Question for attorney - Do I meet the listing for MS?

[thisis354]

I was automatically transitioned onto LTD from STD with my SSDI case still pending. I went on leave for MS fatigue and 2 impending spinal surgeries. My SSDI case is stalled at the DDS level while they wait for the results from my Neuropsychological Evaluation.

I am 2 weeks past my last surgery and I have completed my 5th neuropsychological evaluation in 10 years. I know the criteria has changed for meeting an MS listing due to a combination of physical (in my case, fatigue) and cognitive issues. A drop of 15 or more points in IQ no longer matters, it seems.

I have a drop of 30+ points in IQ and severe deficits in visual learning and memory. My fatigue is a 57/63 on the Fatigue Severity Scale.

Does it sound like I meet the revised criteria for MS based on Physical + Cognitive symptoms?

[TheMSLawyer]

The interpretation of the new MS listings by the SSA is still being developed, as they were only issued late last year. The fact that LTD has approved your claim, that you have had multiple spinal surgeries, and that you have had a significant drop in cognition support your claim, but more information would be needed to make a full assessment. Your residual physical function -- whether an assistive device is needed, your ability to ambulate, your fatigue levels -- would be a key factor. Your residual cognitive function is also important; a drop of 30 IQ points will be considered, but a high residual IQ will make this less impactful. The SSA's guidance defining 'marked' cognitive issues notes that a person may not be disabled if they retain the ability to follow simple one and two step commands. Nevertheless, your neuropsych evaluation will likely reference several factors to be considered; your diminishing function as the day progresses, issues with maintaining pace, and similar items. There is an additional issue with attempting to obtain a listing-based approval at the DDS level. The DDS does not always apply the listings properly, and you should not assume that they are aware of or experienced with the revised listing for multiple sclerosis. Assuming that you are pursuing the claim on your own, I suggest you send a letter to the adjuster specifically noting Listing 11.09. Finally, your claim will also be considered under the generic disability standard (or 'grids'). This is age based and considers your work history; the majority of MS claims approved at the initial level are approved under a more simplistic grid analysis.You are free to message me to discuss this in more depth. Regardless, best of luck!

[thisis354]

Thank you for your response

MS Laywer,
I started my case with representation, however, I had to terminate the representation. I am looking for new representation. Your remarks are very helpful - thanks so much!

[TheMSLawyer]

Thisis354,

If my office can be of future assistance, let us know; we handle cases nationwide. Should you pursue local counsel, be sure that they are familiar with MS, that a large portion of their practice is devoted to disability claims, and that they are willing to give you the time you deserve.

I wish you the best as you move forward with your claim!

[pennstater]

Have you discussed with both your neurologist and neuropsychologist? Regardless of attorney, you will need their support in your filing.

I was granted SSDI on appeal, with primary drivers fatigue and cognition. My IQ had only changed 8 points in 8 years over 4 evaluations. But as indicated, the testing evaluation documented inability to sustain effort over time and the vicious cycle of cognitive fatigue contributing to physical fatigue and vice versa. Both doctors' reports and medical records supported the symptoms over multiple years. If you haven't already, you may want to request your medical records and review for accuracy and completeness. Likewise, make sure they are aware of your intention to file.

I wish you the best of luck. Hoping it resolves quickly for you.

[thisis354]

Pennstar, my neurologist dropped me when I had to ask him to sign my medical leave extension, so I am currently without a neurologist but I have a vast amount of medical documentation from the last 2 years, including the present. I do have cognitive testing going back to 2008. The current eval is problematic and I am seeking a second opinion with a Neuropsychologist with a law background/background in patients with neurological issues.

The most recent examiner wrote that based on one test, it is highly likely I have ADHD and that is causing problems with attention. Nothing could be further from the truth -no history of ADHD, No prior Evaluations ever suggested such a thing, Mild Cognitive Impairment is often misdiagnosed as ADHD...so it's getting complicated, but I am pursuing avenues to fix things.

I am in the process of reviewing all the prior Neuropsych Evals and Medical records and correcting the errors. Thanks for letting me know what your experience has been, it is helpful to know.

