Speaker A [00:00:10]:
Hey, I'm Nancy Cavey, national ERISA and individual disability attorney and Social Security disability attorney. Welcome to winning isn't easy before we get started, the Florida bar tells me that I have to give you a legal disclaimer. This podcast is not legal advice. Now, I've complied with my bar obligations, but I will tell you that 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. As an attorney who does both Social Security disability and ERISA disability work, I get lots of questions about the interaction of these cases. What's the difference between Social Security, what's the difference between that and ERISA? What's the interaction? And these are great topics for discussion because many ERISA disability policies require that you apply for Social Security disability benefits so that they can they, the carrier, can reduce your long term disability benefits by the receipt of your Social Security benefits and that of your children, dependent children. Now, many people will say to me, well, I don't want to apply for Social Security benefits.
Speaker A [00:01:30]:
And I'm not. And I have to say to them, too bad, so sad, because the policy language requires that you apply and that you go through this application process generally through a hearing. So you may be wondering, well, why should I be listening to that this podcast? And the answer is, because this all is interrelated and it impacts your rights to your long term disability case and obviously impacts your right to Social Security benefits. I want to remind you that in addition to getting Social Security disability benefits, once you have satisfied your five month waiting period and have gotten Social Security benefits for 24 months, you become eligible for Medicare. So I don't want you to just kind of dismiss a Social Security claim because of this offset issue. I want you to also consider that there are valuable medical benefits that come with getting Social Security disability benefits. So with that introduction, I'm going to be talking to you about three things today. I'm going to be talking to you about the five things that the Social Security Administration needs from your treating physician that can make or break your claim and can have an impact on your ERISA disability claim.
Speaker A [00:02:46]:
I'm also going to talk with you in two segments about functional capacity evaluations and residual functional capacity forms and why, in my view, those can be crucial to the success of both your Social Security disability and your ERISA disability claim. Let's take a break before we get started. And when you come back, make sure you have a pad and pencil or pen? Because I'm going to be covering a lot of important information that you'll want to share not only with your spouse and your family members, but with your doctor. Got it?
Speaker B [00:03:22]:
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Speaker A [00:03:45]:
Welcome back to winning isn't easy what are the five things that the Social Security Administration needs from your treating physician that can make or break your Social Security claim and just might make or break your ERISA disability claim? I'm often asked, well, why can't I just get a letter from my doctor saying that I'm disabled? Well, the reason is they don't really care what your doctor has to say about whether you're disabled or not. Because the Social Security Administration uses a five step sequential evaluation to determine your entitlement to benefits, they ask, do you have a medical impairment? Is this impairment sort of temporary in nature, or is it one that will keep you out of work for at least a year or potentially result in your death? Do you meet a medical listing? Can you go back to your past relevant work? Which is the lightest work and simplest work you did in the 15 years before you became disabled? That's step five. Can you do other work in the mythical, hypothetical, not real world national economy that you wouldn't want to do that doesn't pay a living wage in view of your age, education, your transferable skills, and your restrictions and limitations. Now, I find that many medical records do not address a person's restrictions and limitations, and we supplement that in what's called a residual functional capacity form, which I'll talk about in later parts of this podcast or video. The Social Security Administration does recognize that your doctor can provide a longitudinal history of your medically determined impairment, which can be important because that's step number one. And then the doctor can comment on how long your medical condition is expected to last. The doctor can comment on how your medical condition impacts your ability to function. They can explain the nature, severity, extent, and duration of your impairment that cannot necessarily be gleaned from the medical records.
Speaker A [00:05:50]:
They can comment again on your functionality, not only in terms of work, but activities of daily living. They can comment on treatment and the side effects of medication, and they can comment on things like pace off task issues, absenteeism. This information is rarely found in medical records and is, quite frankly, never really asked for appropriately in the attending physician statement forms that the disability carrier is going to ask you, have your doctor complete. What I find is that the best way to get at this is to have your doctor complete what's called a residual functional capacity form for your applicable disabling condition or conditions. Now, we Social Security lawyers have developed about 50 different residual functional capacity forms based on a wide range of medical conditions, specific medical conditions they can be Ehlers, Danlos, fibromyalgia, heart disease, back conditions, you name it. And there's a generic one, ones that we can use generically for physical conditions and generically for psychological or psychiatric conditions. All this is important because Social Security is going to determine the severity of your impairment, your ability to go back to the lightest job you held in the 15 years before you became disabled, and your capacity to do other work. I will often, when I'm representing a person in both their Social Security and their ERISA claims, have my client give their doctor a residual functional capacity form, reforms for the right medical conditions, and I attach those to the attending physician statement form because I want the doctor to answer the right questions.
