Lebau & Neuworth Wins Disability Benefits For Persons With Migraines

The law firm of Lebau & Neuworth recently obtained long-term disability benefits on behalf of two clients who suffered from migraines. Both clients, one who worked for Maryland hospital for many years and the other at a D.C. tech company for just a few years, initially had their claims denied before seeking our representation.

Representing these clients and many others in employment and disability-benefit law matters, Lebau & Neuworth knows how difficult it is for a migraine sufferer and his/her family to cope with this disorder. 

The two primary sources of disability benefits that may be available to them are from Social Security and from disability benefit insurance policies (through an employer or a privately owned policy).

Social Security Disability Benefits 

(From the National Headache Foundation)

If you experience chronic migraine that makes it difficult or impossible for you to work, you can file a claim for Social Security disability (SSD) benefits. You will need to provide medical documentation of your illness in order for your claim to be approved. This medical documentation will help support that you are unable to work for at least 12 months, which is a requirement for applying for disability.

A migraine attack can incapacitate someone for days. The light and sound sensitivity, as well as the physical toll that migraine disease takes on the body, can mean that the person needs days of recovery time. But in order to be approved for disability benefits due to migraine disease, there needs to be an underlying medical condition or a person needs to ask for a Medical Vocational Allowance.

All of the conditions that qualify for Social Security disability benefits are listed in the Social Security Administration’s Blue Book, and there is no official listing for migraine disease. However, migraine can be symptoms of other health problems that are listed in the Blue Book. If you experience migraine due to any of these conditions you can be approved for disability benefits based on Blue Book listing for these conditions:

You will need to provide medical documentation such as a diagnosis, treatment plans, test results, medical bills and other documents to prove that you cannot work because of your medical condition. 

Disability Insurance Benefits

Short-term disability is offered by many employers, and the coverage length and amount of benefits are set by the terms of the plan.

Long-term disability benefit insurance is also offered by many employers and covers a percentage of your salary. Again, the plan terms set forth the applicable amount of the benefits, length of the benefits and limitations, if any.

Several insures also offer private disability insurance that you can use to supplement an employer-provided disability policy or to be your sole source of disability benefits.

There are no precise guidelines you must meet to qualify for disability due to migraines. Generally, you will need to prove to the insurance company that your disability and related symptoms prevent you from perform your job. You will have to show that migranes cause significant restrictions such as the inability to concentrate, communicate and interact with others, and additional limitation could be sensitivity to noise and light. Further, side effects from medication can also be considered as causing significant work restrictions.

Our Advice: Get A Good Lawyer

Lebau & Neuworth has seen too many people not get the employment benefits they deserve due to not getting a good lawyer soon enough. There are many pitfalls in trying to deal with an insurance company and the SSD bureaucracy if you do not use a lawyer – and a lawyer who is an expert in disability benefits.

If we take your case, we will work closely with you to develop and prove the best possible case. We will work with you to develop the record and history of your condition, complete all necessary forms, and coordinate communications with your treaters.

Even if you have been denied benefits in the past, we still may be able to help since you may have the right to file an appeal. Getting expert help is often the difference between being denied and being approved for benefits, so contact Lebau & Neuworth at (410) 296-3030 or lebauneuworth.com/contact-us.

Lebau & Neuworth Presentation Covers Nuts & Bolts of Social Security

Richard Neuworth lectured on the subject of Social Security disability benefits for the Stetson University Law School LLM program in August 2022.

The talk, titled “Social Security Disability Nuts & Bolts,” addressed all seven Social Security disability programs:

Importantly, a highlight of Richard’s presentation was the impact of Social Security disability on other areas of law.

Additionally, Richard presented materials concerning the various steps in the Social Security disability process. He further explained why it is important to have legal representation from the initial Social Security application throughout the entire process if a claimant was denied.

View the full presentation here.

For legal guidance and assistance with Social Security, contact Lebau & Neuworth at (410) 296-3030 or lebauneuworth.com/contact-us.

Pregnancy Complications as a Disability & Telecommuting as a Reasonable Accommodation

The law now dictates that pregnancy, by itself, does not constitute a disability protected by the Americans with Disabilities Act (ADA). However, as shown in the recent case of Kande v. Dimensions Health  Corp., an employee’s pregnancy-related complications can rise to the level of a protected disability under the ADA. The Maryland federal court point-blank stated: “[A]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.” The Court, however, limited its ruling, adding that “only abnormal complications may qualify as impairments under the ADA.”

In this case, the employee experienced a number of conditions that increased the risk of suffering an abruption (in which the placenta detaches from the cervix, potentially leading to termination of the pregnancy). She also provided her doctor’s testimony that reduced activity and resting at home was necessary for the pregnancy, which the Court viewed as strong evidence of protected impairment.

