Fall 2016

Below is the Social Security Newsletter Fall 2016 for the State Bar of Michigan.

CD's No Longer Provided to Representative Prior to Hearing

Effective August 16, 2016, ODAR will no longer provide CD copies of the electronic file to representatives who request direct payment of fees (81 Federal Register 22697 and HALLEX I-5-1-22).

HALLEX provides that representatives now must obtain their own CD through the electronic record. Any representative caught off guard will be provided a CD with a polite reminder that it will be their last from the hearing office.

The Editor asked ODAR if there was any problem with the CDs that are burned at our office to be used in the computer in the conference rooms at the Hearing Office.  We were informed that ODAR has an adequate  firewall.  In fact, the Editor tried out a couple CDs and they worked just as good as the CDs provided by ODAR.

Representing Flint Michigan Cases on Disability Claims for the Water Crisis

SSA has provided instructions for processing, flagging and coding disability claims related to the Flint water crisis.  Instructions include information about medical evidence and impairments that may result from the lead-laced drinking water (EM 16018 May 17, 2016).

Blood tests are required for lead levels which should be routinely performed on any claimant residing in the Flint area if tests have not been run already on your client.  The Regulations caution that the  blood level tests “do not directly correlate with severity and because they are available at no or low cost from public health entities, we do no expect adjudicators to purchase these tests in a consultative  exam.”

When reviewing the electronic file of your client, especially if there are lead-related issues, make sure that it is properly flagged.  SSA has created a “Flint flag” for this purpose.

June 2016 Social Security Section Meeting

The following excerpts are from a presentation at the Summer Section Meeting.

Nancy L. Anderson, esq. discussed getting attorney fees paid in a more timely manner.  Her office has a procedure for tracking the status of cases after the Favorable Decision.  She reminded us to double check the filing date and onset date in the Decision.

Nancy’s office has the same type of tracking process for fee petitions, which can take more than three months before they are approved.  

Nancy also discussed problems with SSA reporting fee income to the IRS on 1099s and how to fill out your individual 1040 when fees all go to the firm’s account.  Part of the problem is that  the IRS issues two different 1099s showing money in different areas which can be explained on tax returns.  Nancy gave the number for the SSA Representative Services Center to track payment of fees, which is (877) 826-6363.

Local Update on Issues Related to SSA

Three speakers were present, i.e., Vonda Van Til, Public Affairs Specialist, of the Grand Rapids field office;  Hillary Kanady, Area Work Incentive Coordinator at SSA; and Jenna Shackelford, Professional Relations Officer, DDS. 

Ms. Van Til indicated her job deals with representatives rather than claimants.  She does public relations for representatives rather than the general public.  

Ms. Kanady works at the Grand Rapids field office handling new applications.  She discussed she uses the Internet to file third-party claims, where the client is not there to attest the application.  

Nothing has changed regarding SSI applications as the system does not allow them to be filed online, including children’s SSI.  However, if you have a dual claim, you can indicate in the Notes section that you want to file an SSI claim as well.  You will be contacted by the local office to set up an appointment for the filing of the SSI claim.  Ms. Kanady covered the basics of filing an initial application online.  She highly recommended that we submit all paperwork to the field office at the same time so that everything stays together.

Ms. Kanady also talked about the appeals process and the basics of form and filing.  She reminded the audience that, as of August 16, we will have to request the files online through ERE.  However, we can still obtain a disc from a claimant who is not yet represented.

Ms. Shackelford spoke about her work as a DDS Examiner and went through the basics of the Sequential Evaluation Process.  She suggested calling the Examiner assigned to your client’s case if you want to know whether DDS received the medical records. 

She also discussed using DDS Form 406, which is the Appointed Representative Form.  This is the bar code for your case, and you use this to submit medical records or other documents to your DDS Examiner.  Although many of the DDS units send the form out automatically, you can certainly request it from your Examiner, especially if you are signing on after the initial claim is filed.

