Episode 15 Ė Social Security Disability and Lyme Disease
January 10, 2018
Social Security Disability and Lyme Disease
Attorney Robert Noa joins Cindy Kennedy, FNP, to discuss how he helps people with chronic illness like Lyme disease collect Social Security disability and his belief that ďno one should go it alone.Ē He discusses the most common misconceptions that people have about applying and qualifying for Social Security disability, and some things that you need to consider before filling out an application.
Noa was admitted to the Massachusetts bar in 1988. Originally he worked as in-house counsel for American International Group (AIG) doing defense work for their myriad insurance entities on both Workerís Compensation and general liability matters.
In 1990 Noa went to work in southeastern Massachusetts for a small personal injury law firm to run their Workerís Compensation department. After several years of successful client representation he opened his own Boston-based specialty practice in 1994. Since then Noa has concentrated his representation on securing benefits for those individuals injured while in the course of their employment or as a result of the negligence of others. For over 25 years he has also successfully represented individuals before the Social Security Administration who seek federal disability benefits.
Noa has represented thousands of individuals while securing tens of millions of dollars in disability benefits, judgments and awards for his clients. As sole proprietor, Noa has the privilege of personally representing everyone who hires his firm. His in-depth knowledge of Massachusetts workers compensation law and the federal Social Security disability system position his clients for success.
Noa works on a ďcontingent fee basis,Ē meaning he is paid only if successful. His clients will never receive a bill for hourly services performed. Consultations are free and there is never an obligation.
Robert L. Noa, Esq, 180 Canal Street, Suite 301, Boston, MA 02114
Transcript of Episode 15: Social Security Disability and Lyme Disease
Cindy Kennedy: Hi everyone, this is your host, Cindy Kennedy. You are listening to Living with Lyme. And on the line today, I have a very exciting guest. He is an attorney, he is based out of Boston. He comes to me via a conference that I met him at. He specializes in Massachusetts workerís compensation and the federal Social Security disability system. He works on a contingent fee basis, which means he is paid only if successful, and that speaks billions to his persistence and savvy representation of his clients.
So he is here on the line, his name is Robert Noa. We call him Rob. Hi, how are you?
Robert Noa: Good morning, Cindy. How are you? Itís a absolutely pleasure for me to be here today.
Cindy Kennedy: Oh, thatís really cool, because your expertise is something that I donít think people with chronic illness really think about, primarily because especially with Lyme disease, people donít agree completely across the board that either it is an existing issue, or especially in a chronic phase, that it even is there. So itís real important to hear your information and get it across to people who are listening to this podcast. I think itís really important.
I do have Ö I like what you said in your bio, and you said that your motto is, no one should go it alone. What do you think about that?
Robert Noa: Well, I said it, so Iím completely in agreement with it.
Cindy Kennedy: What do you think about that one? Yeah, yeah.
Robert Noa: Yeah, itís good stuff, but itís true. The fact of the matter is, you get into a car accident, typically youíre gonna call an attorney for advice. You have a problem with your marriage, a bad problem, youíre usually gonna enlist the assistance of an attorney that knows something about divorce. You want to put together a will, you get a probate lawyer. For a lot of reasons that are just confounding to me, many, many times when it comes to Social Security disability, people think, ďOh this is easy, I donít need a lawyer.Ē
They start the paperwork and they get repeated denials, and this has happened on more than one occasion with me, Iíll get a call from someone completely panicked, saying, ďI have a hearing with a judge in three weeks. Can you help me?Ē
And I want to pull my hair out, what little there is left of it.
Cindy Kennedy: Uh oh.
Robert Noa: Because this is a complicated legal system. Iíve joked for a long time that itís a marathon, itís not a sprint. And while there are elements to the process that would appear to be sort of simplistic from the outside, you, as a claimant, the claimant being the person who says, ďI canít work, I want to apply for benefits,Ē there are so many ways that you can sort of shoot yourself in the foot. Itís not funny, and thatís where a lawyer comes into play.
