Michael Walkup | The Canary Report

New Social Security Administration rules on re-filing while appeals council review is pending

Aug 022011

In a new ruling, the US Social Security Administration states you cannot file a new application while an appeal is pending at the Appeals Council level on a previous application.

By contributor Michael J. Walkup, Esq.

Michael J. Walkup, Esq.

In those Multiple Chemical Sensitivity Social Security disability cases that are not successful at the hearing stage, my clients have several options. First, they can appeal to the Appeals Council, which is part of the Social Security Administration. This usually takes up to two additional years and, at best, will only usually result in having the case sent back to the same Administrative Law Judge (ALJ) who denied the case the first time. Most often, that ALJ is prejudiced against MCS and will just clean up his or her act the second time around.

The other option is to file a new application for benefits. This will take about the same amount of time as an appeal and the ALJ will be selected randomly from the half a dozen or so that are typically assigned to any particular hearing office.

The problem with a new application is that you give up any retroactive benefits that had accrued while the first claim is pending.

Up until last month, we had a third option, which was to both file an appeal and a new application. This meant that if the appeal was not successful, the new application would already have found it’s way to the hearing level and at least another hearing could be obtained without additional waiting. You also might get a different ALJ on the new application who would be more open to the MCS diagnosis.

SSA has now foreclosed the third option. In a new ruling, they have stated that you cannot file a new application while an appeal is pending at the Appeals Council level on a previous application. You have to decide between an appeal and a new application. If you decide to forgo the appeal, they will accept the new application (again, you will lose the retroactive benefits from the previous case).

Given that most appeals just result in a second hearing in front of the same ALJ who denied the first case, I usually do not recommend appealing and counsel my clients to file new applications. If, however, you intend to move out of the area in which you are currently residing, you might fall under the jurisdiction of another hearings office and would have a different ALJ on the remanded (original) case.

Also, if you had passed your “date last insured” for disability benefits prior to the first ALJ denial decision, you cannot file a new application for the same benefit period and would be limited to Supplemental Security Income benefits, if you qualify for those financially (must be below the “poverty line”). Clients who are married with working spouses would not qualify for SSI benefits. They will have no choice other than an appeal.

You can still file a new application while your case is appealed to the Federal Court following an Appeals Council denial.

~~~

UPDATE

January 4, 2012

Here is an addendum to my previous article on filing a new application for benefits while an appeal is pending:

In the above article, I informed the readers that the Social Security Administration had adopted a new rule that would prevent people from filing a new application while an appeal was pending at the Appeals Council on a denial decision from an ALJ.

The problem with this, particularly for people with MCS, is that the Appeals Council case will take a couple of years and by that time a new application will have made it up to the hearing level. Therefore, if the appeal is denied, the claimant has another case in the hopper ready to go. Otherwise, they have to apply and wait another two years to get to the hearing level again.

One of the advantages of a new application is also that it will be randomly assigned to one of the ALJ’s in that hearing office so if the original hearing ALJ was prejudiced against MCS cases, you might not get that ALJ the second time. However, if the Appeals Council remands the case for another hearing, the original ALJ is usually assigned again.

In addition, if you cannot file a new application, and lose the appeal on the first application, you will lose an additional year of benefits as the new application can only go back one year before the date of filing for retroactive benefits for SSDI. In SSI cases, you will lose two years of benefits as the retroactive benefits can only run from the date of filing in those cases.

You may also run out of your insured status for SSDI cases while all of this is going on and many not even be able to file a new application for those benefits.

A potential partial remedy has been suggested. What you would do is send a certified letter to the SSA District Office that you “intend” to file a new application. Be sure to get a return receipt. They may be able to avoid processing the new application, but they may have to at least accept the “filing.” This may then be able to be used later if you lose the appeal to establish a protective filing.

~~~

Michael Walkup is an experienced disability practitioner with more than 25 years experience in the disability law field. In 2001, he became disabled due to Multiple Chemical Sensitivity (MCS), Chronic Fatigue Syndrome (CFS) and Fibromyalgia Syndrome (FMS). He now provides a service to advise clients with potential disability claims who have MCS, CFS and/or FMS. As these programs and law are usually federal, he is able to practice in all 50 states and, therefore, represent clients regardless of location.