From a statistical standpoint, DDS orders consultative examinations in 47 percent of the cases.  She indicated that DDS’s official position is they are happy with having the treating physician perform the CE.  The doctor must accept the rate and must have a current valid license.  For internal medicine exams, DDS pays $55, although they will pay their contract examiners $120.  Lumping all DDS offices in Michigan together, the approval rate is up to 33.7 percent.  This also includes CDR cases.

Ms. Shackelford recommended that it is always helpful for us to encourage getting the Adult Function Reports and other forms turned in on a timely basis.

Regarding getting a copy of a CE that is currently pending, as you are aware, this can be very difficult if not impossible.  The best procedure, according to Ms. Shackelford, is to send a request  signed by your client with a case number or SS number.  The request can then be sent using the bar code. 

Unemployment and Disability

Jim Rinck, Esq., from Grand Rapids, spoke to the group regarding unemployment and related issues in disability claims.  He referred to the August 2010 memo from Chief ALJ Frank A. Cristaudo which cautions ODAR that applying for unemployment during a disability claim is not automatically inconsistent – especially when there is no guarantee on whether the claimant is going to win their Social Security claim.  Jim cited the case of Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) which notes that the law does not preclude receiving both benefits at the same time.  

Obviously, the problem of receiving unemployment benefits during a disability claim has drastically reduced due to the reduction in unemployment rates and the fact that the benefits no longer last a year, which increases the likelihood of overlapping benefits.

In cases where it becomes a significant issue, you want to make sure you are prepared for amending the onset date when the unemployment benefits have ceased so there is no double-dipping issue.

Obtaining Medical Records

Melinda Golden discussed obtaining medical records under the state and federal law.  She discussed how requests from third parties, such as attorneys, are treated differently than requests from an individual, such as the patient.  She discussed the basis of HIPAA, including a reminder that medically indigent persons should be able to obtain their records without a fee for the first request.  

 There is substantial confusion on this law because medical record providers are denying an updated second request when asking to waive the fees.  Many offices do not realize that a fee is charged on a second request only if the individual is requesting the same medical records a second time rather a different time frame.  

Ms. Golden also talked about the High Tech Act, which expands on HIPAA.  When we request records electronically, we can only be charged for actual labor and fees if your client is not medically indigent.  The state law on medical indigency allowing for a free copy of a patient’s medical records (as opposed to counseling or mental health records) is found under HR 4706.

Dr. Nancy Dodge talks about Lead Exposure

Nancy N. Dodge, MD, FAAP, discussed the effects of lead in water and other children’s issues related to SSA Disability.  Dr. Dodge discussed the state of medical knowledge regarding lead exposure.  This includes the “action level” for blood levels, which is currently 5 micrograms/deciliter (µg/dL).  The level was first set at 25 µg/dL. This was later reduced to 10 µg/dL, and then to 5 µg/dL in 2012.

Blood lead levels have a half-life of only 30 days.  From a practical standpoint, this makes it difficult to determine accurate levels of lead exposure if testing is delayed.  Even with the short half-life, 5 percent of all children in Flint were found to have “action levels” of lead going up to 10.6 percent in some high-risk neighborhoods.  None of these cases rose to the level of actual “lead poisoning.”

Little is known about the long-term damage that occurs from lead exposure.  It is known that lead can be stored in the bones for life and leached out later.  However, it is difficult, if not impossible, to test.  There is no direct relationship between exposure to lead and its absorption in the body.  However, absorption is worse in situations of higher stress, such as poor nutrition.  

Another problem about the cause and effect of lead poisoning is that it can only be measured statistically within a population.  This is because there is no clear signature of side effects from lead exposure.  Research has shown that there are 20 different pathways that lead can affect brain functioning.

What is known is the worst effect is in children under age 2.  However, when they are exposed this young, the effects may not show up until the children grow older.  

What is also known is that lead can certainly depress brain functioning, IQ and higher cognitive functioning in adults.  Dr. Dodge indicated that the IQ reduction can be from 4 to 8 points for blood levels past the 10 µg/dL level.  However, she warned that different studies have produced different  results.  