Cindy Kennedy: Thatís awesome. You know what weíre gonna do now? Weíre gonna play the game, Iím the victim, youíre my attorney, and I am going to ask you questions like I am Ö Iím asking for your assistance to help me. And I do want to know one thing, so I call you up, ring, ring, ring, and you answer.
Robert Noa: And I go, hello.
Cindy Kennedy: Hello. Who am I speaking with?
Robert Noa: This is attorney Robert Noa. May I help you today?
Cindy Kennedy: Perfect, perfect. So I want to know, if I live in Milwaukee, and I call you, can you work with people over the phone, or do they have to be a Massachusetts resident?
Robert Noa: They do not need to be Massachusetts. So itís a rather comprehensive question to start us off with. But while I am admitted to practice law in the Commonwealth of Massachusetts, the neat thing about Social Security disability claims is itís entirely federal. Disabled Massachusetts is disabled in Milwaukee, you do not need to be admitted to the Wisconsin bar, to keep with that example, in order to represent somebody for Social Security disability benefits in Wisconsin or in the Midwest. All you have to do is be admitted to practice in one bar, and you can take care of Social Security claims anyplace.
In fact, I currently have Social Security clients in Massachusetts, Rhode Island and one in Maine, I believe. But over the years, Iíve actually represented folks in every New England state, New York, North Carolina and Florida.
Cindy Kennedy: Oh, okay. So thatís awesome. I think Iím going to hire you, but Iíd like to know a little bit more. I really feel terrible, Iíve had to cut down my work to the point now that itís a big, bad struggle to even get to work. My employer is not willing to assist me with reducing my workload, and I donít think I can work anymore. Do I qualify for anything?
Robert Noa: Based on that, very Ö I would say as a legal professional Ö sort of incomplete profile, itís hard to say. Because I would want to know, in spite of the fact that you feel terrible, what are you doing about it medically, have you been seeing a physician, have you seen somebody on a consistent basis. What do those records have to say? Do you have a physician that actually is willing to support the notion that you canít work anymore?
Because, and I explain to people on a regular basis, that while I have no reason to doubt what you feel, and Iím sure youíre telling me your problem with just a fraction of how badly you feel, at the end of the day, these decisions about disability are based on medical evidence. And weíre going to have a problem if you donít have an attending physician that supports A, a working diagnosis Ö in our case weíre talking about Lyme disease or any associated co-infection Ö as well as a physicianís willingness to actually say, ďCindyís disabled, she cannot hold any kind of gainful employment at this point.Ē
Cindy Kennedy: Okay. Okay. Yes, Iím working-
Robert Noa: I can build on that if you want.
Cindy Kennedy: Iím working with a couple of physicians, one is my primary care who has referred me, and I am now seeing someone that has diagnosed me with Lyme and Babesia. And even though Iíve been treated, I have more or less consistent pain, and I have fatigue that has kept me Ö the working diagnosis is the Lyme, but underlying is fatigue. Is that something that you can work with?
Robert Noa: Yes, it is. The caveat, and sometimes I have to wonder Ö people will go, ďOh my god, how many caveats can there be, and exceptions and commas and all the rest of it?Ē But it kind of points to what I was saying earlier, this is a complex equation. Fatigue, in and of itself, can be terribly disabling for some people, and not so much for others.
When we look at Social Security disability claims, we look at the entire person, we look at the individual, we look at their age, we look at their education, we look at their training, we look at their work history and background, transferable skills. And then that all gets overlaid with the medical picture. So your chronic fatigue that could well be completely disabling for a 55-year-old iron worker may not be so for a 27-year-old legal assistant, for example. Every one of these things is different.
But the question about can fatigue, tiredness, joint pain, whatever else it may be, can that be enough to disable someone, the answer is going to be yes, if we have a back trail of medical records for a period of time thatís going to say this is something thatís been troubling this particular individual. Does that make sense?
