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February 2012 Archives

Who will Social Security consider evidence of my disability from?

Who Will Social Security Consider Evidence From? Social Security is looking for acceptable medical sources to establish that you have a medical condition that could result in disability. 20 CFR §404.1513. Acceptable medical sources include but are not limited to: doctors; psychologists; optometrists, podiatrists and speech-language pathologists. 20 CFR §404.1513. The healthcare providers have to be properly licensed or certified in addition to being listed. Social Security may also consider evidence from other sources. These will not be considered medical sources. Other sources can be the following: nurse practitioners; physicians' assistants; naturopaths, chiropractors, audiologists, therapists; educational personnel; social welfare agency personnel and other non-medical sources. 20 CFR §404.1513 It will be important to think about who might have information about your inability to work other than just  your normal doctors. Is there a former employer who could verify that you could no longer perform your job because of your conditions? Are you being helped with your monthly expenses by your church? If so, would the church be willing to state why they are giving you the help. If you have become less active in your church or an organization that you belong to, it would be helpful to have documentation on that as well. Are there activities of daily living that you need help with now? Who helps you with those? It may be helpful to keep a calendar of your bad days to document how many days a month you are not able to function. This information will help fill in the day to day changes that have happened because of your medical condition. Get creative.  Although

I'm applying for Social Security Disability, should I have to follow my doctor's advice?

One common question we are asked by our clients is: I'm applying for disability.  "Do I Have to Do What the Doctor Says? I'm having enough trouble just making ends meet." The short answer is Yes, within reason or it will affect your eligibility to receive Social Security Benefits. "Individuals with a disabling impairment which is amenable to treatment that could be expected to restore their ability to work must follow the prescribed treatment to be found under a disability, unless there is justifiable cause for the failure to follow such treatment." Social Security Ruling 82-59. If there is a failure to follow prescribed treatment then Social Security will determine the following: 1. whether the individual's impairment prevents full-time work; 2. whether the impairment will last for 12 full months or more; 3. whether treatment that could restore an individual's capacity to work has been prescribed; 4. whether there has been a refusal to follow the prescribed treatment and 5. whether the refusal was justified. SSR 82-59 If there is prescribed treatment and it was unjustifiably refused, then the individual will not be eligible for disability benefits. There are a number of reasons for not following treatment that would be considered justified.  For example; if the individual cannot afford the treatment it would not be considered an unjustified refusal. It would be a justified refusal if the treatment would be contrary to an individual's religion. If the treatment is recommended by one doctor but another treating doctor recommends against it, it is a justified refusal to follow one doctor over another. If the treatment carries a high degree of risk because of the unusual nature of the treatment, the refusal is justified. SSR 82-59.   These are just some examples of  situations where failure to follow prescribed treatment would not be a bar to receiving benefits. This is not an exhaustive list and every person's case is different and should be considered on its own merits. The best policy is to do what the doctor says to the best of your ability as it is often difficult enough to explain your individual circumstance without also having to explain why you didn't listen to your doctor as well. Social Security is merely trying to determine whether an individual's condition can be controlled by treatment.  Keeping medical appointments and following prescribed treatment is the one of the best ways to establish that your condition is severe and disabling.  

Social Security Disability when suffering from severe fibromyalgia syndrome or chronic fatigue syndrome

Disability when suffering from severe fibromyalgia syndrome or chronic fatigue syndrome "Many people with severe fibromyalgia syndrome (FMS) or chronic fatigue syndrome (CFS) still wish they could work. However, patients may lack the physical and mental stamina to do so on a sustained basis - with sustained being the key word here. Even when severely impacted patients can exert themselves and "push through," they experience a delayed flare-up of symptoms a few hours or a day later." Richard N. Podell, M.D., M.P.H. and Wendy King Ph.D., R.N., A.P.N. Why Disability Testing for FMS is Misleading; Advice for FMS/CFS Patients and their Disability Team.   Fribromyalgia Network. The Mayo Clinic defines some of the common signs and symptoms of fibromyalgia as follows: "Wide spread pain. Fibromyalgia is characterized by pain in specific areas of your body when pressure is applied. These areas of your body include the back of your head, upper back and neck, upper chest, elbows, hips, and knees. The pain generally persists for months at a time and is often accompanied by stiffness." "Fatigue and sleep disturbances. People with fibromyalgia often wake up tired and unrefreshed even though they seem to get plenty of sleep. Some studies suggest that this sleep problem is the result of a sleep disorder called Alpha Wave Interrupted Sleep Pattern, a condition which deep sleep is frequently interrupted by bursts of brain activity similar to wakefulness. So people with fibromyalgia miss the deep restorative state of sleep. (Stage 4) Night time muscle spasms in your legs (periodic limb movement disorder or nocturnal myoclonus and restless leg syndrome) also may be associated with fibromyalgia."  Mayo Clinic The Mayo Clinic defines the screening and diagnosis processes for fibromyalgia as follows: "Diagnosing fibromyalgia is difficult because there isn't a single, specific laboratory test. In fact, before receiving a diagnosis of fibromyalgia, you may go through  several medical tests such as blood tests and x-rays, only to have the results come back normal. Although these tests may rule out other conditions, such as rheumatoid arthritis, lupus and multiple sclerosis, they can't confirm fibromyalgia." "The American College of Rheumatology has established general classification guidelines for fibromyalgia, to help in the assessment and study of the condition. These guidelines state that the criteria for fibromyalgia are that you have a minimum of 11 locations on your body that are abnormally tender under relatively mild, firm pressure. Also, you must have wide spread pain lasting for three months. In addition to taking your medical history, a doctor checking for fibromyalgia will press firmly on specific points on your head, upper body and certain joints so that you can confirm which cause pain." Mayo Clinic Fibromyalgia cannot be held to an objective test standard. Some Federal Courts have acknowledged that fibromyalgia and its limitations are established by clinical diagnosis. Preston v. Sec. of Health and Human Services, 854 F.2d 851, 818 (6th Cir. 1988); Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003); Boardman v. Prudential Ins. CO. Am., 337 F.3d 9, 16 (1st Cir 2003). It is important to have a doctor perform the appropriate test and clinical examinations to establish a diagnosis of fibromyalgia. It is also important to keep the doctor informed of all the symptoms that occur even if you are not experiencing them at your doctor's visit.

