Multiple Sclerosis

Multiple SclerosisSocial Security, Long Term Disability Insurance and Other Disability Benefits. Issues in Proving Disability What you need to know.

John V. Tucker, Esq.The Law Offices of Anderson & Tucker2101 Fifth Ave. North, St. Petersburg, FL 33713(727)323-8886erisa@andersontucker.com

Types of Disability Benefits

Disability Insurance Short Term Disability (STD)Long Term Disability (LTD)

Employer Pension Disability

Disability Premium Waivers i.e. Life Insurance

Social Security Disability

STD & LTD - Disability InsuranceDisability Insurance - 2 different categories:

Benefits you have through your Employer covered by the Employee Retirement Income Security Act (ERISA) [Note: Does not apply to government or church employees];

A disability policy you purchased on your own, through an insurance agent.

See http://andersontucker.com/fq_FAQ.htm

Group Short and Long Term DisabilityShort Term Disability provides benefits to a person for a short period of time. The duration is usually 6 months, although this can vary somewhat from policy to policy. These benefits are provided weekly and pay a varying percentage of a persons salary, again depending on the policy.

Long Term Disability provides benefits to a person for a much longer period of time. Typically until the person turns age 65. These benefits are provided monthly and typically pay 60%, 66 and2/3% or 50% of persons salary.

Employer Benefits ERISAERISA is a federal law that limits your rights convoluted appeals systemInsurers are given great leewayNo jury trialsFederal judges make decisions if you have to file suit to get your benefitsYou may have to pay your own attorney fees.

Individual Insurance(includes non-employer groups)Typically no convoluted appealsFaster than ERISA claimsIf denied, can file a lawsuitJuries (not lifetime appointee judges) make the decision on your caseIf you win, your insurance company must pay your attorney fees in Florida

Other Differences Between ERISA and Individual CoverageERISA Plans:Benefit based on %

Employer picks exclusions and limitations

Cheaper and your employer may payIndividual Coverage:Specific $ per month

You can select (buy) better coverage with less exclusions

More Expensive and you pay all the premium

Common Exclusions & Limitations That Impact MS PatientsSelf-Reported SymptomsMental and Nervous ConditionsObjective Evidence requirementsDeduction for Other BenefitsSocial Security DisabilityVeterans BenefitsSome plans even deduct 401K checks

What Coverage Do You Have?Read Your Plan or PolicyWithout it, you dont know the rules.If you dont have it, ask for it from your employer or insurance company IN WRITING CERTIFIED MAIL, RETURN RECEIPT REQUESTED!

Self-Reported & Mental SymptomsOften, Disability Insurance Companies will place a limitation on the amount of time they will pay a claimant for both mental and nervous impairments, and, any condition which they believe is not objectively verifiable. They call this limitation a self-reported symptom limitation.

Sample Limitation language: Disabilities, due to a sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism or drug abuse, have a limited pay period up to 24 months.

Self-Reported Symptoms (cont.)Sample definition for self-reported symptoms :Self-Reported Symptoms means the manifestations of your condition which you tell your physician, that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.

Objective EvidenceMany LTD policies contain a provision stating that you must provide the Insurance Company with objective evidence of your condition or disability, or they do not have to approve your claim. Look in the portion of the policy titled Proof or Proof of Loss which explains what a claimant must supply to the Insurance Company.

Sample Language: The following items, supplied at Your expense, must be a part of Your proof of loss. Failure to do so may delay, suspend or terminate Your benefits: (and then listed as one of the items you are required to submit would be the following) --Objective medical findings which support Your Disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations commonly accepted in the practice of medicine, for Your disabling condition(s).

BEWARE POLICY EXCLUSIONS!

These exclusions and limitations are often a problem for someone who suffers from MS.

Before we discuss why, lets talk about other benefits that may be available.

Other Disability BenefitsPENSION DISABILITY:You may also qualify for a disability pension through your employers (or a former employers) pension plan.Similar to taking early retirement, however, in this case, you are taking your pension early due to a disability.ERISA applies to most and benefits are based on the actuarial calculations of the pension plan.

Other Disability Benefits (Cont.)SOCIAL SECURITY DISABILITY & SSI:

Government benefitsSocial Security regulations governSSD Title II of the Social Security ActSSI Title XVI of the Social Security Act

SSD vs. SSISSDNot for indigentsBased on earningsIRS tells SSMany receive over $1500 per monthEarnings limitations after approvedMedicare eligibility

SSIIndigent ProgramNot earnings based$545 per monthEarnings & Asset Limitations after approvedMedicaid

Other Income and LTD How much you may get per month

Under nearly every group LTD policy, the insurer will subtract what you get from Social Security.