Michael is a long time Sustaining Member of the National Organization for Social Security Claimants’ Representatives, the only national body for disability representatives. He is also certified as a Federal Trial Lawyer and is admitted to the U.S. Court of Appeals for Veteran’s Claims.

Michael would welcome the opportunity to possibly help with disability claims. For more information, visit his website MCS Legal Help at walkuplaw.com. Contact info: email MJWalkup@Amertech.net or call 866-880-4878.

Changes in the Americans with Disabilities Act may affect people with Multiple Chemical Sensitivity

Posted by Contributor

Apr 282011

The Americans with Disabilities Act Amendments Act, effective May 2011, may make it easier for people with Multiple Chemical Sensitivity to secure accommodations at work.

By contributor Michael J. Walkup, Esq.

Michael J. Walkup, Esq.

Effective May 24, 2011, new changes to the Americans with Disabilities Act, called the Americans with Disabilities Act Amendments Act (ADAAA or Amended Act), will go into effect after implementation of federal regulations.

The previous Act had been misinterpreted by the U.S. Supreme Court shortly after it’s enactment in the early 90′s to place the focus on first establishing if the individual worker was “disabled enough” to qualify under the Act, instead of the Congressional intent of focusing on the discrimination and the reasonableness of accommodations that would be required to allow the worker to function in the job.

People with Multiple Chemical Sensitivity were universally unable to meet the definition of disability due to lack of official recognition of MCS by the mainstream medical community, and their cases were dismissed.

Under the Amended Act, this will no longer be so much of an obstacle. The focus has now shifted to determining if discrimination has occurred and if it there is a reasonable method of accommodating the employee without undue burden to the employer, rather than analyzing the claimed disability of the employee. This should make things a bit easier for people who are still trying to hold onto their jobs who have MCS.

Although many MCS sufferers will still require such extensive accommodations that it may not be realistically possible for the employer to meet their needs, there are others for whom some simple things, such as not placing their workstation near other employees who wear fragrances, allowing them to work next to a window that can be opened, not placing them next to the photocopier, or allowing them to have a portable air filter machine in their workstation, may be possible. It may also be feasible to do some jobs, or at least portions of some jobs, from home.

