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HEALTH
AND DISABILITY INSURANCE,
And SOCIAL SECURITY DISABILITY:
A HANDBOOK FOR IBD PATIENTS
By Jennifer C.Jaff
http://www.ibdquiltproject.org/
DISCLAIMER:
This handbook is informational only, and is not to be
considered legal advice or representation. It is not intended
to create a formal attorney-client relationship, nor is it
intended to solicit clients. Please consult an attorney in
your State for State-specific information, and for advice
regarding your particular circumstances.
A note
about disseminating this handbook:
Writing this took a fair amount of time. It was written, and
is being disseminated, without charge. All I ask is that you
make it available to as many other patients as you can. Leave
a copy with your doctor for other patients to read and copy.
It also will be available from a link on
www.ibdquiltproject.org, for people to download. The more
people who have access to this handbook, the more I will feel
it was worth the time it took to write. Thank you.
Introduction
Patients with IBD have a range of legal problems that are
difficult to resolve without assistance. In particular, my
fellow patients ask me many questions about health and
disability insurance, and Social Security Disability (SSDI).
This handbook is intended to provide general information on
those subjects to patients with IBD.
There are a number of legal issues that differ from State to
State. The information provided here is general, but not
universal. You may need to contact a State agency or private
attorney to ascertain the law in your State on a particular
issue. For questions about Health and Disability insurance,
contact your State’s Insurance Department. For questions about
SSDI, start with
www.ssa.gov, and see the links relating to SSDI.
Patients with chronic illnesses unfortunately must advocate
for themselves, whether it be with a doctor or an insurance
company. Knowing your rights will help. If you have internet
access, you have access to the best research tool in the
world. There is very little that can’t be found out on the
internet. If you don’t have a computer, go to your local
library, most of which are hooked up to the world-wide web.
State agencies have websites, insurance companies have
websites, lawyers have websites. For IBD patients, there are
two important sites,
www.ccfa.org and
www.ibdsucks.org. If you can’t find answers yourself,
someone on one of those sites will help you.
Your
Medical Records
Every State has a law pertaining to a patient’s right to his
or her own medical records. The records are yours, not your
doctor’s. You are entitled to a copy, although your doctor is
allowed to charge a fee for copying (State law usually
determines the amount of the copy fee). Generally, you must
request a copy of your records in writing. If you have an
attorney, your attorney will need to present a release signed
by you entitling your attorney to your records.
Getting together your medical records can be a timely step in
the process. Do not delay in requesting your records, and
after you have made the request, follow up every few days
until you or your attorney has the records. Get everything,
including colonoscopy and endoscopy reports.
Every once in awhile, I hear of a doctor who will not release
a patient’s medical records to the patient. With very limited
exceptions, there is no basis in law for this position.
[2] If you know an attorney
who will help you, get an attorney to write a letter to the
doctor on your behalf, citing your State’s law on medical
records. If you don’t know an attorney, or can’t afford one,
write a letter to your doctor and keep a copy for your file.
Get a written denial from your doctor. Then report your doctor
to your State’s medical licensing board or agency. A violation
of State law is grounds for discipline of a physician, and an
outright refusal to provide you with your own medical records
is, I believe, a violation of law in every State (with limited
exceptions, see footnote).
A
Note About Time Periods
Rule number 1: Once you blow a time limit, you lose. No
exceptions, no appeals, no recourse. If your insurer sends you
a denial that says you have 60 days to appeal and you wait
until day 61, you are finished. The same is true of SSA time
limits.
If you are waiting for medical records or a letter from your
doctor or some other material you wish to submit in support of
your claim, go ahead and file within the time frame, and note
that you are expecting additional information, which you will
submit as soon as possible. Once you submit your timely appeal
letter, you can continue to submit new information. But you
cannot fail to appeal in a timely manner – period.
Health Insurance
People with IBD need to know certain basic facts about health
insurance. First, although employer-based health insurance
cannot exclude or limit coverage of pre-existing conditions,
individual or association-based health insurance can. The key
with employer-based coverage is not ever having a break in
service. What that means is, if you change jobs, you must make
sure that your coverage is continuous. Federal law requires
that you be offered continuation coverage for 18 months after
you leave a job, at your expense. I always pay for COBRA
benefits for a month overlapping with my new insurance to make
sure there is no break, even if theoretically I shouldn’t have
to do so. Better safe than sorry when it comes to health
insurance coverage for a person with a chronic illness.
COBRA benefits begin when you terminate your employment,
although employers have 30 days to get you the necessary
enrollment forms and other information. When you leave a job
and intend to COBRA, stay on top of your former employer until
you receive the necessary information. I once left a job
intending to COBRA, but I didn’t get the necessary information
for three months, at which time I owed three months of
premiums, which was a lot of money to have to pay all at once.
Federal law requires that the information be provided within
30 days. Stay on top of it.
If you are not employed, or if your employer does not provide
health insurance, you have a number of options, none of them
great. I am not aware of any individual policy that will not
exclude a pre-existing condition. Many States have high-risk
pools for people who are chronically ill. These are very
expensive, and many exclude pre-existing conditions for 6 or
12 months. If you are self-employed, you may be able to
incorporate and then cover yourself as an employee in a
one-person group. In the alternative, you may be able to join
a local Chamber of Commerce and get on their group plan. The
National Association of Self-Employed has a plan that is not
very good and very expensive, but it is there. Many trade
associations also have group plans, and if you are older, the
AARP has group plans. If you are not working due to
disability, you may be eligible for public assistance-based
health plans. Check with the State agency in charge of
Medicaid or the Social Security Administration for
information.
Once you have health insurance coverage, the other big hurdle
is coverage for everything you need. IBD patients often have
to advocate for themselves to obtain coverage for experimental
medication and treatment, enteral feeding, certain blood tests
like the Prometheus test for those taking 6MP and imuran, and
other treatment. Generally, health insurance covers “medically
necessary” medicine and treatment. Some insurers take the
position that enteral feeding is not medicine, but nutrition,
and therefore not covered. Similarly, insurers take the
position that Prometheus is a test to determine the right drug
level, rather than a diagnostic test, and therefore it is not
covered. Some insurers refuse to pay for B-12 shots because it
is vitamin rather than medicine. Most health insurance
policies exclude coverage for experimental drugs and
treatments.
If you are denied coverage for something you and your doctor
feel you need, you should appeal. Approximately 72% of health
insurance appeals are successful! Sometimes, it is as simple
as writing a letter. For example, when my insurer has denied
coverage for B-12 shots that I need because I am missing my
terminal ileum due to surgery, I have written a letter and
explained that, and it has been covered from then on. Other
times, you will need your doctor to assist you in advocating
with the insurer. A good doctor should be willing to write a
letter on your behalf. Even if your doctor writes, though, you
should write, as well, and give them the patient’s
perspective.
If all else fails and the treatment at issue is very
expensive, you may want to consult an attorney. Quite
honestly, when I write on behalf of patients, I almost never
lose, not because I am doing anything special, but because I
am a lawyer and insurance companies don’t want to litigate.
The key, though, is finding a lawyer willing to handle the
insurance company appeal only, as opposed to someone
who wants to litigate. Litigation over health insurance claims
is expensive and complex because employer-based health
insurance is governed by a federal law known as ERISA, which
requires that you file suit in federal court, and that you
meet a very difficult burden of proof. A simple health
insurance claim can be resolved with not much more than a
letter and a phone call or two; a more complex one may involve
review of medical records and such, but in any event, a health
insurance appeal can be relatively inexpensive, and may well
be worthwhile, especially for expensive claims.
Some States have an additional step after the insurance
company internal appeal, and this is called an external
appeals. In the States that have external appeals, the
Insurance Department has an appeals board that will hear
appeals of denials of health insurance coverage. If you get to
the external appeal step, you should seriously consider
retaining a lawyer to present your case in as professional a
way as possible. If you cannot afford an attorney, you can do
it yourself, but be prepared and organized. You should bring
with you all of your medical records, a letter(s) from your
doctor(s), and even a diary or other record of your symptoms.
These external appeals, on the whole, are informal, but you
should be prepared to present your argument.
In both internal and external appeals, your argument should
always be “this is medically necessary.” That is the standard,
medical necessity. If you and your doctor can explain why the
treatment in question is medically necessary, you will win.
