Applying For Children’s Disability With Brachial Plexus Injury

The brachial plexus is the network of nerves that sends signals from your spine to your shoulder, arm and hand. A brachial plexus injury occurs when these nerves are stretched, compressed, or in the most serious cases, ripped apart or torn away from the spinal cord.

There are two ways that children can get an injury to the brachial plexus:

  • During birth: A brachial plexus injury occurs in 1.5 of every 1,000 live births. It is often caused when an infant’s neck is stretched to the side during a difficult delivery. This injury results in partial loss of sensory and/or motor function of the involved arm.
  • Trauma: Traumatic brachial plexus injuries may occur due to accidents. Nerve injuries vary in severity from a mild stretch to the nerve root tearing away from the spinal cord.

To qualify for SSI or SSDI benefits claimants must either meet or equal a listing in the SSA listing of impairments. The SSA listing of impairments is a listing of conditions and symptoms considered automatically disabling by the SSA.  Listing 101.08 covers brachial plexus injury in children with unilateral injuries.

101.08 Soft tissue injury (e.g., burns) of an upper or lower extremity, trunk, or face and head, under continuing surgical management, as defined in 101.00M, directed toward the salvage or restoration of major function, and such major function was not restored or expected to be restored within 12 months of onset. Major function of the face and head is described in 101.00O.  For bilateral injuires, listings 111.08, spinal cord disorders and 111.14, peripheral neuropathy must involve two extremities.

In children’s disability cases, if the child’s impairment is not severe enough to meet a Social Security “listing”, meaning an approval for disability benefits, then an assessment must be done to determine if the impairment functionally equals a listing.  For functional equivalence, the child must have one “extreme” or two “marked” limitations in the six domains of functioning.

The six domains of functioning are:

  1. Acquiring and using information
  2. Attending and completing tasks
  3. Interacting and relating with others
  4. Moving about and manipulating objects
  5. Caring for oneself, and
  6. Health and physical well-being.

The evaluation of how functioning is affected will be done during all of the child’s activities; meaning activities done at home, at school, and in the community.   First, Social Security will identify which of the child’s activities are limited, and which domains are involved in those activities.  They will then determine whether the child’s impairment(s) could affect those domains and account for the limitations.  Second, Social Security will then rate the severity of the limitations in each affected domain(s).  If SSA finds one extreme limitation, or two marked limitations, the child will be approved for disability benefits.

Applying For Disability With Scoliosis

Scoliosis is a condition that causes the spine to curve to the side.  It can affect any part of the spine, but the most common regions are the chest area (thoracic scoliosis) and the lower section of the back (lumbar scoliosis).

Doctors don’t know what causes most common types of scoliosis, although it appears to involve hereditary factors.  Other types of scoliosis may be caused by:

  • Neuromuscular conditions
  • Birth defects affecting the development of the bones of the spine
  • Injuries to or infections of the spine

Symptoms of scoliosis include:

  • The head is slightly off center
  • The ribcage is not symmetrical – the ribs may be at different heights
  • One hip is more prominent than the other
  • Clothes do not hang properly
  • One shoulder, or shoulder blade, is higher than the other
  • The individual may lean to one side
  • Uneven leg lengths

Following an application submitted due to scoliosis, Social Security will evaluate the case to determine if the claimant meets or equals a listing.  A listing is a set of criteria specific to a condition that, if satisfied, would automatically qualify a claimant for disability benefits. Listing 1.04 is the listing specific to scoliosis and other disorders of the spine:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);

OR

B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;

or

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.

If you do not meet or equal the above listings, you can still qualify for disability benefits if the impairment prevents you from doing your past relevant work or other work that exists in significant numbers in the national economy.

Please call our office if we can be of any assistance or answer any questions you may have about filing for disability.

President Signs Special Needs Trust Fairness Act

The 21st Century Cures Act, which includes the Special Needs Trust Fairness Act has passed both the House and Senate and was signed by President Obama on December 13, 2016.  Individuals with disabilities, who have capacity, can create their own first party special needs trusts (sometimes called (d)(4)(A) trusts as they are established under 42 U.S.C. s. 1396p(d)(4)(A)). The federal statute prior to this legislation only allowed a special needs trust to be established for a person with a disability by the person’s parent, grandparent, guardian, or by a court.

