonstrate that they are eligible for Social Security Disability benefits. In addition, in pursuing a new claim, you have a new opportunity to prove your disability with a new examiner in the initial stages of your Social Security Disability claim and, hopefully, a new ALJ at the hearing stage. These new people evaluating your case may see your case in a different light and grant you benefits. If granted, these benefits may come much sooner than if you choose to wait out the appeals process.

The disadvantage of submitting a new claim, however, is that you will have a new alleged onset date and protective filing date for your case and, as a result, give up a lot of potential back pay.

There are also certain circumstances in which filing a new case is not an option. One example is when a claimant is filing for SSDI benefits and their Date Last Insured (the date by which they must prove they became disabled) has already expired. In this situation, the only option would be to appeal the decision.

This is NOT legal advice.  This blog provides general information about Social Security Disability cases.  To discuss your particular circumstances and claim, please contact a lawyer in your area.

Wednesday, August 8, 2012

What are the steps for applying for Social Security Disability benefits?

Social Security Disability benefits can provide critical financial assistance for people that are disabled and no longer able to earn a living. Applying for these benefits, however, can be a complicated, confusing and frustrating process. Most people who apply for Social Security Disability benefits will get denied initially. As a result, people applying for Social Security Disability benefits often go through a long process before getting the benefits they need and deserve. Understanding the process and not getting discouraged by an initial rejection can mean the difference between eventually receiving Social Security Disability benefits and remaining empty handed.

In this post, I review the steps of the process that may be required to get Social Security Disability benefits. While benefits may be granted at any one of these steps, it is crucial to remember that most people will go through several steps before they win their claim for benefits.

Initial Claim

The first step to obtaining Social Security Disability benefits is the initial application. To begin the process, you must file an application. There are several ways to file an application including (1) going to a local Social Security Administration (SSA) office), (2) speaking with SSA over the phone, (3) asking an attorney to assist you with the paperwork and arrange an appointment for you.

During your initial application process, SSA will request information from you including, your social security number, date of birth, your alleged onset of disability, contact information for your treating physicians, information about your employment for the past 15 years, income and asset information, and information about your activities of daily living. Once you have completed the initial application, you may also be sent additional questionnaires pertaining to your work experience or particular impairment. The Social Security Administration may also require that you attend an appointment with a consultative examiner. The purpose of this appointment is for the examiner to determine whether the disability for which you are requesting benefits meets the appropriate guidelines of the Social Security Administration.

Some individuals are approved at this level of the claims process. Most are not. The beginning of the application process is very important for every claimant because it is crucial at this point to accurately describe your condition, your past work experience and your current level of functioning. Once you have responded to these questionnaires it is often very difficult to change your answers. Often times, applicants are denied benefits at this stage because they complete the required paperwork incorrectly or do not provide enough detail.


Most people applying for Social Security Disability benefits are denied at the initial claim stage. If you are denied, you should immediately file a Request for Reconsideration. This is the next step in the process for obtaining Social Security Disability benefits. With the Request for Reconsideration, you will also be required to complete a Disability Report - Appeal. In this paperwork, you will be asked about any additional or worsening impairments or the contact information for any additional physicians they may be seeing at the time. As with the initial claim, completing the paperwork accurately is critical to move the process forward.

Unfortunately, at this stage, the Social Security Administration usually reaffirms its original decision and denies the applicant Social Security Disability benefits.


After being denied at the Reconsideration stage, you must file a Request for Hearing. This is a request to have your claim heard before an Administrative Law Judge. During this hearing, an Administrative Law Judge (and not the Social Security Administration) will decide whether you should be awarded Social Security Disability benefits. The hearing is informal but your testimony will be taken under oath. At the hearing, the Administrative Law Judge will often have a vocational expert and/or a medical expert to testify. The vocational expert will testify as to what your past work entailed and assist the judge in determining whether based on your condition you would be able to work. The medical expert will testify and provide an opinion as to your medical condition. During the hearing, you will be asked to testify regarding your age, education, past work experience, and functional limitations.

At this point it is very helpful for claimants to have an attorney present. An attorney should work to ensure that all the evidence is properly entered into the record, you understand the types of questions that you will need to respond to, and the proper questions and answers are asked of the experts at the hearing. Having an attorney greatly increases your chances of winning at the hearing level and also helps preserve the record in case you are required to appeal the Administrative Law Judge’s decision.

