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Social Security Disability: Ankylosing Spondylitis, Listing 14.09C1, and Onset Date

Oklahoma City, OK |

I have been going through an ordeal with my AOD since Dec. 2009 (when I applied for SSDI/SSI). I alleged Sept. 2001 as my onset date (last day of SGA); the FO employee mistakenly entered Nov. 2009 as my AOD (which is simply my protective filing date). Four long years later, I am about to appear at my third ALJ hearing which was remanded twice now strictly to clarify my AOD. During my 2nd hearing, the ME and ALJ stipulated I met listing 14.09C1, but as of a much later onset date (because of this ongoing incorrect AOD issue). Both my treating doctors' RFC's suggested 2000-2001 as the date they believed my condition became disabling. I received a late diagnosis of AS in Oct. 2003, but because of the pathology of this progressive disease, SSR 83-20 comes into play. I have records back to 1989.

I have read many Federal appeals claims where the onset date was the most disputed topic. For my claim, it’s the most important aspect because it not only determines WHEN I became disabled, but it will also determine the amount for my monthly benefits. Since I stopped working in 2001, the more zero-income years used to calculate my PIA/AIME, the lower my monthly benefits become. I find these matters almost impossible to explain to my current representative to where he will give them their proper attention. Considering the fact both my treating doctors have submitted favorable RFC’s suggesting 2001 as my AOD (and with no other opinions stating otherwise except the incorrect AOD matter) and the rules written in SSR 83-20, is there any reason the ALJ would not be required to accept their conclusions as true under the rules about opinion weight?

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Attorney answers 5

Best Answer
Posted

Hi, I am going to beg to differ on the statement that onset date can not go back more than 2 years prior to date of application (if I am reading that correctly). If anyone has a code section on that, I'd greatly appreciate seeing it. The reason I have to disagree is that I have represented several clients with very remote AODs and DLIs (mostly Vietnam vets who simply didn't get it together enough to file a claim, until a good decade later, due, of course, to their impairments). At any rate, while one can't get benefits more than 12 months prior to application, and I believe you are very familiar with that rule (and the 5 month waiting period). I very much understand why you are concerned with the effect on your PIA, those zero years, certainly. And while I agree very much with my colleagues that express that this is a complicated (and very case sensitive) topic that can't be truly determined here, we can discuss the areas of concern, certainly.

“... is there any reason the ALJ would not be required to accept their conclusions as true under the rules about opinion weight?”

Yes, unfortunately, it CAN happen, but if it is not based on “substantial evidence”, the ALJ’s decision COULD be overturned (not that you want to see that again). I recently had a case that lost and it was shocking. The 2 treating physicians had the same opinion, basically, as to limitations, and the Judge chose some nonsensical reasons, not based on the evidence (or so I am arguing in my appeal to the appeals council), to give zero weight to these doctors’ opinions. It was unreal. The only inconsistent opinion was from a workers compensation orthopedic doctor who only opined as to spinal impairment limitations, and who expressly noted that because the MRIs didn’t show objective reason for her pain (i.e nerve impingment/compression), there was no basis for any alleged limitation or pain. Not only did he NOT include an opinion on the migraine headaches every week for years, along with the vomiting, nor the fibromyalgia, nor the heel spurs, nor the torn meniscus, nor the mental health issues, nor the bilateral carpal tunnel syndrome his spinal considerations were only involving those that could be seen on radiographic or diagnostic imaging – by his own words. And our ALJ jumped on his wagon and denied. I was shocked, to say the least.