Should you require an accommodation, you should request it in writing and cite the Amended Act as the basis for your request. Then try to get a meeting with the employer to see if you can jointly craft a solution. You may wish to consult with an attorney to assist you in trying to work things out with your employer.

~~~

Multiple Chemical Sensitivity and Social Security Disability, Part 7

Posted by Contributor

Nov 162009

There are many pitfalls for people with Multiple Chemical Sensitivity applying for Social Security Disability Insurance. I recommend that MCS clients get in touch with me before they make the Social Security Disability Insurance application, or maybe even while they are still working and trying to get accommodations from their employers.

Post by Michael Walkup, attorney at law.

This is the last part of a series on disability law as it relates to MCS claims.

Representation on your claim

One question people with Multiple Chemical Sensitivity always have is whether or not to retain a representative on their Social Security Disability Insurance claim, and, if so, when in the process is the best time to do this. They may also want to know if it is best to get an attorney or a non attorney, and if they should hire someone in their immediate area or someone from a national firm.

Anyone is allowed to serve as a representative in a Social Security Disability Insurance claim. Only attorneys and those representatives who are certified by the Social Security Administration can get direct payment of their fees, however. Others have to be paid directly by the client. Attorneys are automatically allowed to both represent claimants before SSA and to obtain direct payment of fees. Other people who wish to have withholding and direct payment of fees have to take a national test and be certified by SSA.

Attorneys can practice before SSA in all 50 states so long as they are a member of the bar in any one state. Other representatives can likewise practice in any state.

One advantage of hiring an attorney rather than a non attorney is accountability for malpractice. Attorneys will generally have malpractice insurance, and this can be verified by checking with the bar association that registers attorneys in the state or states in which they are licensed. Non attorneys have no such insurance.

Another advantage of an attorney is the training they receive in the practice of law, which is readily transferable to SSDI claims, and their years of experience in the court systems. There are no training programs as such for non attorney representatives, although some of them are trained as vocational experts, nurses, paralegals, insurance claim representatives, etc.

If you do hire anyone, be sure that you find out exactly what their experience is in Social Security disability claims, and possibly in the area of your particular impairments as well. When it comes to MCS, most attorneys, even those who specialize in disability claims, often have little experience.

My website, www.MCSLegalHelp.com, contains a list of “Ten Questions To Ask Your Lawyer,” which can give you further guidance.

When to get a representative

Multiple Chemical Sensitivity and Social Security Disability, Part 6

Posted by Contributor

Oct 212009

In addition to or instead of benefits under Social Security Disability Insurance or Title II of the Social Security Act, you may be entitled to Supplementary Security Income benefits.

Post by Michael Walkup, attorney at law.

In my last column, I discussed circumstances of re-filing your Social Security Disability Insurance application at the time of taking an Appeals Council appeal, while still pursuing that appeal. Let me talk a bit more about re-filing for SSDI, and then also discuss Supplementary Security Income in relation to SSDI and Medicaid.

Re-Opening Claim for SSDI

Again, as I have discussed in previously, many Multiple Chemical Sensitivity sufferers have older applications that they did not appeal or tried to return to work and dropped their claims. In some circumstances, these earlier applications can be reopened. If you file a new application for benefits, it’s considered a constructive request to re-open any prior claims. If you re-file within one year of the Initial Denial decision, the claim is automatically re-opened. The prior claims can also be re-opened if a new application is filed within four years of the Initial Denial and you submit new and material evidence that was not available at the time of the original application or was not obtained and used in the decision. You can also re-open at any time if there is a severe mental impairment, which prevented you from acting in your own behalf.

The advantage of re-opening is that all of the benefits which had accrued during the original application can be obtained if you are successful, not just the ones that accrue after filing the new application. This can mean a fairly large award can be obtained.

Bear in mind that the time is calculated from the first denial letter you received on your claim, not the Administrative Law Judge decision or Appeals Council decision.

Supplementary Security Income

In addition to or instead of benefits under SSDI or Title II of the Social Security Act, you may be entitled to Supplementary Security Income benefits, or SSI.

SSI is basically a welfare program and allows people who are disabled and also are poor enough to fall under the federal poverty guidelines, to receive benefits if they are unable to work. People over 65 who do not have other income or resources automatically get SSI.

An important difference between the SSI benefits and the SSDI program is that for SSI you do not have to have enough “current credits” in covered employment or to ever have had a work history. This can be an advantage to those people who may only have worked a short time, or were homemakers for many years before becoming disabled, or who did a lot of part time work or work in which they were paid in cash or were self employed and did not pay taxes.

However, to get SSI benefits, you have to also be poor enough, which tends to preclude people who are married with working spouses. Also, if you are receiving “in kind” support, such as having your rent covered by a friend or relative, it will reduce the amount you may receive.

Another advantage of the SSI benefits is that there is no “waiting period” between the time you became disabled and first month in which benefits can be paid. However, there is also no payment for retroactive benefits prior to the month in which the SSI application is made, whereas with SSDI you can get retroactive benefits for up to a year before the month in which you applied.

Medicaid is available if you are approved for SSI but not Medicare.

If your SSDI monthly payment is less than the current SSI monthly amount, you can receive enough SSI in combination with the SSDI to bring you up to the SSI payment if you otherwise qualify.

To be continued.

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Michael is an experienced disability practitioner with more than 25 years experience in the disability law field. In 2001, he became disabled due to Multiple Chemical Sensitivity (MCS), Chronic Fatigue Syndrome (CFS) and Fibromyalgia Syndrome (FMS). He now provides a service to advise clients with potential disability claims who have MCS, CFS and/or FMS. As these programs and law are usually federal, he is able to practice in all 50 states and, therefore, represent clients regardless of location.

Michael Walkup’s farm grows

Posted by Susie

Oct 122009

Canary Report contributor Michael Walkup, who advises us on Multiple Chemical Sensitivity disability claims, is featured in local press about his family farm.

Northwest Herald reports on Canary Report contributor Michael Walkup, attorney-at-law, who runs Heritage Farm and Gardens. Michael took his family’s land in Illinois and turned it into a small organic farm. In addition to supplying local restaurants, he also serves about 50 subscribers to his Consumer Supported Agriculture program, where his customers pay upfront to receive a box of fresh, organic produce that ripened that week.

CRYSTAL LAKE – A veritable cornucopia of McHenry County’s bounty is picked up each week in boxes at Michael Walkup’s small Crystal Lake farm on the street that bears his family’s name.

His family goes back six generations on the land, so the tomatoes are not the only heirloom that he has on his farm across from Veterans Acres Park.

For the past five years, Walkup has been feeding a small, but steadily growing, population in McHenry County – locavores, people who buy and consume produce that is grown locally. [...]

Walkup said his customers did it to know where their food comes from.

“You go to the store and you don’t know what the food has been treated with,” said Walkup, an attorney who works with people who have chemical sensitivities and who got turned onto organic farming after developing a chemical sensitivity himself.

Link to Michael’s columns on MCS and disability claims here.

Michael is an experienced disability attorney with more than 25 years experience in the disability law field. In 2001, he became disabled due to Multiple Chemical Sensitivity (MCS), Chronic Fatigue Syndrome (CFS) and Fibromyalgia Syndrome (FMS). He now provides a service to advise clients with potential disability claims who have MCS, CFS and/or FMS. As these programs and law are usually federal, he is able to practice in all 50 states and, therefore, represent clients regardless of location.