Appeal to the Appeals Council

If you are not granted benefits after a hearing before an Administrative Law Judge, there are still several steps of appeal available. The first level of appeal is to the Appeals Council. At this stage, the Appeals Council will request formal legal arguments explaining why your claim for Social Security Disability benefits is justified and why the Administrative Law Judge was wrong to deny benefits in the first place. As you can imagine, at this stage of the process, a legal background is vital to successfully argue for benefits. After reviewing the legal arguments submitted, the Appeals Council can then do one of three things:

1) Agree with the Administrative Law Judge’s decision

2) Send the case back to the Administrative Law Judge to evaluate it once again

3) Disagree with the Administrative Law Judge and grant Social Security Disability benefits to the applicant

Federal Court

If the Appeals Council decides to agree with the Administrative Law Judge’s decision (and, yet again, deny benefits), you can further appeal your claim to the Federal Court. At this stage, an attorney is crucial because the judge will request legal briefing on the matters you are appealing. Without an attorney, a claimant has little chance of success at the federal court level. Like the Appeals Council, the Federal Court can rule in one of three ways:

1) Agree with the Administrative Law Judge’s decision

2) Send the case back to the Administrative Law Judge for further consideration

3) Grant Social Security Disability benefits to the claimant.

Take Home Message

Applying for Social Security Disability benefits is often a long and complicated process. While most applicants will initially be rejected, many steps are available to appeal the initial decision and still receive benefits. The further in the process you go, the more complicated the steps become and the more necessary it is to have some legal knowledge and experience. It is crucial to make the most of every step of the process through an effective and persuasive application and argument for benefits.

This is NOT legal advice.  This blog provides general information about Social Security Disability cases.  To discuss your particular circumstances and claim, please contact a lawyer in your area.

Tuesday, August 7, 2012

Great news for those suffering with Fibromyalgia: The Social Security Administration now officially recognizes Fibromyalgia as a medical condition

Fibromyalgia can be a devastating condition causing pain throughout the body as well as severe fatigue.  Fibromyalgia can be incapacitating, preventing a good quality of life and the ability to work.  Even though fibromyalgia has long been recognized as a debilitating condition, it has been historically difficult for people with fibromyalgia to prove that they have a medical condition that qualifies them for Social Security Disability benefits.

Fortunately, there is now some great news for people suffering from fibromyalgia.  The Social Security Administration has finally adopted guidelines under which they will consider fibromyalgia cases.  According to these rules, the Social Security Administration will consider your fibromyalgia a disabling condition if your medical records demonstrate the following:
  • A history of widespread pain that lasts for at least three months.  The pain may fluctuate in intensity and may not always be present.
  • Evidence that other disorders that could cause the symptoms or signs were excluded; and
  • One of the following:
    • At least 11 tender points on physical examination OR
    • Repeated manifestations of six or more fibromyalgia symptoms including:
      • fatigue
      • cognitive or memory problems (often called "fibro fog")
      • waking unrefreshed
      • depression
      • anxiety disorder
      • irritable bowel syndrome
      • muscle pain
      • muscle weakness
      • headache
      • pain or cramps in the abdomen
      • Raynaud's phenomenon
      • hives or welts
      • blurred vision
      • fever
      • heartburn
      • oral ulcers
      • loss of taste
      • change in taste
      • seizures
      • dry eyes
      • shortness of breath
      • loss of appetite
      • rash
      • sun sensitivity
      • hearing difficulties
      • easy bruising
      • hair loss
      • frequent urination or bladder spasms
Once you can demonstrate that your condition meets the criteria for fibromyalgia, the Social Security Administration will determine whether your condition is severe enough to keep you from working on a full time sustained basis.  These new guidelines can help people suffering from fibromyalgia present a more clear cut case for disability benefits.

If you are suffering from fibromyalgia and are no longer able to work, you can now apply for Social Security Disability benefits with the understanding that you condition will be recognized.  To increase your chances of getting Social Security Disability benefits, you should begin or continue treating with a physician.  If possible, you should consider seeing a rheumatologist (a physician who specializes in conditions such as fibromyalgia).

Although this new ruling is great news for people suffering from fibromyalgia, proving a fibromyalgia case in front of the Social Security Administration can still be tricky.  You should consult with an experienced Social Security Disability attorney in your area to ensure the best possible result for your case.

This is NOT legal advice.  This blog provides general information about Social Security Disability cases.  To discuss your particular circumstances and claim, please contact a lawyer in your area.