Multiple Sclerosis
Multiple SclerosisSocial Security, Long Term Disability
Insurance and Other Disability Benefits. Issues in Proving
Disability What you need to know.
John V. Tucker, Esq.The Law Offices of Anderson & Tucker2101
Fifth Ave. North, St. Petersburg, FL
33713(727)[email protected]
Types of Disability Benefits
Disability Insurance Short Term Disability (STD)Long Term
Disability (LTD)
Employer Pension Disability
Disability Premium Waivers i.e. Life Insurance
Social Security Disability
STD & LTD - Disability InsuranceDisability Insurance - 2
different categories:
Benefits you have through your Employer covered by the Employee
Retirement Income Security Act (ERISA) [Note: Does not apply to
government or church employees];
A disability policy you purchased on your own, through an
insurance agent.
See http://andersontucker.com/fq_FAQ.htm
Group Short and Long Term DisabilityShort Term Disability
provides benefits to a person for a short period of time. The
duration is usually 6 months, although this can vary somewhat from
policy to policy. These benefits are provided weekly and pay a
varying percentage of a persons salary, again depending on the
policy.
Long Term Disability provides benefits to a person for a much
longer period of time. Typically until the person turns age 65.
These benefits are provided monthly and typically pay 60%, 66
and2/3% or 50% of persons salary.
Employer Benefits ERISAERISA is a federal law that limits your
rights convoluted appeals systemInsurers are given great leewayNo
jury trialsFederal judges make decisions if you have to file suit
to get your benefitsYou may have to pay your own attorney fees.
Individual Insurance(includes non-employer groups)Typically no
convoluted appealsFaster than ERISA claimsIf denied, can file a
lawsuitJuries (not lifetime appointee judges) make the decision on
your caseIf you win, your insurance company must pay your attorney
fees in Florida
Other Differences Between ERISA and Individual CoverageERISA
Plans:Benefit based on %
Employer picks exclusions and limitations
Cheaper and your employer may payIndividual Coverage:Specific $
per month
You can select (buy) better coverage with less exclusions
More Expensive and you pay all the premium
Common Exclusions & Limitations That Impact MS
PatientsSelf-Reported SymptomsMental and Nervous
ConditionsObjective Evidence requirementsDeduction for Other
BenefitsSocial Security DisabilityVeterans BenefitsSome plans even
deduct 401K checks
What Coverage Do You Have?Read Your Plan or PolicyWithout it,
you dont know the rules.If you dont have it, ask for it from your
employer or insurance company IN WRITING CERTIFIED MAIL, RETURN
RECEIPT REQUESTED!
Self-Reported & Mental SymptomsOften, Disability Insurance
Companies will place a limitation on the amount of time they will
pay a claimant for both mental and nervous impairments, and, any
condition which they believe is not objectively verifiable. They
call this limitation a self-reported symptom limitation.
Sample Limitation language: Disabilities, due to a sickness or
injury, which are primarily based on self-reported symptoms, and
disabilities due to mental illness, alcoholism or drug abuse, have
a limited pay period up to 24 months.
Self-Reported Symptoms (cont.)Sample definition for
self-reported symptoms :Self-Reported Symptoms means the
manifestations of your condition which you tell your physician,
that are not verifiable using tests, procedures or clinical
examinations standardly accepted in the practice of medicine.
Examples of self-reported symptoms include, but are not limited to
headaches, pain, fatigue, stiffness, soreness, ringing in ears,
dizziness, numbness and loss of energy.
Objective EvidenceMany LTD policies contain a provision stating
that you must provide the Insurance Company with objective evidence
of your condition or disability, or they do not have to approve
your claim. Look in the portion of the policy titled Proof or Proof
of Loss which explains what a claimant must supply to the Insurance
Company.
Sample Language: The following items, supplied at Your expense,
must be a part of Your proof of loss. Failure to do so may delay,
suspend or terminate Your benefits: (and then listed as one of the
items you are required to submit would be the following)
--Objective medical findings which support Your Disability.
Objective medical findings include but are not limited to tests,
procedures, or clinical examinations commonly accepted in the
practice of medicine, for Your disabling condition(s).
BEWARE POLICY EXCLUSIONS!
These exclusions and limitations are often a problem for someone
who suffers from MS.
Before we discuss why, lets talk about other benefits that may
be available.
Other Disability BenefitsPENSION DISABILITY:You may also qualify
for a disability pension through your employers (or a former
employers) pension plan.Similar to taking early retirement,
however, in this case, you are taking your pension early due to a
disability.ERISA applies to most and benefits are based on the
actuarial calculations of the pension plan.
Other Disability Benefits (Cont.)SOCIAL SECURITY DISABILITY
& SSI:
Government benefitsSocial Security regulations governSSD Title
II of the Social Security ActSSI Title XVI of the Social Security
Act
SSD vs. SSISSDNot for indigentsBased on earningsIRS tells SSMany
receive over $1500 per monthEarnings limitations after
approvedMedicare eligibility
SSIIndigent ProgramNot earnings based$545 per monthEarnings
& Asset Limitations after approvedMedicaid
Other Income and LTD How much you may get per month
Under nearly every group LTD policy, the insurer will subtract
what you get from Social Security.
