New Ruling Regarding Headache Disorders
Social Security issued a new ruling on August 26, 2019 regarding how headache disorders will be considered in disability claims. SSR 19-4p details how Social Security will establish a Primary Headache Disorder as a Medically Determinable Impairment (MDI) as well as how Primary Headache Disorders will be evaluated under the Listings of Impairments and how to consider the Residual Functional Capacity (RFC). A Primary Headache Disorder cannot be established simply by a diagnosis or statement of symptoms. Social Security will now require the following combination of findings from an Acceptable Medical Source (AMS) in order to find a Primary Headache Disorder to be an MDI:
- An AMS must diagnose a primary headache disorder. The diagnosis must specifically identify the specific condition that is causing the symptoms. There must also be evidence that the AMS reviewed the medical history, examined the person, and excluded other potential causes for the symptoms.
- An observation of a typical headache event, and a detailed description of the event including all associated phenomena, by an AMS. In the absence of direct observation of a typical headache event by an AMS, we may consider a third party observation of a typical headache event, and any co-occurring observable signs, when the third party’s description of the event is documented by an AMS and consistent with the evidence in the case file.
- Remarkable or unremarkable findings on laboratory tests.
- Response to treatment. Examples of medications used to treat primary headache disorders include, but are not limited to, botulinum neurotoxin (Botox®), anticonvulsants, and antidepressants. Consideration will be given to whether the person’s headache symptoms have improved, worsened, or remained stable despite treatment and consider medical opinions related to the person’s physical strength and functional abilities.
SSR 19-4p indicates that, as there is no specific listing for Primary Headache Disorders, the condition should be considered under Listing 11.02 (Epilepsy). As such, a person cannot meet Listing 11.02, but, they can medically equal Listing 11.02 if their condition is of similar severity, frequency and duration as that detailed in Listing 11.02.
When considering the RFC for a person with a Primary Headache Disorder, SSA will consider the limiting effects of the impairment and their related symptoms. They use as an example the symptom of photophobia and how the symptom might impact a person’s ability to maintain attention and concentration to perform work-related tasks.
This ruling provides additional information and direction to SSA decision makers on how to consider Primary Headache Disorders. See the link below for the full text of the document.
https://www.ssa.gov/OP_Home/rulings/di/01/SSR2019-04-di-01.html
New Regulations Regarding Failure to Follow Prescribed Treatment
On October 29, 2018, Social Security passed new regulations regarding a claimant’s failure to follow prescribed treatment. Social Security Ruling 18-3p went into effect on October 29 for all claims that are decided on or after that date. Essentially, the new regulation allows the agency to determine whether prescribed treatment, if followed, would be expected to restore a person’s ability to be employed, and if so, to deny benefits on that basis.
Prescribed treatment includes medication, surgery, therapy, use of durable medical equipment, or use of assistive devices. Prescribed treatment does not include lifestyle changes such as dieting, exercise or smoking cessation.
If you fail to follow prescribed treatment, you must have good case for doing so. Examples of good cause that are listed include religion, cost, an inability to understand the consequences of failing to follow prescribed treatment, when there is a disagreement between medical providers as to whether the prescribed treatment should be followed, an intense fear of surgery, prior history of major surgery for the same impairment with unsuccessful results, a high risk of loss of life or limb, or risk of addiction to opioid medication.
If the Agency determines that an individual failed to follow prescribed treatment without good cause, a denial of benefits will be issued. The most important thing to note from this change in the regulations is the importance of adherence to recommended treatment by providers.
Cooperative Disability Investigation Unit
What in the world is a cooperative disability investigation unit? Well, sometimes when a person is filing for disability, or SSA is questioning whether you are still disabled, they will hire someone to check. That person will introduce themselves as an official that is investigating someone else and ask for your help. Usually, they will actually be someone with a law enforcement agency. So what happens is, they get you to invite them in or walk some distance to them, observing and video recording you all the way. They will then report what they saw to SSA. They lie to you in order to gain your trust and then use your desire to help against you. We rarely see reports that are in your favor. What they do is legal, but, some are wondering if it violates your rights. We are not sure how to defeat the strategy. Just be aware of strangers, even law enforcement, that come uninvited to your door.
Are Social Security Benefits Exempt From Collection?
The short answer is yes – maybe. If you owe someone money and they get a judgment against you in court then they will try to collect that judgement. They do that by attacking your income and resources. Yikes, you already have barely enough to get by on and now someone wants to take that. Initially, any SSA benefits are exempt from collection. The problem is that a lot of people will mix their SSA benefits with other income. This happens 
most often when a couple has a joint bank account. All their income is deposited in one account, including the SSA benefit. Since the benefit has been mixed with other money, it looses its protective status. The best way to make sure that your benefits remain exempt from collection is to have them deposited into an account that receives no other income. So just keep your SSA benefits separate from other income and you should be safe.
Cost of Living Adjustment
January 2019 saw a 2.8% cost of living adjustment. Whether you receive Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits, your payment will increase by 2.8%. For those receiving SSI, this results in a new maximum monthly benefits of $771.00. If you did not see an increase in your benefit, contact SSA immediately.
Federal Student Loan Debt
Often individuals with disabilities will have their benefits garnished for student loan debt. However, you may be eligible to have your student loan debt forgiven.
