Multiple Sclerosis - An Overview of MS and Disability Claims

Welcome to Season 4, Episode 4 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "Multiple Sclerosis".

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses the intricacies of a Multiple Sclerosis diagnosis, and how to navigate a disability claim with a disorder that disability carriers often misunderstand. Carriers are not in the business of giving payouts - they care more about their bottom dollar (i.e. making a profit). This reality is especially true of disorders that are unpredictable, prone to fluctuation in terms of severity, difficult to diagnose and manage, and primarily pain-based, such as Multiple Sclerosis.

In this episode, we'll cover the following topics:

1 – Multiple Sclerosis, and Common Reasons Why Disability Carriers Deny Multiple Sclerosis Claims

2 – How Disability Carriers Evaluate Multiple Sclerosis Claims

3 – Steps to Winning Your Multiple Sclerosis Disability Claim, and the Gold Standard Test

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


Need Help Today?:

Need help with your Long-Term Disability or ERISA claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

Review, like, and give us a thumbs up wherever you are listening to Winning Isn't Easy. We love to see your feedback about our podcast, and it helps us grow and improve.

Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Speaker A [00:00:11]:
 Hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to winning isn't easy before we get started, I've got to give you a legal disclaimer. This podcast is not legal advice, but nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Do you have multiple sclerosis? If so, today's podcast is for you. But if you don't have multiple sclerosis, you can still learn lessons from this podcast about how disability carriers handle claims, how they view claims, and some of the games that they play. I'm going to talk about three things today, multiple sclerosis and common reasons why disability carriers deny these claims, how disability carriers evaluate multiple sclerosis claims and the steps to winning your multiple sclerosis disability claim and the use of the gold standard test. Let's take a break.
 
 Speaker A [00:01:16]:
 We'll be back in a minute.
 
 Speaker B [00:01:21]:
 Have you been robbed of your peace of mind from your disability insurance carrier? You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long term disability claim process. Request your free copy of the book@kvlaw.com today.
 
 Speaker A [00:01:42]:
 Welcome back to winning isn't easy. You ready to get started? Let's first talk about multiple sclerosis and the common reasons why disability carriers will deny a multiple sclerosis claim. But before we get there, I want to set the stage and talk about what the disease is and its symptoms are because I find that many disability carriers don't understand the disease or its symptoms. Multiple sclerosis, or MS, is a progressive disease of the central nervous system. It disrupts the flow of information from your brain and between the brain and your body. It damages fatty myelin sheaths surrounding the axons of the brain and the spinal cord. Axons are like tiny electrical cables that connect each nerve cell to the next nerve cell. The scarring and the demyelinization caused by MS prevents these axons from conducting the electrical signals that enable the nerve cells to communicate.
 
 Speaker A [00:02:41]:
 Now, there are four different types of MS, and each of these different types of MS have different symptoms. I find that disability carriers tend to lump MS into just one big category and they don't differentiate the symptoms that are unique to each form of MS. The first form is relapsing, remitting multiple sclerosis called rrms. There's primary progressive MS. There's secondary progressive MS, and there's progressive relapsing MS. Now, this is even more complicated because the symptoms will differ from person to person, even if they have the same type of MS. So if you have RMRMS, your symptoms may be different from those of the next person. That is a unique characteristic of MS.
 
 Speaker A [00:03:35]:
 There's also another unique characteristic of MS that disability carriers don't get. MS can be both episodic and progressive. So you might have periods in which it seems as if things are getting better. And of course, during those periods of time, disability carriers are inclined to deny claims. But unfortunately, the disease will generally progress over time and the symptoms get both more severe and more frequent. I think it's really important in your medical records, in your forms, that you're submitting to the disability carrier, that you are documenting accurately and honestly the nature of your symptoms, the severity of the symptoms, the frequency of the symptoms, and how those symptoms impact your ability to function. It's not just the symptoms that make you disabled, it's the impact the symptoms have on your functioning. Now, MS can cause many symptoms.
 
 Speaker A [00:04:33]:
 There can be loss of balance, dizziness, a lack of coordination, fatigue, pain, tremors, muscle stiffness, spasm, numbness, visual disorders, difficulty concentrating, and even depression. So now that we've set the stage, let's talk about the common reasons why disability carriers will deny an MS disability claim. The thing that you need to understand is that there are three primary arguments that disability carriers will make. The first is that your condition is preexisting. The second is that you can't objectively demonstrate your disability. And thirdly, they'll argue that even though you can establish that you have the MS diagnosis and that your condition isn't preexisting, you can't establish that your disability really keeps you from working. So let's take each of these apart. Now, the first argument that your MS is preexisting really is a limited defense.
 