This is not always the case with individual insurance.
The Key to ALL Benefitsis Proving You Are Disabled Under the
Applicable RulesKnow the rulesHow does your condition meet the
rules?Strongly consider attorney representation EARLY in the
process even before you stop working if you know your condition is
degenerating. PLAN!Insurance rules often conflict with the rules of
Social Security be prepared to coordinate multiple claims and
monitor your representative(s).You may need to make choices between
benefits.
How Does MS Fit In?Remember that under any system of disability,
you do not have to rely solely on MS as the basis of your
disability.Describe all problems that affect your ability to work
when you apply from your hair to your toenails.Understanding MS and
how to prove it exists and that it affects you is crucial.
What is Multiple Sclerosis?
Multiple sclerosis (MS) is a life-long chronic disease diagnosed
primarily in young adults. During an MS attack, inflammation occurs
in areas of the white matter of the central nervous system (nerve
fibers that are the site of MS lesions) in random patches called
plaques. This process is followed by destruction of myelin, which
insulates nerve cell fibers in the brain and spinal cord. Myelin
facilitates the smooth, high-speed transmission of electrochemical
messages between the brain, the spinal cord, and the rest of the
body.
How Does MS Reveal Itself?Symptoms of MS may be mild or severe
and of long duration or short and appear in various combinations.
The initial symptom of MS is often blurred or double vision,
red-green color distortion, or even blindness in one eye. Most MS
patients experience muscle weakness in their extremities and
difficulty with coordination and balance. Most people with MS also
exhibit paresthesias, transitory abnormal sensory feeling such as
numbness or "pins and needles." Some may experience pain or loss of
feeling. About half of people with MS experience cognitive
impairments such as difficulties with concentration, attention,
memory, and judgment. Such impairments are usually mild, rarely
disabling, and intellectual and language abilities are generally
spared. Heat may cause temporary worsening of many MS
symptoms.Physicians use a neurological examination and take a
medical history when they suspect MS. Imaging technologies such as
MRI, which provides an anatomical picture of lesions, and MRS
(magnetic resonance spectroscopy), which yields information about
the biochemistry of the brain. Physicians also may study patients'
cerebrospinal fluid and an antibody called immunoglobulin G. No
single test unequivocally detects MS. A number of other diseases
produce symptoms similar to those seen in MS.
What Causes Multiple Sclerosis?While the exact cause of MS is
unknown, most researchers believe that the damage to myelin results
from an abnormal response by the bodys immune system. Normally, the
immune system defends the body against foreign invaders such as
viruses or bacteria. In autoimmune diseases, the body attacks its
own tissue. It is believed that MS is an autoimmune disease. In the
case of MS, myelin is attacked.Scientists do not yet know what
triggers the immune system to do this. Most agree that several
factors are involved, including:
Genetics Gender Environmental Triggers (Possibilities include
viruses, trauma, and heavy metals (toxicology)
Types of Multiple SclerosisPeople with MS can expect one of four
clinical courses of disease, each of which might be mild, moderate,
or severe.
1. Relapsing-RemittingCharacteristics: People with this type of
MS experience clearly defined flare-ups (also called relapses,
attacks, or exacerbations). These are episodes of acute worsening
of neurologic function. They are followed by partial or complete
recovery periods (remissions) free of disease
progression.Frequency: Most common form of MS at time of initial
diagnosis. Approximately 85%.
2. Primary-ProgressiveCharacteristics: People with this type of
MS experience a slow but nearly continuous worsening of their
disease from the onset, with no distinct relapses or remissions.
However, there are variations in rates of progression over time,
occasional plateaus, and temporary minor improvements.Frequency:
Relatively rare. Approximately 10%.
Types of Multiple Sclerosis3.
Secondary-ProgressiveCharacteristics: People with this type of MS
experience an initial period of relapsing-remitting disease,
followed by a steadily worsening disease course with or without
occasional flare-ups, minor recoveries (remissions), or
plateaus.Frequency: 50% of people with relapsing-remitting MS
developed this form of the disease within 10 years of their initial
diagnosis, before introduction of the disease-modifying drugs.
Long-term data are not yet available to demonstrate if this is
significantly delayed by treatment.
4. Progressive-RelapsingCharacteristics: People with this type
of MS experience a steadily worsening disease from the onset but
also have clear acute relapses (attacks or exacerbations), with or
without recovery. In contrast to relapsing-remitting MS, the
periods between relapses are characterized by continuing disease
progression.Frequency: Relatively rare. Approximately 5%.
Diagnosing Multiple Sclerosis.There are no laboratory tests,
symptoms, or physical findings that can, by themselves, determine
if a person has multiple sclerosis. Furthermore, there are many
symptoms of MS that can also be caused by other diseases.
Therefore, the MS diagnosis can only be made by carefully ruling
out all other possibilities.The long-established criteria for
diagnosing MS are:1.There must be objective evidence of two attacks
(i.e. two episodes of demyelination in the central nervous system).
