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Why is It Better to Have a Lawyer for a Disability Claim?

Derek Devermont Social Security Disability Attorney

Why is It Better to Have a Lawyer for a Disability Claim?

Attorneys in the Social Security disability work on a “contingency basis.

Contingency means the attorney will only get paid if the claimant is successful in being granted disability benefits. If the case is lost, the claimant will not have to pay a dime to the attorney.
There is nothing to lose by hiring an attorney to handle a claim for Social Security Disability benefits or SSI benefits, but everything to gain. An attorney knows law and courts. Often the knowledge is the difference between winning and losing.

It is common knowledge that people who are facing criminal charges or a civil lawsuit should retain a lawyer.

 

The reasoning is obvious. Criminal defense and lawsuits involve complex questions of law and procedures unknown to those who do not have legal training. The average person would find it foolish to try and navigate these two legal fields without counsel. Social Security Disability and SSI laws are similar but different in that the area is even more complicated than Criminal Defense and most forms of civil litigation.

Most areas of law have only two sources of authority.

 

For instance, the field of criminal defense has the Penal Code and Case law. Case law is the guidance that comes in the form of written decisions from appellate courts. Law from Social Security Disability, however, comes from many sources. Attorneys, who handle Social Security Disability cases, must know the Code of Federal Regulations, Case Law, Social Security Rulings, Social Security Acquiescence Rulings, HALLEX, and the POMS. Often the law in one of these sources will contradict the law in another. Only an attorney who specializes in the field of disability would know which authority is binding on the court according to each set of facts. 

Perhaps the most significant advantage that comes with hiring an attorney is knowledge of the judges and courts.
Each courthouse is different and is managed by a chief judge. Each chief judge has different priorities and concerns. Some chief judges are most concerned with moving cases along quickly. Others are concerned with having even the smallest procedures done by the book without a single deviation for efficiency or expediency. Some are very controlling with the judge’s they supervise, and others take a more indirect approach. All of these judicial philosophies have their advantages and disadvantages. Only an attorney who has experience with the court can know the type of court to which the case is assigned. More importantly, only an attorney will know how to use the policies of each court to a claimant’s advantage.

Just as every courthouse has a chief judge who has a distinct personality, so does every judge who sits on the bench. Judges are people and have their own set of quirks, insecurities, values, admirable traits, and sensitivities. Knowledge of the judges is an absolute requirement for an attorney who practices Social Security Disability.

For example:
Claimant “A” suffers from bipolar disorder and a back condition. Claimant “A” feels her disability status is as a result of her mental health. Her case will be decided by Judge “B.” Judge “B” doesn’t like granting disability claims based on a mental disability. He has very little if any sympathy for the mentally ill and believes most are drug users. Judge “B” also suffers from back pain and is therefore very sensitive to claims of disability based on herniated discs or spinal fractures. Claimant “A” will lose her case if she walks into the courtroom and focuses on her mental disability. If Clamant “A” has an attorney who is familiar with Judge “B,” she will probably win. The attorney will choose to focus the case on the back condition, knowing Judge “B” is sensitive to back issues and insensitive to mental health issues. Having an attorney can be the difference between winning and losing a claim for disability benefits.
Knowledge of the judge is just one area of expertise an attorney will possess. Another one is knowledge of the witnesses.
In almost every case, the court will appoint experts to testify. Traditionally, there are two types of experts in disability cases: Medical and vocational. Medical experts look at the medical records and give their opinion as to the severity of the claimant’s conditions. An attorney’s knowledge of each medical expert’s habits and beliefs is essential to pursuing a successful claim for Social Security Disability Benefits. Let us go back to claimant “A.”