 Speaker A [00:05:38]:
 What do I mean by that? If you are newly employed by your employer and they offer you disability coverage and you accept it and then claim that you are disabled, the disability carrier is going to do what's called a preexisting condition or look back analysis. The policy probably says that if you became disabled within a certain period of time after you were covered, your disability is going to be considered preexisting and they don't have to pay disability benefits. Now you will need the experience of an ERISA disability attorney to help you grapple with the confusing requirements of picking the right day, to stop work, and to claim the disability benefits you're entitled to if you are newly insured under a disability insurance policy, because we can't fix you picking the wrong date, and sometimes we can't fix it at all because the nature of your medical condition requires ongoing medical treatment. You might have a Social Security disability claim, but you may not have a disability claim based on the application of the preexisting condition clause. Now, more often than not, disability carriers are denying a claim on the basis that there is no objective basis for the diagnosis. A lot of the complaints of MS are subjective in nature and carriers will say, look, there's no objective basis for the diagnosis because it's based on your complaints, which are subjective and there's no objective physical examination. Now we know that there is no exact test for MS and the diagnosis is often made by eliminating other disease. This means producing objective evidence can be difficult, but certainly there are tests that I'll talk about that are the gold standards for a diagnosis of MS.
 
 Speaker A [00:07:34]:
 And the diagnosis of MS can be difficult, particularly in the early stages of the disease process. And so it's really important that in your medical records your doctor is eliminating other potential causes for your symptoms and the difficulty with your functionality. Many carriers will get hung up on the fact that there might not be a diagnosis or a differential diagnosis that explains the symptoms, and that can be the reason for a denial. But the courts are not so sympathetic about that defense. They really are not interested in tagging you with a diagnosis as opposed to seeing that there is an objective basis for your symptoms and an objective basis for how those symptoms impact your ability to function. That's why it's really important that you have an MS specialist who is evaluating and treating you and that they're doing a great job in documenting your symptoms and your functionality. Now, the third reason why claims get denied is the carrier might concede that you have MS, but they take the position that there's no objective basis for your inability to perform your own or any occupation. Basically, disability carriers are looking for any kind of defense that they have, and they will tie the lack of objective basis of restrictions and limitations to their analysis of your occupation, particularly if you're in the own occupation stage.
 
 Speaker A [00:09:09]:
 It's important that you get out your disability policy and read the definition of disability and your own occupation so that you understand what are the material and substantial duties of your own occupation that you have to prove that you're unable to do. It's not uncommon that there are different definitions of occupation. It could be your occupation is performed by your employer, your occupation is performed in the national economy. Your occupation is performed according to the Dictionary of Occupational Titles. So you've got to figure out what the definition of occupation is because we ultimately want to establish what those material and substantial duties are. We want to establish why it is you can't do those. And then we need to come up with an objective basis for why you can't do the material and substantial duties of your occupation. It might be that you need a functional capacity evaluation.
 
 Speaker A [00:10:03]:
 Maybe you need a neuropsychological evaluation. Maybe you need a CPED exam to address the cognitive exhaustion issues. Each case is fact dependent upon the nature of your MS, the stage that it's at, the symptoms that you are experiencing, and then tying all that together to establish that you meet the definition of disability and definition of occupation, predicated, of course, upon objective evidence of the diagnosis and objective basis of your restrictions and limitations. Now that's also crucial because carriers don't recognize, as I said, the relapsing, remitting nature of the disease or the progressive nature of the disease, and they tend to cherry pick at different stages of the claim. So you obviously need to be conversant with your disease, its symptoms, and its functionality. You need to have a thorough understanding of your disability policy and you have to have a physician who's willing to play ball with you and a disability carrier to overcome these kinds of defenses. Let's take a quick break before we head into our next segment. Them back to winning isn't easy.
 