Researchers also know that visual-spatial skills are most consistently affected from lead poisoning.  This includes fine and gross motor skills. 

There is also an increased incidence of ADHD, aggressive and disruptive behavior, as well as speech and language deficits, especially with central auditory processing.  

The main point here is that, although we are not particularly interested in the causation in exposure to individuals, we need to know that our clients may experience cognitive impairments that need to be adequately worked up by medical and/or psychological providers so that we know the nature and extent of the co-morbid lead poisoning condition.

Summary provided by Victor Galea, Esq., Social Security Newsletter Fall 2016

Neurological Listing Recently Updated 

Effective July 1, SSA has revised the Neurological Listings for adults and children.  The revisions are the first since 1985.  According to NOSSCR, SSA received more than 3,000 comments on suggestions for updating the Neurological Listings.  The changes bring the science more up to date with the Listings.  Please note that these changes in the Listings are effective for cases filed or pending as of September 29, 2016.  A rarely used Ruling under SSR 87-6 regarding the treatment in Epilepsy cases has been rescinded, incorporating portions of this Ruling in the new Listing.

Some substantial changes were made in the Parkinson’s Syndrome criteria, although from a practical standpoint, practitioners rarely will have these cases as they are typically approved at the initial level.

The Listing under Epilepsy has also been changed, with the old Listing requiring drug levels in a three-month period.  Additionally, IQ scores have been removed from the Neurological Listings for children with  epilepsy or spinal cord injuries and for claimants with cerebral palsy, as this was found to be too rigid a requirement.

Make sure you download this current Listing, as it came into effect after the April 2016 CFR Regulations Book came out this year.  The updated version can be found under 81 Fed. Reg. 43048 (7/1/2016).

Lewis M. Seward, Social Security Newsletter Fall 2016


New POMS on Clarifying Release of Installment Payments on Retro SSI Benefits

There is a new POMS on clarifying installment payments for past-due SSI claimants.  Under SI 02101.020, the language regarding when installment payments are utilized has remained unchanged, i.e., if the claimant is eligible for an amount that equals or exceeds three times the current maximum SSI benefit plus the Federally administered State Supplement, which is $15 a month.  The installments are still released in six-month intervals.

What SSI clients want to know is how to have released more than the usual three-month installment. The POMS continues to allow the release of larger installments if the claimant has unpaid rent or house payments or past-due medical expenses.  The debts for housing also include property insurance, taxes, utilities, etc.  

Many clients will ask about using the retro to purchase a vehicle.  A car can still be purchased if it is necessary to get to your doctor appointments or receive medical treatment, especially if the claimant does not have access to public transportation.  Additional expenses could be to purchase a mobile  phone or even a computer to enable the claimant to use SSA’s online services.  

The claimant must have adequate documentation of the expenses.  If they want to purchase a car, they should check with the particular Claims Representative working on their claim to see what they require.  At a minimum, they will need a proposed purchase agreement showing describing the vehicle and how the total cost was arrived at.

Lewis M. Seward, Social Security Newsletter Fall 2016


Obtaining Medical Source Statements From the VA 

As you are aware, it’s really hit-or-miss whether you are able to obtain a Medical Source Statement from a VA provider.  The Editor has never quite understood the push-back from VA providers on refusing to fill out the forms.  

Unfortunately, it’s still the case where veterans receiving treatment at the VA are not on an equal playing field with other patients receiving care.

I spoke to Bob Walsh, our VA expert on these matters, who indicated that the VA is resistant on having practitioners complete Medical Source Statements, as the same form may be used to obtain service-connected benefits.  Apparently, employees can lose their job if they fill out these forms.  

A recent article in the July 2016 NOSSCR Newsletter examined VA Directive 2013-002.  It discusses the completion of in-house VA disability forms called Disability Benefit Questionnaires (DBQs).