An attack, also known as an exacerbation, flare, or relapse, is
defined clinically as the sudden appearance or worsening of an MS
symptom or symptoms, which lasts at least 24 hours. The objective
evidence comes from findings on the neurologic exam and additional
tests.2.The two attacks must be separated in time (at least one
month apart) and space (indicated by evidence of inflammation
and/or damage in different areas of the central nervous system).
3.There must be no other explanation for these attacks or the
symptoms the person is experiencing.
The Clinical Exam in Diagnosing Multiple Sclerosis.Because there
is no single test that can be used to confirm MS, the role of a
clinical exam in process of diagnosis is important. During this
clinical exam, the physician will be do the following:
1. Obtain evidence from the persons history (looking for
Symptoms),2. Perform a clinical examination (looking for Signs),3.
Have the patient undergo one or more laboratory Tests.
A physician often requires all three (Symptoms, Signs and Tests)
in order to rule out other possible causes for symptoms and to
gather facts consistent with a diagnosis of MS.
Symptoms of Multiple Sclerosis.The range of symptoms experienced
by people with MS varies dramatically from person to person.
The most common symptoms of MS include:Fatigue (also called MS
lassitude to differentiate it from tiredness resulting from other
causes) Problems with walking Bowel and/or bladder disturbances
Visual problems Changes in cognitive function, including problems
with memory, attention, and problem-solving Abnormal sensations
such as numbness or "pins and needles" Changes in sexual function
Pain Depression and/or mood swings
Symptoms of Multiple Sclerosis (cont).Less common symptoms
include:Tremor Incoordination Speech and swallowing problems
Impaired hearing
All of these are considered primary symptoms of MS because they
are a direct result of demyelination, the destruction of myelin-the
fatty sheath that surrounds and insulates nerve fibers in the
central nervous system-and of damage to the nerve fibers
themselves. Demyelination and neuronal damage impair transmission
of nerve impulses to muscles and other organs, resulting in
impaired function. Many of these symptoms can be managed
effectively with medication, rehabilitation, and other management
strategies.
Signs of Multiple SclerosisThe physician will do a series of
tests to check for signs that can explain the symptoms or point to
disease activity of which a person may not be aware.
Signs are indications of the disease that are objectively
determined by a physician. Some signs might even explain a persons
symptoms, but others have no corresponding symptom.
Signs of Multiple SclerosisCommon signs that can be detected by
the doctor during a Physical Examination include:altered eye
movements and abnormal responses of the pupilssubtle changes in
speech patternsaltered reflex responsesimpaired coordinationsensory
disturbancesevidence of spasticity and/or weakness in the arms or
legs.
The physical examination may consist of the following:an eye
examination, which may reveal the presence of damage to the optic
nervea check of muscle strength, by gently but firmly pulling and
pushing a persons arms and legsmeasuring coordination, usually with
a finger-to-nose test, in which a person is asked to bring the tip
of an index finger to the nose rapidly, with eyes open and then
closedan examination of body surface sensation, tested with a
safety pin, and by a feather or a light toucha test of vibratory
sense, with a vibrating tuning fork placed against a joint or bone
so the person experiences a buzz-like sensationa test of reflexes,
using fingers or a small rubber mallet.
The role of Tests in Diagnosing Multiple SclerosisLaboratory
tests may be the crucial element of the diagnosis process. The
preferred test, which detects plaques or scarring possibly caused
by Multiple Sclerosis, is magnetic resonance imaging (MRI).
However, the diagnosis of MS cannot be made solely on the basis of
MRI. There are other diseases that cause lesionsareas of damagein
the brain that look like those caused by MS. There are also spots
found in healthy individuals, particularly in older persons, which
are not related to any ongoing disease process. On the other hand,
a normal MRI cannot rule out a diagnosis of MS. About 5% of
patients who are confirmed to have MS on the basis of other
criteria, do not show any lesions in the brain on MRI. These people
may have lesions in the spinal cord or may have lesions that cannot
be detected by MRI. Eventually, however, the vast majority of
people with MS will have brain and/or spinal lesions on MRI. The
longer the MRI remains negative, the more questionable the
diagnosis becomes. If the MRI findings continue to be negative more
than a year or two after the initial diagnosis is made, every
effort should be made to identify another possible cause for the
symptoms.
Additional Tests Used in Diagnosing Multiple SclerosisA
clear-cut diagnosis might be made based on an evaluation of
symptoms, signs, and the results of an MRI, but additional tests
may be ordered as well. These include tests of evoked potential,
cerebrospinal fluid, and blood.
