Legal News

Both the Huffington Post and the Deseret News have recently discussed the greater occurrence of Chronic Traumatic Encephelopathy (CTE) amongst military veterans due to bomb blasting and football players due to the tackles received on the field.  Both cases generally appear as Traumatic Brain Injury (TBI), but later degenerates more fully into CTE. Let’s be clear, TBI can be deadly, and can also give the claimant headaches, nausea, vomiting, ears ringing, difficulty balancing, fatigue, ringing in ears and blurred vision, just to name a few symptoms.  All of these symptoms, if severe enough, can interfere with a claimant’s inability to work.  CTE can be even worse, showing disorientation, overt dementia, staggard gait, confusion, impeded speech, tremors and deafness.  These symptoms, if severe enough, can make it near impossible for a claimant to maintain the pace and persistence of competitive employment. Many claimants with conditions like TBI and CTE, who’s conditions are a result of the work activity they knowingly entered into, wonder if Social Security is even an option, due to an “I brought this on myself” mentality.  This concern is unfounded.  Even if a claimant’s injury is the result of being in a risky environment that the claimant knowingly put him or herself in, Social Security can still be there for the claimant.  The real issue is whether the claimant has a severe mental or physical impairment that prevents him/her from being able to work consistently 8 hours per day, 5 days per week.  For many people with the degenerative condition that is Chronic Traumatic Encephelopathy, the answer will be a clear yes. Social Security claimants generally don’t run into trouble on the sole basis of assuming the risk that caused the condition unless the condition is directly linked to the abuse of drugs or alcohol.  If that is the case, then the claimant would have to show sobriety (often times of 12 months or longer), before being able to prove their claim.  CTE is generally not linked to the abuse of drugs or alcohol and exists separate and apart from that use. Furthermore, the debilitating effects of CTE, in many cases, may result in faster treatment from Social Security.  As one article discussed, the debilitating mental effects of CTE has resulted in suicidal tendencies.  If the claimant’s condition has shown to cause recent suicidal ideation, then Social Security should assign a Critical Case designation and expedite the claim.  While this doesn’t cut much time off the claimant’s processing on the initial application and request for reconsideration, due to the time it takes to request and review medical records, it can result in a substantially shorter wait time for a hearing.  The policy behind this expedite is that it allows the claimant quicker means to get the level of medical treatment that being on Social Security provides, and possible save the claimant’s life. For the Huffington Post article, click Here. For the Deseret News article, click Here.

Is this supposed to be an adversarial process? At a senate hearing in June 2012, the president of the Association of Administrative Law Judges presented the senate committee with several proposals which they felt would help make the Social Security disability process more efficient and more effective. Perhaps the most controversial of these suggestions is that the process be treated as adversarial in nature. In other words, the Judges Association is suggesting that claims for disability be treated as a lawsuit against the government, and that the government be represented by attorneys much like a claimant can be. It seems that the Judges Association is trying to create a conflict in a process which was not meant to be adversarial in nature. Federal regulations set forth criteria in which congress has determined the nature and scope of conditions which would qualify and individual to receive disability benefits. The administrative process allows for factual development of a claim to determine whether the criteria set forth by the Social Security Administration to protect disabled persons is met. The process is supposed to be one of fact gathering and analysis, rather than legal posturing and bickering. When a claimant applies for disability benefits, it was not intended that they be required to fight against government attorneys to find out if they qualify under the criteria set forth by congress. In short, a claimant’s application for benefits should not be treated as lawsuit until there is a legal conflict. This would only serve to punish the people the program was meant to serve. Furthermore, once it gets to Federal Court, the government is represented by attorneys. When a claim is denied by the Appeals Counsel, the next step for claimants and their attorneys is to file suit in Federal Court. At THIS stage, a legal conflict is created and it is appropriate that the interests of both sides be protected by counsel. To be clear, requiring disabled people seeking the benefits offered by the government to fight the government is inconsistent with the fact finding nature of the administrative process. Why create a fight where none exists?  

Interesting piece in our local paper about some of the long-term health consequences faced by former professional football players. Greeman Toomey represents many former NFL players in their Social Security disability claims, for mental and physical health conditions ranging from traumatic brain injuries and chronic traumatic encephalopathy to degenerative conditions of the knee and spine.  