Sometimes, appealing to an insurer’s sense of fairness or
compassion will help, especially if what you are asking for is
something unique. Insurance companies worry what will happen
if they grant your appeal, and whether they will have to do
the same for hundreds of other patients. Insurance companies
are businesses, and they will focus on costs. If you can
demonstrate that your case is one-of-a-kind, or that what you
are asking for is short-term, or if there is some other way to
demonstrate that the costs will be limited, that may help.
My sense of the process is that insurance companies expect a
certain percentage of denials not to be challenged at all, and
smaller and smaller percentages to appeal at each successive
step in the appeal process. The persistent definitely have an
advantage solely because they persist. Of course, that’s
harder for those of us who are sicker. But unfortunately, the
system rewards the patients who advocate for themselves.
Disability Insurance
If you are fortunate enough to be covered by private
disability insurance (short- or long-term), you are one of the
lucky ones. The only way that I know of that a chronically ill
patient can get disability insurance is in an employer-based
group plan.
If you have options about the choice of disability insurance,
the most crucial thing to look at is the definition of
disability. Some policies pay benefits if you are unable to
perform the functions of any job, and others pay benefits if
you are unable to perform the functions of the particular job
you are in when you buy the insurance. If you have a choice,
you want the latter kind, the kind that pays if you cannot
perform the functions of the particular job you are in. That
means that if I can no longer practice law, for example, I get
paid even if I might be able to do something physically
easier, like answering phones or doing word processing. The
burden of proving that you are disabled is much easier under
this type of policy.
If you become disabled, you must file a claim. Again, start
with your policy’s definition of disability. What you will
have to show is that you meet that definition. If your policy
defines “disability” to include the inability to perform any
job, you will want to address all of the functions you are
unable to perform, and not just those involved in your
particular line of work. Your argument should be tailored to
the policy definition of “disability.”
The insurance company will ask your doctor(s) to fill out
forms, and may ask for your medical records. But be advised
that it is up to you to prove that you are disabled. Do not
count on your insurance company or your doctor to be your
advocate. You must make your case.
Although the standard for SSDI is different from the standard
for private disability insurance, you may wish to use it as a
guide. See Appendix A. If you can show an insurer that you
meet the SSDI criteria, you can make a strong argument that
the private insurance standard should not be more difficult to
meet because, under SSDI, the claimant must show that he
cannot perform his former job, and the SSA then has an
opportunity to show that there are other jobs he could
perform. Thus, even if your insurance policy says you have to
show that you cannot perform any job, the SSDI criteria can be
used as a guideline.[3]
You should collect your medical records and submit them to the
insurer. You should obtain letters from your doctor(s) in
support of your claim. Note that this is absolutely crucial.
In some jurisdictions (see Second Circuit, below, for
example), the treating physician’s word is binding on the SSA
unless it is contradicted by substantial evidence. In
addition, you should keep a record of how you feel each day,
what you can and can’t do, how many times you go to the
bathroom or vomit – every detail of your daily routine
matters. See Appendix C for sample SSDI materials,
demonstrating the level of detail that is required.
I know that, when you finally decide to apply for disability,
it will be because you cannot work. Contrary to the beliefs of
many insurers, patients do not want to be on disability; they
have to be. That means it will be harder than ever to muster
the strength to advocate for yourself. But you must, unless
you can afford to hire a lawyer.
Even with a lawyer, be careful. As with health insurance
appeals, lawyers will want to litigate. That’s how they make
their money. Doing internal appeals is necessary before you
are allowed to litigate, and it’s far less expensive. Make
sure you have a lawyer that is willing to put on a full-court
press at the internal appeal stage, in an attempt to avoid
litigation.
Many lawyers take disability insurance appeals on a contingent
basis. They will ask you to sign over one-third of whatever
you get. I must say that my personal opinion is that this is
too high if there is a good possibility of success without
litigation. One-tenth is generally more appropriate for cases
resolved prior to litigation, since the winnings in a
disability appeal tend to be fairly high. It may be difficult
to find a lawyer to accept less than one-third on a contingent
case, though.
Disability appeals occur in two circumstances: one, your
initial application for (or claim of) disability can be
denied; and two, your ongoing disability benefits can be
terminated on the basis that the insurer thinks you no longer
are disabled. In either case, you are entitled to an appeal.
There actually are two ways you can win such an appeal. First,
you can convince the insurer that you are disabled, and that
they were wrong to deny your claim. If you do that, you will
be entitled to benefits retroactive to the date of the
application (or if you were on disability and it was cut off,
retroactive to the date of the cut-off), as well as monthly
benefits going forward. Second, in the alternative, if you
have a repetitive problem with an insurer and want it to end,
you may seek to buy out your policy. In this case, you can get
a lump sum from the insurer that represents some portion of
what you could be expected to receive for the duration of your
disability. Be advised that, if you follow this route, the
policy will be terminated. However, for enough money, that may
be worth it to you. I negotiated a buy-out for $250,000 this
year – a very substantial payment for my client.
Disability appeals take far more work than health insurance
appeals because the stakes are much higher, both for you and
for the insurance company. Although an insurance company will
retain the right to revisit your case periodically, once you
win an appeal, the company knows it will be paying you monthly
benefits for some period of time. Unlike a health insurance
appeal, it is nearly impossible to appeal to a disability
insurer’s sense of compassion because of the amount of money
involved. Thus, it is rarely as simple as writing a single
letter.
The first thing a disability insurer is likely to do, perhaps
even before denying your claim, is to have an Independent
Medical Examination (IME) performed. That means you are
examined by a doctor hired by the disability insurance company
to review your case. Make no mistake – these doctors work for
the insurance company. They are looking to find a way to find
that you are not disabled.
Your conduct during the IME is very important. Do not try to
exaggerate, or they will immediately question your
credibility. On the other hand, do not leave out details. The
doctor conducting the IME will have reviewed your entire file,
but will not know what it’s like to be in your shoes. Make
sure you discuss the effects of your illness not only on work,
but on your home and family life. If you can no longer clean
your house or drive or travel or care for your children, those
things are very important. If you are depressed as a result of
your illness, that may constitute a separate disability, and
you must mention it on your claim form, as well as in your IME.
Do not worry about sounding like you complain too much; it is
your job to make sure the IME gets a sense of what your
day-to-day existence is like.
If you get a good result from the IME – which does happen –
you will win. The insurer cannot deny your claim if its own
doctor says you are disabled. So the IME is terribly
important.
On the other hand, if the IME report says you are not
disabled, that doesn’t mean you lose. However, you need to get
a copy of the IME report (which will be provided to you by the
insurer), and you need to pick it apart, line by line. You
need to cite to your medical records and to your treating
physicians’ letters and reports to explain what the IME missed
and why it was important.
Let me give you an example. I represented a woman who had
claimed two disabilities: carpal tunnel to her hands and
severe depression. The insurance company had her undergo two
IMEs. One IME doctor had a website bragging about results he
gets for insurance companies, allowing me to argue that his
report was worthless due to bias. The other IME doctor had
made a couple of passing comments that actually supported our
claim of disability, although you had to read very carefully
to pick them up since his overall conclusion was that she was
not disabled. But the most important point is that the insurer
completely missed the carpal tunnel disability, and only did
IMEs on her mental health disability. I cited to every single
document in the file that pertained to the carpal tunnel
disability to show that the insurer was on notice that she
claimed two separate disabilities. My appeal letter was 10
single-spaced pages, going over the file bit by bit. It took a
fair amount of time, but it was very successful for the
patient.
The most important thing is to stress objective indications of
disability. Although you must be clear about how you feel and
what your life is like, you will need test results and
physician notes to really prove your case. It is critical that
you not assume the insurer has everything it should have, or
that it fully understands and appreciates it. In your appeal
letter, go through your medical chart and demonstrate, by
reference to test results and physician notes, that there is
objective evidence that you are disabled. Colonoscopic and
endoscopic biopsy results, blood test results, CT scans,
x-rays – these are objective evidence to show not only that
you are sick, but more importantly, that you are not
exaggerating. Your credibility will be tested; without getting
defensive, you must demonstrate why you should be believed.
Although I don’t have statistics on the number of disability
insurance appeals that are successful, I can tell you that
I’ve never lost one. My impression is that, if you take the
appeal step very seriously, you may well get a positive result
without needing to litigate. Litigation of disability appeals
suffers from the same complexity as health insurance appeals.