[pennstater]

Pennstar, my neurologist dropped me when I had to ask him to sign my medical leave extension, so I am currently without a neurologist but I have a vast amount of medical documentation from the last 2 years, including the present. I do have cognitive testing going back to 2008. The current eval is problematic and I am seeking a second opinion with a Neuropsychologist with a law background/background in patients with neurological issues.

The most recent examiner wrote that based on one test, it is highly likely I have ADHD and that is causing problems with attention. Nothing could be further from the truth -no history of ADHD, No prior Evaluations ever suggested such a thing, Mild Cognitive Impairment is often misdiagnosed as ADHD...so it's getting complicated, but I am pursuing avenues to fix this

I am so sorry about your neurologist. I get really upset when I hear a doctor refuses to listen to a patient, especially when they have a history with the patient.

Also sorry your neuropsych thru a wrinkle in as well. I know some neuros prescribe ADHD Rx Adderall for off label MS fatigue / cognition issues. If you can't get that reversed, maybe try it to show the Rx doesn't change a thing? But I do hope you can get it reversed.

[thisis354]

First Denial June 5

Thisis354,

If my office can be of future assistance, let us know; we handle cases nationwide. Should you pursue local counsel, be sure that they are familiar with MS, that a large portion of their practice is devoted to disability claims, and that they are willing to give you the time you deserve.

I wish you the best as you move forward with your claim!

I changed attorneys at the end of May. Unfortunately the new attorney operates in a manner which is consistent with that of the last attorney - they take the case and then sit on it. There is no case development and they rarely return my calls. I received my first denial on June 5th and the new attorney submitted the request for reconsideration the next day, but no new information was submitted and I have never made any statements as to how my deficits affect my ability to work. The denial states I claimed I was disabled by things I never brought up/fails to mention conditions that severely affect my ability to work like heat intolerance and crippling fatigue.

The denial reads like this: "You said you are disabled because of MS, spinal cord lesions, atrophy of the brain and spinal cord, damage to the optic nerve of your left eye, migraines and memory issues. Although your condition is currently severe, it is expected to improve. We have determined your condition is not expected to remain severe enough for 12 months in a row to keep you from working.

We do not have sufficient vocational information to determine whether you can perform your past relevant work, however we have determined that you are expected to be able to adjust to other work." I submitted their questionnaire about work history when I was asked.

I am almost 54 years old and have been an analyst for the last 6 years. Prior to that I was a technical marketing executive. I have been in the tech field for 26 years. I do not know what work I could do which would not require the ability to retain new knowledge/remember what I am doing and would allow me to sleep for up to an hour twice a day. I cannot do physical labor due to knee and spinal surgeries.

I meet the listing for MS based on significant fatigue and severe memory/learning impairment. I was told by an MS Rehabilitation Speech Therapist that once brain atrophy occurs, cognitive issues are not likely to significantly improve but there are things I can do to try to circumvent the problems the memory issues cause me. I am waiting for her written report.

I have been unable to reach my attorney since the appeal was filed but I don't want to just sit and wait for them to deny my claim a second time and then wait years for it to make it in front of an ALJ. If I terminate my agreement with this second attorney in the middle of my request for reconsideration will that only prolong things?

-Christine

[TheMSLawyer]

It is not easy to find an attorney who is responsive, proactive and knowledgable of MS. You can always switch attorneys, and it will not normally result in an additional fee. Generally, the past and present attorneys will submit requests for fees when your file is approved and the judge will divide the attorney's fee pie based upon the work they invested. I caution you, however, that many attorneys will see it as a red flag that you have cycled through two prior attorneys at this stage. Be sure to discuss the plan of action with prospective counsel before signing up, and make sure they do a volume of disability work and know your condition.Should you change attorneys, it will not slow the reconsideration process (and would also not delay your wait for a hearing, if you were at the hearing stage). During the two weeks or so it takes the SSA to place new counsel on file, however, you may have to relay information to the SSA as needed (because the SSA will not talk to new counsel until they are officially placed on your file).Your denial appears to be a standard 'fill in the blanks' denial. Please remember that the standard for disability under age 50 is either a listing-level approval (which is difficult to obtain) or approval based on being unable to engage in ANY work on a full time basis. Your white collar past work does not change the standard under the second analysis.Best of luck!