The conditioned called obliterative bronchiolitis or constructive bronchiolitis was included in the new compassionate allowances made effective on August 11, 2012. Obliterative bronchiolitis is an irreversible lung disease where the portions of the lung have been narrowed, greatly restricting one’s ability to breathe effectively. Some veterans who served in Afghanistan and Iraq have been diagnosed with obliterative bronchiolitis after inhaling toxic fumes on active duty – veterans who have been diagnosed with obliterative bronchiolitis while on active duty would be eligible to apply for Social Security disability on an expedited basis.

A recent piece in the Huffington Posts demonstrates the absurdity of a proposal to cut $752 million dollars from the “program integrity” department of the Social Security Administration. The department is responsible for periodic reviews of recipients’ continued income eligibility and medical status. According to the article, Social Security Chief Actuary Stephen Gross estimates that every dollar spent on reviews saves $6, while each dollar spent on SSI redeterminations saves $9. So, the proposed $752 million cut could end up costing $5 to $6 billion dollars.

Frank Bruni of the New York Times published an op-ed arguing that the tripling of persons receiving Social Security disability benefits is being caused, in part, by those who are “gaming the system.” David Vogner of the Huffington Post published his own opinion on the HuffPost’s blog rebutting Mr. Bruni’s opinion, asserting that the increase in recipients is a result of claimants being unable to find employment. One of Mr. Vogner’s counterpoints to Mr. Bruni’s pejorative description of Social Security disability recipients deserves to be highlighted and clarified: Social Security Disability Income Benefits (DIB) are only paid to those who have paid enough into Social Security. Mr. Vogner’s defense of Social Security overlooks Mr. Bruni’s misleading reference to the federal Treasury; disability payments come from FICA and Self Employment Contribution taxes and the Disability Insurance Trust Fund, a separate account within the Treasury that is funded by FICA and Self Employment Contribution taxes. Semantically, some DIB payments come from the Treasury, but the whole truth omitted by Mr. Bruni is that DIB recipients are paid from the same account those recipients paid into when they were working – one could argue that Mr. Bruni is using a straw man argument to make his point.

Pierce asserts that the treating physician rule should be rescinded because, in part, too many people are being awarded disability as a result of this rule.  Basically, the rule states that great weight should be afforded the opinion of a treating source opinion regarding his patient’s ability to work.  The reasoning behind the rule is sound.  A treating physician, provided he has a sufficient treating relationship in regards to the amount of time and frequency of visits, is in the best position to judge his patient’s limitations. Pierce further argues that getting rid of the treating physician rule would take away one of the tools that unscrupulous attorneys are now exploiting in order to gain advantage for their clients, forcing SSA to allow more claims and costing the government money in benefits as well as attorney fees.  This argument turns the fact finding nature of the disability determination on its head. First of all, the treating physician rule is not an absolute, there are factors to be considered in determining how much weight should be given a doctors opinion.  In this fact finding process, fortunately, representatives realize that the person to best judge a person’s limitations is his treating doctor. The fact that an attorney can reach out on his clients behalf, to treating sources, and solicit these opinions, is vital to the disability process.  Given the nature of this process, it seems that this further case development should be praised rather than vilified. Case developers at DDS are overworked to the point where such information is rarely, if ever, solicited. Pierce argues that the treating physician rule puts the ALJ in a difficult position because the cases have already been reviewed by a case examiner and medical expert (neither whom have ever met the claimant).  Interestingly, Pierce admits that an ALJ has the difficult task of determining the extent of a claimant’s mental or physical limitations, and that his solution is to take away the one opinion which will shed the best light on a claimant’s limitations.  The fact that these doctor’s opinions may lead to more disabled people actually being found….well…disabled, should not be a deterrent to applying the rule and letting the disability chip fall where they should, and not as a result of the whim of a financial concern

A brief opinion piece in the Washington Post today questions the Social Security system, but suggests no solutions. http://www.washingtonpost.com/opinions/charles-lane-social-security-disability-insurances-incentive-not-to-work/2012/07/30/gJQA8UvHLX_story.html?wpisrc=emailtoafriend