Case Strategy for Disability Claims
Based on Multiple Sclerosis

The primary issue in your Social Security disability case is whether you are capable of working.  The key is to identify a good medical reason for not being able to work; your chances of winning will be very slim if you only focus on the details of your medical problem.  So, focus on specific ways in which your ability to function has been hindered by your condition.

In several multiple sclerosis cases, we have seen handwritten notes from either a primary care physician or a neurologist.  The positive news is - most MS patients have a consistent history of regular visits to a physician, as well as a strong professional relationship with that physician.

In every office note, your physician may write down how you reported a particular symptom, his impressions as to the power of symptoms, the beginning of new symptoms, and your well-being at the time of the visit.  Your physician also may note what medications you are currently on, how well your medicine is working, and whether he/she will refer you to a specialist for more tests.

So, what is missing here?  These notes are perfectly good as documentation of your sickness and your treatment.  On the other hand, they may not help you in your Social Security case.

Keep in mind, Social Security, focuses on work activity limitations.  Repeatedly, there is nothing within these records about how much you can lift, how much you can carry, or how long you can actually sit.  There is also no study 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, there is a chance that he/she may not note in detail some of the symptoms experienced by MS patients - such as visual problems, breathing problems, or even depression.

A Social Security adjudicator would not give these notes a second look since they do not even start to suggest limitations on your functioning.  Even an experienced Social Security Judge will not attempt to derive detailed work limitations from this type of office note.  Some judges may, however, recognize the consequence of a long treatment history, and might be more inclined to accept limitations set out in your testimony.  Other judges, on the other hand, are less likely to believe anything unless it is in your record.

Utilizing Social Security’s Special Language for MS Claims

As your attorney, I would handle this issue by studying your medical record, then make a decision as to whether I feel that we could make an argument that you meet the 11.09 Multiple Sclerosis listing, or whether we needed to argue that your “functional capacity” for work had been so decreased by your symptoms that you would not be a productive employee. Sometimes we can even argue both.

Since both the Listing and the Functional Capacity argument look to activity boundaries, I usually develop a checklist form (called a “functional capacity” form) that tracks most of your symptoms.  Our forms (which are based on the official Social Security forms) also include the detailed functional limitations set forth in the judge’s handbook used by your Social Security Judge.  Further, after representing claimants at hundreds of hearings, I know which vocational factors carry the most weight with judges.

For instance, a pain limitation that causes interference with concentration such that you would not be able to understand and take complex job instructions is not extremely 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 five minutes at a time and that you must lie down for thirty minutes every 3 hours is extremely significant since there are no jobs that would permit an unscheduled thirty minute break every three hours.

Special Issues in MS Cases

MS has special issues in a Social Security case.  One of the largest problems we often see has to do with the onset of new symptoms.  Keep in mind; the first 2 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 eighteen months.  As you know, MS is a disease that can produce new and different symptoms with each flare-up.

If you now claim symptoms that were not identified in your initial application, the Judge may postpone your case to a later date 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 have completely filled out your application.

You can actually help your case and your lawyer by keeping copies of all the forms and applications you completed for Social Security.  If you have developed new symptoms, we can update your file early enough so that any consultative exams can be scheduled well in advance of your hearing and reducing any more delay.

Getting Cooperation from your Physician

Your physician may actually believe that you are unable to work, but if he is not familiar with Social Security practice and procedure, he may not think to complete the most important questions posed in a functional capacity form.  Every case is different - there are certain activity limitations that seem especially important to Social Security judges.  These “threshold” activities relate to job reliability and minimal physical activities.

Over the past few years, we have run into some situations in which a client’s physician “does not want to get involved.”  Often this is the result of a negative experience with a legal case in the past - perhaps the physician was forced to wait around the courthouse for hours, only to be brutally cross-examined by an aggressive lawyer.

If your physician 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 usually always accepted.  Live testimony by the physician is extremely rare.  In addition, there is no cross-examination by a hostile lawyer - at the Administrative Law Judge level, there is no “government lawyer” on the other side.

Plus, 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, can be a source of payment for your physician, and may result in more cooperation.

As attorney representatives, our past 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 physician 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 supportive physician.

How to Prepare your Case File for a Hearing

For many, it is surprising to know that most physicians’ notes are not typed but actually handwritten and difficult to read.  In several cases, we have had to work with a physician’s office to “translate” notes so that people can read and understand them.

None of this is to suggest that a physician with sloppy handwriting or sketchy office notes is not a good, caring physician.  To the contrary, your physician’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 physician’s office notes can make or break your case - thus we see our role as one whereby we “translate” medical findings into work limitations.

How to Prepare In Advance for your Hearing

As attorney representatives, we 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.  On the other hand, you are required 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:

• Make sure you review your file thoroughly - make sure that all records of medical treatment are present and up to date.
• Think about a theory of disability - why are you unable to work. You should be able to boil this down to two or three sentences.
• Make sure to 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 our law office, we prepare in advance for hearings by reviewing your claims file two to six weeks prior to the hearing and summarizing the claims information and medical records into a 2 or 3 page typed summary.  By reviewing your file early, we have enough time to update records.

All pertinent treatment notes are entered in date order and all are referenced by the Exhibit page number.  Thus, if we are discussing a particular medical record, we can identify it specifically for the judge.  At your hearing, therefore, you will note that our hearing worksheet is a neat two or three page document rather than a bulky file.

We usually bring the laptop computer to the hearing and enter hearing notes directly.  We use these annotated hearing notes to track the questions typically asked by a particular judge and the “hot buttons” that help us win cases.  We would like to think that this method will help us serve you better.

Further Information on MS Claims

We thought one might find it interesting to review some of our cases involving MS.   All client names and other identifying information have been changed to preserve client confidentiality.

Multiple Sclerosis - Case Study #1: 42 year old woman

Multiple Sclerosis - Case Study #2: 23 year old man with MS-like demyelinating process

Multiple Sclerosis - Case Study #3: 49 year old woman with 20+ year work history and definitive MS diagnosis