Cindy Kennedy: Yes, it is. Is there a length of time that needs to go by before someone says I need help? Does the struggle and the documentation need to be longer than three months, six months? Does that matter?
Robert Noa: So it does matter. The longer, the better. And I have successfully gotten people on benefits based upon the fact that they have what we called a, quote, pain case. Most of the time, a Social Security examiner or judge is going to look for objective findings, objective being something that you and I from the outside can look at and say, ďOoh, there it is.Ē
Objective would be, ďMy arm hurts.Ē
ďReally? It looks fine.Ē
And then we take an x-ray of the arm, and you take the film, you slap it up on one of those light boards, and you see a couple of broken bones, and we all kind of cringe and go, ďOoh, thatís terrible.Ē Right?
Cindy Kennedy: Right.
Robert Noa: Thatís objective. We can see it. We, on the outside. We all can overlay our human condition upon that and go, ďHoly crap, thatís gotta really hurt.Ē
If thereís nothing in the medical record other than your complaints of pain, that is what a court would call subjective medical documentation. Itís not going to be viewed with quite the black and white aspect of looking at a broken arm on an x-ray, or a herniated disc on an MRI, or an EMG, electromyogram I think it is, showing nerve conduction studies that your nerves arenít working as well on one side as they do on the other. Those are all objective findings.
The more objective stuff we have, the better, clearly. But if there is a track record of Ö whether itís 6 months or a year, 18 months, of you going to your physician and saying, ďDoc, I feel like dog doo. I canít get up in the morning. Once Iím up, I need four cups of coffee, and even then I feel terrible. I have pain, I canít focus, I canít concentrate, Iím crabby, I donít get along with my co-workers, Iím always mad at my boss, theyíre always mad at me. I canít produce my job, I canít do it as accurately as I used to.Ē
If there is 6 months to a year to 18 months of your going to your physicians and complaining about that sort of stuff, then I think we would have an actionable claim. The difficulty here is, again, itís marathon versus sprint. People get frustrated, and they want to go, ďWhy am I wasting my time? Why am I wasting co-pays going to my doctor and complaining about this stuff when theyíre really not doing anything for me?Ē
And my reply is always going to be, ďIím sorry to inconvenience you, I really am. And I know it seems like craziness to continue doing something, expecting a different result. That is the definition of insanity, right?Ē
Cindy Kennedy: I guess.
Robert Noa: ďYou are documenting your condition in a medical record that ultimately will be submitted for the consideration of a disability analyst, and/or a judge.
And the more it hurts complaints we have to give the judge, the more compelling an argument can be made on that individualís behalf.
Cindy Kennedy: You know one of the problems-
Robert Noa: This is a long answer for you.
Cindy Kennedy: Yeah. Thatís okay. Itís a good answer. One of the problems Lyme patients like myself have, and I wonder what to do about it, and if I said to you, ďYou know, I am clinically diagnosed with Lyme disease, however, time and time again, my Lyme tests are negative.Ē
Robert Noa: And what do we make of that?
Cindy Kennedy: Exactly.
Robert Noa: And does it matter? And does it prohibit you from bringing a claim? Or how does that fit into the overall claim structure?
Anybody whoís familiar even a little bit with Lyme, and I presume most of the folks who are listening to this podcast are wildly familiar with Lyme, maybe even more so than me, thatís all really fair. Because we all can say chronic Lyme disease is for real, and we know it, but a lot of the medical community doesnít buy into that.
But what Ö and you and I talked about this a little bit before we started today Ö I donít care what your physician may call your condition. Yes, it absolutely Ö what they call it bears on treatment that you may get, it bears on the clinical perspective of how a physician or a clinician is going to try to cure you. But from a legal perspective, I really donít care if itís Lyme disease, chronic or acute, I donít care if itís fibromyalgia, I donít care if itís complex regional pain syndrome, sarcoidosis or lupus, theyíre all autoimmune deficiency conditions, and they all fall under the same heading and same regs within the Social Security guidelines.