~~~

Editor’s note: This post was revised on 10/13, correcting the term Consumer Supported Agriculture, which I had mistakenly written as Community Supported Agriculture.

Multiple Chemical Sensitivity and Social Security Disability, Part 5

Posted by Contributor

Sep 262009

Appeals: You can estimate that it will take at least a year for the Appeals Council to render a decision.

Post by Michael Walkup, attorney at law.

Although each stage of the Social Security Disability process can be called an “appeal,” what I will be talking about here are appeals from adverse decisions following a hearing before an Administrative Law Judge (ALJ).

An adverse ALJ decision will be called an “Unfavorable Decision.” You may also appeal a “Partially Favorable Decision,” which will be a decision in which you were awarded some, but not all, of the benefits you were seeking. If you won entirely, it will be called a “Fully Favorable Decision.” You cannot appeal a Fully Favorable Decision even if you don’t like the rationale that was used to award the benefits, e.g. mental impairment.

You have 60 days to appeal an adverse decision which is done by filling out a form and sending it to the Hearings Office. The entire file, including the decision and a disc of the hearing testimony, will be sent to the Appeals Council in Baltimore, Maryland. You can send in additional evidence and make additional arguments, which again are done in writing only, to the Appeals Council.

You can estimate that it will take at least a year for the Appeals Council to render a decision. You can keep updating your file and adding evidence while that is going on. The average amount of time the person reviewing your file will spend on your case for the review is about fifteen minutes, so keep any comments short and to the point.

To the extent that anything favorable happens at the Appeals Council it will be probably be to remand the case back for an additional hearing with instructions to the ALJ rather than an outright reversal. The exception to this would be if there is some definitive evidence of a non Multiple Chemical Sensitivity condition which is disabling, such as bi polar disorder, for example, that was not raised before, or some definitive testing. This will not tend to apply in MCS cases, so you should at best look forward to a remand for an additional hearing. The remand hearing will be in front of the same judge as denied the claim originally, unless you move out of that Hearing Office’s area, in which case it will be transferred to the new office and re-assigned to a different judge. Your chances will be better if you can get the remand heard by someone new, “hint hint.”