The individual that would benefit the most from the trust, the beneficiary, however could not establish the trust themselves. The law as it was written presumed that all individuals with disabilities lack the mental capacity to establish a trust. The Special Needs Trust Fairness Act will end this presumption. No longer will individuals in need of a special needs trust, but without parents or grandparents, face undue legal difficulties.

The assets held within a special needs trust are considered to be non-countable for purposes of eligibility for means-tested public benefits, including Supplemental Security Income and Medicaid. The Special Needs Trust Fairness Act, along with the recent ABLE account, give individuals more options to managing their own financial affairs.

Please click here for our post on the Achieving a Better Life Experience Act, or ABLE account.

ABLE Accounts In Massachusetts

The Achieving a Better Life Experience Act, or ABLE Act, signed into law in 2014, will soon be launched in Massachusetts. Account values in these savings accounts, up to $100,000, will be disregarded in determining eligibility for means-tested government programs such as supplemental security income (SSI). Contributions for individuals with disabilities that began prior to the age of 26 will be post-tax, but all qualified distributions will be tax-free. Contributions, however, are limited to $14,000 per year from any source.

Although the ABLE account is a positive planning tool for individuals with disabilities, there are some limitations that you need to consider. First, Congress limited annual contributions to $14,000 total. Second, unlike third party special needs trusts, there is a Medicaid payback provision for benefits paid out on behalf of a beneficiary.

Even with these limitations, there are several scenarios where an ABLE account can be used to benefit families. First, disabled adults that are working can use the account to shelter the earnings that may push them above the SSI asset limit of $2,000. Even better, unlike a pooled special needs trust account, the disabled individual can control the account themselves. Second, ABLE accounts may be useful to families who want to gift small amounts and do not want to incur the costs of establishing a special needs trust. Please keep in mind, there is a Medicaid payback provision with ABLE accounts, so you must discuss with your attorney or advisor whether it makes sense to set up an ABLE account or special needs trust.

ABLE accounts, if used properly, will be a very useful planning tool for families. As with any estate planning, a thorough analysis must be done to determine what planning strategies should be used, including ABLE accounts.

Applying For Disability With Mixed Connective Tissue Disease

Undifferentiated, or mixed connective tissue disease can be the basis for a Social Security Disability application.  Mixed connective tissue disease has signs and symptoms of a combination of disorders — primarily lupus, scleroderma and polymyositis. For this reason, mixed connective tissue disease is sometimes referred to as an overlap disease.  Examples of connective tissue are fat and cartilage.  These connective tissues are found throughout the body and are vital to the shape and function of many of its parts.

About 80% of people who have this disease are women. Mixed connective tissue disease occurs worldwide and affects people aged 5 to 80, often peaking in incidence during adolescence and in the 20s. Its cause is unknown, but it seems to be an autoimmune disorder.

In the beginning stages, patients who have MCTD have symptoms similar to those of patients with other connective tissue disorders, including:

  • fatigue
  • muscle pain with no apparent cause
  • joint pain
  • low-grade fever
  • Raynaud phenomenon (reduced blood flow to the fingers, toes, ears, and nose). This causes sensitivity, numbness, and loss of color in these areas.

Less common early symptoms may include:

  • severe polymyositis, often in the shoulders and upper arms
  • acute (intense) arthritis
  • aseptic meningitis (inflammation of the brain and spinal cord meninges, not caused by a bacteria or virus)
  • myelitis (inflammation of the spinal cord)
  • gangrene (death and decay) of fingers or toes
  • high fever
  • abdominal pain
  • neuropathy (nerve disorders) affecting the trigeminal nerve in the face
  • hearing loss

The “classic” symptoms of MCTD are:

  • Raynaud phenomenon
  • swollen “sausage-like” fingers, sometimes temporary but at other times progressing into sclerodactyly (thin fingers with hardened skin and limited movement)
  • inflamed joints and muscles
  • pulmonary hypertension (high blood pressure in the blood vessels of the lungs)

Blood tests are done to detect an antibody to ribonucleoprotein, which is present in most people who have mixed connective tissue disease. A high level of this antibody without the other antibodies present in other similar disorders is characteristic of mixed connective tissue disease.