[thisis354]

Thank you for your feedback it is very helpful.

[thisis354]

Update on my case

My Request for Reconsideration was denied a few days ago and I started my appeal online. I fired the last new attorney and am now on Attorney#3. So far, unlike the last 2 attorneys, these guys seem very different. They return my phone calls and actually reach out to me if they need more info. They have also taken the time to explain what the next steps in the process will be like. Relief, but really too bad I didn't have this kind of attorney from the start.

The denial for reconsideration said the same thing the first denial said - your condition is not expected to last 12 months. This leads me to believe they are simply ignoring my medical records because my latest update stated I had significant progressive brain atrophy that had worsened over the last few years, directly caused by MS, that was causing my increasing cognitive impairment. Following that statement, it was noted that the reason I cannot feel my legs was because of the progressive damage in my T-Spine caused by atrophy and lesions.

Now my case will be closed and prepared to transfer to ODAR. The wait for ALJ hearing in my State is close to 2 years on average. I wonder if I can challenge the denial due to some sort of procedural error?

[thisis354]

Second Update on my Case

I had started my Request for Hearing online, on August 26th. The new attorneys were not yet updated in the system so I was filing the Request myself and touching base with them if I had a question. The system kept giving me errors and refused to submit the Request for Hearing. Instead, it saved at some point and did issue me a re-entry number. For 3 consecutive days after this, I got errors every time I attempted to submit. On the fourth day, I received a letter from ODAR telling me they received my Request for Hearing.

It contained a paper copy of a Request for Hearing filed by my former attorney, whom I had fired 4 weeks prior. The form was full of incorrect information, specifically that my condition had not changed, which was not true. Also in the mailbox was a letter from my former attorney. His letter told me that he was aware of my denial and he had submitted a Request for Hearing. I called SSA to find out if there was anything I could do. They told me that attorney's Request for Hearing had canceled mine out and that is why the system would not let me submit. They also told me that attorney's Request for Hearing started the clock for me and I had deadlines I would have to meet to get forms submitted.

I was able to get hold of my new attorneys to let them know I needed an extension to submit my own 3441 form because I was having knee surgery in a few days. They were able to contact ODAR and get the deadline extended. At this point I am recovering from surgery and don't really know what will happen next but I think I just want to ask for an On The Record Review.

This whole process has gone horribly wrong. I hired an attorney from the start, hoping to avoid problems.

[TheMSLawyer]

The whole scenario you described is highly unusual. It sounds as if prior counsel and his/her staff were not on the same page regarding your discharge of counsel, and they entered form language on the appeal. This is why my office and most law offices call the client while filing the appeal; to confirm the claimant's physical status and the information provided to the SSA.

Also, I'm surprised that new counsel didn't file the request for hearing electronically on your behalf; such a filing includes a portal for new counsel to electronically provide their representation documents directly to the SSA. Regardless, I would discuss with new counsel the possibility of sending a follow-up letter to the SSA explaining that prior counsel failed to properly describe your present condition in the appeal, and hopefully avoiding any confusion once you are before a judge.

Good luck on your appeal!

[thisis354]

The ODAR told me it is a minimum of 2 years from 9/17 for my case to see an ALJ

I no longer have an attorney, my neurologist continues to refuse to fill out or sign the RFCs and MRFCs that I have provide with copies of blanks if he wants to change anything. He is telling me to take it somewhere else.

The problem with that is that "somewhere else" doesn't know me and hasn't been treating me for the last year.

It has already been a year since I filed and the ODAR told me it will be another 2+ years wait for a hearing. I have also lost my health insurance. Since the day that I filed for SSDI, my health has worsened along with my cognitive impairment. I was hoping to save my case by requesting an expedited OTR decision with additional documents submitted with the request.

I am afraid if this wait goes on for another 2-3,4? years, I will no longer qualify for SSDI because I will no longer have enough credits.