This is not always the case with individual insurance.

The Key to ALL Benefitsis Proving You Are Disabled Under the Applicable RulesKnow the rulesHow does your condition meet the rules?Strongly consider attorney representation EARLY in the process even before you stop working if you know your condition is degenerating. PLAN!Insurance rules often conflict with the rules of Social Security be prepared to coordinate multiple claims and monitor your representative(s).You may need to make choices between benefits.

How Does MS Fit In?Remember that under any system of disability, you do not have to rely solely on MS as the basis of your disability.Describe all problems that affect your ability to work when you apply from your hair to your toenails.Understanding MS and how to prove it exists and that it affects you is crucial.

What is Multiple Sclerosis?

Multiple sclerosis (MS) is a life-long chronic disease diagnosed primarily in young adults. During an MS attack, inflammation occurs in areas of the white matter of the central nervous system (nerve fibers that are the site of MS lesions) in random patches called plaques. This process is followed by destruction of myelin, which insulates nerve cell fibers in the brain and spinal cord. Myelin facilitates the smooth, high-speed transmission of electrochemical messages between the brain, the spinal cord, and the rest of the body.

How Does MS Reveal Itself?Symptoms of MS may be mild or severe and of long duration or short and appear in various combinations. The initial symptom of MS is often blurred or double vision, red-green color distortion, or even blindness in one eye. Most MS patients experience muscle weakness in their extremities and difficulty with coordination and balance. Most people with MS also exhibit paresthesias, transitory abnormal sensory feeling such as numbness or "pins and needles." Some may experience pain or loss of feeling. About half of people with MS experience cognitive impairments such as difficulties with concentration, attention, memory, and judgment. Such impairments are usually mild, rarely disabling, and intellectual and language abilities are generally spared. Heat may cause temporary worsening of many MS symptoms.Physicians use a neurological examination and take a medical history when they suspect MS. Imaging technologies such as MRI, which provides an anatomical picture of lesions, and MRS (magnetic resonance spectroscopy), which yields information about the biochemistry of the brain. Physicians also may study patients' cerebrospinal fluid and an antibody called immunoglobulin G. No single test unequivocally detects MS. A number of other diseases produce symptoms similar to those seen in MS.

What Causes Multiple Sclerosis?While the exact cause of MS is unknown, most researchers believe that the damage to myelin results from an abnormal response by the bodys immune system. Normally, the immune system defends the body against foreign invaders such as viruses or bacteria. In autoimmune diseases, the body attacks its own tissue. It is believed that MS is an autoimmune disease. In the case of MS, myelin is attacked.Scientists do not yet know what triggers the immune system to do this. Most agree that several factors are involved, including:

Genetics Gender Environmental Triggers (Possibilities include viruses, trauma, and heavy metals (toxicology)

Types of Multiple SclerosisPeople with MS can expect one of four clinical courses of disease, each of which might be mild, moderate, or severe.

1. Relapsing-RemittingCharacteristics: People with this type of MS experience clearly defined flare-ups (also called relapses, attacks, or exacerbations). These are episodes of acute worsening of neurologic function. They are followed by partial or complete recovery periods (remissions) free of disease progression.Frequency: Most common form of MS at time of initial diagnosis. Approximately 85%.

2. Primary-ProgressiveCharacteristics: People with this type of MS experience a slow but nearly continuous worsening of their disease from the onset, with no distinct relapses or remissions. However, there are variations in rates of progression over time, occasional plateaus, and temporary minor improvements.Frequency: Relatively rare. Approximately 10%.

Types of Multiple Sclerosis3. Secondary-ProgressiveCharacteristics: People with this type of MS experience an initial period of relapsing-remitting disease, followed by a steadily worsening disease course with or without occasional flare-ups, minor recoveries (remissions), or plateaus.Frequency: 50% of people with relapsing-remitting MS developed this form of the disease within 10 years of their initial diagnosis, before introduction of the disease-modifying drugs. Long-term data are not yet available to demonstrate if this is significantly delayed by treatment.

4. Progressive-RelapsingCharacteristics: People with this type of MS experience a steadily worsening disease from the onset but also have clear acute relapses (attacks or exacerbations), with or without recovery. In contrast to relapsing-remitting MS, the periods between relapses are characterized by continuing disease progression.Frequency: Relatively rare. Approximately 5%.