If your disability insurance is employer-based, the federal
ERISA law governs, and you are subject to a very high standard
of proof. So take the internal appeal step very seriously; in
my experience, it is by far your best chance of success.
Social Security Disability
The best resource there is for information about the SSDI
application and decision process is the Social Security
Administration (SSA). The SSA website is
www.ssa.gov. If you don’t go there to read everything
there is on the process before you apply, you are doing
yourself a huge disservice. Really, everything you need to
know is there.
There are a number of Appendices to this Handbook that will be
helpful, too. First, the SSDI criteria for digestive disorders
is reprinted in full in Appendix A. If you are applying for
SSDI based on IBD, these are the criteria you need to meet to
be considered disabled. Appendix B contains three letters from
doctors critiquing the SSDI criteria, which are outdated and
far more restrictive than appropriate. For example, the SSDI
criteria call Crohn’s disease “regional enteritis,” which is a
term that no longer is used by doctors. You can and should
submit the letters contained in Appendix B with your
application for SSDI. Third, Appendix C contains materials
prepared by a patient who was successful in obtaining SSDI on
her initial application. These materials are included here to
demonstrate the extraordinary degree of specificity and
graphic detail that you will have to provide. Nothing is too
private.
Most of the IBD patients I know who have applied for SSDI have
been denied on the first try. They have moved for
reconsideration, and then appealed, and many have won. Most of
them advise retaining a lawyer to represent you when you get
to the appeal stage. The ability to present evidence and
testimony in a persuasive fashion is crucial. Although the
hearings are not very technical, it is best to put on a
presentation rather than just answering questions. A lawyer
will be best able to present your case in an orderly fashion.
If you run into a lawyer who isn’t optimistic about your
chances, feel free to seek a second opinion, just as you would
from a doctor.
There are lawyers around the country who specialize in SSDI
appeals. I am not one of them. They accept a standardized fee,
typically one-quarter of back benefits if you win, and nothing
if you lose. The National Organization of Social Security
Claimants’ Representatives (NOSSCR) is the best source of
attorney referrals. Their website is at
http://www.nosscr.org/. There is a particularly excellent
set of FAQs at their website, as well.
In addition to proving that you are disabled (see below), to
get SSDI, you must show that you have earned 40 credits
(generally, worked 40 quarters in which you satisfied the
relatively small earnings requirement), with 20 of those
credits occurring in the past 10 years. SSDI is not
income-based. If you are disabled and low-income, you may wish
to look into supplemental security income (SSI). Dependent
children living in your home may also be entitled to benefits.
To apply for SSDI, you will need the following information:
* Social Security number and proof of age;
* Names, addresses and phone numbers of doctors, hospitals,
clinics and institutions where you have been treated, as well
as dates of treatment;
* Names of all medications you are taking;
* Medical records – everything you can get your hands on,
including lab results;
* Summary of your employment history;
* Your most recent tax return.
The SSA is supposed to help you gather all this information,
but the better you are prepared, the easier their job will be.
You can receive SSDI and work less than the SSA considers
“substantial.” Each year, the SSA determines the dollar amount
that meets this standard, but through 2003, it is less than
$1,000 per month. In truth, though, at least at the time you
apply, if you can work at all, it will be difficult to
convince the SSA that you are severely disabled.
Once you are determined to be disabled, you will remain on
SSDI unless you earn too much or your health improves. When
you are granted benefits, your condition will be characterized
based on whether improvement is expected. If improvement is
expected, your case will be reviewed in about 18 months from
when benefits commence; if improvement is possible, review
will occur in about 3 years; and if improvement is not
expected, review should not occur for 7 years. With a chronic
illness like IBD, expect reviews at either 18 months or 3
years.
You can apply for SSDI as soon as you become disabled, but you
will not receive benefits until 6 months after disability
onset. You don’t have to exhaust your savings; you may be on
private disability insurance; and you may even be on sick
leave or worker’s compensation.
The first decision step is the initial claim, which is
reviewed by a disability examiner. This should take about four
months. If the claim is denied, you can request
reconsideration, which goes to another disability examiner,
and which takes another four months or so. If reconsideration
is denied, you can request a hearing before an Administrative
Law Judge. You must go through each step before you get to the
next.
Over half of the claimants who appeal are granted benefits,
which means you should appeal if you are not successful in the
initial step or reconsideration. If you lose at hearing, you
can appeal to the Appeals Council. This can take more than a
year. If you lose at that stage, you can file suit in federal
district court, and then you can appeal through the courts,
theoretically up to the Supreme Court.
SSA defines disability as “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or has lasted or can be expected
to last for a continuous period of not less than 12 months.”
You must prove that you meet this definition to get SSDI.
The SSA has developed a five-part test for evaluating
disability claims: First, is the claimant currently employed?
If so, you lose. Second, does the claimant have a severe
impairment? A severe impairment is one that “significantly
limits his or her physical or mental capacity to perform basic
work-related functions.” Third, does the claimant have an
impairment medically equivalent to one specifically listed in
the regulations, which list impairments as to which there is
automatic eligibility? Fourth, if not, does the claimant’s
impairment prevent him from performing work of the sort he has
done in the past? Fifth, if so, does the claimant’s impairment
prevent him from performing other work of the sort found in
the economy (i.e., does the claimant have a “residual
functional capacity”)? As to the first 3 parts of the test,
medical evidence is necessary. As to the last 2 prongs,
vocational evidence, often of a vocational expert, is
required.
The finding that you have a severe impairment is primary.
Appendix A contains the medical criteria or “listings” for
digestive diseases. If you meet one of these listings, you are
entitled to benefits with no further analysis. Please note
that, under each section of the listing, there are a number of
alternative grounds for finding disability. For
example, under section 5.07, regional enteritis, you have to
be found to have either persistent obstruction or
systemic manifestations like arthritis or intermittent
obstruction due to abscess or fistula or massive weight loss,
but you do not have to have all of these.
Your task is to show either that you meet these criteria set
forth in the listing, or that you suffer from a “medically
equivalent” impairment. The things to emphasize are the things
that relate to the criteria in a listing. You may have
additional symptoms that should be discussed, but try to fit
your symptoms into the SSA criteria to show that you should be
found disabled. If you don’t fit the listing perfectly, focus
on showing that your disability is medically equivalent to the
listed impairment.
If you have more than one medical condition, the combination
of which results in a disability, the SSA should consider the
whole picture. The combined effects of IBD and other
conditions, such as fibromyalgia or even clinical depression,
should be considered in their totality. Do not make the common
mistake of failing to detail the emotional toll the illness
has on you and your family.
Once you show that you have a severe impairment that is
medically equivalent to a listed impairment, the analysis
shifts to vocational matters. The first question is whether
you are able to perform your most recent job. If so, you are
not eligible. If not, then the final question is whether, even
with a severe impairment, you have sufficient residual
functional capacity to perform other work available in the
economy.
“Residual functional capacity” can be determined either by
vocational expert testimony or by reference to grids published
by the SSA. The grid charts a claimant as disabled or not
based on physical capacity, age, education and work
experience. If the use of the grid is appropriate, and the
grid shows no disability, that decision is unlikely to be
overturned on appeal. If the disability is non-exertional,
i.e., it does not restrict lifting, walking, standing, etc.,
and if a finding is made that the non-exertional disability
restricts performance of a full range of work at the
appropriate residual functional capacity, the non-exertional
impairment must be taken into account, and the testimony of a
vocational expert is necessary rather than reliance solely on
the grids. IBD has both exertional limitations (for example,
some patients can’t lift heavy items) and non-exertional
aspects (for example, pain).
As you will see, a number of courts believe that people with
IBD are able to perform sedentary or light work. You have to
be specific enough about how IBD affects your daily life to
refute such a belief. Can you clean your house, drive, cook,
shop? How many hours a day do you spend in the bathroom? Be
detailed about your medications and their side-effects. It is
crucial that you explain in detail how IBD affects your daily
life.
Federal Case Law
I have pulled every federal court decision that mentions
ulcerative colitis or Crohn’s disease. With a few minor
exceptions, they fall into four categories: (1)
military/veterans’ benefits; (2) employment cases; (3) private
disability insurance; and (4) SSDI or SSI. I will summarize
only the latter two categories here.