Once again, Claimant “A” suffers from Bipolar disorder and a herniated disc in her back. Judge “C” is handling the case. Judge “C” has asked a psychologist named “Dr. MD” to look at the medical records and testify. Dr. MD testifies the bipolar disorder is severe, but no so severe it’s disabling. In his opinion, claimant “A” would still be able to work in jobs that require no more than simple repetitive tasks. If the judge accepts this testimony as accurate, “A” will lose her case for disability benefits. “Disability Lawyer” to the rescue. Disability Lawyer has had many cases with Dr. MD and knows him well. He knows Dr. MD doesn’t read or take into account physical conditions in his testimony. They have the following exchange:

DL: Dr. MD, can physical pain aggravate symptomology associated with my client’s mental state.
Dr. MD: Absolutely.
DL: I want you to assume my client also suffers from a back condition that would put her in pain for most of the day. Adding that to the bipolar disorder, does that change your opinion as to her restrictions.
Dr.MD: Yes, Counsel. If she were in physical pain, I believe her mental condition would be exacerbated, and she would be disabled.
Claimant “A” is now going to win her case. Not because of her bipolar disorder by itself and not because of her back condition standing alone. She will win because her lawyer knew the expert and his specific practices and beliefs. Once again, having an attorney is the difference between winning and losing.

The key is to have the right lawyer.

 
Need help? Get in touch for a free consultation.
“Devermont & Devermont is a wonderful Law Office… Derek Devermont and his staff went above and beyond to get me my disability benefits… The wait is worth it but not too long… But being patient and understanding is the key… They really care about what they do.. I love Devermont & Devermont Law Firm!!”

-Anja Irwin

“From the get go Derek set my mind at ease and made me feel like family. His determination cleared my good name and for that I will forever be indebted for. His staff was also friendly punctual anytime I needed anything.
I would highly recommend this firm.”

-David Rutola

“I didn’t know where to go for a help when my family and I needed it most.
Thank GOD I finally found Devermont and Devermont. Under six months of working with them, we now receive the monthly benefits we were likely never going to see without the help of Mr. Devermont. Can’t thank them enough.”

-Dani Song

Best Social Security Disability Advocates

Disability Lawyers Near Me

Best Social Security Disability Advocates

It can be a daunting task to choose the right Social Security Disability/SSI lawyer.

There are endless options to choose from, and all will say they are the best. Below are the criteria for selecting a Social Security Disability advocate.

1) HIRE AN ATTORNEY

A good portion of the Social Security Disability field is composed of “administrative law,” Administrative law is not practiced in traditional courts. Instead, the cases are heard in courts specially created by the Social Security Administration. Being licensed as an attorney is not a requirement to represent claimants seeking Social Security Disability in administrative courts. Hiring an attorney is the best option for representation. Attorneys have the training, expertise, and respect from the judges to effectively pursue a claim for disability benefits.

2) MAKE SURE THE ATTORNEY IS EXPERIENCED IN THE FIELD OF SOCIAL SECURITY DISABILITY 

 
Generally speaking, the more experienced the attorney, the better it is for your case. Experienced attorneys not only know the law, but they also know how to apply it. It’s more than understanding what’s written in textbooks. It’s understanding which arguments are best in front of which judges. Some judges respond positively to arguments surrounding mental illness, while other judges aren’t as persuaded by this line of analysis. Other judges are sensitive to cases involving seizures. An experienced attorney will know what arguments work and what is just wasting time.
3) GET A LOCAL ATTORNEY
Make sure the attorney you hire knows every judge in the court where your case is set to be heard. Hiring a local lawyer can ensure the attorney knows the court inside and out. The Law Offices of Devermont and Devermont represents people from San Diego to Sana Barbara and knows each judge in all the courts in these cities. The firm doesn’t represent people in Massachusetts. That would be too far for Devermont and Devermont’s attorneys to capitalize on relationships with the courts. Local is always better.
4) MAKE SURE YOUR ATTORNEY CARES
If your attorney doesn’t care, how can he or she convince a judge to care? How can your attorney ask a judge to do what he won’t do himself? An attorney who cares will fight and work harder to win your case. It can’t be about money for the attorney. He or she has to believe in the service they are providing.
 
Need help? Get in touch for a free consultation.
“Devermont & Devermont is a wonderful Law Office… Derek Devermont and his staff went above and beyond to get me my disability benefits… The wait is worth it but not too long… But being patient and understanding is the key… They really care about what they do.. I love Devermont & Devermont Law Firm!!”

-Anja Irwin

“From the get go Derek set my mind at ease and made me feel like family. His determination cleared my good name and for that I will forever be indebted for. His staff was also friendly punctual anytime I needed anything.
I would highly recommend this firm.”