That all being said, it “normally” does not work that way. The Judge usually doesn’t appear so hell bent on denying that she’ll cherry pick what she’ll consider and kick the rest of the evidence to the curb. So push forward and push for that early date, if that is the reality of the situation. And, there should be no reason I can see that you can’t change the AOD officially now. We do that often enough when we have a client with a clearly WRONG AOD. The lower levels of SSA/DDS ignore our written request to change it, invariably, but the ALJ will have to address it at the hearing. Put it in writing (you probably already have) and get the AOD change on the record. Also, in your disability report (original), if you did one on paper (this is why it is good to NEVER go to the SSA to file a claim, they often screw up the data entry), show them around #4 or so, where it asks when you stopped working, and why, and where you put “due to my conditions.” It should at least be obvious that there was an error of some sort, because we don’t tend to see people applying for benefits on the exact date that they become disabled. “Gee, today I feel disabled, finally, after all my problems. Let me go apply. I won’t tell them about my last several months/years, it is just today it started at this level – even though I had to stop working because of it years ago.” So yes, ALJ can refuse to allow them to be controlling, but you use your testimony as to AOD, your work stoppage date, any other medical and layperson evidence, including witnesses you may bring to hearing - and fight that good fight.

Sincerely,
Stephanie Joy

Asker

Posted

Thanks for replying. I wish there was a higher mark I could give you than "best answer" because out of all the cries for help I have posted on Avvo, you are one of the very few (if not only) that actually READ my situation as stated and understood exactly what I was talking about. I don't know where to begin with all the various incorrect and misleading advice I have received throughout the Avvo service (not yours of course). The main replies I receive are of the tone that I need to simply contact my representative with these matters (even though I thought I made it clear the only reason I'm asking questions through Avvo is because my representative(s) have totally failed me). Too many representatives on here are so quick to dismiss the knowledge I (a claimant) could obtain about disability law. Some have gone so far as to imply I don't know of what I speak. I get tired of being received as if all claimants are just stupid fools who couldn't possibly know anything about disability law. I have entered my 5th year of this mess, so I believe those years of constant research yields me to be a little more intelligent than what most lawyers here give credit. "And, there should be no reason I can see that you can’t change the AOD officially now. We do that often enough when we have a client with a clearly WRONG AOD. The lower levels of SSA/DDS ignore our written request to change it, invariably, but the ALJ will have to address it at the hearing." __________________ What I don't understand is all the written complaints I have submitted concerning my AOD, this one issue was never fully addressed. I have seen the "Report of Contact" documents where the FO agents were noting my complaints; there was even instructions to reprocess my claim using my correct (EOD) of Sept. 2001 - but of course this was never corrected. The ALJ was remanded after my first hearing to correct my AOD, but neither him nor my second representative placed any attention to this issue. I even submitted yet another complaint about my AOD before the second hearing, and that complaint was turned into an exhibit, yet it also wasn't even brought up during my second hearing. Because of this AOD issue, the ME (who was somehow allowed to testify by telephone with no prior notice) was not given access to my complete medical records. His notice of hearing stated "your testimony will cover Nov. 2009 to the present". With my DLI of Dec. 2006, how does ANY of this make sense? Of course I kept getting denied when they had my AOD PAST my DLI. Again, 4 years of complaints and NO ONE was able to correct this matter. Even my second representative got heated with me after the second hearing when I kept asking "why is no one listening to me about my AOD?" He certainly wasn't properly invested into my claim. Even through all this AOD mess, the ME and ALJ still stipulated I met a listing (14.09C1), but as of the incorrect AOD - of course my representative argued NOTHING on my behalf. I swear there is nothing proper about my claim and how I have been treated, yet I can't get any attention on this matter. I feel totally dismissed by the whole system; no wonder there is suicide during this process - a person can only take so much dismissal as a human being as their life and future are being played with as a game. I really wish I had the opportunity to sit down with a qualified representative, show my evidence of unethical behavior and complete incompetence, and have a proper investigation as to why I am still battling a claim after 4 years when I more than meet a listing (of all things). Four long years simply because of a careless clerical error on the first date of application. Heads will roll when all this is done. Thanks again for your reply. There is so much more to my story or errors; I wish I could tell it all.

Samuel K Silverman

Samuel K Silverman

Posted

Short answer on onset. Though benefits can only go back a year from an application, onset dates can go back as far as needed to prove a claimant was disabled when still insured.