If you lose at the Appeals Council, you can file a lawsuit against the Social Security Administration in the Federal District Court for your area. These are again decided entirely on paper with briefs submitted by both sides. A transcript has to be prepared of the hearing testimony. If the audio disc is not audible, the case will be remanded for a new hearing automatically.

Federal court cases are difficult in MCS claims as the federal courts tend to follow more restrictive rules of evidence for admission of expert testimony. Even though there are no rules of evidence in Social Security Disability cases, I find that these rules tend to influence the thinking of the federal judges nevertheless, making it difficult to convince them to accept what may be considered non-standard tests and opinions. The decision from any federal appeal also will be published nationally, so it can create a bad precedent for others. I therefore tend to discourage federal court appeals in favor of advising my clients to re-file for benefits, where possible.

You may re-file your application at the time of taking the Appeals Council appeal, while still pursuing that appeal. As the Appeals Council will take a year or more to decide your appeal, and, at best, will probably be sending it back for another ALJ hearing, which will take time to schedule, the amount of time it will take on an entirely new application may not be that much different. Also, even if you are still living in the same area, the new application will be assigned randomly to one of six or more ALJ’s in that Hearing Office, so the chances are that you will be assigned a different judge than the one that denied the previous claim.

The exception to this is if your “Date Last Insured” for disability benefits had expired before the date of the ALJ Decision. In that case, you will not be able to re-file a new application and will have to take all available appeals.

I will talk about that more in the next installment.

To be continued.

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Multiple Chemical Sensitivity and Social Security Disability, Part 4

Posted by Contributor

Sep 242009

The Zen of the hearing.

Post by Michael Walkup, attorney at law.

This is Part 4 on Multiple Chemical Sensitivity and Social Security Disability.

Trying to figure out how to handle a disability hearing for someone with Multiple Chemical Sensitivity is tricky. The usual approaches may not work.

I have found that the outcome of these types of cases is heavily dependent on the underlying attitude of the Administrative Law Judge (ALJ), and the vocational experts (VE) and medical experts (ME).

My clients are all clearly unable to do any type of work due to their impairments, as they describe them. If I think there may be some type of job they can do, I don’t take the case. They also tend to have very similar sets of sensitivities in that they are particularly sensitive to artificial fragrances. That alone makes them unable to function in a work environment where they will be around other people whose habits they can’t control. Usually they have left office types of jobs after numerous attempts to obtain accommodations from their employers and voluntary cooperation from co-workers.

There are usually a host of other sensitivities such as to cleaning products, herbicides, artificial materials used in decorating and construction, oil based fuels, plastics, electromagnetic frequencies, vibrations, paper and ink, etc., which further seal the deal.

Nevertheless, you do run into judges and experts who don’t “get it” and try to either say that the condition doesn’t exist, and/or that it is a mental impairment. If the mental impairment is judged to be serious enough, you can win on that basis, but they may feel that it is not that severe because they use the criteria used to judge other mental conditions like depression, anxiety, bi-polar, etc., and you don’t meet those. What to do?

Since I do cases all over the country, I usually don’t know anything about the judge going in. I therefore present the case the same way each time, which is to do the following:

(1) I make sure that my client is going for regular treatment right up to the date of the hearing with an environmental doctor of some sort who will do testing and write a favorable report, and possibly testify by telephone.

(2) I try to keep my client from going into situations that might be used to argue that she/he does not have a problem, such as going shopping, to church, and to doctor’s offices who are not environmental specialists. This includes having them refuse to go to examinations by Social Security doctors unless special arrangements can be made, and by having them insist on attending the hearing by telephone rather than in person or at a video conference site. This is assuming, of course, that there is a real sensitivity present that would make those appearances problematic. Often, the actual reactions are delayed so the client’s difficulties are not apparent during the event, which is one reason I like to try to keep my clients out of the situation entirely as the later reaction will often not be witnessed.

(3) I may refer them for testing with specialists who work with MCS patients on a regular basis in addition to their treating doctors.