-David Rutola

“I didn’t know where to go for a help when my family and I needed it most.
Thank GOD I finally found Devermont and Devermont. Under six months of working with them, we now receive the monthly benefits we were likely never going to see without the help of Mr. Devermont. Can’t thank them enough.”

-Dani Song

Disability Advocate Near Me

Disability Advocate Near Me

Attorneys who regularly practice in local courts are far more likely to be successful in disability cases than lawyers who travel the country. Judges who decide disability cases are going to be more receptive to arguments from attorneys they know and trust than from outsiders.

A judge will respond better to an attorney he knows than one he hasn’t met or doesn’t frequently see, for a variety of reasons. These reasons make it imperative to hire an attorney who works near your residence.

Mostly it comes down to trust. Trust is accumulated over time and experience. When an attorney has spoken truthfully to a judge consistently, that attorney’s word is going to carry value. Judge’s remember they attorneys they deal with for both the good and bad. Conversely, a judge may view a lawyer new to the courtroom with suspicion. The new lawyer hasn’t built up the track record of trust to be taken with the necessary credibility to win a claimant’s case.

Likability also matters. Judges are human and subject to the same tendencies as all people. When a judge likes an attorney, that attorney is going to be received with an open mind and generosity. In a close case, a Judge’s positive feelings towards an attorney may sway the decision from unfavorable to favorable. An attorney from out of town won’t have the same luxury. An attorney from out of town won’t have cried the same tears and laughed the same laughter over years of experience as the local attorney has with the judges. Such experience is invaluable.

Judges are also likely to be more frank and honest about the case with an attorney he or she knows well. This insight will allow the attorney to tailor arguments towards the judge’s concerns. If the judge doesn’t know the attorney, this insight will not be readily available. Insight into how the judge feels about each case can easily be the difference between winning and losing. The insight can be the difference between a claimant walking out of court with a fully favorable decision as opposed to an unfavorable one.

A relationship with local judges may be the most critical asset an attorney has in fighting for a client’s disability benefits. Sometimes it’s more valuable than any one piece of evidence or any part of testimony from a particular client.

Social Security Disability Insurance Benefits for Diabetics

Social Security Disability Insurance Benefits for Diabetics

Diabetes and Social Security Disability have a complicated past. For years those with uncontrolled diabetes could get Social Security Disability or SSI under a “listing.” Remember, listings are set criteria for specific conditions where, if all the elements are satisfied, the claimant would be found to have met the medical requirements for disability benefits. In 2011, Social Security deleted to diabetes listing leaving diabetic applicants with the burden of having to either satisfy another listing or be found vocationally disabled based on the “grid rules”. The redaction of the diabetes listing made the process of obtaining social security disability benefits harder on claimants asserting disability due to diabetes.

All hope is not lost for those who are disabled as a result of diabetes. There are still listings in existence that are reflective of diabetes, and it’s symptoms. Listing 11.14 is perhaps the most obvious. Listing 11.14 focuses on the effects of peripheral neuropathy. Those with severe diabetes commonly experience peripheral neuropathy and understand the severe limitations experienced as a result. Peripheral neuropathy often manifests itself in the form of burning pain, needles, difficulty walking or handling, and constraints in activities of daily living.

Listing 11.14 is separated into two sections, A and B. the A sections says:

“11.14 Peripheral neuropathy, characterized by A or B.

A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities.”

The start of the listing 11.14 analysis requires a diagnosis of neuropathy. If a diagnosis of neuropathy is not contained in the claimant’s medical records, the analysis under listing 11.14 will essentially stop before it starts. The listing then goes on to talk about the disorganization of motor function in two extremities. Two extremities can be two legs (including feet), two arms (including hands and shoulders), or one arm and one leg. Disorganization of motor function is the difficulties that arise out of neuropathy. Difficulty grasping and walking are typical characterizations of the disorganization of motor function.

The listing then goes on to talk about the required severity of that disorganization. An “extreme limitation” requires the need for the help of an assistive device (two canes or a walker) to walk or rise from a seated position if you need help from another to do either of these two activities, you will also be found to have an “extreme limitation.”

An extreme limitation in the use of the upper extremities requires the inability to perform fine and gross movements. A few examples of the “Inability to perform fine and gross motor movements” are:

1) A claimant not being able to pinch, manipulate, and use your fingers.