Evoked Potential TestsEvoked potential tests measure electrical
activity in certain areas of the brain in response to stimulation
of specific sensory nerve pathways. These tests are often used to
help make a diagnosis of MS, because they can indicate dysfunction
along these pathways that is too subtle to be noticed by the person
or to show up on neurologic examination. In people with MS,
dysfunction is caused by the destruction of myelinthe fatty sheath
that surrounds and protects nerve fibers in the central nervous
system. Demyelination causes the nerve impulses to be slowed,
garbled, or halted altogether, producing the symptoms of MS. The EP
test most widely accepted as an aid to an MS diagnosis is the
Visual Evoked Potential (VEP). The person sits before a screen on
which an alternating checkerboard pattern is displayed. The other
EP tests used are the Brainstem Auditory Evoked Potentials test in
which the patient hears a series of clicks in each ear, and the
Sensory Evoked Potentials test in which short electrical impulses
are administered to an arm or leg. While evoked potentials are used
to help make a diagnosis of MS, other conditions also produce
abnormal results, so the tests are not specific for MS. The
information the tests provide needs to be considered along with
other laboratory and clinical information before a diagnosis of MS
can be made.
Cerebrospinal Fluid (CSF)Cerebrospinal fluid (CSF) is a clear,
colorless liquid which bathes the central nervous system. While the
primary function of CSF is to cushion the brain within the skull
and serve as a shock absorber for the central nervous system, CSF
also circulates nutrients and chemicals filtered from the blood and
removes waste products from the brain. Examining the fluid can be
useful in diagnosing many diseases of the nervous system, including
MS The CSF of people with MS usually contains elevated levels of
IgG antibodies as well as a specific group of proteins called
oligoclonal bands. Occasionally there are also certain proteins
that are the breakdown products of myelin. These findings indicate
an abnormal autoimmune response within the central nervous system,
meaning that the body is producing an immune response against
itself.An abnormal autoimmune response in CSF is found in a number
of other diseases, so the test is not specific for MS. Conversely,
some 5-10% of patients with MS never show these CSF
abnormalities.Therefore, CSF analysis by itself cannot confirm or
rule out a diagnosis of MS. It must be part of the total clinical
picture that takes into account other diagnostic procedures such as
evoked potentials and magnetic resonance imaging (MRI).
Guidelines for Diagnosing Multiple Sclerosis. Previous Standard
The Poser Criteria The Poser criteria were proposed in 1983 as an
update to the Schumacher Criteria fordiagnosing multiple sclerosis.
They were developed to reflect the advances of detectiontechniques
(MRI scans and spinal taps) that have helped neurologists to
determine theexistence of lesions and other paraclinical
evidence.
The Poser criteria are: Clinically definite MS 2 attacks and
clinical evidence of 2 separate lesions 2 attacks, clinical
evidence of one and paraclinical evidence of another separate
lesion Laboratory supported Definite MS 2 attacks, either clinical
or paraclinical evidence of 1 lesion, and cerebrospinal fluid (CSF)
immunologic abnormalities 1 attack, clinical evidence of 2 separate
lesions & CSF abnormalities 1 attack, clinical evidence of 1
and paraclinical evidence of another separate lesion, and CSF
abnormalities Clinically probable MS 2 attacks and clinical
evidence of 1 lesion 1 attack and clinical evidence of 2 separate
lesions 1 attack, clinical evidence of 1 lesion, and paraclinical
evidence of another separate lesion Laboratory supported probable
MS 2 attacks and CSF abnormalities
New Guidelines McDonald CriteriaIn 2001, the International Panel
on the Diagnosis of Multiple Sclerosis, chaired by W.I. McDonald,
FRCP (Royal College of Physicians, London), issued a revised set of
diagnostic criteria (Annals of Neurology 2001; 50:121-127). In
addition to the traditional requirements, the revision provides
specific guidelines for using findings on MRI, cerebrospinal fluid
analysis, and visual evoked potentials to provide evidence of the
second attack and thereby confirm the diagnosis more quickly. These
guidelines also facilitate the diagnostic process in those patients
who have had steady progression of disability without distinct
attacks.These new criteria have become known as the McDonald
Criteria after their lead author.
McDonald Criteria
McDonald Criteria
McDonald Criteria
What Is An Attack? Neurological disturbance of kind seen in MS
Subjective report or objective observation 24 hours duration,
minimum Excludes pseudoattacks, single paroxysmal episodes
Determining Time Between Attacks 30 days between onset of event
1 and onset of event 2
McDonald CriteriaHow Is "Abnormality" In Paraclinical Tests
Determined? Magnetic resonance imaging (MRI) Three out of four: 1
Gd-enhancing or 9 T2 hyperintense lesions if no Gd-enhancing lesion
1 or more infratentorial lesions 1 or more juxtacortical lesions 3
or more periventricular lesions (1 spinal cord lesion = 1 brain
lesion) Cerebrospinal fluid (CSF) Oligoclonal IgG bands in CSF (and
not serum) or elevated IgG index Evoked potentials (EP)Delayed but
well-preserved wave form
What Provides MRI Evidence Of Dissemination In Time? A
Gd-enhancing lesion demonstrated in a scan done at least 3 months
following onset of clinical attack at a site different from attack,
orIn absence of Gd-enhancing lesions at 3 month scan, follow-up
scan after an additional 3 months showing Gd-lesion or new T2
lesion.