What are the Legal requirements for proving Social Security Disability?

If you understand that Social Security Disability is a Federal Administrative decision determined by a Federal Administrative Law Judge, then what must you prove to be granted disability benefits? A claimant is eligible to receive Social Security disability benefits when that person is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for continuous period of not less than 12 months."  42 U.S.C.A. Section 423 (d)(1)(A). Beyond that, the person: [I]s not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work.  For purposes of the preceding sentences (with respect to any individual) "work which exists in the national economy" means work which exists in significant numbers either in a region where such individual lives or in several regions of the country. 42 U.S.C.A. Section 423(d)(2)(A). The SSA has adopted a set of guidelines designed to achieve consistency and disability determinations.  See, 20 CFR §404.1520. Under these guidelines, the Commissioner must make the following five determinations in a sequential fashion: (1) whether the claimant is currently engaged in substantial gain activity; (2), if not, whether he has a severe impairment; (3) if so, whether that impairment meets or equals a listed impairment in Appendix I of the applicable regulations; (4) if not, whether the impairment prevents the performance of past relevant work; and (5) whether the impairment prevents the performance of any other work existing in the national economy.  20 C.F.R. §404.1520 (b-f). If his impairment meets or equals a listed impairment, the claimant is "disabled." 20 C.F.R. §404.1520(d).  If this is not the case, then the claimant can still show he is disabled by showing his impairment prevents him from performing past relevant work. 20 C.F.R. §404.1520(e)(1993). By satisfying either step 3 or 4, the claim establishes a prima facie case of disability.   At most, the claimant in the Social Security disability case has only the burden of proving that they can no longer perform their past relevant work.  Thus, the burden of proof is upon the defendant (here the Social Security Administration is the Defendant) to show some other work that the plaintiff can perform despite his medical impairments.  Grant v. Schweiker, 699 F.2d 189 (4th Cir. 1983).  When the burden shifts to the Commissioner of the Social Security Administration, this leads to the fifth and final inquiry in the sequence; whether the impairment prevents the performance of any work existing in the national economy.  Hall v. Harris, 658 F2d 260, 264 (4th Cir. 1981); Hunter v. Sullivan, 993 F2d 31, 35 (4th Cir. 1993). If the claimant reaches step 5, the burden shifts to the Commissioner of Social Security to show that other jobs exist in the national economy that the claimant can perform considering her age, education and work experience.  20 C.F.R. §404.1520(f). Thus, if you can demonstrate that you either meet or equal a listed impairment or that you can no longer perform your past relevant work then the burden of proof shifts to Social Security to show that you can perform other jobs depending on your age, education and work experience. If you have questions about these legal requirements contact our office and speak to Susan O'Malley a NC Bar Certified Social Security Disability Specialist.

Personal Injury: I was not at fault and injured, why do I have to release my unrelated Medical Records to the Insurance Defense Attorney?