2) A claimant not being able to use your hands, arms, and shoulders to perform gross motor movements such as handling, gripping, grasping, holding, turning, and reaching.

3) A claimant not being able to engage in exertional movements such a lifting, carrying, pushing, and pulling.

If a claimant satisfies the elements of 11.14(A), he or she will be found to have met the medical requirements for Social Security Disability or SSI. If the claimant doesn’t meet 11.14(A), then he or she will be considered under 11.14(B). 11.14(B) is for those who still have significant difficulties in their life as a result of peripheral neuropathy, but not necessarily the specific type of challenges found in 11.14(A). 11.14(B) requires:

“B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following:

Understanding, remembering, or applying information (see 11.00G3b(i)); or

Interacting with others (see 11.00G3b(ii)); or

Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or

Adapting or managing oneself (see 11.00G3b(iv)).”

Obviously, the pain from peripheral neuropathy will create limitations in the above areas as it limits mental capacity and the ability to interact with others appropriately. The term “marked limitation” means a significant restriction that causes severe limitations in the field where the limitation exists.

Even if you don’t meet listing 11.14, you still may be found disabled under the vocational guidelines known as “the grids.” The grids take into account a claimant’s age, education, past work, and limitations. It forces Social Security to ask if you can do your past work, and if you can’t, is there other work you can do in the national economy at your age with your education and skills.

Social Security Disability cases arising out of diabetes are complicated and require in-depth legal and medical knowledge. It is always important to have the representation of a lawyer if you want to put yourself in the best position to be found disabled.

Buying a House on Disability Benefits

Buying a House on Disability Benefits

Buying a home is always an intimidating and daunting task for any potential buyer. If a disability recipient can afford it, it will not affect their ability to receive Social Security Disability. SSI, however, has different rules and parameters.

Social Security Disability is a benefit for those who worked and paid into Social Security System over a prolonged period (generally) and earned 40 credits. You may be eligible to receive Social Security Disability if your spouse had paid into the system or you are the child of a parent who had paid. Social Security Disability can only be offset by worker’s compensation payments or state disability. A recipient of Social Security Disability can have a million dollars in the bank and own ten houses without it negatively impacting the claimant’s ability to receive the benefits. SSI is different.

SSI has an asset cap. SSI is for those who haven’t paid into the system. A recipient of SSI cannot have more than $2000 in assets ($3000 if married). Virtually everything counts as an asset. Money in the bank, life insurance, stocks, and bonds all count as assets. If a claimant’s assets exceed the allowable maximum, he or she will not be able to receive SSI.

It is important to note; however, there is an exception. Claimants who receive SSI are allowed to have one house and one car and still receive SSI. One house and one car will not be counted as assets. An issue arises when an SSI recipient exceeds the asset cap while trying to save for a down payment to buy a house.

Most SSI recipients who own a home obtained it before becoming disabled or inherit the house from a deceased relative. Bottom line: Those receiving Social Security Disability can purchase a house without issue. Those receiving SSI can buy a house but must be careful not to exceed the asset cap.

Can You Get Disability for Herniated Disc?

Can You Get Disability for Herniated Disc?

A herniated disc is a condition that affects the back and/or neck. A herniated disc can cause enormous amounts of pain that can leave a patient unable to do the most basic activities of daily living. The pain often isn’t limited to the back and neck regions but will travel into the legs and arms, leaving them compromised or immobile. People with herniated discs can be limited to using a cane, walker, or even a wheelchair. Surgeries can vary from shaving down the spine, fusing sections of it, replacing parts of it, and installing metal rods. Social Security analyzes disabilities due to herniated discs under LISTING 1.04. The most commonly considered listing is 1.04(A).

If you meet the elements of listing 1.04, you will have automatically met the medical requirements to be found disabled. Listing 1.04 is broken into different parts. It is titled disorders of the spine.

The preamble to listing 1.04 states:

“Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: ”

These are all various conditions of the spine. They are very similar and translate to large amounts of pain.

If the elements of the preamble are satisfied, the analysis moves on to see if the claimant meets 1.04(A), 1.04(B), or 1.04(C). If the claimant meets the elements of one of the sections and has the condition in the preamble, they will be found to have met the medical requirements to be found disabled.

1.04(A) is the one usually achieved.