The Maryland federal court was seemingly repulsed by the employer’s argument that the fact that the employee had a successful pregnancy was evidence that she had no disability. The Court stated: “Taking into account whether a plaintiff actually worked without incident after the denial of an accommodation would allow defendants to deny coverage to employees and avoid liability so long as the employees continued to work and did not actually suffer the health consequences for which they are at risk. This cannot be the law.”

After determining that the employee’s pregnancy complications amounted to a protected ADA disability, the Court then had to decide whether the employer failed to reasonably accommodate by refusing to let her work from home – i.e., telecommute. The Court held that the employer had failed to accommodate based on three facts:

If you would like want more information regarding pregnancy, disability discrimination or the duty of an employer to accommodate (including by allowing a worker to telecommute), the attorneys at Lebau & Neuworth are well-experienced with these types of cases. Please contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Lebau & Neuworth Partner Speaks to National Body on Supreme Court Social Security Decisions

As a featured speaker at the American Association for Justice 2019 Annual Convention, Lebau & Neuworth partner attorney Richard Neuworth addressed thousands of attendees on decisions made by the Supreme Court in 2018 and 2019 that affect Social Security disability cases. The Association, which promotes a fair and effective justice system and supports attorneys in their efforts to obtain justice for any person who is injured by the misconduct or negligence of others, held its yearly summit July 27 through 30 at the San Diego Convention Center.

Richard spoke on the Supreme Court's decision on fees in the case Culbertson v. Berryhill. Among his conclusions, he pointed out the Court ruled that fee agreement(s) permits separate fees for representation before the Social Security Administration, including ALJ hearings and Appeals Council, regardless of the fee amount received at the administrative level.

Next, Richard the Court's decision on federal court appeals following adverse decisions in the case Smith v. Berryhill. He specifically noted that the Court permitted federal court review provided that there was an adverse or partially adverse decision by an Administrative Law Judge, which was final.

Citing the case Biestak v. Berryhill, Richard addressed Vocational Expert Testimony. He spoke on the decision by the Court to grant certiorari to consider the issue of whether or not a vocational expert had to provide supporting data concerning job numbers at a Social Security disability hearing if requested at the hearing -- expanding on the Court's suggestion on what can and should be asked during cross-examination of a vocational expert, among other related topics.

Next, Richard took on Kisor v. Wilkie, a Veterans Administration disability benefits case (which can easily apply to Social Security disability cases), in which the Supreme Court decided that in order for a regulation to be ambiguous, courts must use all tools before deciding that the regulation is ambiguous. The Court also ruled that courts should not provide Auer deference if a regulation is genuinely ambiguous.

Richard concluded his presentation with a look at the Supreme Court's decision in Lucia v. SEC that Administrative Law Judges (ALJs) are officers -- and not employees -- and had to be appointed by heads of their departments. But as he pointed out, the same argument has been made regarding the Social Security disability judges with mixed results.

The American Association for Justice membership consists of trial attorneys who are "committed to promoting safety and corporate accountability, advocating for a balanced civil justice system, improving our communities and educating lawyers to provide excellent advocacy for their clients."

Lebau & Neuworth keeps apprised of the latest Supreme Court decisions and their impact on employment law so that they are prepared to provide their clients with the best representation. If you are in need of an attorney because you believe your rights in the workplace may have been violated, contact Lebau & Neuworth at (410) 296-3030 or lebauneuworth.com/contact-us.

Social Security Disability – New Changes Make Disability More Difficult

The following appeared in the in April 2018 Maryland State Bar Association Bar Bulletin.

By: Devan M. Wang and Richard P. Neuworth

Social Security Disability Insurance and Supplemental Security Income (“SSI”), the two federal disability benefit programs, saw a lot of changes in 2017. These changes are important for applicants and their representatives and impact both the application process and the way Social Security evaluates applications for benefits.

The Five Day Rule:

The most significant change is the new “Five Day Rule” which went into effect on May 1, 2017. Under the Five Day Rule, applicants at the hearing level, or their representatives, must submit or notify the Administrative Law Judge (“ALJ”) about all evidence at least five business days prior to their scheduled hearing.

The Five Day Rule was enacted in conjunction with a new rule requiring that the ALJ send a hearing notice to applicants and their representative at least 75 days before a scheduled hearing. Accordingly, applicants and their representatives must plan and begin gathering all evidence necessary for their hearing as early as possible, ideally, as soon as the notice of hearing is received. In order to satisfy the new rule, applicants, or their representative, should notify the ALJ about efforts to obtain all evidence that will be submitted at the hearing and all evidence not obtained within five business days.  The failure to timely notify the ALJ with this rule could result in crucial evidence being excluded.