Speaker A [00:07:39]:
You also need to understand that the Social Security Administration is going to want to see what's in that long term disability file. And if your doctor has completed a generic AP's form that's not necessarily favorable to you, or we've got the peer reviewed doctor's rendering opinions, we want to be able to robut this with or supplement it with a residual functional capacity form. So this information is important, in my view, in the context of both a risked disability claim and a Social Security claim. That's why I take a team approach to developing these issues and getting this information about a person's functional restrictions and limitations. We want the evidence, and we want the evidence to be consistent. Okay? Now I'm often asked, does the Social Security Administration use an average man test in determining entitlement to benefits? You may have heard the term average man used in legal tv shows, and you may be wondering if the Social Security Administration uses an average man test to determine your entitlement to benefits. The answer is no. There's no one test to determine whether a person has a disabling impairment, can return to the lightest job they held in the 15 years before they became disabled, or can return to other work in the mythical, not real world national economy, the Social Security Administration, unlike many arrested disability carriers, recognized that you are a unique individual and that your experience of a medical condition is different from anybody else's.
Speaker A [00:09:10]:
In other words, your symptoms and what you can do in light of those symptoms and restrictions can be different from someone else's experience. In other words, you might have a heart condition that makes you capable of only doing sedentary work in a low stress environment. I might be able to do that while you couldn't. Another person with that same heart condition might have shortness of breath without exertion, with palpitations, side effects, and anxiety. That person probably couldn't do sedentary work on a sustained basis, but I might be able to. You might have a low tolerance for pain. Well, somebody else can soldier on despite their pain. So your experience of pain may make it impossible for you to do other work in the national economy, while I might be able to do sedentary work, the point here is that the Social Security Administration has to consider your individual differences, your individuality in determining the nature, severity, extent, and duration of an impairment.
Speaker A [00:10:16]:
There is no average man test, at least in the context of a Social Security case. But I will tell you that's not necessarily the case in an arrested disability claim. Why would I say that? Well, I think it's important that we develop all of the disabling medical conditions. In both cases, we get residual functional capacity forms. But here's an important difference. Sometimes disability carriers will use disability duration guidelines. They'll also use peer reviewed doctors who don't necessarily believe in some medical conditions like fibromyalgia or don't believe that these conditions can be disabling or is disabling that would prevent you from doing your own occupation or any occupation, and they will tend to use an average man test. That's one of the reasons why we attack those types of denials in the context of an ERISA disability claim.
Speaker A [00:11:12]:
So while they don't use a average man test in the context of a Social Security case, I do see that they, disability carriers and plans will use an average person test, an average man test in the context of an ERISA disability claim. So it's important that you understand the differences. Let's take a quick break. Welcome back to winning isn't easy. Should your physician refer you for a residual functional capacity evaluation in the context of your Social Security claim? Now, you may have asked your doctor to complete that residual functional capacity form. That will explain your restrictions and limitations in great detail. And your doctor, in response, may have said, I don't fill out forms or I don't know what your restrictions and limitations are. So go get a functional capacity evaluation.
Speaker A [00:12:43]:
Now, to me, that's the chicken's way out. The Social Security Administration, do they want you to undergo a functional capacity evaluation? Well, the Social Security administration is trying to determine how long that impairment is going to last, how it limits your ability to function. In other words, how long can you sit, stand, walk, stoop, bend? Do you need to alternate sitting and standing? Do you have problems using your upper extremities with bilateral manual dexterity? Can you sustain work on an eight hour day, five days a week? Would you be off task, off pace? Now, if you are under age 50, the Social Security Administration has to determine your capacity to do full time sedentary work. What's that? Sedentary work requires that you sit for 6 hours out of an eight hour workday, stand or walk intermittently 2 hours per day, and occasionally lift ten pounds and frequently lift lighter objects. And that's the game. And quite frankly, that's the game in an ERISA disability claim when you're at the any occupation stage. And so some doctors are tempted to punt because they either don't want it fill out the form, or they don't want to answer the question. And I think you'll go away if you are told to spend money to get an FCE.
Speaker A [00:14:00]:
An FCE is a series of tests that are used to identify your physical skills, your functional abilities, your activity tolerance, and your work tolerance. It can be as short as 2 hours. It can be a six to eight hour evaluation. It could be administered as long as two days. It's generally administered by an occupational therapist, a physical therapist, rarely a doctor, and it can cost anywhere from one thousand dollars to five thousand dollars. Now, one of the things you need to understand is that the opinion of the physical or occupational therapist is not acceptable in a Social Security case. And the only time that I've ever used an FCE in the context of a Social Security case is when I've gotten one in my ERISA case, and I'll talk about that in a minute. But I have the physician endorse it.