So if you have a physician that by and large you like, and that you get along with, and is willing to support you in terms of disability, I would respectfully say donít butt heads inordinately with that physician and alienate them because they want to call your condition fibromyalgia versus chronic Lyme. Let them to continue to assist you, at least in terms of the documentation, because I can present as compelling an argument for fibromyalgia or something else as I can for Lyme.
And we need, need Ö okay, this is not optional, folks Ö need medical documentation of the condition and the resulting disability. And while Iím at that, Iím talking about western medicine. Iíve encountered a lot of folks, justifiably, who have gotten frustrated with western medicine, and have gone to homeopathic remedies and other modalities of treatment, and I think thatís great. If it works, it provides benefit, do it. But donít cut ties with your western medicine physician, because we need them to document this stuff in the record of evidence.
Cindy Kennedy: So youíre Ö in other words, what youíre saying is if youíre seeing a naturopath or a homeopath or an herbalist, their documentation is not legitimate in terms of getting disability, Social Security?
Robert Noa: It will not be given the same weight as a medical doctor.
Cindy Kennedy: Okay.
Robert Noa: Or an OD, an osteopath. Osteopaths, you as an NP know this, know better than most. They go through basically the same medical training as an MD does, they just take a slightly different path.
Cindy Kennedy: Right. What about nurse practitioners? Do [crosstalk 00:16:48].
Robert Noa: I love nurse practitioners.
Cindy Kennedy: You what?
Robert Noa: I love nurse practitioners.
Cindy Kennedy: Aww. You know, people say that to me all the time. And then they say, ďYouíre just like a doctor to me.Ē
And I say, ďYou know that, Iím not a doctor. And thatís [crosstalk 00:17:03].Ē
Robert Noa: If you wanted to be a doctor, youíd be a doctor. You wanted to be an NP, I get it.
Cindy Kennedy: I did. I wanted to be a nurse. So do they accept forms filled out by nurse practitioners or physician assistants?
Robert Noa: Yes.
Cindy Kennedy: Okay, good.
Robert Noa: They do, they do. On several levels. Most Social Security analysts, and certainly judges, will accept forms and reports, documentation from NPs. And again, you know this, but Iím just putting it out for everybody else, nurse practitioners are advanced degree clinicians. You have the right to prescribe meds in your own name, you can have a panel of patients, maybe not here in Massachusetts, but in many states you can have a practice of your own, without a collaborating physician. And NPs opinions on causation and disability diagnosis are held in pretty much equivalent posture as that of a physician. So yes.
Cindy Kennedy: If we were to start a process, how long Ö and you know you said itís a marathon Ö are you talking months, years, to get something wrapped up?
Robert Noa: I would say you are looking at a year to two years. [crosstalk 00:18:23]
Cindy Kennedy: Wow, thatís a long process.
Robert Noa: Itís a terrible process, and itís led to dismay, and quite honestly, heartache and financial turmoil for a lot of folks.
Cindy Kennedy: Itís got to be terrible to the point where people are re-mortgaging their home to survive, to pay medical bills.
Robert Noa: Itís terrible.
Cindy Kennedy: It is.
Robert Noa: And I donít have an answer or a miracle cure for that, other than to tell you this is the process. Iíll take a moment and lay it out. Qualifications, what is it that you have to meet in terms of requirements for a Social Security disability claim? First, you must have worked and paid into the Social Security system five out of the last ten years. Itís called the 20/40 rule, 20 quarters worked out of the last 40.
If you have paid into Social Security, you will be considered to be insured, in their language. For a lot of us, itís not hard. We get up, we go to work every day. So you pay into the system, at least for as long as you can.
The second requirement for Social Security disability is far more difficult and burdensome to meet. And that second requirement is that you must suffer from a disability or disabilities that lasts or is expected to last 12 consecutive months or more or result in death. Thatís pretty much a quote from the regulations.