(4) I try to prevent them from filing for disability insurance, workers compensation, or personal injury claims, which will cause them to be scheduled to go to examinations by unfriendly doctors who will generate reports. If they have already done so, I try to keep those reports out of the Social Security file or insist that I be allowed to cross examine any outside experts. (Since there is no provision in the Social Security Act to do this, it can be difficult and requires that the report not have been previously sent to Social Security so they have to issue a subpoena for it after a hearing.)

(5) I try to get one or more national experts on chemical sensitivity, who did not treat my client, to testify by telephone. I also submit synopses of the current state of research into MCS, such as recent studies by Canada and Australia, as well as the new ICU 10 Rules in Germany which recognize MCS and eliminated prior references to somatoform disorder for MCS.

(6) I try to emphasize that MCS is probably not an “allergy” as traditionally thought, but is more probably some type of disorder of the central nervous system in which the nerve and brain cells have become hypersensitive to minute amounts of chemicals and overreact when molecules of those chemicals enter the cells. This is not really a part of how medicine is practiced to date, including allergy medicine and neurology, and is more a question of biochemistry or molecular biology in which the experts used by Social Security are usually not well versed.

(7) I usually limit the cross examination of any experts called by Social Security to bring out that they do not have much, or any, direct experience in the treatment of MCS nor have they attended any seminars or read any articles on the subject. I then contrast their lack of experience with that of the experts I have called.

In other words, “Less is More.”

(8) I get the vocational expert to admit that if my client would have to leave work more than once or twice in a month throughout the year, there would be no jobs that would be considered to be available, and that it would be impossible to police all of the chemicals which would cause that sort of reaction, particularly chemical fragrances in a workplace situation that the worker could not control.

Hearings do not generally provide you with much time to get into extensive cross examinations of experts and I find that trying to do that not only usually lands you in trouble, but gives the illusion that “you had a chance to cross examine the witness,” when you were really being rushed along by the judge who had only allocated one hour total for the entire hearing including the testimony of the claimant and the claimant’s witnesses. It is very rare to score any points with an expert on cross examination in their area of expertise even when you have the benefit of pre-trial depositions and discovery, neither of which you have in a Social Security hearing.

By and large I have found this approach to be successful, and have won about 75% of my MCS cases overall. This compares favorably with the more general rate of success for non MCS cases on a national level. On those cases that we lose, we consider further appeals or a re-filing, or both. More on that next time.

To be continued.

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Multiple Chemical Sensitivity and Social Security Disability, Part 3

Posted by Contributor

Jul 222009

If you are unable to do your regular job, the Social Security Administration will define how much work you can do based on medical opinions, and plug you into the “Grid” to make their determination.

Post by Michael Walkup, attorney at law.

This is Part 3 on Multiple Chemical Sensitivity and Social Security Disability.

This post was revised on 7/27.

Step 5: Vocational (continued from Part 2)

It used to be that the Social Security Administration had a vocational expert and each and every hearing. Vocational experts are people who are experts on jobs. Many of them do job placement for workers compensation insurance carriers. Not only was it expensive to have a live expert at each hearing, but the opinions varied widely. This is not an exact science.

To solve these problems, SSA promulgated regulations in 1978, which set up criteria to be followed to analyze vocational issues. The results were put together in a chart, which looked like a spreadsheet and quickly came to be known as the “Grid.” Under the Grid certain questions are asked, which are: (1) How old is the claimant? (2) How far did the claimant get in school? (3) Does the claimant have any skills? (4) Are any of those skills transferable to lighter work? And, (5) how much physical work can the claimant do despite the impairment or impairments?

In terms of “age,” the only point where that is really considered for most people is if they are over 50. If you are under 50, you have to be unable to do all forms of work. They then proceed in five year increments so there is one category if you are 50 to 55, another if you are 55 to 60 and the final one if you are between 60 and 65. If you are within six months of the next category, you can be bumped up.

For “education,” again there are categories. The first is “less than a High School diploma,” the second is “High School diploma.” That’s it, other than being “illiterate or unable to read and write English.” College and advanced degrees do not matter except in the sense that they confer skills.

