Social Security Disability Claims and ALS Lou Gehrig’s Disease
By: Pitt Dickey - Attorney
Preface: Since Social Security Disability is directed under Federal law, the information in this column will apply anywhere in the United States. However each Office of Hearings and Appeals and District Office have their own ways of doing things as does the various Federal District and Circuit Courts. I have kept this column primarily dealing the the mechanics of how the Social Security District Offices and Office of Hearings and Appeals evaluates disability claims.
- Pitt Dickey
This column will examine the new Social Security Administration (SSA) criteria for evaluating claims from persons diagnosed with Amyotrophic Lateral Sclerosis (ALS), which is frequently called Lou Gehrig’s Disease.
The SSA adopted new rules effective, 28 August 2003, which should make the process for approving claims for patients diagnosed with ALS significantly quicker. The SSA and the U.S. Congress have both displayed their compassion for patients with this serious disease by making changes in the law and regulations to expedite disability assistance to ALS patients.
ALS is a very devastating nerve disease. The SSA regulatory language describing ALS is particularly striking. The SSA regulations describe ALS as “a progressive invariably fatal neurological disease that attacks the nerve cells (motor neurons) responsible for controlling voluntary muscles.”
It is a disease that is most common in people between ages 40 to 60. The new SSA rules describe the effects of ALS as “eventually, all muscles under voluntary control are affected and individuals with ALS ultimately lose the ability to move their arms and legs, and the capacity to effectively swallow, speak and breathe.
Most people with ALS die from respiratory failure, usually within 3 to 5 years from the onset of symptoms. There is currently no cure for ALS.”
The new regulations that are intended to speed up the process are essentially based upon a medical diagnosis of ALS. The diagnosis must be based upon history, neurological findings consistent with ALS.
There must also be electrophysical and neuroimaging testing to rule out other impairments that can cause similar signs and symptoms to ALS.
The SSA rules state that the ALS “diagnosis may also be supported by electrophysiological studies (electromyography or nerve conduction studies), but these tests may be negative or only suggestive of the diagnosis.” Even if these tests are negative that does not rule out a diagnosis of ALS.
The diagnosis must be supported by medical documentation including “a clinically appropriate medical history, neurological findings consistent with ALS, and the results of any electrophysiological and neuroimaging testing.”
The SSA’s new regulations noted that the SSA receives comparatively few applications for Disability Insurance Benefits and SSI applications for ALS.
In 2002 the SSA received only 1384 applications based on ALS. The SSA approved 96% of these claims at the initial level of the administrative review of the claims. When a person applies for Disability Insurance Benefits or SSI in North Carolina, the first decision is made by a State Agency called the Disability Determination Section that is located in Raleigh.
The usual course of events in most non- ALS cases, has the person’s disability claim denied twice, at the initial decision level and again at the reconsideration level. After two denials the applicant can apply for a hearing before an Administrative Law Judge.
The fact that 96% of the ALS claims are approved at the initial level shows the seriousness that the SSA regards ALS disability claims. Congress enacted a law to assist persons with ALS regarding their Medicare eligibility.
In all cases in which Disability Insurance Benefits are awarded except for cases involving ALS there is a 24-month waiting period before the claimant can receive Medicare.
In 2000 Congress changed the law to allow ALS patients who are eligible for Disability Insurance Benefits to begin receiving Medicare without the 24-month waiting period.
In SSI cases the SSA can begin making SSI payments to a claimant with a diagnosis of ALS for up to 6 months prior to a formal determination by the SSA that the patient meets the listing for ALS.
This process is based on a concept called “presumptive disability” which essentially means the SSA has reviewed the medical records of the patient and determined that the patient has been diagnosed with ALS.
The SSA can then start SSI payments even before making the formal decision awarding benefits. The SSA cannot make such payments in Disability Insurance cases. In the event that the SSA decides that its presumptive decision was wrong the patient will not have to repay the six months of SSI payments.
Patients who have been diagnosed with ALS should contact their local Social Security Administration Office to begin the application process.
In the vast majority of cases it should not be necessary to have an attorney assist in ALS cases under the new rules that will expedite the claims of ALS patients.
For additional information on ALS contact the Jim “Catfish” Hunter Chapter of the ALS Association, 1425-113 Rock Quarry Road, Raleigh, N.C., 800-568-4347.
Pitt Dickey has practiced law in Fayetteville since 1978. He has handled SSA disability claims for over twenty years. He practices with the firm of Smith, Dickey, Smith, Hasty & Dempster, P.A. at 555 Executive Place and can be reached at 910-485-8020 or at . Or at the firm web site of www.smithdickey.com .
Copyright © 2002 Pitt Dickey - Used with permission