Cindy Kennedy: Wow. Okay.
Robert Noa: So if youíve been out of work for two months, and you call me up and you say, ďRob, Iím disabled, I canít work,Ē I am gonna have all the sympathy in the world for you, but Iím also gonna have to say we are nowhere near close enough to that 12-month rule to even bother filing right now.
Mostly because even if you have a physician that says, ďIíve known Cindy for years. She is absolutely gonna be disabled, sheís probably gonna be disabled forever,Ē the administration just isnít going to accept that. Theyíre not.
So my advice to people, more often than not, is filing prior to being out of work for maybe nine months or more is just gonna result in an automatic denial, because representation by a doc isnít gonna be credited by the administration. By the time you get to nine, ten months out of work, if a physician says that this [inaudible 00:21:01] is gonna last for a year, well theyíre only projecting a month or two into the future to get you past that 12-month mark. Again, make sense?
Cindy Kennedy: Yeah, it does, it does. I just have Ö I have one more realistic question here, and then weíve got to wrap it up a little bit. But you know, a lot of people have underlying issues that are not allowing their bodies to pretty much heal from things such as put some autoimmune stuff to rest, or clear up an infection like Lyme or Epstein-Barr, and it has to do with mold toxicity. Have you ever dealt with any claims against mold toxicity?
Robert Noa: I have not, I donít think, dealt with mold toxicity specifically in terms of Social Security. I know I have dealt with some individuals on my workerís comp practice.
Cindy Kennedy: Oh, true. Thatís right. Especially if it was in the workplace, yes, yes, yes.
Robert Noa: That have been exposed mold, mildew, other environmental toxins that have led to things like respiratory distress and conditions.
Cindy Kennedy: Exactly. Yeah.
Robert Noa: Iím not aware of mold being a kind of a vector-borne contributor to Lyme or autoimmune deficiency conditions, but they absolutely can cause sever debilitating respiratory conditions. And Iíve prevailed on those claims on the workerís comp end, just not Social Security.
Cindy Kennedy: Right. I see. I get Ö yes. I didnít think that through, but I get it now. And maybe other people are just like me and they think of these things and didnít think it through quite quick enough. But thatís okay, thatís my Lyme disease. I donít process things as fast as I used to.
Robert Noa: No, but let me through this out there, since I donít want to run out of time and not mention whatís running through my head at the moment. A lot of times, from what Iím learning, Lyme disease is contracted by people who are out in the field, and theyíre working when this happens.
So whether itís Lyme, and whether itís someone who work for the department of natural resources, whether itís a playground attendant at a summer camp that picks up a tick, I would say take a picture of it, note the date and time, note where you are when this happens. Have a physician pull it off, because while the odds are still low that youíre going to develop Lyme disease or some sort of co-infection, if you do, and we have documentation that you picked this thing up at work, itís an Ö not environmental, but it is a condition thatís developed in the course and scope of your work.
Not only would you have a potential Social Security claim, but you would also have a workerís comp case. And you donít have to wait 12 months to file for workerís comp when you become disabled.
Cindy Kennedy: Yeah, thatís something that people Ö I donít even think I would think to do. But [crosstalk 00:24:20].
Robert Noa: Itís sort of obscure. I hope your listeners hear it and tuck that away for future use.
Cindy Kennedy: Pass that along, thatís a very important, very important Ö and landscaper Ö thereís just tons.
Robert Noa: Yeah. Anybody who works outside, anybody.
Cindy Kennedy: Wonderful. Well a couple of questions I have for you, and all my listeners who have already listened know what these questions are, but itís always fun to ask.
Robert Noa: Can I throw one more thing at you, if I may?
Cindy Kennedy: Throw it. Go ahead. Iíll catch it.