[4] The federal courts are organized into Circuits; you
should look primarily at the Circuit in which your State is
located (see below).
The federal courts’ rulings on SSDI and SSI are binding on the
SSA. The cases will give you guidance in how the SSA criteria
will be interpreted, and therefore will help you to make your
case to the SSA. Again, emphasize the things the SSA and the
courts say are important. Feel free to share these case
citations with your attorney if you have one. Note that even
though SSDI and SSI are federal programs, there are
differences in the legal rules in different jurisdictions. For
example, see the following cases on the treating physician
rule in the various Circuits. The SSA in your jurisdiction is
bound only by the cases in your Circuit.
Private insurance cases are binding on the courts in the
particular jurisdiction. You may use them as guidance to be
able to argue to an insurer what a court would do if you
pursued your case to litigation. In the absence of private
insurance cases on ulcerative colitis or Crohn’s disease, you
may use SSDI cases as persuasive authority. Note that a
private insurance case that arises out of an employment-based
insurance plan is likely to be governed by ERISA, which is
extremely complicated. You should not try to litigate such a
case on your own. Use the cases set forth below as assistance
in arguing to the insurance company in the context of an
appeal, but do not try to represent yourself if the case
proceeds to court.
The federal Courts of Appeals (or Circuits) bind the lower
federal District Courts. So the best case law you can cite in
your jurisdiction will be the Circuit court, with District
Court decisions also being helpful, but not as strong
authority. Newer cases are better authority than older ones,
but the most important thing is the similarity in the facts
between your case and the case before the court.[5]
If there are no analogous cases in your jurisdiction, you can
refer to cases in other jurisdictions, but with the
understanding that they are persuasive only, and not binding
on the courts in your jurisdiction.
Also note that I have searched only for federal cases. There
would be State court cases on private insurance issues, as
well.
The hardest thing about reviewing and summarizing the case law
for me was not commenting on some of the less accurate
statements about IBD, especially in the earlier cases. For
those of you who know me, you can read in sarcastic comments
where appropriate.
First
Circuit
(Massachusetts, New Hampshire, Rhode Island, Maine, Puerto
Rico)
Bulpett v. Heckler, 617 F.Supp. 850 (D. Mass. 1985) –
SSDI appeal of 51 year old woman with ulcerative colitis,
regional enteritis and erythema nodosum. The SSA found that
she was capable of performing light work, which is defined as
lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds, as well as a
good deal of walking or standing, or if sitting, pushing or
pulling with arms or legs. The court found that the
Administrative Law Judge did not carefully analyze the medical
records and the report of the claimant’s treating physician,
which documented two disabling impairments, Crohn’s disease
and arthritis of the spine. In addition, the court found that
the ALJ had not properly considered the claimant’s assertion
of pain, as confirmed by objective medical evidence. Finally,
the court found that the ALJ erred in failing to consider “the
cumulative effect of [the claimant’s] impairments.” “It is
inappropriate to view several disabilities as isolated from
one another.” The need to frequently use the bathroom would
interfere the claimant’s performance and, thus, it, too, is
relevant.
Kaufman v. Sullivan, 1992 WESTLAW 717818 (D.N.H. 1992)
– SSDI appeal by 31 year old with ulcerative colitis and
proctitis, who was required to spend hours a day in the
bathroom, rendering her unable to work for that period. These
conditions caused rectal bleeding, uncontrolled bowel urgency,
diarrhea, cramps, gas, back pain, nausea, etc., etc. The court
reviewed the medical records in great detail. The court said
subjective complaints of pain are to be considered if
confirmed by objective evidence. The court applied section
5.06 (see Appendix A) and found that the claimant had severe
ulcerative colitis. The court also found that a claimant need
not prove an inability to engage in gainful activity every day
of his or her life; “episodic illnesses can constitute
disabilities. . . .”
Rohrberg v. Apfel, 26 F.Supp.2d 303 (D. Mass. 1998) –
SSDI appeal by patient with Crohn’s disease and depression.
The court stated a detailed test for consideration of pain,
looking at (1) nature, location, onset, duration, frequency,
radiation, and intensity of pain; (2) precipitating or
aggravating factors; (3) type, dosage, effectiveness, and
adverse side effects of pain medication; (4) treatment other
than medication; (5) functional restrictions; and (6) the
claimant’s daily activities. The ALJ failed to apply this test
and, thus, failed to adequately examine the claimant’s
subjective claim of pain. The court found that the
unpredictability of the claimant’s condition on any given day
made it difficult to commit to even part-time work. Further,
the court stated that sporadic or transitory activity does not
disprove disability. “Disability does not mean that a claimant
must vegetate in a dark room excluded from all other forms of
human and social activity.” The fact that the claimant might
be able to work on some days, with frequent bathroom breaks,
did not determine a residual functional capacity.
Babin v. Apfel, 1999 WESTLAW 33117080 (D.Me. 1999) –
SSDI appeal in which claimant suffered from Crohn’s disease,
and substance addiction. The claimant failed to “exhaust
administrative remedies,” meaning he failed to appeal an
adverse decision on his claim for benefits by an
Administrative Law Judge before going to court. The claimant
said he failed to appeal to the Appeals Council in a timely
manner because he was mentally incapacitated at the time.
Although mental incapacity may excuse a procedural default,
the claimant must prove mental incapacity, i.e., inability to
read or write; lack of facility with English; limited
education; or mental or physical condition limiting claimant’s
abilities.
Second
Circuit
(New York, Connecticut, Vermont)
Fandino v. Secretary of HHS, 1987 WESTLAW 16150 (S.D.N.Y.
1987) – SSDI appeal by a claimant with ulcerative colitis.
Treating physician reports have special evidentiary value,
according to this court. It is binding on the SSA unless there
is substantial evidence to contradict it.
Alfano v. Bowen, 1988 WESTLAW 23542 (E.D.N.Y. 1988) –
SSDI and SSI appeal by claimant with ulcerative colitis.
Denial of benefits affirmed on technical grounds.
Trapani v. Bowen, 1990 WESTLAW 59555 (E.D.N.Y. 1990) –
SSI appeal by claimant with Crohn’s disease who appeared
without an attorney. The court said the Administrative Law
Judge has to more carefully review the record when the
applicant is without counsel.
Espinar v. Shalala, 1995 WESTLAW 679236 (S.D.N.Y. 1995)
– SSDI appeal by male with a variety of gastrointestinal
ailments, including peptic ulcer, hiatal hernia, reflux, and
duodenitis, and eventual diagnosis with irritable bowel
syndrome. The court said that it can order the SSA to consider
new evidence which is material if there is good cause for the
failure to incorporate it earlier in the proceedings. Here,
evidence of bleeding would be material. The claimant asserted
that he had recently been diagnosed with Crohn’s disease, as
well, and the court held that it can order the SSA to consider
evidence that existed at the time of the hearing, but which
was not fully appreciated at that time. The court held that
the claimant was entitled to present this new evidence.
Henriquez v. Chater, 1996 WESTLAW 103828 (S.D.N.Y.
1006) – SSDI appeal by 45 year old man with ulcerative
colitis. The court found that the failure of the
Administrative Law Judge to mention the treating physician
rule (the report of the treating physician is binding unless
contradicted by substantial evidence) was reversible error.
The court pointed to evidence that supported the treating
physician’s statement that the claimant was disabled,
including testimony of the claimant that he takes public
transportation to doctor appointments only with great
difficulty, often needing to go outside of the subway to find
a restaurant bathroom to use. The existence of “non-exertional
impairments” requires the SSA to call a vocational expert to
determine whether the non-exertional impairments significantly
diminish the claimant’s ability to perform even light work.
Finally, a claimant’s testimony about pain may not be
discounted solely because objective clinical findings cannot
establish a cause for pain, the court said.
Harris v. Chater, 1998 WESTLAW 19977 (E.D.N.Y. 1998) –
SSDI appeal by 35-year old male with Crohn’s disease. “Because
plaintiff defecates repeatedly, he experiences malabsorption
of nutrients. He has severe diarrhea, abdominal pain, nausea,
cramps, and other symptoms.” The Administrative Law Judge
found that he could no longer perform his previous job, but
could perform a range of sedentary work, involving lifting no
more than 10 pounds at a time, with a certain amount of
walking and standing occasionally. The court restated the
treating physician rule, and then engaged in a long and
detailed discussion of the amount of work that can be done at
home, in light of technological advances. The court also
stated that the Americans with Disabilities Act may create an
obstacle to disabled people re-entering the workplace because
a number of courts have found that a finding of disability by
the SSA precludes an employee from claiming to be able to
perform the essential functions of their job under the ADA.