Diagnosing Multiple Sclerosis.There are no laboratory tests, symptoms, or physical findings that can, by themselves, determine if a person has multiple sclerosis. Furthermore, there are many symptoms of MS that can also be caused by other diseases. Therefore, the MS diagnosis can only be made by carefully ruling out all other possibilities.The long-established criteria for diagnosing MS are:1.There must be objective evidence of two attacks (i.e. two episodes of demyelination in the central nervous system). An attack, also known as an exacerbation, flare, or relapse, is defined clinically as the sudden appearance or worsening of an MS symptom or symptoms, which lasts at least 24 hours. The objective evidence comes from findings on the neurologic exam and additional tests.2.The two attacks must be separated in time (at least one month apart) and space (indicated by evidence of inflammation and/or damage in different areas of the central nervous system). 3.There must be no other explanation for these attacks or the symptoms the person is experiencing.

The Clinical Exam in Diagnosing Multiple Sclerosis.Because there is no single test that can be used to confirm MS, the role of a clinical exam in process of diagnosis is important. During this clinical exam, the physician will be do the following:

1. Obtain evidence from the persons history (looking for Symptoms),2. Perform a clinical examination (looking for Signs),3. Have the patient undergo one or more laboratory Tests.

A physician often requires all three (Symptoms, Signs and Tests) in order to rule out other possible causes for symptoms and to gather facts consistent with a diagnosis of MS.

Symptoms of Multiple Sclerosis.The range of symptoms experienced by people with MS varies dramatically from person to person.

The most common symptoms of MS include:Fatigue (also called MS lassitude to differentiate it from tiredness resulting from other causes) Problems with walking Bowel and/or bladder disturbances Visual problems Changes in cognitive function, including problems with memory, attention, and problem-solving Abnormal sensations such as numbness or "pins and needles" Changes in sexual function Pain Depression and/or mood swings

Symptoms of Multiple Sclerosis (cont).Less common symptoms include:Tremor Incoordination Speech and swallowing problems Impaired hearing

All of these are considered primary symptoms of MS because they are a direct result of demyelination, the destruction of myelin-the fatty sheath that surrounds and insulates nerve fibers in the central nervous system-and of damage to the nerve fibers themselves. Demyelination and neuronal damage impair transmission of nerve impulses to muscles and other organs, resulting in impaired function. Many of these symptoms can be managed effectively with medication, rehabilitation, and other management strategies.

Signs of Multiple SclerosisThe physician will do a series of tests to check for signs that can explain the symptoms or point to disease activity of which a person may not be aware.

Signs are indications of the disease that are objectively determined by a physician. Some signs might even explain a persons symptoms, but others have no corresponding symptom.

Signs of Multiple SclerosisCommon signs that can be detected by the doctor during a Physical Examination include:altered eye movements and abnormal responses of the pupilssubtle changes in speech patternsaltered reflex responsesimpaired coordinationsensory disturbancesevidence of spasticity and/or weakness in the arms or legs.

The physical examination may consist of the following:an eye examination, which may reveal the presence of damage to the optic nervea check of muscle strength, by gently but firmly pulling and pushing a persons arms and legsmeasuring coordination, usually with a finger-to-nose test, in which a person is asked to bring the tip of an index finger to the nose rapidly, with eyes open and then closedan examination of body surface sensation, tested with a safety pin, and by a feather or a light toucha test of vibratory sense, with a vibrating tuning fork placed against a joint or bone so the person experiences a buzz-like sensationa test of reflexes, using fingers or a small rubber mallet.

The role of Tests in Diagnosing Multiple SclerosisLaboratory tests may be the crucial element of the diagnosis process. The preferred test, which detects plaques or scarring possibly caused by Multiple Sclerosis, is magnetic resonance imaging (MRI). However, the diagnosis of MS cannot be made solely on the basis of MRI. There are other diseases that cause lesionsareas of damagein the brain that look like those caused by MS. There are also spots found in healthy individuals, particularly in older persons, which are not related to any ongoing disease process. On the other hand, a normal MRI cannot rule out a diagnosis of MS. About 5% of patients who are confirmed to have MS on the basis of other criteria, do not show any lesions in the brain on MRI. These people may have lesions in the spinal cord or may have lesions that cannot be detected by MRI. Eventually, however, the vast majority of people with MS will have brain and/or spinal lesions on MRI. The longer the MRI remains negative, the more questionable the diagnosis becomes. If the MRI findings continue to be negative more than a year or two after the initial diagnosis is made, every effort should be made to identify another possible cause for the symptoms.