Listing 1.04(A) states:

“A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)”

Perhaps the most critical part of 1.04(A) is the requirement the condition results in “compromise of the nerve root…or the spinal cord.” There are a few different ways to prove the existence of nerve root compression. Social Security, however, puts the most significant weight on imaging, namely an MRI. Anything other than an MRI will be viewed cautiously by social security when determining whether nerve root impingement is present.

The listing then talks about the “neuro-anatomic distribution of pain.” The pain is most commonly known as radiculopathy. Radiculopathy is the presence of pain in the extremities (shoulders, legs, hands, arms, feet) caused by the compromise of nerve roots in the neck or back. The nerves are being affected and sending signals to other parts of the body to feel pain. The pain can be debilitating.

The next requirement of listing 1.04(A) is “limitation of motion of the spine.” Most people with back conditions meet this particular element. It merely means the ability of the claimant to twist and maneuver the spine is more limited than the average person who doesn’t have the same spinal disorder.

“Motor Loss” is one of the rarer elements of the listing. Atrophy is the rarest form of motor loss. More commonly, loss of strength is found. This is usually done in the form of a resistance test. A doctor will test the ability of each hand and leg to push against resistance. The disparity between one side and the other can indicate there is a loss of strength due to an underlying neck or back condition.

Motor loss must also be accompanied by reflex loss or loss of sensation. Loss of sensation can come in the form of numbness or tingling. It means the ability to feel light touches or pinpricks is less than that of the average person. It’s not uncommon for people who routinely drop glasses or fall to have a loss of sensation. Reflex loss is similar but different. Reflex loss is found when people don’t respond to the standard reflex tests with a reflexive reaction. An Achilles reflex can be absent while sensation is still normal, but only one has to be present to meet the listing.

If you have a neck condition and all of the above is present, you meet 1.04(A), and you will be found to have satisfied all the medical requirements to obtain disability. If the condition is in the back, however, there is still one more requirement. Back conditions must have a “positive” finding on the “Straight leg raising” exam. The exam is while the patient is seated and supine (lying down). The leg will be lifted, and if this induces pain before the leg reaching a 45-degree angle, then a positive finding will be found.

More frequently, claimants with back conditions will have some of the elements in 1.04(A), but not all. All hope is not lost. In such a situation, social security will look to see if the claimant “equals” a listing. Equalling a listing occurs when all the elements aren’t met, but the condition creates limitations equal to that of someone who fits the listing. If a claimant equals a listing, they will be found to have met the medical requirements for disability.

If a claimant does not meet or equal a listing, social security will turn to the grid rules to determine disability status. The grids take into account the restrictions and compare them to a claimant’s past work and jobs currently available. If the grids call for a finding of disability, then a claimant will be found medically disabled.

Can a Person With Sleep Apnea Get Disability Benefits?

There is not a “listing” for sleep apnea. Listings are criteria for specific medical conditions where, if the requirements are satisfied, the claimant will be automatically be found medically disabled. The listings that might be applicable to sleep apnea concern other medical conditions.  

Social Security writes:

“We evaluate the complications of sleep-related breathing disorders under the listings in the affected body system(s). For example, we evaluate chronic pulmonary hypertension due to any cause under 3.09; chronic heart failure under 4.02; and disturbances in mood, cognition, and behavior under 12.02 or another appropriate mental disorders listing. We will not purchase polysomnography (sleep study).”

While it is possible to “equal” one of the listings described above, it is challenging. All hope, however, is not lost. It is still possible to be found disabled even if the claimant does not meet or equal the requirements of a listing. What is required is an analysis of the adverse effects a claimant’s sleep apnea would have on his or her ability to work.  

Sleep Apnea

The most prevalent symptom of sleep apnea that prevents work is excessive sleepiness. Sleep apnea prevents one from ever becoming fully rested. The breaks in breathing thrust the body into panic and shock while sleeping, causing a claimant to be unable to maintain sleep for prolonged periods or sleep at all. Forms of insomnia are common in those who suffer from sleep apnea. If sleep apnea is causing an employee to fall asleep while working, or not being able to concentrate during work periods, that employee most likely will be unable to work and therefore be disabled.  