After this interesting philosophical discussion, the court
found that the claimant was disabled and remanded to the SSA
for calculation of benefits. See also Harris v. Chater,
998 F.Supp. 223 (E.D.N.Y. 1998) – three months later, the
decision is amended slightly.
MacMillan v. Provident Mutual Life Ins. Co., 32
F.Supp.2d 600 (W.D.N.Y. 1999) – long-term disability claim
brought by former employee with ulcerative colitis alleging
miscalculation of benefits, and eventual termination of
benefits. The case is brought under the Employee Retirement
Income Security Act (ERISA). First, only the plan and the
administrators and trustees can be named as defendants in an
ERISA claim for benefits. Second, there is no discretion
involved in calculating benefits; the formula in the plan
should be followed (this point deals with a technical ERISA
issue, whether the plan administrator’s decision should be
reversed only if arbitrary and capricious, or whether the
court should review the plan administrator’s decision de novo,
anew. If you have a case in which this matters, you need a
lawyer). On the proof necessary to establish disability, the
court said that, under this policy, the initial disability
determination depends on whether the claimant could not
perform the material duties of his regular occupation, but
after 24 months of disability, the insurer would review to
determine whether the insured could not perform the material
duties of any gainful occupation for which he is reasonably
fitted by training, education, or experience. The court found
that a trial on that issue would be necessary. [Note that in
the absence of a reported decision concluding the case, the
likelihood is that the case settled.]
Gallardo v. Apfel, 1999 WESTLAW 185253 (S.D.N.Y. 1999)
– SSI appeal by woman with Crohn’s disease, with fistulas,
allergies, and back problems. The Administrative Law Judge
found that she could perform sedentary work, at least in part
because her Crohn’s appeared to be in remission based on the
latest colonoscopy. The court said that, although Crohn’s
disease may be disabling in some cases, since the claimant was
in remission at the time of her hearing, her symptoms were not
as severe as those recited in other cases in which claimants
had required repeated hospitalizations, surgery, and many
medications.
Medoy v. Warnaco Employees’ Long Term Disability Ins. Plan,
43 F.Supp.2d 303 (E.D.N.Y. 1999) – Claimant initially was
granted long-term disability benefits, as well as SSDI.
However, about 3 years later, benefit payments were terminated
without notice. Plaintiff sought resumption of her benefits
and a statement of the reasons for termination, and receive no
response. She then requested a copy of the plan, and her
employer directed her to the insurer, which stated that it had
destroyed her file and, thus, her requests for information
could not be granted. She appealed the termination of
benefits, which also received no response. She then filed suit
under ERISA, challenging the failure to provide plan documents
upon request (if you ask for a copy of the plan, the plan
administrator must provide it within 30 days or risk a penalty
of $100 per day), the failure to retain records (they must be
retained for 6 years), and the termination of benefits. The
court denied the motion to dismiss these claims. [Note, again,
since there is no subsequent opinion in this case, the
likelihood is that it settled.]
Third
Circuit
(New Jersey, Pennsylvania, Delaware, Virgin Island)
Nester v. Bowen, 1986 WESTLAW 12936 (E.D.Pa. 1986) –
SSDI and SSI appeal by male with ulcerative colitis, skin
cancer, and a shortened leg due to childhood polio. The SSA
found he had a non-exertional impairment but could perform
sedentary work. Because claimant credibly testified that he
cannot sit for long periods without putting his legs up, the
court reversed and found he was disabled.
Shaw v. Unum Life Ins. Co. of America, Inc., 1989
WESTLAW 52713 (D.N.J. 1989) – attorney with ulcerative colitis
applied for disability benefits under an insurance policy, and
was denied. The insurer claimed that he failed to disclose his
condition on his application, and sought to refund all
premiums paid to date and cancel the policy. Although an
applicant must answer questions on an insurance application
honestly, he need not volunteer more information than is
sought.
Miller v. Bowen, 1990 WESTLAW 10054 (E.D.Pa. 1990) –
SSDI and SSI appeal by woman with Crohn’s disease. Pain must
be considered in making a disability determination when
confirmed by medical evidence establishing the cause of the
pain. The evidence was not sufficient to find that the
claimant’s impairments were disabling.
Koehne v. Sullivan, 1990 WESTLAW 164718 (W.D.Pa. 1990)
– SSI and SSDI appeal by woman with Crohn’s disease. The
Administrative Law Judge found that the claimant’s most
dramatic symptoms occurred only when she failed to comply with
prescribed medical treatment. The court agreed that there was
evidence that claimant was capable of performing light work.
However, the court found that consideration of non-compliance
with medical directives was inappropriate here because the
claimant failed to take her medication only when she lacked
the money to buy medication, and because she suffered from
psychiatric problems. Thus, the court remanded the case to the
Secretary for further consideration of these factors.
Roberts v. Shalala, 1994 WESTLAW 285039 (E.D.Pa. 1994)
– SSI appeal by man with Crohn’s disease. Administrative Law
Judge found that he was capable of light work. The court found
that treating physicians’ opinions should be given great
weight unless a history of conservative treatment is
inconsistent with the opinion that the claimant is totally
disabled or when the opinion is conclusory. The court agreed
with the ALJ that the claimant’s bouts of Crohn’s disease were
intermittent and controlled by medication, that he would not
need excessive bathroom breaks, and that he had not lost a lot
of weight. The court said that subjective complaints of pain
are to be considered to the extent they are not inconsistent
with medical or other evidence.
Phillips v. Chater, 1996 WESTLAW 457183 (D.N.J. 1996) –
SSDI appeal by male with diverticulosis and osteoarthritis.
Although the Administrative Law Judge found that his
impairments were severe, he also found that he could perform
the functions of his prior job as a sales representative. The
court found that substantial evidence supported this
conclusion. The court said that the treating physician’s
opinion will be given controlling weight if it is well
supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in the record. Also, subjective claims of
pain are considered when the pain stems from a medically
determinable impairment which can reasonably be expected to
product the pain complained of.
Ricci v. Apfel, 159 F.Supp.2d 12 (E.D.Pa. 2001) – SSI
appeal by claimant with Crohn’s disease, schizophrenia, and
sacroilitis seeking Disabled Child’s Benefits. The court
explained that this particular benefit only applied if the
impairment was disabling prior to the claimant’s 22nd
birthday. Here, there was insufficient medical evidence to
support such a conclusion.
Romani v. Commissioner, 35 Fed. Appx. 39 (3rd Cir.
2002) (unpublished decision, not binding authority) – SSDI
appeal by claimant with ulcerative colitis. The court found
that the Administrative Law Judge failed to give sufficient
weight to the opinion of the treating physician, which was
supported by other medical evidence, and because the ALJ
failed to give due consideration to the claimant’s reports of
pain, which were consistent with the diagnosis.
Fourth
Circuit
(Maryland, Virginia, North Carolina, South Carolina, West
Virginia)
Peck v. Ribicoff, 193 F.Supp. 450 (E.D.Va. 1961) – SSDI
appeal by male with ulcerative colitis, accompanied by
hemorrhagic bleeding and extreme weight loss. The claimant had
been hospitalized for long periods of time. However, after
claimant’s application for disability was denied, his doctor
wrote the Secretary reporting some improvement in his
condition, but later, it again worsened. A number of ups and
downs followed. The court found that the claimant could not
engage in substantial gainful activity.
Caldwell v. Celebrezze, 238 F.Supp. 696 (W.D.S.C. 1964)
– SSDI appeal by claimant with ulcerative colitis. Claimant’s
treating physicians opined that she was permanently disabled,
and there was nothing in the record contradicting this. The
claimant’s complaints included uncontrollable diarrhea, and
she was unable to do housework. The court found that it was
unreasonable to think that anyone would hire this woman due to
concerns about attendance and potential liability. Thus, she
was disabled.
Brown v. Sullivan, 927 F.2d 595 (4th Cir. 1991) – SSDI
and SSI appeal by male with ulcerative colitis and other
impairments. He testified to 10-15 bowel movements per day,
incontinence at least 3 times per week, and other symptoms.