Asker

Posted

Ms. O Joy "Also, in your disability report (original), if you did one on paper (this is why it is good to NEVER go to the SSA to file a claim, they often screw up the data entry), show them around #4 or so, where it asks when you stopped working, and why, and where you put “due to my conditions.”" I meant to comment on this one because you hit on yet another piece of evidence that is in my favor. If you are talking about the "Medical and Job Worksheet" that specifically asks when I allege my onset do to my condition, I wrote Sept. 2001 (last day of SGA) or Oct. 2003 (date of late diagnosis). I added I wasn't sure of the true meaning of onset at that time. Like I said before, there are several exhibits where the FO agent wrote Nov. 2009 as my AOD, but on other exhibits she wrote Sept. 2001 as my AOD. One exhibit even concludes my EOD is Sept. 2001 (which tells me at some point, the SSA finally agreed and "established" my onset date. I even have "Report of Contact" documents where a different FO agent was reviewing my claim and noticed her co-worker's discrepancy. This second agent called me about it, I explained the background, and she said she would fix this immediately. In a follow-up call, she said her co-worker (the agent that messed up my application) was "horrified" that she made such a critical mistake... yet here I am... 4 years later as that same mistake was either fixed at that point, but once again incorrectly changed down the line back to Nov. 2009. The first denial even noted that since it appeared I had run out of work credits, they didn't even bother to review my medical file - this is why my first representative withdrew himself after the first hearing denial. I have a whole list of errors and people who have failed me.

Posted

This question is far too complicated to provide a general answer here. I would suggest that if your current representative cannot answer your questions, you should seek a second opinion.

You can find a Board certified specialist in Social Security by contacting the National Board of Trial Advocacy. They evaluate lawyers (independently) in many types of claims and require extensive experience and testing before a lawyer is certified. They have a section specifically for Social Security: The National Board of Social Security Disability Advocacy, Divisions of the National Board of Legal Specialty Certification.

Their link is: http://www.nblsc.us/

You may also contact your local city, county or state bar association to see if they have a lawyer referral program, or you may contact your local legal aid office if you cannot afford an attorney. If there is a law school in your area, you may contact their legal clinic as well. Or, use the “Attorney Finder” feature of Avvo for help with that.

Finally, you may also contact the National Organization of Social Security Claimants' Representatives (NOSSCR) for the name and email address or telephone number of attorneys in your area. The telephone number for the lawyer referral service of NOSSCR is 1-800-431-2804. NOSSCR's website is www.nosscr.org.

I hope this information helps. Good luck to you!
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Please remember to designate a best answer to your question

The exact answers to questions like this require more information than presented. The answer(s) provided should be considered general information. The information provided by this is general advice, and is not legal advice. Viewing this information is not intended to create, and does not constitute, an attorney-client relationship. It is intended to educate the reader and a more definite answer should be based on a consultation with a lawyer. You should not take any action that might affect your claim without first seeking the professional opinion of an attorney. You should consult an attorney who can can ask all the appropriate questions and give legal advice based on the exact facts of your situation. The general information provided here does not create an attorney-client relationship.

Asker

Posted

"if your current representative cannot answer your questions, you should seek a second opinion. " Uh, I thought that's what this forum was for.

Clifford Michael Farrell

Clifford Michael Farrell

Posted

This forum is for general question and general advice. Your case has some of the most complex issues you can have in a Social Security claim. I am sorry you have not had good luck with your representatives. I do not know who you representatives are or have been, which is why I suggested contacting a Board Certified specialist in SS law. It's a pretty rigorous process, and not everyone can pass the exam process. The questions you asked here deserve answers - but the answers will be very dependent on crucial facts and information a good attorney would need to know. Best of luck to you!