 Speaker A [00:11:42]:
 Let's talk about how disability carriers evaluate multiple sclerosis claims and decide whether or not they're going to pay your benefits or deny your claim. MS can be mild in its early stages, it can be moderate or it can be severe. And disability carriers just don't appreciate the nature of MS, the different forms of MS, the nature of MS, how the symptoms present and how they progress. And they don't understand that generally. And they certainly don't understand or necessarily evaluate your case because your experience of MS can be different than the next policyholder. So they tend to use a cookie cutter, one size fits all approach. That's a particular problem in MS in the early stages. And it can be a particular problem if MS is intermittent and you have a case of relapsing remitting MS.
 
 Speaker A [00:12:45]:
 What you'll see is that difficulties arise in the mild early diagnosed MS cases because there isn't a lack of objective basis of the diagnosis and there's a lack of documentation as to the symptoms and how those symptoms will impact your ability to perform your occupational duties. Now, the more difficult cases are also the intermittent or moderate MS cases. Intermittent and moderate cases are going to be basically decided based on your medical records, the activity of daily living forms that you complete, and information provided by your doctor regarding the severity, frequency, and duration of the symptoms. Now, also, the proof becomes a little more complicated when you are in a situation where you're having visual, cognitive, or even psychological symptoms. So we've got to involve other providers in the proof. If your MS is advanced or severe, more likely you're going to be approved, but only if your medical records can establish an objective basis, the diagnosis and an objective basis of the restrictions and limitations. I think that there should be certain elements documented in your medical records and in the documents that you're submitting. First is going to be difficulty walking or using your hands because of partial paralysis, tremors, or involuntary movements.
 
 Speaker A [00:14:17]:
 Of course, your doctor will note that on your physical examination, but sometimes I think that video can help document the difficulty walking or using your hands or the tremors or the involuntary movements. The second element that we want to see is severe decreased in vision that can't be corrected by glasses. If you're having visual issues, that's going to require, obviously, visual testing and acuity testing by your physician and potentially a neuro ophthalmologist. Now, you may have an organic mental problem causing memory loss, disturbance of mood, difficulty concentrating, or your ability to do executive functioning that can be documented on exam. But I will tell you, most of the time, doctors do a mini mental status examination to see if you're oriented to time and place, and that is generally normal. So the disability carriers will seize on that and ignore your other complaints of memory loss, disturbance of mood, or difficulty concentrating. As a result, it may be necessary to do what's called neuropsychological testing, which will establish a baseline but will more importantly measure problems that you're having with memory loss, concentration, disturbance of mood, and changes in executive functioning. And we also want to establish in your medical records severe fatigue and muscle weakness.
 
 Speaker A [00:15:44]:
 The muscle weakness can be demonstrated on physical examination and testing, but fatigue cannot be measured objectively unless you go undergo what's called a CPET exam, a cardiac pulmonary test that will measure your exhaustion and fatigue levels and whether or not you have that or not, I think, is case specific. What disability carriers are wanting you to establish is that your disease and symptoms have progressed to the point where it limits your functioning enough so that you can't perform your own or any occupation, and they are going to use a number of tools to try to deny your claim. Of course, the first is going to be the claims examiner's review of your medical records. And they are going to have your medical records examined by their own liar for higher peer review doctor who's going to cherry pick those medical records. They are also going to have their physicians review the attending physician statement forms looking for discrepancies or symptoms that may not necessarily be consistent with the level of severity that you're claiming or that your doctor believes exists. They're also going to be looking at your activity of daily living forms. Now, I think the activity of daily living forms are traps because they are so broadly written. I want my clients to be filling them out with detail and specificity, but to do so honestly, because if you exaggerate or if there's inconsistencies between what you're putting on the form and what you're reporting to your doctor, that's going to lead to a denial based on surveillance.
 
 Speaker A [00:17:20]:
 So I always want my clients to give the treating physician an activity of daily living form that I've reviewed and which is consistent with their medical records and truthful because I want to see this consistency. And then, of course, the last thing that they're going to be doing is to use a quote unquote independent medical examiner. They have the right, under the terms of the policy to have you examined by a physician of their choice. And that physician may not be competent or qualified, but that physician's job is to give them a reason to deny your claim. So what else are they going to do? Well, we've talked a little bit about the nature and the progression of the disease. And so they are going to be operating using a one step approach to this case. They're going to use the cookie cutter. The adjuster is not familiar with the stages or progression of MS.
 