Representatives have additional duties besides this rule. The Social Security Regulations, adopted in 2017 (SSR 17-4p) also require representatives to make good faith efforts to “act with reasonable promptness” to obtain information or evidence that must be submitted. This requirement means that representatives should not wait until the five day deadline to request, submit, or notify the ALJ about evidence. Representatives who repeatedly violate the Five Day Rule may be suspended or prohibited from further practice.

New Mental Health Listings:

Applicants and their representatives also need to be aware that the Social Security Administration updated the mental health listings as of January 17, 2017.

Social Security listings are impairments for each major body system, including mental health, that are considered severe enough to prevent an individual from doing any gainful activity.

While the changes to mental health listings are too numerous to cover, there a few major changes that applicants and their representatives need to be aware of.  

First, the terminology of the mental health listings was updated to reflect the current language found in the DSM-5.

Second, there were changes to the listing numbers, and requirements. Listings 12.11 – Neurodevelopmental disorders; 12.13 - Eating disorders; and 12.15 - Trauma and stressor related disorders (e.g. PTSD) were added, while listing 12.09 for substance addiction disorders  was removed. Further, an applicant can no longer be found disabled under listing 12.05 without meeting the functional limitations in Paragraph B of the listing. Previously, a valid Full Scale IQ either under 60 or an IQ between 60-70 with another severe impairment was enough to meet listing 12.05.

The four areas of functioning considered in Paragraph B of the listings were changed. Previously, Social Security considered functional limitations in the following categories: (1) Activities Of Daily Living; (2) Social Functioning; (3) Concentration, Persistence, and Pace; and (4) Episodes Of Decompensation. Now, the four areas of functioning in Paragraph B are: (1) Understand, remember, or apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace; and (4) Adapt or manage oneself. Although activities of daily living are no longer a separate category, they are used as a indicator for the four areas of functioning.

Treating Physician Rule:

The Administration no longer follows the treating physician rule for all cases filed on or after March 27, 2017.  This new policy means that the opinions of an applicant’s own doctor are no longer given special weight. Rather, all opinion evidence is given the same weight, even opinions from consultative examiners or other medical sources who only met with the applicant once.

Second, the definition of Accepted Medical Sources was broadened to include Physician’s Assistants and Advanced Practice Registered Nurses. This change is important because applicants increasingly see Physician’s Assistants and Advanced Practice Registered Nurses as their primary care physician, rather that medical doctors.

The changes detailed above had a significant impact of the Social Security disability application program and underscore the importance of applicants obtaining competent representation early in the disability application process.

For more information or for assistance with a Social Security Disability Insurance issue, contact Lebau & Neuworth at (410) 296-3030 or lebauneuworth.com/contact-us.

People with Disabilities will ALWAYS Matter – and Have Legal Rights

Change under any new presidential administration can be frightening, especially for people with special needs. But for one particular New York Times contributor who happens to be a woman AND physically disabled, the removal of the Disabilities section of the White House website has her downright terrified.

In fact, Lebau & Neuworth warns that anyone with a disability should now pay special attention to the administration’s handling of your legal rights and, in particular, advisability laws – even though president Trump stated in his inauguration speech, “we are transferring power from Washington, D.C., and giving it back to you, the American people.”

We sincerely hope that blogger Melissa Blake, in her article that was included in the Times’ weekly series of essays by and about people living with disabilities, is wrong. But she emphatically states in the piece that she has “never been more scared than I am right now.”

Ms. Blake goes on to write:

“I felt like I’d just been punched in the gut as I realized that the Disabilities section had been removed from the site in the wake of President Trump’s inauguration. …

“As we know, the president has not merely shown a total lack of awareness of disability rights issues and of the crucial role that people with disabilities can play in an inclusive society — he has been dismissive and rude toward us. …

“It’s 2017 and the disability community has come a long way. Yet sometimes I still feel as though we’re living in the 1950s. … More and more of us are out there, in the world, proclaiming our dignity, demanding our basic rights — in short, living our lives. Most important, we’re not going anywhere. With about 20 percent of the population living with a disability, we’re becoming harder and harder to simply overlook.

“The truth is, I’m afraid. I’m afraid of living in a country that would shun people with disabilities as if they didn’t exist. …

“People with disabilities matter. I will never stop fighting for our rights and against bullies. I will never not be a person. I’m taking back my power and I want President Trump to know it.”

To read the full article by Melissa Blake, click here.

If you are disabled and have concerns about your rights or feel you are being treated unfairly, the attorneys at Lebau & Neuworth can help may be able to help you. Contact us at (410) 296-3030 or lebauneuworth.com/contact-us.