How Do LTD Insurers Define Disability:Typically, you will be
required to prove that you are not capable of performing the duties
of your job due to your impairments.
Usually, after a period of time 24 months is common, you will
have to show there are no jobs you can do based upon your
education, training and work experience.
LTD DisabilityKnow your policys definition.A few words can make
a big difference.Usually no earnings requirement, so they may be
able to show you can flip burgers and prove you are no disabled.but
you should challenge this.Some policies have Partial
Disability.
Social Security Disability"Disability" is "the inability to
engage in any substantial gainful activity by reason of a medically
determinable physical or mental impairment(s) which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months." The following
terms are defined by current (2003) SSA regulations:"Substantial
Gainful Activity" is the ability to earn an average of $800 per
month. "Medically Determinable Impairment" is a physical or mental
impairment that results from anatomical, physiological, or
psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic
techniques."Evidentiary Requirements" for disability determination
are described by SSA regulation. An acceptable medical source must
report signs, symptoms, and laboratory findings diagnostic of an
impairment. Although a claimant's reported signs and symptoms are
not sufficient to meet the evidentiary requirements for
establishing the presence of a medically determinable impairment,
all available evidence including the claimant's report of symptoms
is used to evaluate the impact of any documented impairment(s) on
the claimant's ability to carry out work tasks. "Severe Impairment"
is defined by the agency as any "impairment that more than
minimally limits the claimant's ability to do basic work
activities."
How the SSA Determines Disability To decide claims for
Disability and SSI benefits, SSA must determine whether the claims
file includes information from an acceptable medical source that
documents the signs, symptoms, and laboratory findings that are
diagnostic of a physical or mental impairment. SSA adjudicators
also determine whether the impairment would be expected to more
than minimally interfere with the claimant's capacity to carry out
basic work activities for at least 12 consecutive months or end in
death. If a severe impairment is identified, the adjudicator
determines whether the medical findings meet or equal an impairment
in the medical listings (basically, a government checklist). If the
documented impairment does not meet or equal a listed impairment,
the adjudicator must determine the claimant's residual functional
capacity (abilities) and consider vocational factors prior to
making a final disability determination.
Social Security Medical ListingsThe Social Security regulations
include a Listing of Impairments for each body system that define
disability. Often referred to as the "medical listings," this
checklist list allows quick disability determinations to be made on
the basis of medical criteria alone.
The Listing of Impairments describes, for each major body
system, impairments that are considered severe enough to prevent a
person from doing any gainful activity (or in the case of children
under age 18 applying for SSI, cause marked and severe functional
limitations). Most of the listed impairments are permanent or
expected to result in death, or a specific statement of duration is
made. For all others, the evidence must show that the impairment
has lasted or is expected to last for a continuous period of at
least 12 months. The criteria in the Listing of Impairments are
applicable to evaluation of claims for disability benefits or
payments under both the Social Security disability insurance and
SSI programs.
The Social Security Medical Listing for Multiple Sclerosis #
11.0911.09 Multiple Sclerosis. WithDisorganization of motor
function as described in Listing 11.04B; ORVisual or mental
impairment as described under criteria in Listings 2.02, 2.03, 2.04
or 12.02; ORSignificant, reproducible fatigue of motor function
with substantial muscle weakness on repetitive activity,
demonstrated on physical examination, resulting from neurological
dysfunction in areas of the central nervous system known to be
pathologically involved by the multiple sclerosis process.
Disorganization of motor function as described in Listing
11.04BListing 11.04B. Significant and persistent disorganization of
motor function in two extremities, resulting in sustained
disturbance of gross and dexterous movements, or gait and
station.
Visual or mental impairment as described under criteria in
Listings 2.02, 2.03, 2.04 or 12.02.Listing 2.02. Impairment of
visual acuity. Remaining vision in the better eye after best
correction is 20/200 or less.
Listing 2.03. Contraction of peripheral visual fields in the
better eye. A. To 10 degrees or less from the point of fixation;
ORB. So the widest diameter subtends an angle no greater than 20
degrees; ORC. To 20 percent or less visual field efficiency.
Listing 2.04. Loss of visual efficiency. The visual efficiency
of better eye after best correction is 20 percent or less. (The
percent of remaining visual efficiency is equal to the product of
the percent of remaining visual acuity efficiency and the percent
of remaining visual field efficiency.
Visual or mental impairment as described under criteria in
Listings 2.02, 2.03, 2.04 or 12.02.Listing 12.02 Organic mental
disorders: Psychological or behavioral abnormalities associated
with a dysfunction of the brain. History and physical examination
or laboratory tests demonstrate the presence of a specific organic
factor judged to be etiologically related to the abnormal mental
state and loss of previously acquired functional abilities. The
required level of severity for these disorders is met when the
requirements in both A and B are satisfied, OR when the
requirements in C are satisfied.
