(Transcript)

Cindy Speaker:  Good afternoon. Welcome to our broadcast today. My name is Cindy Speaker. I have with me one of my regular guests, Miss Noell Black of Gardberg & Kemmerly. Hi, Noell.

Noell Black: Hi, Cindy. Hello. How are you?

Cindy Speaker:  I’m good.

Noell Black: Good.

Cindy Speaker: Well, you have some really interesting information for us today on Social Security disability. Apparently, there’s a relatively new ruling. How is it going to affect people, and what is it called?

Noell Black: Well, it is ruling 18-3P, and it went into effect October 29 of 2018, and it is effective on any decisions that Social Security makes after that date. And it means that someone can be denied benefits if he or she does not follow the prescribed treatment that their doctors have ordered or said that they needed without good cause. That’s the main gist of it.

Cindy Speaker:  When you first hear that, it’s a little scary for somebody that’s applying for disability. We’re going to get into it a little deeper, but first of all, is this all … It’s all new? Is it completely new?

Noell Black: Well, it’s not completely new.

Cindy Speaker: Okay.

Noell Black: Most of the information was there. I mean, you needed to follow your doctor’s orders and do that kind of thing, but there was no procedures or specific outlines for how they should apply that rule, and now there is. So if you would be disabled, regardless of if you followed the treatment, then it doesn’t really apply. But if you would no longer be disabled should you follow that treatment, then there’s certain guidelines for how they can deny someone benefits for that.

Cindy Speaker: Okay. ow what about doctors, because a lot of people go to a lot of doctors. Can any doctor kind of make this an issue for the potential disability person, disabled person?

Noell Black: It has to be a treating physician-

Cindy Speaker:  Okay.

Noell Black:  That you are at least actually treating you. Sometimes, Social Security sends people to one-time examining doctors. And in the past, that examining doctor could say, “Well, if they were to have surgery, then they would no longer be disabled.” But their actual doctor that treats them for whatever that surgery is needed for hasn’t recommended surgery, so the rule does tate that it does have to be a treating physician that makes the recommendation or the prescribed treatment, as they called it.

Cindy Speaker: Well, Noell, let’s talk a little bit about lifestyle modifications that a doctor may recommend, because potentially, the patient may not want to follow them. Are they still obligated? Is that part of a required compliance?

Noell Black: No, the new ruling said that they cannot enforce lifestyle modifications, which is something that was not stated before. And those include things like diet, exercise, and smoking cessation. Some of those things are a lot harder to do than you think they are, you know, and they can’t say now that if you were to lose 100 pounds, then you would no longer be disabled, or if you would follow this specific diabetic diet or heart diet or whatever, then it would improve your function, or if someone has lung disorders, they can’t say, “Well, if you quit smoking.” Because those are just guesses that should that happen, it may improve, but there’s not something they can actually say would happen. So it doesn’t include lifestyle modification.

Cindy Speaker: Okay. Let me ask you what you’re seeing, because you deal with disability clients on a regular basis. How are you seeing this impact them? Is it a big problem or?

Noell Black: There are some things. We haven’t had any serious issues come up, but there are what they call good cause statements for not following that prescribed treatment. And basically this ruling lists 8 specific citations for why you can show good cause. And I’m going to look at my notes so I don’t skip any of these. I don’t have them all memorized, but the first one is religion.

Noell Black: So if you have a specific religious belief that doesn’t allow you to take certain medications or undergo certain surgeries, then you can just show that in your by-laws or in your documentation and prove that you don’t, that’s why you’re not undergoing that specific prescribed treatment.

Noell Black: The second one is cost. Now, this is something that I do see a lot, that if someone needs an MRI to show what their problems are or if someone needs surgery, even physical therapy, you know. Sometimes physical therapy can improve your function in certain areas if you were to go to that physical therapy, but a lot of our clients are without health insurance, and so without funds, because they’re not working. So they simply cannot afford those luxuries that we all take for granted that have insurance

Noell Black: The third one is incapacity, and I have had that happen. That’s if you have a disabled person who sometimes they don’t understand the consequences of not following that prescribed treatment. And I’ve actually had a doctor put in the record that this was a specific diabetic patient who was not taking their insulin properly because they simply could not read the orders that was on their insulin for how and when they should do it. And they didn’t understand that, and it was like a consistent problem because of their intellectual functioning, they couldn’t understand that.