The rules for discharging federal student loan debt pose a different standard than Social Security’s definition of disability. However, federal law states that the Department of Education will accept a claimant’s Notice of Award (NOA) for disability benefits if the notice states that the claimant’s Continuing Disability Review (CDR) will be conducted once every five to seven years. CDR is the process in which SSA reviews a disability claim to determine if a claimant continues to meet the definition of disability.
What do you need to do in order to discharge your federal student loan debt? First you will need your NOA, which must include information about when your CDR will be conducted. If you do not have a copy of your NOA, you can request it from SSA. If your NOA does not indicate how often your CDR will be conducted, then you will have to request a letter or a printout from SSA verifying your CDR scheduling. Then, you will need to go to Disabilitydischarge.com and fill out an application.
However, before you attempt to discharge your student loan debt, you will need to consider any possible tax consequences of doing so. You may not want to discharge your student loan debt, because under current law, any amount of discharged student loans will be counted as income for the year in which the discharge was granted. Although your SSDI benefits can’t be garnished for discharged student loans, SSDI benefits can be garnished for taxes on the amount of a loan that was discharged. Therefore, before you begin this process the attorneys at Social Security Law Center strongly recommend you seek out advice from a tax professional. SSI benefits cannot be garnished student loan debt.
Chances of Winning
A frequent question asked by anyone filing for disability benefits is what are my chances of winning. The answer is that it depends on your disabling condition, the quantity and quality of evidence supporting your claim, and other factors such as age. For instance, it is harder to get disability for a bad back than it is for kidney failure. Someone with a lot of medical evidence will generally win easier than someone with little evidence. And a person that is 55 years old will have a better chance than someone that is 40.
However, SSA does keep track of the overall winning and losing ratios at each stage of review. In 2015 the ratios are as follows:
| Allow | Deny | Dismiss | |
| Application | 33% | 67% | |
| Reconsideration | 12% | 88% | |
| Judge Hearing | 45% | 37% | 18% |
As you can see the odds of winning are better at the hearing stage. That is why it is important to file an appeal of a denial within the 60 day timeframe.
Statistics also show that your chances of winning improved with qualified representation. Social Security Law Center has been representing people with disabilities for over 25 years. Let one of our offices help you increase your odds.
Assistive Devices
It is not uncommon to see someone with a disability using an assistive device to aide them in standing and/or walking. Assistive devises come in all shapes and sizes. Claimants regularly come into Social Security Law Center with their canes, walkers, crutches, and wheelchairs. Do you use an assistive device? If you do, the device may assist you not only with standing and/or walking, it may also assist you with your disability claim.
However, the Social Security Administration is very clear on when the assistive device will be considered. First, there must be more than a “subjective desire” to use the assistive device. In other words, you can’t just go to the store and buy one then expect the Judge to include the use of the device in your restrictions or limitations. To help your case, the assistive device must be “medically necessary” in order to be considered a restriction or limitation on your ability to work. Even if a cane is prescribed, it does not necessarily mean that the Judge will find that it is medically necessary. So what evidence do you need to prove your assistive devise is “medically necessary”?
The following documentation will assist your attorney at Social Security Law Center to help you prove “medically necessity.” First, make sure you have a prescription from your doctor for the hand held assistive device. Second, you will need statement from your doctor explaining why you need to use the assistive device. Finally, you will need a detailed description of when you need to use the assistive device. This documentation may seem overwhelming to obtain, but don’t worry the attorneys at Social Security Law Center will help you get the necessary information from your doctor.
SSA Announces There Will Be No Cost-Of-Living Adjustment (COLA) for 2016
For the third time this decade, millions of Americans will not see an annual cost-of living increase in their Social Security benefits for the year 2016. The news by SSA confirms what was already widely expected by many. In 2015, consumer prices were down. In fact, low gasoline prices helped keep inflation in check this year. Due to the decrease in consumer prices, monthly Social Security and Supplemental Security Income (SSI) benefits for nearly 65 million Americans will not automatically increase in 2016.
What is COLA? COLA is used to make sure that the purchasing power for people who receiving SSA benefits are not reduced by inflation.
Will Medicare Premiums Increase? If there is an increase in Medicare Part B premiums, the law has a “hold harmless” provision that will protect about 70% of Social Security beneficiaries from paying a higher premium. In order to determine if your Medicare Premium will increase you must contact SSA at 1(800)772-1213. SSA will be able to assist you to determine if your Medicare premium will increase.
Staying Treatment Compliant During And After Benefits are Awarded
Social Security requires an individual to follow prescribed treatment which would be expected to restore the claimant’s ability to return to work. This is true even once a claimant has been approved for benefits. Typically SSA will conduct a medical review two to seven years after a claimant has been awarded benefits. During a medical review SSA will obtain a claimant’s medical records to determine if he/she is still disabled despite following the prescribed treatment his/her doctor recommends. If a claimant has stopped going to the doctor and/or stopped complaining about his her condition(s)/symptoms it is possible that SSA will stop paying benefits to the claimant.
Therefore, the attorneys at Social Security Law Center encourage our former clients to remain in treatment and continue to document their condition(s)/symptoms after they have been approved for benefits.