Listing 12.02. Organic mental disorders (cont.)A. Demonstration
of a loss of specific cognitive abilities or affective changes and
the medically documented persistence of at least one of the
following: 1. Disorientation to time and place; or 2. Memory
impairment, either short-term (inability to learn new information),
intermediate, or long-term (inability to remember information that
was known sometime in the past); or 3. Perceptual or thinking
disturbances (e.g., hallucinations, delusions); or 4. Change in
personality; or 5. Disturbance in mood; or 6. Emotional lability
(e.g., explosive temper outbursts, sudden crying, etc.) and
impairment in impulse control; or 7. Loss of measured intellectual
ability of at least 15 I.Q. points from premorbid levels or overall
impairment index clearly within the severely impaired range on
neuropsychological testing, e.g., Luria-Nebraska, Halstead-Reitan,
etc; AND B. Resulting in at least two of the following: 1. Marked
restriction of activities of daily living; or 2. Marked
difficulties in maintaining social functioning; or 3. Marked
difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration;
Listing 12.02. Organic mental disorders continuedOR C. Medically
documented history of a chronic organic mental disorder of at least
2 years duration that has caused more than a minimal limitation of
ability to do basic work activities, with symptoms or signs
currently attenuated by medication or psychosocial support, and one
of the following: 1. Repeated episodes of decompensation, each of
extended duration; or 2. A residual disease process that has
resulted in such marginal adjustment that even a minimal increase
in mental demands or change in the environment would be predicted
to cause the individual to decompensate; or 3. Current history of
1or more years' inability to function outside a highly supportive
living arrangement, with an indication of continued need for such
an arrangement.
Remember LTD policies often have Mental & Nervous
Limitations
Any discussion of depression, memory problems, anxiety, or other
mental symptoms could result in your LTD insurance carrier trying
to limit your benefits to 24 months (or whatever limit is stated in
your policy).
Information regarding Listing 11.09I. General ConsiderationsA.
This listing deals with multiple sclerosis.B. Multiple Sclerosis is
a disease of the nervous system, the cause of which is not known.C.
What multiple sclerosis does to the person concerned depends on
what part of their nervous system is involved at any particular
time. It is an unpredictable disease, which tends to flare-up, and
then quiet down, leaving more damage each time. Sometimes it takes
years to cause any severe impairment, and in other cases, it
affects the claimant much more quickly and severely. D. Part A or B
or C of the Listing must be fulfilled, but not all three.
Social Security Listing 11.09 continuedII. Specific
RequirementsA. Part A1. Part A deals with disorganization of motor
function, which means impairment of the claimants ability to walk,
or use their arms and hands effectively.2. The actual evaluation is
not done under Part A. The requirements are the same as those for
Listing 11.04, Part B.
Social Security Listing 11.09 continuedII. Specific
RequirementsB. Part B1. Part B deals with visual or mental
impairments caused by multiple sclerosis. 2. Multiple sclerosis
tends to damage the optic nerves to the eyes. If this is the
problem, the impairment would be evaluated under Listings 2.03,
2.04, or 2.02, all of which deal with visual impairment. Their
specific requirements must be fulfilled. 3. If the multiple
sclerosis has caused some type of mental impairment, the case would
be evaluated under Listing 12.02. The specific requirements of
Listing 12.02 would have to be fulfilled.
Evidentiary Requirements for Social Security Disability Under
both the Title II and Title XVI programs of Social Security
Administration, medical evidence is the cornerstone for the
determination of disability. Each person who files a disability
claim is responsible for providing medical evidence showing that he
or she has an impairment(s) and the severity of the impairment(s).
The medical evidence generally comes from sources who have treated
or evaluated the claimant for his or her impairment.
Acceptable Medical SourcesDocumentation of the existence of a
claimants impairment must come from medical professionals defined
by SSA regulations as acceptable medical sources. Once the
existence of an impairment is established, all the medical and
non-medical evidence is considered in assessing impairment
severity.
Acceptable Medical SourcesAcceptable Medical Sources generally
include: Licensed physicians (medical or osteopathic
doctors);Licensed or certified psychologists;Licensed optometrists
(measurements of visual acuity and visual fields);Licensed
podiatrists (for purposes of establishing impairments of the foot,
or foot and ankle only, depending on the State in which the
podiatrist practices);Qualified speech-language pathologists (for
purposes of establishing speech or language impairments
only).Social Security also requests copies of medical evidence from
hospitals, clinics or other health facilities where a claimant has
been treated. All medical reports received are considered during
the disability determination process.
Social Security Gives Extra Weight to Treating Doctors Opinions
Currently, many disability claims are decided on the basis of
medical evidence from treating sources. SSA regulations place
special emphasis on evidence from treating sources because they are
likely to be the medical professionals most able to provide a
detailed longitudinal picture of the claimant's impairments and may
bring a unique perspective to the medical evidence that cannot be
obtained from the medical findings alone or from reports of
individual examinations or brief hospitalizations. Therefore,
timely, accurate, and adequate medical reports from treating
sources accelerate the processing of the claim because they can
greatly reduce or eliminate the need for additional medical
evidence to complete the claim.