Posted

I agree with the above attorney here. You have a very complicated case, and you need to sit down with an attorney and have them go over all the components of your case in order to properly advise you. If you already have an attorney, he or she should be able to provide you with this service. If you do not have an attorney, I would strongly recommend when you search for one you inquire about his or her experience with appeal work. Not all attorneys that handle disability cases at the ALJ level regularly work on cases at the Appeals Council Level and Federal Court level. This would be very important given the nature of your case.

Best of luck to you in resolving this matter.

Asker

Posted

I take it you didn't bother to read my question but just read the responses from others. I clearly stated I have a current representative but he has been absolutely no help. He's not even my original representative; the first one tucked his legs and withdrew after he stumbled over the first hearing; the second hearing with the new representative was just as bad. These representatives are simply not as educated about disability law as they advertise. I wrote my own appeal after the first hearing; won a remand - gave my 2nd representative educational content in which he used for the 2nd appeal which was also remanded. I've done 99% of everything in my claim. I have no options for a THIRD representative. No one is going to take my claim at this point. There is no protection for claimants in having faulty representation.

Ashley Dawn Marks

Ashley Dawn Marks

Posted

I apologize for misstating that, but yes, I did read your question before I posted an answer. I would still encourage you to inquire of an attorney that specifically handles Federal Court work. Even though your case is no longer in the Federal Courts, you want someone familiar with handling a case that covers such a lengthy time period. If you are not comfortable with your current representative, you should at least seek a second opinion.

Posted

You have touched on a complicated topic. Unfortunately if your filing date is in Dec. 2009, then your onset date cannot go back to 2001. SSI has no retroactivity and SSDI can only go back approximately 2 years. This is true regardless of your medical status and doctor's testimony. I realize that those years with no earnings negatively impacts your PIA, but I think your prospects of getting a ALJ to change your onset date is minimal.

Asker

Posted

I'm not sure where you are getting your information about disability law, but you are absolutely incorrect. An onset date determination has nothing to do with when one filed a claim; it can go back as far as the medical records can prove it (realistically). Yes, I realize back pay is limited to 12 months prior to application date (actually 12 months prior to protective filing date which is Nov. 2009), but the onset date not only determines IF a claimant will qualify for SSDI, but HOW his benefits are calculated. Even through my 4 year battle with my incorrectly written AOD, I've still been awarded disabled; but at a much later date because of this incorrect AOD issue. When one is deemed disabled, then the next question is WHEN. Because I have a progressive disease, and because I applied after my DLI, then a new set of regulations are available for a claimant to use - SSR 83-20 being one of them. "SSDI can only go back 2 years." ??? Who told you this or where did you read this? If you are talking about back pay, SSDI can only go back 12 months in payment. "but I think your prospects of getting a ALJ to change your onset date is minimal. I don't think you understand my situation, and you clearly speak without knowing all the details. I'm not trying to get the ALJ to change my onset to some random date. My claim is riddled with clerical error after clerical error when it comes to my AOD. On some documents, the FO wrote my SSDI AOD as Nov. 2009; other documents wrote my SSDI AOD as Sept. 2001 (that's a HUGE discrepancy!). There are even notes where the FO stated my EOD is Sept. 2001. The AC remanded the ALJ to correct my AOD to Sept. 2001 (which he failed to do). I'm dealing with a ALJ who is blindly ignoring his duties and 2 representatives who were staring at the finish line since their first day of representation. This is why I've had to educate myself on the applicable parts of disability law. It's clear my claim goes below the surface of the average, daily claim, and I think this is why I can't seem to find any reasonable advise anywhere.

Posted

Hey everyone. I think what happened is she was found disabled as of 2009 and was not insured and gets ssi now, only. The appeal issue is probably related to her last date insured, which is probably 2005-6. So I am guessing, she is trying to go back to the last date insured to get some ssd and back pay going back a year before her application, and medicare. I suspect her rep has not explained this well. Also, even though she meets the listing from 2009, she may have still qualified at step 5 before. This case could be solid. Obviously, I don't have her file. Point is, go to hearing # 3 and fight.