The Administrative Law Judge found him capable of performing
light work. Subjective complaints were disregarded because the
claimant was not credible based on numerous inconsistencies in
the record. The court also stated that the treating physician
rule in the Fourth Circuit is that the treating physician’s
opinion is given great weight and may be disregarded only if
there is persuasive contradictory evidence, as there was in
this case. Finally, the ALJ properly considered the combined
effects of the claimant’s impairments.
Fox v. Shalala, 30 F.3d 129 (4th Cir. 1994)
(unpublished opinion, not binding authority) – SSDI appeal by
woman with ulcerative colitis and chronic fatigue. The court
found that substantial evidence supported the conclusion that
she was not disabled because she only required hospitalization
once, and responded well to medication most of the time.
Barina v. Shalala, 35 F.3d 555 (4th Cir. 1994)
(unpublished opinion, not binding authority) – claimant with
Crohn’s disease appealed denial of SSDI benefits. The court
affirmed the denial on the ground that the claimant was
working at the time of her application, and there was no
continuous 12-month period when she was unable to work, nor
was she forced to quit her job due to her impairment.
McCoy v. Apfel, 1998 WESTLAW 213701 (W.D.Va. 1998) –
SSDI appeal by a female claimant with Crohn’s disease. The
Administrative Law Judge found that found that the claimant
was capable of performing sedentary work. The court said a
treating physician’s statement is accorded great weight, but
not controlling weight if it is not supported by substantial
evidence or if it is inconsistent with substantial evidence.
The ALJ found that the claimant’s subjective claims of pain
were not credible, and the court found that this finding was
supported by substantial evidence. The court said that the
treating physician’s opinion can be called into question if it
“overly derives from a claimant’s subjective reports of pain.”
Williamson v. A.T Massey Coal Co., Inc., 56 F.Supp.2d
656 (S.D.W.Va. 1998) – coal miner brought claim for long-term
disability benefits for leg pain, depression, Crohn’s disease
and stress. This case was brought under ERISA. The court found
that the Plan did not properly analyze the medical evidence.
The decision pertains to an analysis of the claimant’s back
pain, with essentially no discussion of Crohn’s disease.
Hawkins v. Massanari, 2001 WESTLAW 1191107 (W.D.N.C.
2001) – SSDI appeal by female claimant with Crohn’s disease,
back problems, and other impairments. The Administrative Law
Judge found that the claimant had a severe disability, but was
able to perform light work as long as she was near a restroom.
The ALJ also pointed to the fact that she had not lost a
significant amount of weight. The court found that the
treating physician rule only applies to the doctor who is
treating the patient over time, not a consultant who examines
her for purposes of SSDI. The finding that the claimant had
the residual functional capacity for light work was supported
by substantial evidence that she was able to walk and engage
in a range of daily activities.
Williamson v. Barnhart, 2002 WESTLAW 165105 (W.D.N.C.
2002) – SSDI appeal by a female claimant with fibromyalgia,
arthritis, TMJ, migraines, and “possible” Crohn’s disease or
irritable bowel syndrome. The Administrative Law Judge found
that the claimant had sufficient residual functional capacity
to work without standing, walking or sitting for more than 6
hours, and without exposure to cold temperatures. The ALJ
questioned the claimant’s credibility. The court found that
the credibility determination was supported by substantial
evidence, and that the ALJ was correct in finding that there
was objective medical evidence to indicate that subjective
claims of pain were not determinative in the absence of
objective medical evidence. Finally, the court found that the
treating physician’s opinion could be disregarded to the
extent it pertained to vocational conclusions rather than
medical ones.
Walls v. Barnhart, 296 F.3d 287 (4th Cir. 2002) – SSDI
appeal by male claimant with Crohn’s disease who claimed that
his condition requires that he be able to sit or stand at his
option during a regular work day. The Administrative Law Judge
concluded that he was not disabled because there are a number
of jobs he could perform, even with that restriction. This
conclusion was based on testimony of a vocational expert. A
SSA policy statement noted that unskilled and light work was
typically structured so as to preclude a sit/stand option, so
the claimant argued that the vocational expert’s testimony
contradicted this SSA policy statement. The court found that
the two were not necessarily contradictory, and that the ALJ’s
conclusion was supported by substantial evidence.
Fifth
Circuit
(Texas, Louisiana, Mississippi)
Scharlow v. Schweiker, 655 F.2d 645 (5th Cir. 1981) –
SSI disability appeal by a 56-year old woman with anxiety and
an unspecified gastrointestinal problem, variously diagnosed
as ulcerative colitis or regional ileitis. The claimant argued
that her subjective symptoms were not given adequate
consideration. The court said that pain itself can be
disabling, even when its existence is unsupported by objective
medical evidence if linked to a medically determinable
impairment. In this particular case, the court found that the
claimant’s subjective evidence of pain was not adequately
considered.
Bierman v. Bowen, 1987 WESTLAW 6267 (S.D.Tex. 1987) –
SSDI disability appeal by a patient with an ileostomy due to
ulcerative colitis, according to the court. First, the court
explained the burden of proof. The claimant has to burden of
proving the disability. Once the claimant proves that he no
longer can perform his previous work, the burden of proof
shifts to the Secretary to prove that the claimant can perform
other work. The court found that the fact that the claimant
performs some work on a sporadic basis does not defeat his
claim of disability.
Lopez v. Secretary of HHS, 1992 WESTLKAW 317394 (N.D.Tex.
1992) – SSDI and SSI appeal by 49 year old with ulcerative
colitis and other impairments. The issue was the date of
disability onset. The court explained the importance of
treating physicians’ statements, which should be accorded
“considerable weight” unless it is so brief and conclusory,
and unsupported by clinical evidence, so as not to be
reliable.
Eaves v. Secretary of HHS, 877 F.Supp. 334 (E.D.Tex.
1995) – SSDI appeal by patient with Crohn’s disease and other
impairments. The court explained that its role is to decide if
substantial evidence supports the SSA’s determination. In
answering that question, the court should look to objective
medical facts, diagnoses and opinions of treating physicians,
claimant’s subjective evidence of pain, and claimant’s
educational and employment history. The claimant must show
that he or she suffers from an impairment and that the
impairment precludes him or her from engaging in substantial
gainful employment. The court reviewed both the objective
medical evidence and the claimant’s subjective symptoms,
including diarrhea and pain. The Administrative Law Judge had
secured an independent medical examiner, who found little
documented evidence of Crohn’s disease. The court said that
pain itself is considered disabling “only when it is constant,
unremitting, and wholly unresponsive to therapeutic
treatment.” Where there is no objective confirmation of
subjective complaints of pain, the subjective complaints can
be discounted. The court found that substantial evidence
supported the denial of disability benefits.
Cummings v. Apfel, 2000 WESTLAW 343357 (E.D.La. 2000) –
SSI appeal by female claimant with non-specific
gastrointestinal complaints and other impairments, including
back pain and depression. The court explained that an
individual’s combined impairments may constitute a disability,
even when each individual impairment alone does not. Because
the claimant’s impairments were “fragmented” and viewed in
isolation by the Administrative Law Judge, the court rejected
the ALJ’s conclusions.
Sixth
Circuit
(Ohio, Michigan, Tennessee, Kentucky)
Sheets v. Bowen, 875 F.2d 867 (6th Cir. 1989) – SSDI
appeal of female claimant with Crohn’s disease. The court
affirmed the denial of benefits. The claimant alleged that she
suffered from recurrent, intermittent, unpredictable and
variable diarrhea, bloating, swelling, nausea, and pain. She
used the bathroom 7-8 times per day in normal circumstances,
and 10-14 times during a flare. The Administrative Law Judge
did not find her claim that her symptoms precluded her from
working to be credible. The court found that the claimant’s
condition did not meet the definition of regional enteritis in
section 5.07, set forth in Appendix A, nor was it the “medical
equivalent” because she could not show persistent or recurrent
obstruction, fistula formation, abscesses, or ulceration. The
treating physician’s opinion must be supported by objective
evidence to be entitled to deference, and subjective
complaints of pain also must be supported by objective medical
evidence that could be expected to cause disabling pain.
