Disability Blog

The Continued Fight For Disability Insurance Benefits

Posted February 19, 2015 by Sean Gingrich

We here at Nash Disability law were able to help a client get Title II Disability Insurance Benefits (benefits based off a past work record) after a successful appeal and successful second hearing.

Originally, we went to a hearing with our client in 2013. He’s a younger individual for Social Security purposes, which means under age 50, meaning that we have to prove our client would be unable to perform any level of competitive employment. Whether that be day labor, assembly line work, or even a desk job.

He suffers from severe obstructive sleep apnea and is obese. Our client consistently reported daytime sleepiness and fatigue due to lack of restful sleep, and his sleep study tests all indicated that he had severe obstructive sleep apnea – far beyond the regular kind. He was told to obtain a CPAP night time breathing machine, but due to limited insurance and no other income, he was unable to afford one on his own.

The Administrative Law Judge at the hearing had a medical expert testify in an attempt to better understand how untreated obstructive sleep apnea would affect an individual’s work performance. The doctor at the hearing testified that CPAP machines are readily available at all clinics, and that he was perplexed as to why our client was not using one. He assumed it willful on the part of our client. The ALJ took this information as all he needed as a means of denying our client – stating in the written decision that had the client used the CPAP he would have been able to work. In other words, it was the claimant’s own lack of desire to comply with medically prescribed treatment that was causing our clients symptoms.

We knew the ALJ and the medical expert were wrong, we knew they weren’t following the law, so we appealed the decision. We cited Social Security’s own regulations, as well as countless jurisdictions from across the country that have ruled on similar scenarios, to argue that failure to afford treatment cannot be treated the same as failure to comply with treatment. The appeals council agreed with our arguments, and agreed to remand the case back to the original ALJ in order to hear the case again with a set of instructions concerning how the rules were actually to be applied.

At the second hearing we had the same judge and the same medical expert as the first hearing, and by the time of the second hearing, our client had begun to receive better insurance that would, in fact, pay for his sleep apnea machine.

The claimant had been using his machine for about two months before his family moved to a different area, where his insurance made it difficult for him to establish care with a new doctor. So essentially he had the machine, but we really didn’t know how well it was working for him. The medical expert at the hearing this time testified that the claimant was disabled, but only up until the time where our client received his machine. The medical expert testified that because our client had the machine now, he must have improved, and was therefore no longer disabled.

This was in direct contrast to the testimony our client gave saying that he was still tired all day and falling asleep throughout the day, and that the mask was not really working all that well for him. We knew that the judge was likely to accept the medical expert’s testimony unless we got creative and found a way to prove our client had not improved.

CPAP machines have a digital recording card inside them that allows technicians to see how well the device is working, how well the patient is complying with the machine, etc., in order to ensure optimal use. Because our client was not seeing a doctor regularly, we thought to go to the source and request the digital logs from the company that makes the machines.

We were successful in obtaining this information which refuted the medical expert’s testimony by showing that despite our client regularly using the machine, it was leaking air at such a rate that it was not effective in treating our client’s obstructive sleep apnea. We wrote to the judge with this information, strongly rebutting the medical expert’s testimony, and in the end we obtained a fully favorable decision for our client, ensuring ongoing benefits and improved insurance.

Knowing the law, finding creative solutions, and having the will to continue to fight for what we know is right is what separates Nash Disability Law from other firms. If you need help with your claim for Social Security Disability, contact us today for a free consultation.

Tags: Nash Disability Law Social Security Disability Blog Chicago SSDI Lawyers

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