Sleep apnea can also be psychologically detrimental. Depression and even forms of psychosis aren’t uncommon. The brain needs sleep as much as the body. When it doesn’t get the required rest and fuel from sleep, the mind will start to break down. Depression can result in such a feeling of hopelessness and despair that getting out of bed becomes an impossible task. Such everyday activities of daily living (showering, dressing, socializing, shopping) become too much to bear. If sleep apnea has such a substantial negative consequence that a claimant is suffering these symptoms, he or she may qualify for Social Security Disability or SSI.  

‘Disability Determination Decision Under Review’ Meaning

‘Disability Determination Decision Under Review’ Meaning

Social Security retains the right to review any disability determination and reverse it

Social Security’s determination that a claimant is disabled does not mean the benefits will continue forever. Such reversals can cause chaos in the lives of the disabled and can produce significant amounts of uncertainty.

The burdens of poverty and disability weigh on claimants enormously. When a disability determination is under review, entire lives are thrown into upheaval with no end in sight. Reviews generally happen under a few circumstances.

If the disability is expected to resolve, it will be put up for review

A claimant must have a disability that has lasted or is expected to last for a year or more to be eligible for Social Security Disability or SSI. But, there are many conditions that last longer than a year, but are expected to resolve. For example, many forms of cancer may disable a claimant for a year but resolve medically shortly after a year’s end. In such an instance, Social Security will take a second look at the claimant’s level of impairment due to cancer. During this time the claim is under review.

Social Security can question the decision of a judge and put the case under review

Often Social Security questions the decisions of the judge’s who decide disability status. Social Security will take a look at an Administrative Law Judge’s decision determining disability if they feel the judge’s decision is flawed. If Social Security feels the judge’s decision was made in error, Social Security will reverse the finding of disability and remand the case for a new hearing.

The decision to review a judge’s decision must, however, be made no later than 60 days after the decision was issued

A disabled individual needs to notify Social Security of a return to work

Sometimes people who are on disability benefits attempt to go back to work but do not notify Social Security. Eventually, Social Security sees the income on tax records and notices they have been paying benefits to an individual during the time he or she was working. In this circumstance, not only will Social Security review the determination of disability and cease the paying of benefits, but they will also declare an overpayment and demand the distributed funds be repaid.

 
The key is to have the right lawyer.
“I would recommend the Law Office of Devermont and Devermont. Attorney Derek Devermont helped me win my disability appeal and we won. It was a long process but Derek was always available to answer any questions I had. He was knowledgeable and professional. All I can say is thank you, thank you, thank you!”

-Pilar Arias

“Best and most aggressive attorneys in town. Amazing in every respect. They will fight for you like you are their own family.”

-John Ramirez

“If I could give Mr.Devermont a 10 star review I would do it in a heartbeat. Not only did he help me win my case but he was very understanding and efficient during the entire process. His office staff was also very sweet and helpful. I HIGHLY recommend him! Thanks again! Your team is awesome.”

-Jojo Barrera

Appeal Denial of Benefits – SSD & SSI

Being denied Social Security Disability or SSI can be a heart-wrenching experience for an applicant. If you’re applying for disability benefits, you believe this is the last and only option. The denial means there isn’t hope or possibilities, and you are now vulnerable to the elements. Fortunately, Social Security and the courts have built a road meant to allow a claimant who has been denied Social Security Disability benefits the ability to challenge the denial. The procedure is known as the appeal process. In the appeal process can be salvation for a claimant’s previously denied claim for benefits, but the appeal has to approached correctly.

First and foremost, the date of the denial for benefits controls whether an appeal can be filed. Generally speaking, all appeals for disability benefits must be filed within 60 days of the denial. Depending on the type of appeal, an extra five days for mailing may be allotted in addition to the traditional sixty days. Do not rely on the additional five days. Strange things can happen with mail, and it isn’t uncommon for Social Security to fail to acknowledge the extra five days for filing. Also, the quicker the appeal is filed, the faster the case will be decided. Waiting until the last day to file an appeal makes the process take longer.

Appeals can take a significant amount of time from the beginning to the end. Sometimes this can be an advantage. For people who haven’t been treating consistently or frequently, this is the opportunity to build a medical file. Cases are decided almost entirely on medical records. Many use the appellate waiting period to start receiving treatment and accumulate medical records. The medical treatment received during the appeal process can often be the difference between winning and losing.