Additional Tests Used in Diagnosing Multiple SclerosisA clear-cut diagnosis might be made based on an evaluation of symptoms, signs, and the results of an MRI, but additional tests may be ordered as well. These include tests of evoked potential, cerebrospinal fluid, and blood.

Evoked Potential TestsEvoked potential tests measure electrical activity in certain areas of the brain in response to stimulation of specific sensory nerve pathways. These tests are often used to help make a diagnosis of MS, because they can indicate dysfunction along these pathways that is too subtle to be noticed by the person or to show up on neurologic examination. In people with MS, dysfunction is caused by the destruction of myelinthe fatty sheath that surrounds and protects nerve fibers in the central nervous system. Demyelination causes the nerve impulses to be slowed, garbled, or halted altogether, producing the symptoms of MS. The EP test most widely accepted as an aid to an MS diagnosis is the Visual Evoked Potential (VEP). The person sits before a screen on which an alternating checkerboard pattern is displayed. The other EP tests used are the Brainstem Auditory Evoked Potentials test in which the patient hears a series of clicks in each ear, and the Sensory Evoked Potentials test in which short electrical impulses are administered to an arm or leg. While evoked potentials are used to help make a diagnosis of MS, other conditions also produce abnormal results, so the tests are not specific for MS. The information the tests provide needs to be considered along with other laboratory and clinical information before a diagnosis of MS can be made.

Cerebrospinal Fluid (CSF)Cerebrospinal fluid (CSF) is a clear, colorless liquid which bathes the central nervous system. While the primary function of CSF is to cushion the brain within the skull and serve as a shock absorber for the central nervous system, CSF also circulates nutrients and chemicals filtered from the blood and removes waste products from the brain. Examining the fluid can be useful in diagnosing many diseases of the nervous system, including MS The CSF of people with MS usually contains elevated levels of IgG antibodies as well as a specific group of proteins called oligoclonal bands. Occasionally there are also certain proteins that are the breakdown products of myelin. These findings indicate an abnormal autoimmune response within the central nervous system, meaning that the body is producing an immune response against itself.An abnormal autoimmune response in CSF is found in a number of other diseases, so the test is not specific for MS. Conversely, some 5-10% of patients with MS never show these CSF abnormalities.Therefore, CSF analysis by itself cannot confirm or rule out a diagnosis of MS. It must be part of the total clinical picture that takes into account other diagnostic procedures such as evoked potentials and magnetic resonance imaging (MRI).

Guidelines for Diagnosing Multiple Sclerosis. Previous Standard The Poser Criteria The Poser criteria were proposed in 1983 as an update to the Schumacher Criteria fordiagnosing multiple sclerosis. They were developed to reflect the advances of detectiontechniques (MRI scans and spinal taps) that have helped neurologists to determine theexistence of lesions and other paraclinical evidence.

The Poser criteria are: Clinically definite MS 2 attacks and clinical evidence of 2 separate lesions 2 attacks, clinical evidence of one and paraclinical evidence of another separate lesion Laboratory supported Definite MS 2 attacks, either clinical or paraclinical evidence of 1 lesion, and cerebrospinal fluid (CSF) immunologic abnormalities 1 attack, clinical evidence of 2 separate lesions & CSF abnormalities 1 attack, clinical evidence of 1 and paraclinical evidence of another separate lesion, and CSF abnormalities Clinically probable MS 2 attacks and clinical evidence of 1 lesion 1 attack and clinical evidence of 2 separate lesions 1 attack, clinical evidence of 1 lesion, and paraclinical evidence of another separate lesion Laboratory supported probable MS 2 attacks and CSF abnormalities

New Guidelines McDonald CriteriaIn 2001, the International Panel on the Diagnosis of Multiple Sclerosis, chaired by W.I. McDonald, FRCP (Royal College of Physicians, London), issued a revised set of diagnostic criteria (Annals of Neurology 2001; 50:121-127). In addition to the traditional requirements, the revision provides specific guidelines for using findings on MRI, cerebrospinal fluid analysis, and visual evoked potentials to provide evidence of the second attack and thereby confirm the diagnosis more quickly. These guidelines also facilitate the diagnostic process in those patients who have had steady progression of disability without distinct attacks.These new criteria have become known as the McDonald Criteria after their lead author.