 Speaker A [00:18:18]:
 They don't recognize the symptoms. They don't know the types of treatment or the side effects. And that can make it hard to get past the claims examiner and the nurse who may be reviewing the file. And as I've said, what they're going to be doing is cherry picking and taking apart your doctor's aps form and your medical records. What they're going to be looking at is how long you've had the symptoms, the nature of your symptoms, and how your symptoms have changed or progressed over time. What you report to your doctor about how MS impacts your daily activities is recorded in your forms. Your treatment, your response to treatment and the side effects of medication. The extent and nature of your symptoms after treatment, whether you've been seen by a specialist for the treatment of your symptoms, like a neurologist, a pain management doctor, a gastroenterologist, a psychiatrist, a psychologist, and then whether or not there is consistency between all of this.
 
 Speaker A [00:19:17]:
 The APs form can be a trap for you and your physician. Why do I say that? The APS form is a generic form and it's designed to lead your doctor to comment that you can work in some capacity based on the restrictions and limitations they may be assigning. I like to supplement the APS form with a Social Security disability residual MS form because it asks the right kinds of questions. And as I've said, they're going to be cherry picking that activity of daily living form. I think that should be filled out carefully and with the guidance of an experienced attorney because that form can lead to traps. That trap can be the inconsistency or exaggeration between what you're saying and what the doctor is reporting. And the claims examiners will have a tendency to parse both the activity of daily living forms and also the APS form. And they might even call you up and take your statement or ask for clarification.
 
 Speaker A [00:20:19]:
 That's always a trap. And I think statements are a trap such that you should be having counsel with you, prepare you and with you during the statement. And as I've said, the IME is a tool that they will use and that, of course, is anything but independent. The IME physician is a paid liar for hire to give the disability carrier ammunition to deny your claim. And they will generally report on the severity, duration of your symptoms, your response to treatment, the side effects and medication. And they will do so in a way that provides a pathway to the disability carrier to deny your claim. They don't work for you. They don't know you.
 
 Speaker A [00:20:59]:
 They work for the insurance company. And that's why I think if you're scheduled for an IME, that's another red flag. You don't want to go to an IME without preparation. You don't want to go to an IME unless there's an opportunity to videotape it or have a witness present. And you don't want to go to an IME unprepared because you're going to be asked questions. You're going to participate in an exam. And we don't want the doctor to conclude that you're malingering or engaging in exaggeration during the course of the examination to impress them. That will result in an automatic claims denial so you can see that there are a lot of things that go into a disability carrier's analysis of an MS claim and deciding whether or not to pay.
 
 Speaker A [00:21:47]:
 And there are things that you can do and should be doing to protect yourself. Let's take a break.
 
 Speaker B [00:21:53]:
 Are you a professional with questions about your individual disability policy? You need the disability insurance claim survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to do's regarding your disability application that will assist you in submitting a winning disability application. This is one you won't want to miss. For the next 24 hours, we are giving away free copies of the disability insurance claim survival guide for professionals. Order yours today@disabilityclaimsforprofessionals.com.
 
 Speaker A [00:22:30]:
 Welcome back to winning isn't easy let's talk about the steps to winning your multiple sclerosis disability claim and the gold standard test that disability carriers expect to see. The first thing I think you need to do if your doctor has told you to stop work is not to stop work until you get your disability insurance policy out. We need you to read that policy, cover to cover or get a consultation with a lawyer such as myself. Why? Well, first we want to see how the policy defines disability, occupation, self reported limitations and other particular relevant terms in the disability policy. We want you to understand what it is you need to prove and whether or not there are any policy limitations that we need to understand right off. Some policies say that you have to have objective evidence of diagnosis or restrictions and limitations before they'll pay the benefits. And as a result, if you don't have that objective evidence, the disability policy may say, well, there's also a requirement that your benefits be limited to just two years if there is a subjective condition, and many times the symptoms of MS, and particularly in the early stages, can be highly subjective and not cooperative by diagnostic studies. The next thing you need to do is get a copy of your medical records and review them to see what your doctors had to say about you, your symptoms, your functionality, the objective basis of the diagnosis.
 
