The Issue of Disability
Sunday, August 27, 2006
By: Joshua W. Potter, Attorney at Law
Reprinted from FMOnline
It is better to work than not to work. It is better to be healthy than to be sick. It is better to be self-sufficient than to be dependent. It is better to be happy than sad.
For a minority of individuals, however, it is not always possible to live these simple ideals. Through happenstance, bad luck, genetic betrayal, or accident, a person may find him/herself unable to work. The cascade of unhappiness, which flows from that, is obvious.
In this country, there are several complimentary systems, which offer some protection to disabled workers. They are both public and private: Social Security Disability, State Disability, Long Term Disability Insurance, Social Security and Supplemental Security Income. Each program, with the exception of Supplemental Security Income for United States citizen requires that an individual have subscribed through work-related contributions. In the case of Social Security (FICA), in the case of State Disability (SDI Contributions), and in the case of private Long Term Disability, the payment of a premium. Each system has remarkably similar requirements to establish disability. For that reason, examination of the Social Security Disability process is helpful to understanding conceptually how each of the other systems function.
Social Security Disability is available to workers who have paid a sufficient amount of premium and are unable to work because of a medically determinable condition. There are a series of appeals, which cause a claim to progress from administrative denial on Application to a hearing before a Federal Administrative Law Judge. The Administrative Law Judge is charged with conducting a hearing de novo and evaluating the information based upon the written Social Security standards as well as the court-made law in the region in which he hears the case. Pragmatically, few people are awarded disability benefits on Initial Application, or on Reconsideration. More people are successful in establishing disability at their Court hearing. Overall, the process is one of winnowing so that from the initial vast pool of applicants for disability, fewer will request reconsideration following the denial and still fewer, a hearing before an Administration Law Judge. Still fewer follow their claims to the Appeals Council and an infinitesimal number proceed to the United States District Court or the United States Court of Appeals in quest of their disability benefits. The attrition throughout the process is good. This system requires not only tenacity but also a meritorious claim. Thus, an individual turned down has the opportunity to better focus their claim as they move up through the system toward the Administrative Law Judge. It is unreasonable to believe that a person who applies for disability initially has the vision or the sophistication to understand what they need to show, when they need to show it. It is unlikely that there is any comprehension of what the definition for disability is–the inability to perform any substantial gainful activity because of a medically determinable condition.
It is no exaggeration to suggest that the label “disability” conveys very little meaning. It is a conclusion. It is a legal and vocational conclusion. An individual who boldly states “I am disabled, pay me” probably does not understand how the word is used and may become very frustrated. “Isn’t my doctor’s declaration that I am disabled good enough? What more does Social Security need.” Simply put, a doctor’s declaration that a patient is disabled carries no greater weight than a doctor’s statement that his patient has a particular disease. With few exceptions, the disease label brings an individual no closer to the payment of the disability than does a conclusion that a patient is, in fact, disabled.
To appreciate this, one needs to understand that for Social Security as well as private disability providers, the legal vocational view of “disability” has more to do with whether an individual is capable of working 5 days a week, 8 hours a day, or its equivalence. Frequently, those most severely affected lack the perspective to see this. Their support mechanisms–that is their loved ones and friends, do not understand. This fosters resentment and frustration of what is a linear process. The real question then is not so much “What is my label – what is the conclusion of my doctor?” rather it is “How does my illness affect my ability to work openly 5 days a week, 8 hours a day?” An individual who is able to work should work. An individual who is able to work at a less stressful position should work in a less stressful position. One who could work making less money should work making less money. The disability system is at the end of a long continuum for a minority of people who simply and totally cannot work.
Thus, the question of “What do they expect – do I have to be dead to receive disability benefits?” can be answered in the negative. What is wanted is a clear demonstration of the existence of a disease and how that disease impacts activities of daily living and a fundamental capacity to work. Thus, mere conclusions by a physician of disability falls upon disbelieving eyes. A suggestion that merely having an illness equates to an inability to work is preposterous. People work with a broad spectrum of diseases from the pain/fatigue cycles of Fibromyalgia through amputations and tumors. The payment of disability benefits rests not merely on the label but how the disease impacts an individual’s ability to consistently and regularly work. Pragmatically, this means that a single report from a treating physician is of little impact. Most reports are conclusionary statements that seem to synthesize the broad clinical experience. Not only is a conclusionary report suspect, but it fails, generally, to reflect the state of the clinical record.
If it can be said that there is a distinguishing feature between successful claims and unsuccessful claims for any of the several disability programs, it must be the quality of the underlying chart rather than the passion of a single report. A complete, conscientious clinical chart that documents the broad range of complaints and alerts the reader to the nature and scope of care is much more helpful.
Ultimately, it is the outward clinical manifestations of illness, which provide the basis for a grant of disability. Most individuals with Fibromyalgia work. Many individuals with Multiple Sclerosis work. Most individuals with Migraine Headaches work. The only way that a reviewer can distinguish between disability and non-disability is by examining the functional impact of the illness on a longitudinal basis.
If there is anything that is singularly important, it is not to short-circuit the medical inquiry from visit to visit. A bold declaration that “I have Fibromyalgia – I have Migraine Headaches” will never alert a reader as to what the overt clinical manifestations of the illness are. The conclusion of non-disability should, must, and will attach unless overcome by a longitudinal history which demonstrates that as a result of the particular impairment, activities of daily living are dramatically curtailed, problems with work and work continuity are negatively impacted. Ultimately, it is the patient’s responsibility to insure that the charts are complete. All doctors know how to craft a complete chart. It is merely a matter of communication. If you do not know what is in your chart, read it. If you do not like what you see, do not argue with your physician, find a new one. It is only through one’s own vigilance that one can be assured that accurate and complete charting, the backbone of any claim for disability exists.
Mr. Potter can be reached at Potter, Cohen & Samulon, (626) 795-0681.