McDonald Criteria

McDonald Criteria

McDonald Criteria

What Is An Attack? Neurological disturbance of kind seen in MS Subjective report or objective observation 24 hours duration, minimum Excludes pseudoattacks, single paroxysmal episodes

Determining Time Between Attacks 30 days between onset of event 1 and onset of event 2

McDonald CriteriaHow Is "Abnormality" In Paraclinical Tests Determined? Magnetic resonance imaging (MRI) Three out of four: 1 Gd-enhancing or 9 T2 hyperintense lesions if no Gd-enhancing lesion 1 or more infratentorial lesions 1 or more juxtacortical lesions 3 or more periventricular lesions (1 spinal cord lesion = 1 brain lesion) Cerebrospinal fluid (CSF) Oligoclonal IgG bands in CSF (and not serum) or elevated IgG index Evoked potentials (EP)Delayed but well-preserved wave form

What Provides MRI Evidence Of Dissemination In Time? A Gd-enhancing lesion demonstrated in a scan done at least 3 months following onset of clinical attack at a site different from attack, orIn absence of Gd-enhancing lesions at 3 month scan, follow-up scan after an additional 3 months showing Gd-lesion or new T2 lesion.

How Do LTD Insurers Define Disability:Typically, you will be required to prove that you are not capable of performing the duties of your job due to your impairments.

Usually, after a period of time 24 months is common, you will have to show there are no jobs you can do based upon your education, training and work experience.

LTD DisabilityKnow your policys definition.A few words can make a big difference.Usually no earnings requirement, so they may be able to show you can flip burgers and prove you are no disabled.but you should challenge this.Some policies have Partial Disability.

Social Security Disability"Disability" is "the inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." The following terms are defined by current (2003) SSA regulations:"Substantial Gainful Activity" is the ability to earn an average of $800 per month. "Medically Determinable Impairment" is a physical or mental impairment that results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques."Evidentiary Requirements" for disability determination are described by SSA regulation. An acceptable medical source must report signs, symptoms, and laboratory findings diagnostic of an impairment. Although a claimant's reported signs and symptoms are not sufficient to meet the evidentiary requirements for establishing the presence of a medically determinable impairment, all available evidence including the claimant's report of symptoms is used to evaluate the impact of any documented impairment(s) on the claimant's ability to carry out work tasks. "Severe Impairment" is defined by the agency as any "impairment that more than minimally limits the claimant's ability to do basic work activities."

How the SSA Determines Disability To decide claims for Disability and SSI benefits, SSA must determine whether the claims file includes information from an acceptable medical source that documents the signs, symptoms, and laboratory findings that are diagnostic of a physical or mental impairment. SSA adjudicators also determine whether the impairment would be expected to more than minimally interfere with the claimant's capacity to carry out basic work activities for at least 12 consecutive months or end in death. If a severe impairment is identified, the adjudicator determines whether the medical findings meet or equal an impairment in the medical listings (basically, a government checklist). If the documented impairment does not meet or equal a listed impairment, the adjudicator must determine the claimant's residual functional capacity (abilities) and consider vocational factors prior to making a final disability determination.

Social Security Medical ListingsThe Social Security regulations include a Listing of Impairments for each body system that define disability. Often referred to as the "medical listings," this checklist list allows quick disability determinations to be made on the basis of medical criteria alone.

The Listing of Impairments describes, for each major body system, impairments that are considered severe enough to prevent a person from doing any gainful activity (or in the case of children under age 18 applying for SSI, cause marked and severe functional limitations). Most of the listed impairments are permanent or expected to result in death, or a specific statement of duration is made. For all others, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months. The criteria in the Listing of Impairments are applicable to evaluation of claims for disability benefits or payments under both the Social Security disability insurance and SSI programs.

The Social Security Medical Listing for Multiple Sclerosis # 11.0911.09 Multiple Sclerosis. WithDisorganization of motor function as described in Listing 11.04B; ORVisual or mental impairment as described under criteria in Listings 2.02, 2.03, 2.04 or 12.02; ORSignificant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process.

Disorganization of motor function as described in Listing 11.04BListing 11.04B. Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station.

Visual or mental impairment as described under criteria in Listings 2.02, 2.03, 2.04 or 12.02.Listing 2.02. Impairment of visual acuity. Remaining vision in the better eye after best correction is 20/200 or less.

Listing 2.03. Contraction of peripheral visual fields in the better eye. A. To 10 degrees or less from the point of fixation; ORB. So the widest diameter subtends an angle no greater than 20 degrees; ORC. To 20 percent or less visual field efficiency.

Listing 2.04. Loss of visual efficiency. The visual efficiency of better eye after best correction is 20 percent or less. (The percent of remaining visual efficiency is equal to the product of the percent of remaining visual acuity efficiency and the percent of remaining visual field efficiency.