Speaker A [00:14:47]:
The Social Security Administration will never ask you to undergo a functional capacity evaluation, and quite frankly, they prefer a residual functional capacity form. If your doctor says I'm not going to fill it out, I'm not going to play ball, go find another doctor. In the context of an ERISA case, if your doctor says I'm not going to fill out forms, THEn you need to go find another doctor. Same way, if they say you want an fCE, they want an fCE, then I take that pretty seriously. And there are many times I'll get an FCE without a doctor recommending it because the disability carrier has conveniently said that my client has restrictions and limitations such that they could go back to their own occupation or they could do any occupation. When we're at that any occupation stage, again, the game is sedentary employment. So a sedentary occupation. So I want my vocational evaluator to evaluate my PERSON's CAPabilIties in LIEU of potentially not only all of THeir disabling medical conditions, but in the context of what the disability carriers doctors have said.
Speaker A [00:16:00]:
So if the disability carrier doctor says you can do light work, I want the FCE provider to do a test to determine if you're capable of light work, what sedentary work level activities, if any, could you do? What happens with pain, exhaustion, fatigue, shortness of breath? How does that impact your functionality as the FCE progresses? I also try to do that sometimes in conjunction with my vocational evaluator. And by that I mean if I'm at the any occupation stage, I want to see sort of get an idea of what my ve thinks there might be work that you could do so that I can potentially have the ve simulate that type of activity. If I'm at the own occupation stage and the carrier says you can do your own occupation, I want my ve to weigh in what the occupational duties are. So again, as part of the FCE testing, we're actually testing a person's functional capability to do the material and substantial duties, physical duties of their own occupation. So in the context of a Social Security case, I don't think you need a FC, I think you need a doctor to complete a residual functional capacity form. In the context of a risked disability case. Most of the time I do get a functional capacity evaluation at a vocational evaluation to address the reasons why the carrier says you can do either your own occupation or any occupation. Again, different strategy, different approach, and it just really depends on the nature of the conditions that we have, the strength and weakness of the Social Security claim, and what I need to prove in the context of the ERISA disability claim.
Speaker A [00:17:49]:
Got it. Let's take a break.
Speaker C [00:17:51]:
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Speaker A [00:18:47]:
Welcome back to winning isn't easy. Let's talk more about functional capacity evaluations. I'm going to give you an overview of the functional capacity evaluations and the residual functional capacities, and we're going to dig down a little deeper. Let's say your doctor says they don't have any special expertise to estimate your capacity to perform work related activities, and they won't fill out a form in support of your claim. What should I do? And this situation also generally will arise in the context of an ERISA disability claim. Now I will tell you that the Social Security Administration does not require the treating physician to have any special expertise or training to render an opinion about functional restrictions and limitations and what you can do still do despite your physical impairments. Determining what you can do really is based on an exercise of their professional judgment to figure out whether your symptoms are in fact attributable to your diagnosis, whether your symptoms are consistent with the nature of the medical signs and findings, whether your claims symptoms related limitations are reasonably consistent with the medical signs and findings on examination and diagnostic studies. And in my view, this is what doctors do every day.
Speaker A [00:20:05]:
Social Security is more interested, I think, in your doctor's longitudinal perspective based on repeated examinations and treatment than any special expertise they might have in rendering opinion about your functional restrictions limitations. So you should explain to your doctor in the context of a Social Security case that they don't need any special expertise in estimating your capacity for performing work related activities and ask them once again if they're willing to fill out a form. Now, your physician, I think, should also get your opinion about your ability to do work related activities and then exercise their professional judgment. You have to be careful about that because the doctor will potentially rely on your subjective complaints, and if there isn't any consistency, the judge will seize on that in the context of your Social Security case. As I've said before, if they don't want to fill out the form, change your physician. You want to find a doctor who is a great treating physician, but one who will support your claim by filling out a residual functional capacity. Now let's talk about this in the context of an ERISA disability claim. The disability carrier does expect that forms filled out by a physician come from a specialty physician who has had expertise in your disabling condition and has had a period of time to treat you.
Speaker A [00:21:32]:
That isn't to say that if we have to, we won't get forms filled out by a treating physician like a GP. But if I've got a fibromyalgia case, I want a rheumatologist to fill it out. If I have a cardiological case, I want the cardiologist to fill it out. If I have an Ehlers Danlos claim, I want a Ehlers Danlos specialist. Or in the case of an MS case, I want the specialist to be filling out the form and I'm going to be giving them a residual disability functional capacity form that we use in Social Security that asks the right questions as a supplement to the AP's. So there is a significant difference here, and that can impact our strategy when we're handling both the Social Security disability and arrested disability claim. And remember, this information about your Social Security claim is going to be shared to the limited carrier. They have a right to it.