If doctors suspect certain organs are affected, they may do other tests, such as magnetic resonance imaging (MRI) or a muscle biopsy (removal of a piece of muscle tissue for examination and testing), to detect problems.

Following an application submitted due to undifferentiated and mixed connective tissue disease, Social Security will evaluate the case to determine if the claimant meets or equals a listing.  A listing is a set of criteria specific to a condition that, if satisfied, would automatically qualify a claimant for disability benefits. Listing 14.06 is the listing specific to undifferentiated and mixed connective tissue disease:

14.06 Undifferentiated and mixed connective tissue disease. As described in 14.00D5. With:

A. Involvement of two or more organs/body systems, with:

1. One of the organs/body systems involved to at least a moderate level of severity; and

2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).

OR

B. Repeated manifestations of undifferentiated or mixed connective tissue disease, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:

1. Limitation of activities of daily living.

2. Limitation in maintaining social functioning.

3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

If you do not meet or equal the above listings, you can still qualify for disability benefits if the impairment prevents you from doing your past relevant work or other work that exists in significant numbers in the national economy.

Applying For Disability With Dystonia

Dystonia is a movement disorder in which your muscles contract involuntarily causing repetetive or twisting movements.  Generalized dystonia usually develops during childhood and may eventually affect the entire body.  Focal dystonia can affect one part of your body while segmented dystonia may affect two or more adjacent parts.  The exact cause is unknown and there is no current cure for dystonia.

Dystonia affects different people in varying ways. Muscle contractions might:

  • Begin in a single area, such as your leg, neck or arm. Focal dystonia that begins after age 21 usually starts in the neck, arm or face and tends to remain focal or segmental.
  • Occur during a specific action, such as handwriting.
  • Worsen with stress, fatigue or anxiety.
  • Become more noticeable over time.

Areas of the body that can be affected include:

  • Neck (cervical dystonia). Contractions cause your head to twist and turn to one side, or pull forward or backward, sometimes causing pain.
  • Eyelids. Rapid blinking or involuntary spasms causing your eyes to close (blepharospasms) can make you functionally blind. Spasms usually aren’t painful, but might increase when you’re in bright light, under stress or interacting with people. Your eyes might feel dry.
  • Jaw or tongue (oromandibular dystonia). You might experience slurred speech, drooling, and difficulty chewing or swallowing. Oromandibular dystonia can be painful and often occurs in combination with cervical dystonia or blepharospasms.
  • Voice box and vocal cords (spasmodic dystonia). You might have a tight or whispering voice.
  • Hand and forearm. Some types of dystonia occur only while you do a repetitive activity, such as writing (writer’s dystonia) or playing a specific musical instrument (musician’s dystonia).

Dystonia is caused by damage to the basal ganglia. The damage could be the result of:

  • Brain trauma
  • Stroke
  • Tumor
  • Oxygen deprivation
  • Infection
  • Drug reactions
  • Poisoning caused by lead or carbon monoxide

You may meet the criteria for disability if you meet the requirements of one of Social Security’s official disability listings.  Social Security publishes the criteria for a number of common illnesses to qualify for disability, and if you meet the criteria for your particular condition, you automatically qualify for benefits.  Although Social Security does not have a specific listing for dystonia, the listing for Parkinson’s disease has symptoms similar to dystonia and should be reviewed as part of your application process.

The listing for Parkinson’s disease is 11.06:

11.06 Parkinsonian syndrome with the following signs: Significant rigidity, bradykinesia, or tremor in two extremities, which, singly or in combination, result in sustained disturbance of gross and dexterous movements, or gait and station.

If you do not meet or equal the above listing, you can still qualify for disability benefits if the impairment prevents you from doing your past relevant work or other work based on your residual functional capacity that exists in significant numbers in the national economy.

Please call our office at (508) 421-4610 if you have any questions about applying for disability with dystonia or the application process in general.

Three facts about estate planning in Massachusetts that you should know

Estate planning in general means that you are engaging in financial planning focused on the laws of property, wills, and trusts. Here are three facts about Massachusetts law that you should know.

Estate Tax. Federal taxes levied against the deceased’s estate in Massachusetts are extremely high. The rate can be as steep as as 55%. Moreover, these taxes must be paid in cash. They must also generally be paid within nine months subsequent to the date of death.