Robert Noa: Very quickly, I have a handwritten note about this. I just wanted, again, make sure people understood. Can you collect unemployment when you stop working because youíve become disabled as a result of Lyme disease? And the heart-wrenching answer I have to tell people is no, you canít collect unemployment, because when you collect unemployment, youíre holding yourself onto the world as ready, willing and fill in the blank.
Cindy Kennedy: Able.
Robert Noa: Able to work. So Iíll never say donít collect unemployment, because I wonít want to be the reason you canít put food on the table for your family and your kids, you do what you have to do. But just understand, if you collect unemployment, you are going to be barred from claiming any kind of Social Security disability from the period of time that you collect unemployment.
Cindy Kennedy: I got it.
Robert Noa: So that clock is just gonna restart.
Cindy Kennedy: Oh, I see. Okay. Good point. Alright, so back to-
Robert Noa: Alright, so thank you.
Cindy Kennedy: Back to the fun.
Robert Noa: Fun.
Cindy Kennedy: Fun.
Robert Noa: Thatís what weíre here for. Itís Friday.
Cindy Kennedy: Itís Friday. What ticks you off?
Robert Noa: Warm beer and political extremists.
Cindy Kennedy: Wow. Friday beer.
Robert Noa: How about that?
Cindy Kennedy: Got it. Okay, so here goes another. In life, sometimes we get thrown lemons, and my lemonade is doing this education to reach Ö my goal is to reach more than a thousand people by the time 2018 rolls around, so Iím hoping that will happen. Now, maybe youíve gotten a lot of lemons or a little lemons or whatever, what is your lemonade?
Robert Noa: Well, as I may have mentioned before, I prefer to take those lemons and turn it into limoncello, as opposed to just boring old lemonade.
Cindy Kennedy: Got it, got it. Thatís good. Now is limoncello a Friday or a Saturday type of drink?
Robert Noa: Oh, itís a after dinner drink, seven nights a week in my book.
Cindy Kennedy: Alright. Now [crosstalk 00:27:06].
Robert Noa: My limoncello, however, Iíll give you this. My limoncello was awkwardly starting my own practice over 20 years ago. And Iíve had the benefit and pleasure of, in those years since, talking to people like you and helping thousands of people take their own personal lemons and turn things around.
Cindy Kennedy: Oh, thatís great.
Robert Noa: I really get a lot of personal satisfaction about helping folks who have been dealt a big bowl of lemons, and helping them put things in order. Iím not a doc, Iím not a nurse practitioner, I canít cure you. I can talk medicine with you, but as a lawyer, my job is to help financially, if I can, take some of that burden off of your back.
Cindy Kennedy: Hey, maybe we can start a partnership if you need any expert witnesses.
Robert Noa: Absolutely.
Cindy Kennedy: There you go. There you go. Thatís awesome. And I really wonít do an intervention with you about your alcohol consumption. Iíll let that slide. It has been my-
Robert Noa: Thatís okay, Iíll buy you a drink later.
Cindy Kennedy: I canít wait. I canít wait. Iíll be in Boston in November.
Robert Noa: Well then look me up when youíre here. Please.
Cindy Kennedy: I will. I want to thank you, attorney Robert Noa, for giving us all that information. It was jam-packed. I canít even believe it. So I do want to thank you, and I do want to tell my listeners, all his information, his contact information, just scroll down past his bio and itíll be all there for you. And his picture is there too, because he is nice-looking, so you might as well-
Robert Noa: Oh, well thank you.
Cindy Kennedy: Yeah, yeah. You might as well take a glimpse of him, because you want to know what they look like. He doesnít have any missing teeth or anything like that. I think heíll portray himself very well.
I want to sign off with yíall. This has been Cindy Kennedy, and youíve been listening to Living with Lyme. And we have still a lot more guests coming up, and I really encourage you to please go to the website and look up at the top, there is a subscribe button. Click that button, put in your email, so that you will always stay connected to everything thatís new from Living with Lyme.
Have a great, great day, take good care, and talk to you later. Bye now.
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