For skill levels there is “unskilled,” “semi-skilled,” and “skilled.”

“Transferability of skills” has to do with how long it would take to learn a new job to which your skills could transfer, i.e. 30 days, 60 days, or longer. You can’t transfer skills from unskilled.

Multiple Chemical Sensitivity and Social Security Disability, Part 2

Posted by Contributor

Jun 252009

In order to be determined “disabled” under the Social Security Act, a five step Sequential Evaluation procedure is employed.

Post by Michael Walkup, attorney at law

This is Part 2 on Multiple Chemical Sensitivity and Social Security Disability.

michaelwalkup History

When Congress originally passed the Social Security Act in the 1930s, it did not provide any disability benefits, only retirement income for people over 65. In the 1960s it was amended to also allow for recovery of the same benefit amount that would be realized on retirement, if a wage earner became unable to continue to work prior to age 65 due to physical or mental impairments.

In the 1970s, provisions were added for payment of fees for people representing a claimant in a successful disability claim, to be limited to 25% of the total recovery in retroactive benefits. Attorneys were able to receive the fees directly from the government out of the client’s retroactive benefit check, subject to approval of a fee petition itemizing the time spent on the claim.

In 1979, vocational rules were added to eliminate the need to have vocational experts at every hearing. I will go into more on this later.

In the 1980s, the rules for mental impairments were changed, which had the effect of making it a bit easier to win cases in which mental impairments were present.

In the 1990s, recovery was eliminated for persons whose disability was solely due to drug or alcohol addiction. Attorney’s fees were also modified to allow an automatic payment not to exceed 25% of retroactive benefits provided that the attorney agreed to cap the fees at $4000, which has since been raised to $5300.

Later, a “user fee” of $75 was attached to the direct payment option, to be deducted from the attorney’s fee.

More recently, non attorneys who have been certified by the Social Security Administration to function as representatives were allowed to be paid on the same basis as attorneys. Direct payment of fees was also now allowed on Supplemental Security Income (SSI) claims.

Procedures Used to Evaluate Disability

In order to be determined to be “disabled” under the Social Security Act for either disability benefits (SSDI) or Supplemental Security Income (SSI) benefits, a five step Sequential Evaluation procedure is employed.

Step One: Work

The first step is to determine if the claimant is performing what is called Substantial Gainful Activity (SGA). SGA is defined as work in “competitive employment” at which the individual is earning a certain minimum monthly amount in gross wages (before deductions). The current monthly amount is about $900.

“Competitive employment” means employment that exists in the general employment marketplace and excludes “sympathetic employment” and employment in “vocational workshops.” This may have particular application to Multiple Chemical Sensitivity sufferers who require extensive special accommodations to work, or who are allowed to work from home.

If the claimant is “working” under this definition, he/she is not considered “disabled” and no benefits are payable.

Step Two: Severe Medically Determinable Impairment

Multiple Chemical Sensitivity and Social Security Disability, Part 1

Posted by Contributor

Jun 012009

MCS and SSD: A chink in the armor?

Post by Michael Walkup, attorney at law

This is Part 1 on Multiple Chemical Sensitivity and Social Security Disability.

michaelwalkup You might want to think about the legal system and society in general as wearing a suit of armor, like the Knights of Olde, when it comes to Multiple Chemical Sensitivity/Environmental Illness claims. If the MCS people are right, much of western civilization as we know it is called into question, as it has been based to a large extent on the use of ever increasing amounts of chemicals. They can’t allow that to happen. There’s too much money involved.

The medical profession, unfortunately, has played a large role in this due to their reliance on pharmaceuticals. The legal system long ago embraced the MD’s as the only valid source of information on health issues, to the extent that the word “medicine,” which simply means the use of drugs in the treatment of health conditions, has become synonymous with “health care” and with science itself.

Up until very recently, the Social Security Administration rules did not even allow any evidence to be considered as coming from an “expert” unless it came from an MD, DO, or PhD in psychology. If your chiropractor submitted a report, it was treated as a “lay observation” and was accorded the same weight as a letter from you next door neighbor (Joe the Plumber).