Visual or mental impairment as described under criteria in Listings 2.02, 2.03, 2.04 or 12.02.Listing 12.02 Organic mental disorders: Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities. The required level of severity for these disorders is met when the requirements in both A and B are satisfied, OR when the requirements in C are satisfied.

Listing 12.02. Organic mental disorders (cont.)A. Demonstration of a loss of specific cognitive abilities or affective changes and the medically documented persistence of at least one of the following: 1. Disorientation to time and place; or 2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or 3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or 4. Change in personality; or 5. Disturbance in mood; or 6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or 7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., Luria-Nebraska, Halstead-Reitan, etc; AND B. Resulting in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration;

Listing 12.02. Organic mental disorders continuedOR C. Medically documented history of a chronic organic mental disorder of at least 2 years duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: 1. Repeated episodes of decompensation, each of extended duration; or 2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or 3. Current history of 1or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

Remember LTD policies often have Mental & Nervous Limitations

Any discussion of depression, memory problems, anxiety, or other mental symptoms could result in your LTD insurance carrier trying to limit your benefits to 24 months (or whatever limit is stated in your policy).

Information regarding Listing 11.09I. General ConsiderationsA. This listing deals with multiple sclerosis.B. Multiple Sclerosis is a disease of the nervous system, the cause of which is not known.C. What multiple sclerosis does to the person concerned depends on what part of their nervous system is involved at any particular time. It is an unpredictable disease, which tends to flare-up, and then quiet down, leaving more damage each time. Sometimes it takes years to cause any severe impairment, and in other cases, it affects the claimant much more quickly and severely. D. Part A or B or C of the Listing must be fulfilled, but not all three.

Social Security Listing 11.09 continuedII. Specific RequirementsA. Part A1. Part A deals with disorganization of motor function, which means impairment of the claimants ability to walk, or use their arms and hands effectively.2. The actual evaluation is not done under Part A. The requirements are the same as those for Listing 11.04, Part B.

Social Security Listing 11.09 continuedII. Specific RequirementsB. Part B1. Part B deals with visual or mental impairments caused by multiple sclerosis. 2. Multiple sclerosis tends to damage the optic nerves to the eyes. If this is the problem, the impairment would be evaluated under Listings 2.03, 2.04, or 2.02, all of which deal with visual impairment. Their specific requirements must be fulfilled. 3. If the multiple sclerosis has caused some type of mental impairment, the case would be evaluated under Listing 12.02. The specific requirements of Listing 12.02 would have to be fulfilled.

Evidentiary Requirements for Social Security Disability Under both the Title II and Title XVI programs of Social Security Administration, medical evidence is the cornerstone for the determination of disability. Each person who files a disability claim is responsible for providing medical evidence showing that he or she has an impairment(s) and the severity of the impairment(s). The medical evidence generally comes from sources who have treated or evaluated the claimant for his or her impairment.

Acceptable Medical SourcesDocumentation of the existence of a claimants impairment must come from medical professionals defined by SSA regulations as acceptable medical sources. Once the existence of an impairment is established, all the medical and non-medical evidence is considered in assessing impairment severity.

Acceptable Medical SourcesAcceptable Medical Sources generally include: Licensed physicians (medical or osteopathic doctors);Licensed or certified psychologists;Licensed optometrists (measurements of visual acuity and visual fields);Licensed podiatrists (for purposes of establishing impairments of the foot, or foot and ankle only, depending on the State in which the podiatrist practices);Qualified speech-language pathologists (for purposes of establishing speech or language impairments only).Social Security also requests copies of medical evidence from hospitals, clinics or other health facilities where a claimant has been treated. All medical reports received are considered during the disability determination process.

Social Security Gives Extra Weight to Treating Doctors Opinions Currently, many disability claims are decided on the basis of medical evidence from treating sources. SSA regulations place special emphasis on evidence from treating sources because they are likely to be the medical professionals most able to provide a detailed longitudinal picture of the claimant's impairments and may bring a unique perspective to the medical evidence that cannot be obtained from the medical findings alone or from reports of individual examinations or brief hospitalizations. Therefore, timely, accurate, and adequate medical reports from treating sources accelerate the processing of the claim because they can greatly reduce or eliminate the need for additional medical evidence to complete the claim.

ERISA Plan (Most Group) Insurers Do NOT Have to Give Your Treating Doctors Any Extra WeightThe U.S. Supreme Court has held that if the insurer of your companys group LTD plan has an opinion of a physician which disagrees with your doctor, it is reasonable for them to rely on the other doctor. If they want to send you for any exam, bring a friend!