Robbins v. Secretary, 876 F.2d 895 (6th Cir. 1989)
(unpublished decision, not binding authority) – SSDI appeal by
a female with Crohn’s disease, hepatitis, hypertension, and
other impairments. The Administrative Law Judge found that the
claimant has the residual functional capacity to perform
sedentary work. The court affirmed the basic rule that the
role of a reviewing court is only to determine if substantial
evidence supports the decision of the SSA, not to reexamine
the evidence de novo, anew.
Kinney v. Secretary, 953 F.2d 644 (6th Cir. 1992)
(unpublished decision, not binding authority) – SSDI appeal by
a male with Crohn’s disease and back pain. The Administrative
Law Judge found that the claimant retained the ability to
perform sedentary work. The claimant argued that testimony of
a vocational expert was necessary to evaluate the effects of
Crohn’s disease, a non-exertional impairment. The court said
the claimant had the burden of showing he could not perform
sedentary work due to his non-exertional impairment.
Stone v. Secretary, 1992 WESTLAW 466907 (N.D.Ohio 1992)
– SSDI appeal by male with “Krohn’s Disease,” which the court
thought was another name for ulcerative colitis. The claimant
had spent 6 months in a hospital, and had undergone surgery.
However, also during the years in question, the claimant had
engaged in work in one of two businesses he owned. Absent
proof of a continuous 12-month period during which the
impairment prevented him from working, he cannot be considered
disabled, said the court.
Fitchet v. Chater, 89 F.3d 833 (6th Cir. 1996)
(unpublished decision, not binding authority) – SSDI appeal by
a female claimant with Crohn’s disease. The court explained
that a treating physician’s opinion is afforded more weight
than the opinion of a physician who is employed by the
government, although the final decision rests with the
Administrative Law Judge. Finally, objective evidence did not
confirm that the claimant was disabled by pain. The finding of
no disability was ffirmed.
Kaufman v. SMA Life Assurance Co., 114 F.3d 1187 (6th
Cir. 1997) (unpublished decision, not binding authority) –
claim for enforcement of a disability insurance policy by an
attorney with a policy that defined disability as inability to
engage in the insured’s regular occupation, i.e., the
occupation the insured was in when the disability begins. The
insured had ulcerative colitis, forcing him to stop working as
a trial attorney, and to take a job as an appellate lawyer for
a Legal Services organization and eventually to claim total
disability. Although the jury found for the plaintiff, the
court reversed the jury’s decision, finding that there was no
evidence that the plaintiff could not engage in any aspect of
trial lawyering.
Cousins v. Spartan Chemical Co., 142 F.3d 432 (6th Cir.
1998) (unpublished decision, not binding authority) – denial
of long-term disability benefits to a male with Crohn’s
disease, on the ground that he had not yet been disabled for
more than 90 consecutive days, as the policy required. The
insured argued that the employer had allowed him to go back to
work so that it could fire him without him qualifying for
long-term disability benefits. The court rejected this claim
based on the record. The court said “[w]e have no doubt that
the medical condition from which the plaintiff suffers is
periodically debilitating and that it makes his working life
more difficult than it would otherwise be.” However, the court
found that he was not disabled under the policy definition.
Risner v. Commissioner, 168 F.3d 490 (6th Cir. 1998)
(unpublished decision, not binding authority) – SSDI and SSI
appeal by female claimant with Crohn’s disease. The
Administrative Law Judge found that she could perform a
significant number of jobs in the economy. Her treating
physician supported the conclusion that she could perform
sedentary work.
Kerwin v. Paul Revere Life Ins. Co., 6 Fed. Appx. 233 (6th
Cir. 2001) (unpublished decision, not binding authority) –
insured with Crohn’s disease brought an action for disability
insurance benefits. The plaintiff was a criminal defense
attorney. The policy defined “total disability” as the
inability to perform the important duties of the insured’s
occupation and the insured is under the care of a physician.
The plaintiff was in so much pain that he turned his cases
over to other lawyers and even refunded fees to some clients
because he could no longer do his job. He eventually had a
colostomy, after which he had no active disease, but had the
possibility of recurrence. The insurer paid benefits until the
insured began full-time work as a judge in a temporary
position, when the insurer terminated benefits. The insurer
claimed that the insured chose not to return to work as a
criminal defense attorney, even on a part-time basis with a
modified work schedule. The court considered the insured law
practice prior to his disability, as well as the nature of the
temporary judicial position he had accepted, and found that
being a judge is less stressful than being a litigator. The
court found no evidence that the insured made a lifestyle
choice, as opposed to making a decision based on his
disability. Thus, the court found that disability benefits
should be granted, although the question was not so clear as
to warrant an award of statutory interest. The court needed
more briefing on the issue of attorneys fees.
Sieggreen v. Unum Provident Corp., 2002 WESTLAW
31357045 (E.D.Mich. 2002) – insured was an ob-gyn physician
with ulcerative colitis. He had cut his hours in half and
curtailed the obstetrical part of his practice. He filed a
claim for disability benefits, which was approved as a claim
for partial disability. The dispute centered on the proper
amount of disability payments, which was contingent on the
amount of the insured’s basic monthly earnings, reduced by any
pension plan payments. The policy definition of “disability”
was that the insured was unable to engage in any subsequent
gainful activity due to a permanent disfigurement, permanent
loss, loss of use of a member or bodily function, or any other
medically determined impairment that can be expected to result
in death or be of a long, continued, and indefinite nature.
The court found that there was no provision in the plan for
partial disability. The rest of the decision is technical.
Seventh
Circuit
(Illinois, Indiana, Wisconsin)
Zaccardo v. Sullivan, 1992 WESTLAW 122780 (N.D.Ill.
1992) – SSDI appeal by female with Crohn’s disease. The
Administrative Law Judge found that she could have performed
her last job as clerk/typist beyond the time she claimed to be
disabled. There was substantial evidence that the plaintiff’s
complaints were not credible since she didn’t seek medical
attention, which she would have done if she really was
disabled.
Lang v. Shalala, 1995 WESTLAW 358642 (N.D.Ill. 1995) –
SSI appeal by male claimant with Crohn’s disease, and burns
from a work-related accident, accompanied by some neurological
deficits as a result. The opinion contains an exhaustive
review of years worth of medical records, and a recitation of
the activities the claimant is able to engage in, including
taking and passing college courses, driving, cooking, going to
restaurants, attending legal and medical appointments,
walking, standing for short times, sitting for 15 minutes
before he must stretch, carrying groceries, etc. A vocational
expert testified that, even with the limits the claimant
suffered, he could perform a number of jobs. The main issue
was the effects of memory loss, frustration and temper, all
resulting from the work accident. The ALJ found that he could
perform substantial gainful activity since he retained the
residual functional capacity to do certain kinds of jobs. The
court affirmed this decision. Although direct application of
the SSA grid was inappropriate here, it could be used as a
framework. A treating physician’s opinion is entitled to
controlling weight only if supported by medically acceptable
clinical and laboratory diagnostic evidence.
Neely v. Apfel, 2000 WESTLAW 1285427 (N.D.Ill. 2000) –
SSI appeal by female with Crohn’s disease and asthma. Claimant
testified that her condition came and went, and that she
experienced pain. She cooked, made her bed, did the grocery
shopping, but did no other household chores. She had applied
for jobs but had not obtained one. The Administrative Law
Judge noted that her asthma was not severe and had not
required hospitalization, she had undergone surgery for one
bowel obstruction, but her condition then improved. There was
no medical evidence to support complaints of pain, weakness,
shortness of breath, and the ALJ discounted claimant’s
testimony accordingly. Claimant’s testimony that she had
applied for jobs contradicted her claim that she could not
work. The court found that the ALJ’s decision was supported by
substantial evidence. The most recent colonoscopy prior to the
hearing showed a normal intestine, and the need to use a
nebulizer for claimant’s asthma did not preclude all work.
Eighth
Circuit
(Minnesota, Arkansas, Iowa, Missouri, Nebraska, North Dakota,
South Dakota)
Paris v. Schweiker, 674 F.2d 707 (8th Cir. 1982) – SSDI
and widow’s benefits appeal by female with IBD (one doctor
said Crohn’s, one say ulcerative colitis, at different periods
of time). She had a colectomy and ileostomy, followed by an
obstruction. She had worked briefly over the years, albeit
with difficulty. There was no evidence of a medical
determination that the claimant was disabled for a continuous
12 month period. The court said that evidence that impairments
are chronic and recurring should be considered in evaluating
the combined effects of her impairments.