Speaker A [00:22:33]:
And the Social Security Administration wants to see what's in your limited file, particularly the medical records or fces, that sort of thing. So, you know, we've got to be sure that we're consistent because potentially it's going to be used in both of your cases. Got it? Okay, now let's say your doctor says, I don't know the definition of disability for Social Security purposes, and I'm not going to complete a residual functional capacity form. What should you do? Well, your doctor doesn't need to know the definition of disability under the Social Security rules. And in fact, Social Security doesn't want your doctor to say you're disabled. Social Security says, look, it's our job to determine whether or not you meet our five step sequential evaluation. Do you have a medically determinable impairment? Is it going to result in your death or last or expected to last a continuous period of twelve months? Do you have an impairment that meets or equals a listing? Does it prevent you from performing the lightest job you held in the 15 years before you became disabled? Does it prevent you from doing other work in the national economy in view of your age, education, skills, and restrictions and limitations? That's what they want to know. If your doctor wrote a letter that says, hey, I'm disabled, Social Security is going to throw it in the garbage.
Speaker A [00:23:48]:
And what they want to know is what can you do or not do? And the best way to get at that, in my view, is a residual functional capacity forms. If you're under 50, the Social Security administration is really going to determine your ability to do full time sedentary work. And the younger you are, the harder it gets. And you really have to be significantly disabled to establish that you can't do full time sedentary work, which is sitting for 6 hours out of an eight hour workday, standing or walking intermittently for 2 hours per day, and occasionally lifting ten pounds. Now, I will tell you if you're over 50, the game generally depend on where you're at in this age range. Can be light work or sedentary work or less than sedentary. And so the game is a little different depending on your age over 50. The game, though in the context of an ERISA disability claim, is a bit different.
Speaker A [00:24:43]:
I think your doctor does need to know. The definition of disability is an inability to do the material and substantial duties of your occupation. What are those material and substantial duties? So you got to tell the doctor, this is what I have to do in my occupational duties, x, y, and z, because you specifically want your doctor to address the restrictions limitations in the context of your occupational duties. Similarly, when you're at the any occupation stage, the game there is sedentary or less, a bit like Social Security, but I think a little more exacting because we want to prove that you have difficulty sitting, maintaining pace and concentration. You have to alternate sitting and standing, that you have potentially difficulty with bilateral manual dexterity, or you have difficulty maintaining pace or concentration. I think the proof is a bit more complex in the context of an ERISA disability claim than it is in the context of a Social Security case. When it comes to the issue of why you can't perform other work. Now, what should you do if your doctor says, I'm not playing ball here again, I think that they should be exercising their professional judgment, and that judgment is judgment.
Speaker A [00:26:05]:
That I think, quite frankly, is more common sense than necessarily the medical sense, unless you do an occupation or a job that the doctor isn't particularly familiar with. I do think that in both instances, you should be educating the doctor about what it is you do. But more importantly, at the end of the day, we really want to understand functionally, both from a physical standpoint and from a psychological standpoint, your functional restrictions. Now, you may have a case involving fibromyalgia. You might have me CFS, you might have PD, you might have Parkinson's, you might have Ehlers Danlos. You might have any type of disease that either has a cognitive component or has a fatigue component. Cognitive issues are real, and I think that they potentially should be measured by having appropriate neuropsychological testing. And the fatigue issues are real.
Speaker A [00:27:05]:
It might be that you're in so much pain that you can't sleep, you might have brain fog that interferes with your ability to process information and then you become mentally fatigued. That sort of thing needs to be documented. Many times, I will see in medical records that a doctor performs a mini mental status examination, which is, what day is it? You know, like, what's the weather? Who's the president? Count back, you know, 1098 7654. Count the other way. A pretty simple mental status examination that is not an accurate measure of a person's cognitive abilities or the impact of fatigue. And in those instances, I think that you need to have appropriate testing. Now, if your doctor says, I don't recommend the testing, I'm not going to perform the testing. I'm not going to fill out forms.
Speaker A [00:27:54]:
Time to change doctors. And many times, in the context of a case, that is why the claim has gotten denied. Either there is no support from the physician or appropriate testing hasn't been done, and there's not an adequate explanation as to why the person has these physical problems, cognitive problems, or psychological problems, and the impact that they have on a person's ability to do their past work, their own occupation or other work in the national economy or other occupations. Again, since I handle both Social Security and ERISA disability cases, I'm looking at these issues across both of these cases and figuring out, okay, well, here's the strength and weakness of the Social Security case. This is what's missing. This is what I need to prove. And over here in the ErISA case, the peer reviewed Doctor Cherry picked the records here, and I need to do this or that. So I'm coming up with one coordinated strategy to try to address both the deficiencies in the context of the Social Security case and the ERISA case.
Speaker A [00:28:57]:
And you can see why there's this interaction and why it's important that you have a strong team comprised of an expert in ERISA work, Social Security work, and one that can work well with you and your doctor. That's it for today. I hope you've enjoyed this week's episode of winning isn't easy. Please like our page, leave a review, share it with your family or friends, and please subscribe to our podcast. I hope that you'll tune in next week for another insightful episode of winning isn't easy. Thanks.