If you are looking to appeal your case, the best thing you can do is hire an attorney. The appellate process is complex, and flying blind is not advised. Make sure the attorney is a social security disability and SSI specialist. This will put you in the best possible position to prevail in your case.

Can You Get Social Security Disability for Degenerative Disc?

Degenerative disc disease is a condition that affects the back and/or neck. Degenerative Disc Disease can cause enormous amounts of pain that can leave a patient unable to do the most basic activities of daily living. The pain often isn’t limited to the back and neck regions but will travel into the legs and arms, leaving them compromised or immobile. People with Degenerative Disc Disease can be limited to using a cane, walker, or even a wheelchair. Surgeries can vary from shaving down the spine, fusing sections of it, replacing parts of it, and installing metal rods. Social Security analyzes disabilities due to Degenerative Disc Disease under LISTING 1.04. The most commonly considered listing is 1.04(A).

If you meet the elements of listing 1.04, you will have automatically met the medical requirements to be found disabled. Listing 1.04 is broken into different parts. It is titled disorders of the spine.

The preamble to listing 1.04 states:

“Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: ”

These are all various conditions of the spine. They are very similar and translate to large amounts of pain.

If the elements of the preamble are satisfied, the analysis moves on to see if the claimant meets 1.04(A), 1.04(B), or 1.04(C). If the claimant meets the elements of one of the sections and has the condition in the preamble, they will be found to have met the medical requirements to be found disabled. 1.04(A) is the one usually achieved.

Listing 1.04(A) states:

“A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)”

Perhaps the most critical part of 1.04(A) is the requirement the condition results in “compromise of the nerve root…or the spinal cord.” There are a few different ways to prove the existence of nerve root compression. Social Security, however, puts the most significant weight on imaging, namely an MRI. Anything other than an MRI will be viewed cautiously by social security when determining whether nerve root impingement is present.

The listing then talks about the “neuro-anatomic distribution of pain.” The pain is most commonly known as radiculopathy. Radiculopathy is the presence of pain in the extremities (shoulders, legs, hands, arms, feet) caused by the compromise of nerve roots in the neck or back. The nerves are being affected and sending signals to other parts of the body to feel pain. The pain can be debilitating.

The next requirement of listing 1.04(A) is “limitation of motion of the spine.” Most people with back conditions meet this particular element. It merely means the ability of the claimant to twist and maneuver the spine is more limited than the average person who doesn’t have the same spinal disorder.

“Motor Loss” is one of the rarer elements of the listing. Atrophy is the rarest form of motor loss. More commonly, loss of strength is found. This is usually done in the form of a resistance test. A doctor will test the ability of each hand and leg to push against resistance. The disparity between one side and the other can indicate there is a loss of strength due to an underlying neck or back condition.

Motor loss must also be accompanied by reflex loss or loss of sensation. Loss of sensation can come in the form of numbness or tingling. It means the ability to feel light touches or pinpricks is less than that of the average person. It’s not uncommon for people who routinely drop glasses or fall to have a loss of sensation. Reflex loss is similar but different. Reflex loss is found when people don’t respond to the standard reflex tests with a reflexive reaction. An Achilles reflex can be absent while sensation is still normal, but only one has to be present to meet the listing.

If you have a neck condition and all of the above is present, you meet 1.04(A), and you will be found to have satisfied all the medical requirements to obtain disability. If the condition is in the back, however, there is still one more requirement. Back conditions must have a “positive” finding on the “Straight leg raising” exam. The exam is while the patient is seated and supine (lying down). The leg will be lifted, and if this induces pain before the leg reaching a 45-degree angle, then a positive finding will be found.

More frequently, claimants with back conditions will have some of the elements in 1.04(A), but not all. All hope is not lost. In such a situation, social security will look to see if the claimant “equals” a listing. Equalling a listing occurs when all the elements aren’t met, but the condition creates limitations equal to that of someone who fits the listing. If a claimant equals a listing, they will be found to have met the medical requirements for disability.

If a claimant does not meet or equal a listing, social security will turn to the grid rules to determine disability status. The grids take into account the restrictions and compare them to a claimant’s past work and jobs currently available. If the grids call for a finding of disability, then a claimant will be found medically disabled.