 Speaker A [00:24:07]:
 And you also want to be talking to your physician as to whether or not they support the claim. That's particularly important because if your doctor doesn't support your claim, we want to find a new doctor as quickly as possible. The other thing that we're looking for in these medical records is a history of depression, and it's not uncommon for folks who have MS to have problems with depression. The reason we're looking at that is there might be a mental nervous condition limitation in the policy that limits benefits to just two years if your disability is caused or contributed to by depression. So we want to understand that. The next thing we want to do is to get a copy of your job description and we want to understand the definition of occupation in the terms of your policy. Is the policy definition of occupation as your occupation is performed by your employer or is it performed in the national economy or pursuant to the dictionary of Occupational Titles? So we want to understand that. We also want to provide this information to your doctor because ultimately your doctor is going to be filling out attending physician statement forms.
 
 Speaker A [00:25:21]:
 Now, once you have got your medical records, you've reviewed them, you've got your policy and you understand what it is you need to prove. I also think that it's important that you consider doing a diary, that it will explain your symptoms, your functionality, the side effects of medication, so that we can tie this all together. And how are we going to tie it together? Well, the disability carrier is expecting that you're going to have an MRI, and undergoing an MRI is never pleasant, but it will play a crucial role in not only diagnosing the MS, but monitoring the progression of your symptoms and help us tie this all together. The MRI is the gold standard test for MS because it shows subtle changes in the disease that are not observable by other testing like x rays or ct scans. The MRI will show not only the presence of the lesion, but whether it's actively demyelinating. The MS damages the fatty myelin layer, which protects nerve cells from water, and as a result, the MRI will see the water. That's the result of the myelin being stripped as a result of the multiple sclerosis process. Since it's a non invasive test and it's the basis for the diagnosis, the disability carrier is going to want to see that you've undergone the MRI and the results of the MRI.
 
 Speaker A [00:26:46]:
 Now, once you're on claim, the carrier is going to expect to see that you get additional mris as recommended by your doctor, and they're always interested in the status of your MS. Now, many times in the initial stages of MS, the MRI is inconclusive and that means that there's not necessarily a gold standard test available, but it's important to try to get around that by documenting in your medical records your symptoms and how those symptoms are impacting your functionality. That's why I think the diary is important. I also think that it is important that you understand whether or not you need that objective testing immediately off the bat and if not, how potentially we're going to get around the lack of objective testing. One of the ways we'll do that is to try to educate your physician about the importance of a comprehensive physical examination, the elimination of other causes of your symptoms, and then kind of correlating your symptoms and your functionality with the nature of the disease. Now, as the nature of the disease progresses, we're going to get the MRI and the disability carrier is going to be, as I've said, looking at that MRI. The MRI may be confirming of the MS, but the MRI may not necessarily be confirming the severity of your MS. And again, that's important for you to document that information by keeping a diary.
 
 Speaker A [00:28:24]:
 What are your symptoms? How do your symptoms impact your ability to function? Are they relapsing? Are they remitting? Are you in a stage of remission? How long is the remission lasting? When you have your next episode, is it different than your earlier episodes? How is it different? What are your symptoms? How are your symptoms impacting your functionality? Are you developing other issues, such as visual issues? Are you developing problems with concentration, problems with balance or coordination? So regardless of your symptoms, I think documentation is key, particularly if you're having episodes of remission, because the carrier tends to say if you're in an episode of remission, you are not disabled and you're able to work. And we want to document the frequency and nature of the relapses and the remissions. That becomes key again when you are filling out these activity of daily living forms that will try to nail you down in terms of your symptoms and your functionality. And I think your doctor needs this kind of information to make sure that we have an accurate record of the nature of your symptoms, the progression of your symptoms, and how those symptoms impact your ability to function. Now, even though you may be on claim, as I've said, the disability carrier is going to want to see repeat scans. And that's particularly true if you have relapsing and remitting MS, because the carrier doesn't understand the different forms of MS and particularly relapsing and remitting MS. So ultimately, when we have a series of scans that will show the progression of the disease and the period of time between the relapses and reoccurrences become shorter, we can tie this all together both physically based on your exam findings, the MRI findings, and testing, such as neuropsychological testing or visual testing. So I think that you need to understand that as the disease progresses, not only is the MRI important, but objective testing, neuropsychological testing or visual testing or whatever is going to be just as crucial as the MRI, because we've got to tie together the findings of the MRI to the progression of the disease and the involvement of other body systems.
 
 Speaker A [00:30:55]:
 Well, I hope you have enjoyed this week's episode. If you like this podcast, consider liking our page, leaving a review, or sharing it with your friends and family. Remember, this podcast comes out weekly, so stay tuned for next week's episode. Thanks.