Whether you must hand over to the defense lawyer your medical records unrelated to the injury you sustained in this accident is often a case specific decision.  In fact, a case by case determination is the way the North Carolina Supreme Court decided this issue should be handled.   In most cases the physician-patient privilege prevents disclosure of medicals records to others.  The physician-patient privilege is rooted in public policy to "encourage the patient to fully disclose pertinent information to a physician so that proper treatment may be prescribed, to protect the patient against public disclosure of socially stigmatized diseases, and to shield the patient from self-incrimination."  Crist v. Moffatt, 326 N.C. 326, 389 S.E. 2d 41(1990). Our Supreme Court has declined to hold "the physician-patient privilege is waived whenever a patient files a lawsuit in which his physical condition is an element of the claim or defense."  Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987).    Instead, our Courts have held that the question of waiver is "to be determined largely by the facts and circumstances of the particular case on trial."  Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987). The physician-patient privilege is statutory. N.C.G.S. 8-53.  This statute protects the information given to your physician unless that information is "necessary to a proper administration of justice."  N.C.G.S. 8-53.  In North Carolina the physician-patient privilege exists "so long as the patient insists on it" and a trial court has not compelled disclosure to necessitate "a proper administration of justice."  Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987), Crist v. Moffatt, 326 N.C. 326, 389 S.E. 2d 41(1990), N.C.G.S. 8-53. Therefore often a hearing must take place when a defendant wants prior medical records to determine whether it is reasonable to waive the privilege protecting them.  If a Judge determines that the defendant's interest in obtaining the records is "necessary to a proper administration of justice" then the records must be turned over regardless of the thoughts of the injured party. Often there is a separate, yet equally important issue, who is going to pay to order and obtain these prior records for the Plaintiff's physicians?  As the legislature and the courts have recently established that the costs to be awarded to the winning or prevailing party are limited to N.C.G.S. 7A-305(d)(10) and (11) and as the statutory costs of procuring medical records are clearly outlined in N.C.G.S. 90-411; these costs are not included in the recoverable costs statute.  Therefore, a Plaintiff may have to pay to obtain their own prior records and then may not be reimbursed even if they win the case.  This result seems wrong - the defense should be required to pay the statutory costs of obtaining the medical records pursuant to N.C.G.S. 90-411.  As there is a clearly denominated amount to obtain the medical records that the legislature has stated is reasonable in nature  N.C.G.S. 90-411 then it is only reasonable that the Defendants pay to obtain said records as this cost should be added to N.C.G.S. 7A-305(d)(10) and (11).

Unauthorized practice of law: Can a Corporation represent itself for Workers' Compensation in North Carolina?

Once a business has become incorporated, what can it legally do for itself in North Carolina in the Industrial Commission?  The Industrial Commission is the governing body for workers' compensation. Black's Law Dictionary defines a motion as "an application made to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of the applicant..."  Black's Law Dictionary, Abridged Sixth Edition (1991). The practice of law is defined by the North Carolina General Statutes as: The phrase "practice law" as used in this Chapter is defined to be performing any legal service for any other person, firm or corporation, with or without compensation, specifically including the preparation or aiding in the preparation of deeds, mortgages, wills, trust instruments, inventories, accounts or reports of guardians, trustees, administrators or executors, or preparing or aiding in the preparation of any petitions or orders in any probate or court proceeding;  abstracting or passing upon titles, the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial or quasi-judicial bodies, or assisting by advice, counsel, or otherwise in any legal work;  and to advise or give opinion upon the legal rights of any person, firm or corporation: .......... N.C.G.S. §84-2.1 Except as otherwise permitted by law, it shall be unlawful for any person or association of persons, except active members of the Bar of the State of North Carolina admitted and licensed to practice as attorneys-at-law, to appear as attorney or counselor at law in any action or proceeding before any judicial body, including the North Carolina Industrial Commission, or the Utilities Commission;  to maintain, conduct, or defend the same, except in his own behalf as a party thereto;  or, by word, sign, letter, or advertisement, to hold out himself, or themselves, as competent or qualified to give legal advice or counsel, or to prepare legal documents, or as being engaged in advising or counseling in law or acting as attorney or counselor-at-law, or in furnishing the services of a lawyer or lawyers;  and it shall be unlawful for any person or association of persons except active members of the Bar, for or without a fee or consideration, to give legal advice or counsel, perform for or furnish to another legal services, or to prepare directly or through another for another person, firm or corporation, any will or testamentary disposition, or instrument of trust, or to organize corporations or prepare for another person, firm or corporation, any other legal document........ N.C.G.S. §84-4. Further, and specifically with regard to corporations: (a) It shall be unlawful for any corporation to practice law or appear as an attorney for any person in any court in this State, or before any judicial body or the North Carolina Industrial Commission, Utilities Commission, or the Employment Security Commission, or hold itself out to the public or advertise as being entitled to practice law;  and no corporation shall organize corporations, or draw agreements, or other legal documents, or draw wills, or practice law, or give legal advice, or hold itself out in any manner as being entitled to do any of the foregoing acts, by or through any person orally or by advertisement, letter or circular. .... N.C.G.S. §84-5 (a). The Court further clarified specifically that formal court proceedings are not to be handled by a salaried employee of a corporation, such as a workers' compensation insurance company, but instead by a duly licensed attorney. N.C.G.S. §84-5(a)(2)(c). Therefore, a business must hire outside counsel to defend itself with regard to a workers' compensation claim.

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