ERISA Plan (Most Group) Insurers Do NOT Have to Give Your
Treating Doctors Any Extra WeightThe U.S. Supreme Court has held
that if the insurer of your companys group LTD plan has an opinion
of a physician which disagrees with your doctor, it is reasonable
for them to rely on the other doctor. If they want to send you for
any exam, bring a friend!
Other EvidenceInformation from other sources may also help show
the extent to which a person's impairment(s) affects his or her
ability to function:1.public and private social welfare agencies,
2.non-medical sources such as teachers, day care providers, social
workers and employers, 3.other practitioners such as naturopaths,
chiropractors, and audiologists.
Medical ReportsPhysicians, psychologists, and other health
professionals are frequently asked by SSA to submit reports about
an individual's impairment. Therefore, it is important to know what
evidence SSA needs. Medical reports should include: medical
history; clinical findings (such as the results of physical or
mental status examinations); laboratory findings (such as blood
pressure, x-rays); diagnosis; treatment prescribed with response
and prognosis; a statement providing an opinion about what the
claimant can still do despite his or her impairment(s), based on
the medical source's findings on the above factors. This statement
should describe, but is not limited to, the individual's ability to
perform work-related activities, such as sitting, standing,
walking, lifting, carrying, handling objects, hearing, speaking,
and traveling. In cases involving mental impairments, it should
describe the individual's ability to understand, to carry out and
remember instructions, and to respond appropriately to supervision,
coworkers, and work pressures in a work setting.
Consultative ExaminationsSocial Security may send you for a CE
if they decide your medical records do not provide enough
information.
They prefer to use your treating source is the preferred source
for a CE if he or she is qualified, equipped, and willing to
perform the examination for the authorized fee. Even if only a
supplemental test is required, the treating source is ordinarily
the preferred source for this service. However, SSAs rules provide
for using an independent source (other than the treating source)
for a CE or diagnostic study if: the treating source prefers not to
perform the examination; the treating source does not have the
equipment to provide the specific data needed;there are conflicts
or inconsistencies in the file that cannot be resolved by going
back to the treating source; the claimant prefers another source
and has good reason for doing so; or prior experience indicates
that the treating source may not be a productive source.
LTD Insurers Can Obtain Examinations TooNot necessarily as fair
as Social Securitys selection process.Beware and bring a
friend.Feel free to bring records with you and give them to the
doctor they pick.No Rules for what the report must say.Beware of
calls to your doctor and confirming letters Warn your doctor.
Social Security Rules for Consultative Examination Report
ContentA complete CE is one which involves all the elements of a
standard examination in the applicable medical specialty. A
complete consultative examination report should include the
following elements: the claimant's major or chief complaint(s);a
detailed description, within the area of specialty of the
examination, of the history of the major complaint(s);a
description, and disposition, of pertinent "positive" and
"negative" detailed findings based on the history, examination, and
laboratory tests related to the major complaint(s), and any other
abnormalities or lack thereof reported or found during examination
or laboratory testing;results of laboratory and other tests (e.g.,
X-rays) performed according to the requirements stated in the
Listing of Impairments;the diagnosis and prognosis for the
claimant's impairment(s);
Consultative Examination Report Contenta statement about what
the claimant can still do despite his or her impairment(s), unless
the claim is based on statutory blindness. This statement should
describe the opinion of the consulting physician or psychologist
about the claimant's ability, despite his or her impairment(s), to
do work-related activities such as sitting, standing, walking,
lifting, carrying, handling objects, hearing, speaking, and
traveling; and, in cases of mental impairment(s), the opinion of
the physician or psychologist about the individual's ability to
understand, to carry out and remember instructions, and to respond
appropriately to supervision, coworkers, and work pressures in a
work setting; andthe consultative physician or psychologist will
consider, and provide some explanation or comment on, the
claimant's major complaint(s) and any other abnormalities found
during the history and examination or reported from the laboratory
tests. The history, examination, evaluation of laboratory test
results, and the conclusions will represent the information
provided by the physician or psychologist who signs the report.
Evidence Relating to SymptomsIn developing evidence of the
effects of symptoms, such as pain, shortness of breath, or fatigue,
on a claimant's ability to function, SSA investigates all avenues
presented that relate to the complaints. These include information
provided by treating and other sources regarding: the claimant's
daily activities;the location, duration, frequency, and intensity
of the pain or other symptom;precipitating and aggravating
factors;the type, dosage, effectiveness, and side effects of any
medication;treatments, other than medications, for the relief of
pain or other symptoms;any measures the claimant uses or has used
to relieve pain or other symptoms; andother factors concerning the
claimant's functional limitations due to pain or other symptoms. In
assessing the claimant's pain or other symptoms, the
decisionmaker(s) must give full consideration to all of the
above-mentioned factors. It is important that medical sources
address these factors in the reports they provide.
LTD Insurers Want You to Prove How Severe Your Symptoms AreBe
prepare to use any means necessary to prove how bad your condition
is: write them, send them video, get statements from friends that
explain what they have seen, etc.You need to put the insurer in a
position where they cannot say that your condition is not as bad as
you say it is.