Noell Black:  The fourth one is medical disagreement, and I’ve also seen some clients who opted not to have surgeries done under this. They didn’t actually have to show good cause. You know, the judges were not saying they were going to deny them, but I have had it come out where one client goes to see maybe a neurosurgeon who recommends a specific treatment. They want to get a second opinion. The second doctor says, “Well, I don’t think that that’s going to help your condition at all.” So sometimes the best course of action is not to take an action because you don’t know what the outcome would really be.

Noell Black:  Number five is intense fear of surgery, and for some people with behavioral health issues, their anxiety is just too high. They have a lot of fear in doing any kind of surgery or following a certain treatment for that.

Noell Black: Number six it kind of relates to number five. It’s prior history, and I’ve seen a lot of clients who come in who have what’s called failed back surgery syndrome. They’ve had surgeries before in the past that just didn’t help. It didn’t, you know, get rid of their pain. It didn’t help them function at all, so they are apprehensive to undergo that again, even though the doctor has recommended that they have another knee surgery or another back surgery, neck surgery, different things like that.

Noell Black:  Number 7 is the high risk of loss of life, and that comes with big events like transplants or open heart surgery. You know, doctors cannot give you a 100% guarantee in big surgeries like that that your body’s going to accept the organ. That you’re actually going to survive the transplant. That you will survive open heart surgery, so if it’s that kind of surgery that has a high risk of loss of life or limb, then you don’t have to undergo those. That’s considered good cause.

Noell Black: Number 8 is the risk of addiction to opioid treatment, and of course, that is new with the opioid epidemic that is going through our country now, they cannot force someone to take opioid treatment and say, “If you took this opioid medication, then your pain would be controlled, and therefore, you’d be able to function in the workplace.” They just cannot force people to do that.

Noell Black: And then there are some other little things that may not fall underneath these eight specific citations, and that’s just done on a case-to-case basis. The problem that I think should we run into any of this with clients is that we may not know that the judges are going to deny them, because they’re not following prescribed treatment until you give the decision. But that is something that having an attorney’s office help you with is going to be in your best interest.

Cindy Speaker: Right. And how do they decide that, that they’re not following the treatment based on doctor’s notes?

Noell Black: Yeah, based on your doctor’s notes.

Cindy Speaker: Okay.

Noell Black: Everything is in your, based on your medical record, whether you’re found disabled or not disabled, and if your doctor is putting in the record, you know, I told this client to lose weight or have surgery or take this medication, and they’re not for X, Y, and Z reason, it’s kind of up to the judge’s discretion whether they feel like the client is not following the rules and regulations of this new 18-3P.

Cindy Speaker: Okay. Yeah. And as we know, there’s already so many cases, so many claims that get denied. Is this making it even worse?

Noell Black: One more way to deny people the benefits that we all work hard for.

Cindy Speaker: Yeah. So, so to individuals that are watching, if you need to file for disability, if you have filed, it really is going to benefit you to call an attorney’s office and get involved, because someone like Noell’s going to be help … They’re going to be able to help you avoid missing loose ends that could cause your claim to get denied. So I think it’s really important to get an attorney’s office involved.

Noell Black:  Yes. I think it is too. These are a lot of rulings and regulations that the judge could put it in your decision and the average person would have no idea.

Cindy Speaker: Right.

Noell Black: What was that based on.

Cindy Speaker: Exactly. Yeah. Well, Noell, if someone wants to reach out to your firm, how can they do that?

Noell Black:  They can call 251-343-1111 or 1-800-332-1529. Or they can reach us on the internet at www.gardberglaw.com, and we will be happy to help them out and see if we can get them the benefits that they deserve.

Cindy Speaker:  Excellent. Excellent. As always, thanks for your time today.

Noell Black:  Thank you.

Cindy Speaker:  To those of you that are watching, either live or by replay, if you have questions or comments, feel free to leave them right on this page. Of course, you can call the firm. That’s probably the fastest way to get help. But listen, thanks everybody for being with us today. We appreciate it. Bye.

 

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