Mackinaw v. Bowen, 866 F.2d 1023 (8th Cir. 1989) – SSDI
and SSI appeal by male with ulcerative colitis, for which he
had a colectomy and an ileostomy. Because he was unable to
perform all of the elements of sedentary work, including
sitting for long times, lifting more than 10 pounds, standing
for more than ½ hour, or sitting more than an hour, the
impairment had characteristics that differ in a material
respect from the guidelines (the grid), so testimony of a
vocational expert is required.
Dix v. Sullivan, 900 F.2d 135 (8th Cir. 1990) – SSI
appeal by female with Crohn’s disease whose flare-ups lasted
from a day to several weeks. She had an ileostomy. She was
able to work for a nine year period when her disease was in
remission, but when it became more active, she applied for SSI
benefits. At that time, the longest she had gone without a
flare-up was a month. During flare-ups, she suffered severe
abdominal pain, cramps, nausea, diarrhea, and difficulty
sleeping. She also had developed 4 fistulas. The
Administrative Law Judge found that she was not disabled,
finding that his subjective complaints were not credible. When
faced with a complaint of pain, the ALJ should consider the
claimant’s daily activities; the duration, frequency and
intensity of the pain; precipitating and aggravating factors;
dosage, effectiveness and side effects of medication; and
functional restrictions. “Subjective complaints may be
discounted if there are inconsistencies in the evidence as a
whole.” The court found that the claimant was unable to work
on a regular basis. Sporadic or transitory activity does not
disprove disability, the court said. The court granted
benefits.
Arkin v. MedCenters Health Care, Inc., 1990 WESTLAW
608203 (D.Minn. 1990) – plaintiff claimed health insurance
coverage for his child’s hospital treatment for Crohn’s
disease. The employer’s health plan covered treatment in
Minnesota, but the plaintiff and his family lived in Ohio, so
the insurer would not pay. The State court claims were removed
to federal court on the ground that the health insurance plan
was governed by ERISA, and ERISA cases must be adjudicated in
federal courts. Then the employer claimed that it was not
liable because it was not a “fiduciary” under ERISA. The court
agreed because the employer did not exercise discretion over
the plan. [Again, if you have a case in which this matters,
you need a lawyer.]
Soth v. Shalala, 827 F.Supp. 1415 (S.D.Iowa 1993) –
SSDI appeal by male claimant with ulcerative colitis, with
pain, bleeding, and diarrhea. He also had gout, dementia, and
anxiety disorder. The Administrative Law Judge found that his
subjective complaints of pain were not fully credible because
they were not supported by medical evidence. The ALJ found
that he could not work in contact with the public, coworkers
or supervisors, and needed access to a bathroom as needed, but
that he could perform a number of jobs at medium-level. The
court stated the rule that, once a claimant shows he cannot
perform his past job, the SSA must show that the claimant has
residual functional capacity and that there are jobs
available in the economy that the claimant can perform. The
court found that there was no medical evidence confirming the
finding of residual functional capacity, and remanded the case
for further medical examinations of claimant. In March 1996,
the case again came to the court at 937 F.Supp. 840 (S.D.Iowa
1996), after the ALJ again decided against the claimant. The
court said that since the SSA was unable to prove on remand
that the plaintiff was able to perform medium-level work, the
ALJ could not deny benefits.
Sales v. Apfel, 188 F.3d 982 (8th Cir. 1999) – SSDI
appeal by female claimant with Crohn’s disease. The
Administrative Law Judge concluded that she had not performed
gainful activity for at least 12 months, and that her Crohn’s
disease constituted a severe impairment, but found that her
subjective complaints of pain were not credible, and that she
retained the residual functional capacity to perform her past
work, as well as other light and sedentary work. Medical
evidence showed that the claimant had a partial obstruction
accompanied by pain, which was recurrent; there was “stenosis”
or stricture of the intestine, along with ulcerations.
Therefore, claimant meets the requirements of the listing at
section 5.07 (see Appendix A). When the listing is met
entirely, no further inquiry is necessary.
Harris v. Apfel, 198 F.3d 250 (8th Cir. 1999)
(unpublished decision, not binding authority) – SSDI appeal by
male claimant with back problems and ulcerative colitis. The
Administrative Law Judge discounted the subjective complaints
of pain based on inconsistencies in the record, including the
fact that medical treatment was sought only intermittently,
and that his conditions had been managed with medication over
the years. He also reported daily activities like making
breakfast, washing dishes, driving, socializing without
physical restrictions. The court found that the ALJ had
properly applied the legal tests and that substantial evidence
supported his conclusion. Because the ALJ discounted the
subjective complaints of non-exertional impairments like pain
and “colon problem,” it was appropriate to use the grid to
determine whether the claimant had sufficient residual
functional capacity to perform jobs in the economy.
Taylor v. Apfel, 2001 WESTLAW 13292 (8th Cir. 2001) –
SSI appeal by male claimant with ulcerative colitis, multiple
sclerosis, and prostate problems. The question was the date
when claimant became disabled. Although the record supported
the allegation that the claimant suffered symptoms for some
time before he sought medical treatment, it was not until that
time that he became disabled.
Ninth
Circuit
(California, Arizona, Oregon, Washington, Idaho, Alaska, Guam,
Hawaii, Montana, Nevada)
Wilson v. Schweiker, 553 F.Supp. 728 (E.D.Wash. 1982) –
SSDI appeal by male claimant with ulcerative colitis,
arthritis, aortic aneurysm, emphysema and heart problems. The
Administrative Law Judge found that he could return to his
former work as an academic administrator. When he first had
symptoms of ulcerative colitis, claimant had 15-20 bowel
movements a day and lost about 35 pounds. He was treated with
lomotil, prednisone and Azulfadine. He suffered symptoms on
and off over the years, treated with steroids. He suffered a
number of other impairments, including stress-related fatigue.
The Administrative Law Judge found that the claimant’s
impairments were not so severe as to prevent him from
performing his past employment. The court found that the
claimant’s impairments in combination are severe enough
to preclude him from engaging in substantial gainful activity.
If a number of impairments in combination equal a listed
impairment (see Appendix A), the claimant is disabled. The
court said that the Secretary is not bound by a medical
expert’s opinion, but only if the rejection of that opinion is
accompanied by clear and convincing reasons, which were absent
in this case.
Goodrich v. Sullivan, 1992 WESTLAW 188812 (D.Ariz.
1992) – SSDI appeal by male claimant with Crohn’s disease, as
well as a number of other impairments. The issue was the
disability onset date. The Administrative Law Judge found that
the claimant’s impairments did not meet or equal the listed
impairments (see Appendix A), and he retained residual
functional capacity, until some time after he claimed he was
unable to work. The ALJ had discredited a medical expert’s
testimony on the ground that it was based largely on the
subjective complaints of the claimant, which were not
credible, according to the ALJ. The court disagreed, instead
finding that the medical expert’s opinion was based on
clinical evidence. Not only did the court reverse the ALJ, but
since the record was complete with all the necessary medical
evidence, the court was able to rule on the merits without
sending it back to the ALJ, so the court found the earlier
onset date was appropriate.
Abrar v. Secretary. 1992 WESTLAW 389004 (C.D.Cal. 1992)
– SSI appeal by female with Crohn’s disease, and no other
impairments, physical or mental. The Administrative Law Judge
found that claimant was not disabled because she did not meet
or equal a listed impairment. The ALJ found that she was
physically capable of performing sedentary work where there
was little or no stress. The ALJ also did not find the
subjective complaints of pain to be credible because her
testimony was inconsistent, and her medications were more
effective than she allowed. The court said that if the ALJ’s
decision is based on a credibility assessment, there has to be
an explicit finding as to whether the plaintiff’s testimony
was believed or not, and the testimony cannot be discounted
simply because it is not confirmed by objective evidence. The
decision of the treating physician is entitled to special
weight, although it can be rejected based on specific
legitimate reasons, based on substantial evidence. There was
no evidence to show that the claimant could not work at the
time of the hearing. The physicians indicated there was no
disabling impairment. The fact that the claimant attended
school three days a week for at least 4 hours a day is
properly considered as evidence that the claimant is not
disabled. <
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