E-Newsletter Editor: Michael Persellin
UPCOMING CLE PROGRAMS
March 22 (Noon) - Testimony and Cross-Examination of Vocational Experts
April 26 (Noon) - Sensory Impairments with Trainer Ethel Schaen, Esq.
SECTION MEETINGS/ROUNDTABLE SESSIONS
In addition to formal section meetings, the section will hold roundtable discussion groups. The “brown-bag” roundtables will give section members a place to meet with other SSD practitioners and discuss hot topics, new rules, share practice tips and ask questions.
February 23, 2016 - Brown Bag meeting (Noon-1:15 pm.) - Red Flags when Reviewing Medical Records
May 31 - Brown Bag meeting (Noon-1:15 pm.) - Social Security Horror Stories
SOCIAL SECURITY DISABILITY LAW CASES
Mitchael v. Colvin, 2016 WL 145843 (8th Cir.)
Former dual status National Guard technicians brought action seeking to compel Commissioner to recalculate amount of their benefits to allow them to take advantage of rule allowing dual status technicians to avoid application of Windfall Elimination Provision (WEP). District Court for Eastern District of Arkansas dismissed for lack of jurisdiction and technicians appealed. Circuit Court held Commissioner had no clear, nondiscretionary duty to reconsider benefits awarded to technicians, and thus Court of Appeals lacked jurisdiction over action under federal mandamus statute. Court also held that technicians failed to present colorable constitutional claim, and thus Court of Appeals lacked jurisdiction over action pursuant to Social Security Act provision authorizing judicial review over final decisions.
SOCIAL SECURITY PRACTICE
Approvals Based on “Minor” Secondary Impairments
Claimants are often approved for disability based on the impairments they believe to be primary such as chronic pain, arthritis, or mental illness – but not always. Some individuals stand a better chance of winning disability based on secondary impairments, and a relatively weak case can be strengthened and become a winning case by focusing on what may appear to be “lesser” impairments.
For example, one of my clients was a woman in her 20s with three children, some moderate depression and anxiety, low-average IQ, and who was functioning relatively well. Her treatment of her mental illness was sporadic, and medical records sparse. This young woman also struggled with celiac disease, an autoimmune disorder, in which ingesting gluten damages the small intestine.
Upon meeting her, I noticed that she seemed quite thin. The medical records revealed that her Body Mass Index (BMI) ranged from 17 to 19 over a period of several months. For some medical visits, no BMI was calculated, although height and weight information was given, and so BMI calculation was possible using online BMI calculators. The BMI calculations confirmed that she met Listing 5.08, “Weight loss due to any digestive disorder,” which directs a determination of disability when a BMI is 17.5 or less, at two evaluations 60 days apart in a six-month period.
Likewise, a number of clients have presented with depression, anxiety and back pain – but won their cases based on 8.00, Skin Disorders Listings. These Listings typically require the presence of lesions present in the underarm, groin, and anal region, which very seriously interfere with use of the hands or legs/feet – despite prescribed treatment.
For one client in her 20s, with mild depression, morbid obesity, and skin lesions, medical source statements focusing on skin lesions, photographs of the lesions, and compelling testimony resulted in an approval. Another client in his late 40s, with some mild back pain and depression, won his case because of his extensive skin lesions, which were well documented in the record, and compelling testimony about the end of his 20-year relationship because of odor from the skin lesions.
It pays to look beyond the presenting impairments as clients will not always be aware that their secondary impairments could be disabling based on a Listing.
J. Asha Sharma, Esq., Disability Partners, PLLC
SOCIAL SECURITY NEWS
Social Security in an Election Year|NYTimes
NOSSCR Applauds Bipartisan Budget Act|NOSSCR
Social Security’s Fiscal Year 2015 Agency Financial Report|WashPost
Schedule of Social Security Payments - 2016|SSA.gov
Changing Strategies for Social Security|NYTimes
Occupational Information System Project|SSA.gov
Social Security’s Fiscal Year 2015 Agency Financial Report|SSA.gov
CALL FOR SUBMISSIONS
Each and every member of our section is welcome, and encouraged, to submit news for the section newsletter. News is anything our members might find interesting or helpful, and may include a link to a news story, an article you’ve written for another publication, a helpful practice form, or a case summary – anything relative to our practice area. Please send submissions for the April newsletter to the editor at mjpersellin@mylegalaid.org by March 31.
SOCIAL SECURITY ONLINE RESOURCES
Social Security News|Federal Bar Association
SSA Online
SSA Programs Operations Manual System (POMS)
SS Rulings and Acquiescence Rulings
Hearings, Appeals, and Litigation Manual (HALLEX)
8th Circuit Social Security Case Law and Summaries|PROJUSTICEMN
Occupational Information Network|U.S. Dept. of Labor
Compassionate Allowances|SSA.gov
Quick Disability Decisions (QQD)|SSA.gov
2016 NOSSCR CONFERENCES:
June 1-4, 2016, Miami Beach, FL
November 2-5, 2016, Seattle, WA
2015-16 SECTION LEADERSHIP
Officers
Co-Chair: Michael Persellin, Mid-Minnesota Legal Aid
Co-Chair: David L. Christianson, Christianson Law
Secretary: Anthony Mannella, Midwest Disability PA Inc
Treasurer: Emily Cooper, Cooper & Reid LLC
Council Members
David L. Christianson, Christianson Law
Samantha Clawson, Southern Minnesota Regional Legal Services
Emily Cooper, Cooper & Reid LLC
Shelley Jensen, Judicare of Anoka County Inc
Andrew Kinney, Hoglund Chwialkowski & Mrozik PLLC
Anthony Mannella, Midwest Disability PA Inc
Gregg Nelson, Nelson Law Office
Michael Persellin, Mid-Minnesota Legal Assistance
Ellen Smart, Mid-Minnesota Legal Assistance
Sarah Soucie Eyberg
Kirk Thompson, Cronan Thompson