In the previous articles, I have talked about how difficult it is to obtain any benefits or compensation from: (1) disability insurance plans; (2) workers compensation claims; (3) litigation; and (4) the American with Disabilities Act. I should point out as well that I have not been talking about greedy people wanting to get money out of somebody or greedy lawyers looking for fees. What is usually involved in these cases is simply keeping a roof over someone’s head who has lost their job and can’t work anywhere else, and perhaps enabling them to pay for some health care treatment. No one is getting rich here. We just want to live.

So, what else is there? Is there a “chink in the armor” someplace?

Maybe.

Sometimes.

I handled my first Social Security Disability case in the late 1970s. At that time no one had really heard of it, and you could count the lawyers representing people in that field, even in a major metropolitan area, on the fingers of one hand.

Over the ensuing years, I took in more and more such cases until, by the late 1980s, it was the bulk of my practice. After developing Fibromyalgia Syndrome (FMS) myself in the mid-’80s I started handling a disproportionate amount of those cases compared to my expanding field of colleagues. Even so, I had never encountered a client with chemical sensitivities and had never heard of it until I met “Doris” (not her real name).

Doris worked with my wife and lived a block away from us in our city neighborhood, so I got to know her and her husband quite well. Both were journalists like my wife and we had a lot in common. We went to each other’s houses for dinners and went out to eat at local restaurants. She and my wife car pooled to work.

I happened to also be the precinct captain for our precinct for our local reform oriented city councilman and in that capacity had been to every home in the precinct. Shortly before Doris and her husband had moved in, I had stopped by a two-flat building where I was greeted by the young owner who was in the middle of renovating it before he rented it out. This seemed like a positive development. What I did not know was that he was using Urea Formaldehyde foam insulation in all of the exterior walls.

Everything was normal after Doris and her husband moved in and remained that way for the two years that we knew them. Then Doris got another journalism job working in a building that was undergoing renovation. She also became pregnant around that time. Suddenly, we were no longer in their social loop and, even after the baby was born, weren’t invited over to see her. It was a mystery. Had we said something?

Then I got a call from Doris. It seems that she hadn’t been working for some time and had applied for disability benefits. She hadn’t wanted to hire me because she was embarrassed about it, but now she had gone to a hearing using another lawyer and had lost and wanted me to do the appeal. We were invited over now to see the baby.

When we got to their apartment it had been stripped bare. Her husband had been an art critic and his entire art collection had been removed from the walls which were now covered in tin foil. Doris confided in us both that she had developed a strange health problem which she eventually learned was an “environmental illness” after seeing Dr. Theron Randolph (whom I had not heard of prior to that).

To make a long story short, I won the appeal only by having her go to see a psychologist and we were granted a new hearing. In the meantime, Doris and her family had moved into her parent’s home in a nearby city. When I went to meet her before the hearing, I had to stand outside on a stepladder and talk to her through a plate glass window. Her house had been completely stripped down and she and her husband slept on bedsprings. She could not read or watch TV or listen to the radio.

Her husband had to shower in the basement when he came home from work and put on fresh clothes before coming upstairs. One day when he had stopped in a bookstore on the way home, she noticed it even though he had taken and shower and changed clothes. I began to think from that there might be something going on here.

We did the hearing, with her husband being the only witness, and won based on the psychological evidence. This, however, caused her to lose the disability insurance benefits due to their exclusion for mental impairments. I tried to explain to her that this would have happened anyway but she wouldn’t listen, and I didn’t hear from her again for 20 years. By the time she called, I was able to tell her that I had MCS myself and had closed my office and gone on disability.

Over the intervening years I had a few more such cases. They were all pretty much approved based on mental impairment issues, even though the clients seemed more or less normal. I ran into one of them again years later after we had moved out to the far suburbs and I had developed the MCS problem myself. She was at our 200-member church, and neither of us had recognized each other until I got up one Sunday and told the congregation about my problem, and she introduced herself afterward.

Next article: Light at the end of the tunnel?

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.