However, preplanning your estate can lessen or even dismiss these taxes. Both the federal government and Massachusetts allow a certain amount—up to $1 million–to be tax free. The creation of an estate plan means that one can use allowed exemptions to reduce or eliminate large estate taxes, and protect one’s family from having to use cash and assets they have inherited to pay the tax. [Read more…]

How Elder Law Attorneys Assist Senior Citizens

As you and your loved ones get older, new situations will be encountered  that involve issues due to aging. You are not quite sure how to solve these problems. Where can you get advice? A good starting place is going to an attorney that specializes in elder law.

What is Elder Law?
Elder Law is a rapidly growing legal practice that assists senior citizens needing help and guidance with legal matters. It specifically focuses on older adults in areas such as estate planning, long-term care, medical directives, nursing home issues, and Medicaid.

Estate Planning
Your parents are aging. You want to encourage them to develop an estate plan. This is a type of advance planning to organize property and financial assets and put in writing what a person’s wishes are for their assets after they are deceased. It is a hard conversation to have with your parents, but will be very useful after they have passed.

Long Term Care
As you age, you may begin thinking about the possibility that you might need assistance in everyday living when you get older. Or maybe your loved ones need that type of help now. There are several options. [Read more…]

Elder Law: The Importance of Planning

A recent Boston Globe article reveals as many as 60% of Massachusetts nursing homes are finding ways to skirt a 2012 dementia care law intended to prevent deceptive practices. The law requires that facilities advertising dementia care must meet specific criteria including dementia-specific training for staff, specialized activities, and security measures to prevent wandering.

This story is just one of many that illustrate how important it is to do your homework and advocate for your loved one through estate planning and long term care planning. Our firm assists clients with all of their elder law concerns. Areas within elder law include:

  • Nursing Home Issues – Sadly, as our population ages, we see increased cases of abuse, neglect, and exploitation in nursing homes. An elder law attorney can help secure return of assets in a case of financial exploitation or recover damages for injuries resulting from neglect or abuse.
  • Medical Directives – Should you become incapacitated and unable to communicate your wishes, it’s imperative that you have medical directives in place. In Massachusetts, you will need a living will and health care proxy. An attorney can help you through this delicate process.

[Read more…]

Qualifying For Disability With Osteoarthritis

Osteoarthritis is the most common form of arthritis, affecting millions of people worldwide.  It occurs when protective cartilage on the ends of your bones wears down over time.  Osteoarthritis most commonly affects joints in your hands, knees, hips and spine.

Symptoms include:

  • Pain
  • Tenderness
  • Stiffness
  • Loss of Flexibility
  • Grating Sensations
  • Bone Spurs

Several listings deal with arthritis and the limitations affecting work:

1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;

OR

B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.

 

1.03 Reconstructive surgery or surgical arthrodesis of a major weight- bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset.

 

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);

OR

B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;

or

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.

14.09 Inflammatory arthritis. As described in 14.00D6. With:

A. Persistent inflammation or persistent deformity of:

1. One or more major peripheral weight-bearing joints resulting in the inability to ambulate effectively (as defined in 14.00C6); or

2. One or more major peripheral joints in each upper extremity resulting in the inability to perform fine and gross movements effectively (as defined in 14.00C7).

OR

B. Inflammation or deformity in one or more major peripheral joints with:

1. Involvement of two or more organs/body systems with one of the organs/body systems involved to at least a moderate level of severity; and

2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).

OR

C. Ankylosing spondylitis or other spondyloarthropathies, with:

1. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate medically acceptable imaging and measured on physical examination at 45° or more of flexion from the vertical position (zero degrees); or

2. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate medically acceptable imaging and measured on physical examination at 30° or more of flexion (but less than 45°) measured from the vertical position (zero degrees), and involvement of two or more organs/body systems with one of the organs/body systems involved to at least a moderate level of severity.

OR

D. Repeated manifestations of inflammatory arthritis, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:

1. Limitation of activities of daily living.

2. Limitation in maintaining social functioning.

3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

If you do not meet or equal the above listings, you can still qualify for disability benefits if the impairment prevents the person from doing his or her past relevant work or other work that exists in significant numbers in the national economy.