Asker

Posted

Thanks for replying. I'm a "he" by the way (no biggie). I know the details of my claim are many (and can get confusing at a single passover). Here are the important dates: 2001 - last day of SGA 2003 - LATE diagnosis of Ankylosing Spondylitis with x-rays of SI joint fusion, "exaggerated lordosis", "hyper curvature", various spine levels of fusion 2005 - steroid eye injection to rescue vision from a bad flare of Iritis (first Iritis flare back in 1996) 2006 - date last insured 2007 - was FINALLY sent to a rheumatologist who was not happy my primary waited so long to refer me (especially 4 years after a diagnosis) 2009 - finally applied for SSDI/SSI with an AOD of 2001 I have x-rays from 2003, 2007, 2009, 2010 (CE exam), and 2 sets in 2013 To top all that off, I have clinical notes from my primary all the way back to 1989 showing progressive complaints of hip/back/neck pain (there is a VERY long timeline of my progressive disease). I was unfortunately never measured pertaining to my spine curvature, yet a 2013 retrospective radiology report noted my kyphosis curvature as approx 42° since minimally (3 months after DLI expired) - of course all doctors should realize the extreme curvature of my spine didn't happen overnight. My RFC's note my condition was disabling since 2001. My Rheumatoid doctor even submitted 3 MSS over a 3 year period explaining my "rare and extreme case of AS". So, with that snapshot of some of my medical records, I can't believe I'm still fighting this after 4 years. Also unfortunate is the fact neither of my representative specialize in disability law, so rules and regulations below the surface of a "typical" disability claim have gone unused. I've pointed out SSR 83-20 to my current representative and even found case law that is VERY specific to my claim. http://law.justia.com/cases/federal/district-courts/oregon/ordce/3:2008cv01202/90334/21 Yes, I've done ALL the work and research; yet my representatives continue to dismiss what I'm trying to bring to the table. This time I won't let my representative tell me "not to speak" during the hearing; he has proved he wasn't prepared as much as I was.

Samuel K Silverman

Samuel K Silverman

Posted

You should show this and my comment to another attorney. You need to get back to your last insured date in 2006. It is a case you can win. You need someone to go get opinions from doctors indicating that based on the evidence you were limited to less than full time work by 2006. You will lose if you don't have an attorney who is working up the case to actually prove you were disabled in 2006.

Asker

Posted

I may be teetering on the edge of representative malpractice because everything you suggested I have already presented before my current representative (before the second hearing), yet he apparently thought he knew better. "You need someone to go get opinions from doctors indicating that based on the evidence you were limited to less than full time work by 2006." I already have these statements in both RFC form and several MSS. Both RFC forms from my primary doctor and rheumatoid doctor make note not only to my current disability, but they also make special note my conditions have been disabling since 2001. In addition to those RFC forms, my Rheumatoid doctor submitted a MSS that my representative thankfully submitted right before the second hearing. After the second hearing catastrophe, my Rheumatoid doctor submitted yet another MSS going into further detail about the severity of my condition and explained the pathology of my disease and why she feels with all medical probability that my disabling conditions (especially the curved and fused spine) was just as bad in 2001. She wrote this after I sent her the hearing audio and transcript I had typed. There was other medical evidence that my representative failed to submit before the second hearing, and while I was waiting on the actual written decision, I begged my representative to contact the ALJ and show him the medical records that were missing - again, my cries were dismissed by the representative. Now that my claim is approaching a third hearing (after waiting another year since the second hearing), my representative NOW believes it's appropriate to submit the MSS that were previously not submitted. I tell you, there is nothing, I mean nothing that has happened properly in my claim (especially based upon all the rules and regulations of representative conduct I have read). When I win my claim, it certainly won't be because of anything my representative did. A bad analogy is I feel I've been yelling rape for 4 years now, and none of my representatives or anyone involved with my claim has taken notice.

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