Other EvidenceInformation from other sources may also help show the extent to which a person's impairment(s) affects his or her ability to function:1.public and private social welfare agencies, 2.non-medical sources such as teachers, day care providers, social workers and employers, 3.other practitioners such as naturopaths, chiropractors, and audiologists.

Medical ReportsPhysicians, psychologists, and other health professionals are frequently asked by SSA to submit reports about an individual's impairment. Therefore, it is important to know what evidence SSA needs. Medical reports should include: medical history; clinical findings (such as the results of physical or mental status examinations); laboratory findings (such as blood pressure, x-rays); diagnosis; treatment prescribed with response and prognosis; a statement providing an opinion about what the claimant can still do despite his or her impairment(s), based on the medical source's findings on the above factors. This statement should describe, but is not limited to, the individual's ability to perform work-related activities, such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling. In cases involving mental impairments, it should describe the individual's ability to understand, to carry out and remember instructions, and to respond appropriately to supervision, coworkers, and work pressures in a work setting.

Consultative ExaminationsSocial Security may send you for a CE if they decide your medical records do not provide enough information.

They prefer to use your treating source is the preferred source for a CE if he or she is qualified, equipped, and willing to perform the examination for the authorized fee. Even if only a supplemental test is required, the treating source is ordinarily the preferred source for this service. However, SSAs rules provide for using an independent source (other than the treating source) for a CE or diagnostic study if: the treating source prefers not to perform the examination; the treating source does not have the equipment to provide the specific data needed;there are conflicts or inconsistencies in the file that cannot be resolved by going back to the treating source; the claimant prefers another source and has good reason for doing so; or prior experience indicates that the treating source may not be a productive source.

LTD Insurers Can Obtain Examinations TooNot necessarily as fair as Social Securitys selection process.Beware and bring a friend.Feel free to bring records with you and give them to the doctor they pick.No Rules for what the report must say.Beware of calls to your doctor and confirming letters Warn your doctor.

Social Security Rules for Consultative Examination Report ContentA complete CE is one which involves all the elements of a standard examination in the applicable medical specialty. A complete consultative examination report should include the following elements: the claimant's major or chief complaint(s);a detailed description, within the area of specialty of the examination, of the history of the major complaint(s);a description, and disposition, of pertinent "positive" and "negative" detailed findings based on the history, examination, and laboratory tests related to the major complaint(s), and any other abnormalities or lack thereof reported or found during examination or laboratory testing;results of laboratory and other tests (e.g., X-rays) performed according to the requirements stated in the Listing of Impairments;the diagnosis and prognosis for the claimant's impairment(s);

Consultative Examination Report Contenta statement about what the claimant can still do despite his or her impairment(s), unless the claim is based on statutory blindness. This statement should describe the opinion of the consulting physician or psychologist about the claimant's ability, despite his or her impairment(s), to do work-related activities such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling; and, in cases of mental impairment(s), the opinion of the physician or psychologist about the individual's ability to understand, to carry out and remember instructions, and to respond appropriately to supervision, coworkers, and work pressures in a work setting; andthe consultative physician or psychologist will consider, and provide some explanation or comment on, the claimant's major complaint(s) and any other abnormalities found during the history and examination or reported from the laboratory tests. The history, examination, evaluation of laboratory test results, and the conclusions will represent the information provided by the physician or psychologist who signs the report.

Evidence Relating to SymptomsIn developing evidence of the effects of symptoms, such as pain, shortness of breath, or fatigue, on a claimant's ability to function, SSA investigates all avenues presented that relate to the complaints. These include information provided by treating and other sources regarding: the claimant's daily activities;the location, duration, frequency, and intensity of the pain or other symptom;precipitating and aggravating factors;the type, dosage, effectiveness, and side effects of any medication;treatments, other than medications, for the relief of pain or other symptoms;any measures the claimant uses or has used to relieve pain or other symptoms; andother factors concerning the claimant's functional limitations due to pain or other symptoms. In assessing the claimant's pain or other symptoms, the decisionmaker(s) must give full consideration to all of the above-mentioned factors. It is important that medical sources address these factors in the reports they provide.

LTD Insurers Want You to Prove How Severe Your Symptoms AreBe prepare to use any means necessary to prove how bad your condition is: write them, send them video, get statements from friends that explain what they have seen, etc.You need to put the insurer in a position where they cannot say that your condition is not as bad as you say it is.