SSR 96-8p. Addressing Exertional and Non-exertional
CapacityExertional capacityExertional capacity addresses an
individual's limitations and restrictions of physical strength and
defines the individual's remaining abilities to perform each of
seven strength demands: Sitting, standing, walking, lifting,
carrying, pushing, and pulling. Each function must be considered
separately (e.g., "the individual can walk for 5 out of 8 hours and
stand for 6 out of 8 hours"), even if the final RFC assessment will
combine activities (e.g., "walk/stand, lift/carry, push/pull"). You
want specifics from your doctor for each
SSR 96-8p. Addressing Exertional and Non-exertional
CapacityNonexertional capacityNonexertional capacity considers all
work-related limitations and restrictions that do not depend on an
individual's physical strength; i.e., all physical limitations and
restrictions that are not reflected in the seven strength demands,
and mental limitations and restrictions. It assesses an
individual's abilities to perform physical activities such as
postural (e.g., stooping, climbing), manipulative (e.g., reaching,
handling), visual (seeing), communicative (hearing, speaking), and
mental (e.g., understanding and remembering instructions and
responding appropriately to supervision). In addition to these
activities, it also considers the ability to tolerate various
environmental factors (e.g., tolerance of temperature extremes). As
with exertional capacity, nonexertional capacity must be expressed
in terms of work- related functions. For example, in assessing RFC
for an individual with a visual impairment, the adjudicator must
consider the individual's residual capacity to perform such
work-related functions as working with large or small objects,
following instructions, or avoiding ordinary hazards in the
workplace. In assessing RFC with impairments affecting hearing or
speech, the adjudicator must explain how the individual's
limitations would affect his or her ability to communicate in the
workplace. Work-related mental activities generally required by
competitive, remunerative work include the abilities to:
understand, carry out, and remember instructions; use judgment in
making work-related decisions; respond appropriately to
supervision, co-workers and work situations; and deal with changes
in a routine work setting.
Current Social Security Criteria for Multiple Sclerosis is Under
ReviewThe medical criteria used by the Social Security
Administration to determine whether a person with MS is disabledand
therefore eligible to receive benefits have not been updated since
1985.The Social Security Administration (SSA) processes more than
3.5 million claims each year, with multiple sclerosis (MS)
representing the third most common neurological diagnosis cited as
the cause for disability. A new study being carried out by the Duke
Evidence-based Practice Center, funded by the SSA and the Agency
for Healthcare Research and Quality, will review the scientific
evidence supporting the methods used by the SSA to determine
disability in MS. The purpose of this project, is to determine
whether current medical knowledge supports the SSA's stated
policies regarding MS. In January 2003, the Duke Evidence-based
Practice Center began work on this 13-month task to review evidence
from the medical literature for use in updating SSA's listing of
impairments for multiple sclerosis (MS) and for revising its
disability policy (if indicated).
Research QuestionsThe seven major research questions addressed
during this review are as follows:Question 1a: What is the
reliability of new McDonald criteria (incorporating supplementary
information from radiologic and laboratory studies including
magnetic resonance imaging [MRI], visual evoked potential [VEP],
and cerebrospinal fluid [CSF] analyses) compared with long-term
follow-up diagnosis of clinically definite MS according to the
Poser criteria?Question 1b: What is the inter-rater reliability of
diagnosis of MS according to Poser or McDonald criteria among
neurologists or between neurologists and non-neurologist
physicians?Question 2: What clinical indicators, including
particularly time-course of impairments, predict physical or mental
impairment at 12 months?Question 3a: Among patients with MS, do
current disease-modifying treatments result in long-term
improvements in physical or mental outcomes compared to placebo or
usual care?Question 3b: Among patients with MS, do treatments aimed
at symptom management result in improvements in physical or mental
outcomes compared to usual care?Question 4: Among individuals with
MS, what physical, mental, laboratory, or radiographic findings
have been associated with inability to work?Question 5: Among
individuals with MS, how does elevated temperature or other
environmental factors impair the capacity to work?
Bibliographyhttp://www.clevelandclinicmeded.com/diseasemanagement/neurology/multsclerosis/table1ms.htmhttp://www.mult-sclerosis.org/Posercriteria.htmlhttp://www.ahrq.gov/clinic/epcsums/msdissum.htmhttp://www.ninds.nih.gov/health_and_medical/disorders/multiple_sclerosis.htmhttp://www.nationalmssociety.org/about%20ms.asphttp://www.nationalmssociety.org/What%20causes%20MS.asphttp://www.ssa.gov/disability/professionals/bluebook/evidentiary.htmhttp://www.ssa.gov/disability/professionals/bluebook/11.00-Neurological-Adult.htmhttp://www.ssa.gov/disability/professionals/bluebook/general-info.htm
See Also:
http://andersontucker.com/lr_links_and_resources.htm
Multiple SclerosisSocial Security, Long Term Disability
Insurance and Other Disability Benefits. Issues in Proving
Disability What you need to know.
John V. Tucker, Esq.The Law Offices of Anderson & Tucker2101
Fifth Ave. North, St. Petersburg, FL
33713(727)[email protected]