A cooperative provider can complete a VA Disability form during an office visit when time permits, or a separate appointment can be scheduled for completion of the form.  To obtain a particular Disability Benefit Questionnaire to suit your client’s medical problems, Google “Disability Benefit Questionnaire.”  You will see the link for the U.S. Department of Veterans Affairs (DBQs).  Going to the website, there is a link for the 70+ forms which are outlined by medical condition, i.e., cardiovascular (three different forms), ENT (three different forms), gastrointestinal (eight different forms), etc.  They are available in PDF form. 

The Editor looked at some of these forms.  For instance, the Diabetes form is a fairly easy three-page check-the-box and short-answer form.  The form is fairly thorough documenting objective signs and symptoms.  However, there are no questions addressing vocational issues such as being off-task in the context of an eight-hour workday or number of days the veteran would be expected to be absent from work due to their impairments, etc.

The 70+ questionnaires are a great resource for customizing a questionnaire for your particular client, whether it’s through the VA system or not.  For instance, looking at the Musculoskeletal back, thoracic, lumbar conditions questionnaire, in addition to the signs and symptoms check-the-box portions, there are also a range-of-motion section, questions on gait, etc.  This particular form is quite lengthy and may not be able to be completed in a normal office visit.  The point is, the VA has done a good job asking the practitioner the correct, relevant questions, which you can use in designing an abbreviated questionnaire for your own clients.

If anything, these forms are very good to more clearly document all the signs and symptoms of your client, especially in the convoluted VA record, where everything just runs together and is difficult to read.  Picking out the appropriate signs and symptoms is like searching for a needle in a haystack.  

You can try providing your own form (assuming it is not too lengthy) to the VA health provider which they can complete at their discretion.  

Mr. Walsh has a Plan B for the scenario where the provider politely refuses to fill out a lawyer-supplied form.  The patient can ask the doctor to document in the VA medical record the answers to the questions so that the provider is not filling out a form (in the unlikely event that they may be fired), but merely just documenting in the VA record the signs, symptoms and questions that are more particularly suited to a Social Security Disability claim.

If you have any specific questions regarding disabled veterans, please contact Bob Walsh at robert@robertpwalsh.com.

Lewis M. Seward, Social Security Newsletter Fall 2016


Proposed Five-Day Deadline for Submitting Evidence

SSA is attempting to implement a rule that would require representatives to submit evidence within five days of the hearing.  Apparently, there is a pilot program in a five-state region in the Boston area that currently requires a five-day deadline for submitting evidence.  One positive aspect about the proposed changes in Regulations is it will change the mailing of the Notice of Hearing from 20 days before the hearing to 60 days, which basically impacts non-represented claimants who would have 60 days instead of 20 days to find a representative.

As you are aware, medical treatment is like a freight train that is impossible to stop.  Important tests or evaluations may be performed just prior to or after the hearing. 

Additionally, it is getting exceedingly difficult to obtain all the medical records under SSA’s “All Evidence Rule,” whether they are germane to the claimant’s disability or not.  With the advent of Obamacare, cases which normally had two or three medical providers now have six or more.  Each provider has its own way and timeline of fulfilling medical record requests.

The end result is, by the time you receive the records, they are usually six to eight weeks old.  Unless the record is open for important evaluations or tests, the full nature and extent of the claimant’s impairments are not adequately documented in your client’s case.

The two exceptions to the five-day rule are: (1) when your client has a physical, mental, educational or linguistic limitation which prevents you from submitting the evidence; or (2) other unusual, unexpected or unavoidable circumstances beyond your control.  

Those two exceptions basically describe all of the problems that are associated with the timely requesting of records – from the medical office misplacing your request to the medical office dog eating your request.  The deadline also applies to Pre-Hearing Memorandums.  The proposed rule  also requests at least 10 business days before the hearing for a request of a subpoena (which is rarely used).  

There are also rules on issuing additional evidence at the Appeals Council.  Basically, the Appeals Council can consider only additional evidence that is new and material relating to the period before the hearing, which really isn’t a change at all.  

Since these are proposed changes, we will update you once the final rules come into effect.

Lewis M. Seward, Social Security Newsletter Fall 2016


We hope you found the Social Security Newsletter Fall 2016 Informative


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