SSR 96-8p. Addressing Exertional and Non-exertional CapacityExertional capacityExertional capacity addresses an individual's limitations and restrictions of physical strength and defines the individual's remaining abilities to perform each of seven strength demands: Sitting, standing, walking, lifting, carrying, pushing, and pulling. Each function must be considered separately (e.g., "the individual can walk for 5 out of 8 hours and stand for 6 out of 8 hours"), even if the final RFC assessment will combine activities (e.g., "walk/stand, lift/carry, push/pull"). You want specifics from your doctor for each

SSR 96-8p. Addressing Exertional and Non-exertional CapacityNonexertional capacityNonexertional capacity considers all work-related limitations and restrictions that do not depend on an individual's physical strength; i.e., all physical limitations and restrictions that are not reflected in the seven strength demands, and mental limitations and restrictions. It assesses an individual's abilities to perform physical activities such as postural (e.g., stooping, climbing), manipulative (e.g., reaching, handling), visual (seeing), communicative (hearing, speaking), and mental (e.g., understanding and remembering instructions and responding appropriately to supervision). In addition to these activities, it also considers the ability to tolerate various environmental factors (e.g., tolerance of temperature extremes). As with exertional capacity, nonexertional capacity must be expressed in terms of work- related functions. For example, in assessing RFC for an individual with a visual impairment, the adjudicator must consider the individual's residual capacity to perform such work-related functions as working with large or small objects, following instructions, or avoiding ordinary hazards in the workplace. In assessing RFC with impairments affecting hearing or speech, the adjudicator must explain how the individual's limitations would affect his or her ability to communicate in the workplace. Work-related mental activities generally required by competitive, remunerative work include the abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting.

Current Social Security Criteria for Multiple Sclerosis is Under ReviewThe medical criteria used by the Social Security Administration to determine whether a person with MS is disabledand therefore eligible to receive benefits have not been updated since 1985.The Social Security Administration (SSA) processes more than 3.5 million claims each year, with multiple sclerosis (MS) representing the third most common neurological diagnosis cited as the cause for disability. A new study being carried out by the Duke Evidence-based Practice Center, funded by the SSA and the Agency for Healthcare Research and Quality, will review the scientific evidence supporting the methods used by the SSA to determine disability in MS. The purpose of this project, is to determine whether current medical knowledge supports the SSA's stated policies regarding MS. In January 2003, the Duke Evidence-based Practice Center began work on this 13-month task to review evidence from the medical literature for use in updating SSA's listing of impairments for multiple sclerosis (MS) and for revising its disability policy (if indicated).

Research QuestionsThe seven major research questions addressed during this review are as follows:Question 1a: What is the reliability of new McDonald criteria (incorporating supplementary information from radiologic and laboratory studies including magnetic resonance imaging [MRI], visual evoked potential [VEP], and cerebrospinal fluid [CSF] analyses) compared with long-term follow-up diagnosis of clinically definite MS according to the Poser criteria?Question 1b: What is the inter-rater reliability of diagnosis of MS according to Poser or McDonald criteria among neurologists or between neurologists and non-neurologist physicians?Question 2: What clinical indicators, including particularly time-course of impairments, predict physical or mental impairment at 12 months?Question 3a: Among patients with MS, do current disease-modifying treatments result in long-term improvements in physical or mental outcomes compared to placebo or usual care?Question 3b: Among patients with MS, do treatments aimed at symptom management result in improvements in physical or mental outcomes compared to usual care?Question 4: Among individuals with MS, what physical, mental, laboratory, or radiographic findings have been associated with inability to work?Question 5: Among individuals with MS, how does elevated temperature or other environmental factors impair the capacity to work?

Bibliographyhttp://www.clevelandclinicmeded.com/diseasemanagement/neurology/multsclerosis/table1ms.htmhttp://www.mult-sclerosis.org/Posercriteria.htmlhttp://www.ahrq.gov/clinic/epcsums/msdissum.htmhttp://www.ninds.nih.gov/health_and_medical/disorders/multiple_sclerosis.htmhttp://www.nationalmssociety.org/about%20ms.asphttp://www.nationalmssociety.org/What%20causes%20MS.asphttp://www.ssa.gov/disability/professionals/bluebook/evidentiary.htmhttp://www.ssa.gov/disability/professionals/bluebook/11.00-Neurological-Adult.htmhttp://www.ssa.gov/disability/professionals/bluebook/general-info.htm

See Also: http://andersontucker.com/lr_links_and_resources.htm

Multiple SclerosisSocial Security, Long Term Disability Insurance and Other Disability Benefits. Issues in Proving Disability What you need to know.

John V. Tucker, Esq.The Law Offices of Anderson & Tucker2101 Fifth Ave. North, St. Petersburg, FL 33713(727)323-8886erisa@andersontucker.com