Migraine and Disability: Navigating Private and Social Security Long-Term Benefit Options

Hello and welcome to Spotlight on Migraine. I'm your host, Molly O'Brien. Living with a headache disorder can affect our lives in many ways. Pain and related symptoms can make work difficult and make gainful employment impossible. So if you're highly impacted, what options do you have? To learn more about American Disability Benefits and how to access them, I'd like to introduce our guest, Edward Davdub. Mr. Davdub is a nationally known disability insurance lawyer. He's the founder of Davdub Law Firm, a firm that specializes in disability and life insurance claims for claimants. His firm has litigated in one significant disability and life insurance claims in federal courts. Mr. Davdub, thanks so much for being here today. Thank you for having me. Really excited to talk about this topic. You have a ton of information to share with us, but to break things down, we just want to remind our audience that we're talking about US-based disability benefits. Let's dive in and kind of get a better understanding. This topic can be very confusing and you're here to help us sort it all out. Explain to us, what are disability benefits? What types are there? What categories are there? In the United States, we have generally speaking four categories of disability benefits, right? I'd put two in the bucket of government benefits and then two in the bucket of private disability insurance. And these are just broadly speaking, right? So on the government side, we have social security disability, which is disability benefit provided by the Social Security Administration. We also have VA benefits for veterans and you have to have a military background and meet the qualifications for that. So, and then on the private side, we have insurance, right? Like insurance companies. So not government and you have individual disability insurance. So like perhaps you would go and buy auto insurance or insurance for your home. You can do the same thing for disability insurance. You go and you buy private disability insurance that essentially ensures your ability to work in your job or occupation. And then the last one on the, and this is still on the private side, we have group disability insurance, which is insurance coverage, but you're getting it from work. And this is where most Americans get their disability insurance coverage from, right? So they work for a private employer and I'm stressing private employer and they have disability insurance coverage that all employees of a company is insured, much like the way health insurance works. Okay, thank you for helping us break that down because when you start looking into this topic, someone I've lived with migraine my whole life and I was thinking, okay, where do I even start? That's a lot. Would it be fair to say that today we'll talk mostly about long-term disability, which is through a private insurance and we'll talk a little bit also about SSDI. Is that fair to say to the audience? Correct. Okay, let's talk generally about who can access disability benefits and are there eligibility criteria? And maybe we can talk a little bit about SSDI and a little bit about through private long-term disability benefits. Yeah, so starting with the government benefits, right? Social security disability, we loosely call it SSDI. The criteria, essentially, I have to have paid enough credits into the social security administration. So I think it's 40 credits that you would have had to have earned by paying taxes, essentially working long enough to have earned 40 credits. Once you earn 40 credits, you qualify for social security disability benefits if you become disabled. Now, on the private side with disability insurance, and let's talk about long-term disability insurance, this is the insurance policy that somebody gets from work that I mentioned earlier. It's structured in the same way as health insurance. So you start working at an employer and you get enrolled in health insurance, right? It's the same thing if they have disability insurance coverage. So the employer would either provide it to employees or they offer it as a buying benefit where the employee elects to choose long-term disability. Okay, I'm gonna go a little off script here to help better understand that. One, is that automatic when you start the job so people can ask for that? And two, can people change, kind of like open enrollment? So say I started a job a few years ago and now I wanna be able to buy in or opt into that. Is that possible? That's exactly right. That last point you're making though, Molly, sometimes creates a bit of a dilemma where someone might have a preexisting condition. So then what do we do? Or should we quickly get to that? Well, so there's a way around it where you have to be aware of the preexisting condition because by law, by the insurance policies, if you opt in, if you can not submit a disability claim within 12 months of opting in or enrolling, right? It's no longer preexisting even if the condition existed before. Okay, so let me make sure I have that right. So say I have migraine, I have a job where I get private insurance and I want to opt in to the long-term disability. I've had migraine my whole life, but I think maybe it's getting worse. Maybe I've turned from chronic and now I'm having even more frequent attacks. So I can go to my employer if I'm eligible and the option's there, opt in for that. If I have a preexisting condition, it's migraine, but if I don't use it or try to access it within 12 months, like if I wait 13 months, then I could be eligible. Is that right? Yeah, that's right. It's insurance policy specific, but in the industry, these insurance policies usually have 12 months. Every once in a while, I see 24 months. By the way, I've had migraines my entire life also. So whenever I have a client with migraines, it really, it hits home for me. Well, I'm sorry that you are part of our amazing club. We've got a great community. Oh my, don't we? So can you tell us a little bit, how can someone with migraine cluster, vestibular migraine, how can these people qualify to access disability insurance, whether it's through SSDI or whether it's through private long-term disability? Whether it's SSDI or private long-term disability, the problem is the same, which is migraines, it's invisible, right? I can be having a migraine and I can put a face on and you not know I'm in chronic pain, right? Of course, there's a point where it just becomes obvious because you're not able to function at all, even in just activities and daily living. But generally, it falls in that category of medical conditions that we call subjective, okay? And so those subjective type of medical conditions are harder to establish, all right? And if you compare it to say someone who has advanced cardiovascular disease, there are a bunch of medical scans that can be done to confirm not just the presence, but the severity. And then the doctors can deduce based on the severity, how it would be impacting you from a symptoms, restrictions and limitations perspective. We don't have that with migraines. So it creates this more complex type of scenario for disability claims. With long-term disability, what I've seen in almost 20 years of doing this is the insurance companies tend to target those types of claims for denials because they understand it's much more difficult to prove it. So how do you prove disability? It's the same sort of evidence that one would need for social security and long-term disability. And for example, just to give you a few, every client we have with chronic migraines or any kind of headaches really, we ask them to keep a headache log. It's one thing to say, well, I have frequent headaches. It's another thing for someone to look at your log and go, you have a lot of headaches. You're having headaches more times than you're not having a headache, right? So the log creates this visual that becomes incredibly powerful. And then, so when they keep the log, what we do also, this is where you have to get creative. We tell clients, go speak to your doctor, take the log, show it to your doctor, ask the doctor to put it in your medical records and to sign off on it based on their having seen you, treated you, examined you, to have the doctor say, this actually probably is accurate. And so now the doctor has endorsed it. That becomes a really powerful piece of evidence. The other thing that you can do, it's not medical, but it's incredibly powerful if you have a spouse or really close friends, family members, have them write a letter of support. We're human beings, right? So we all, we interact with each other, right? It's one thing if you're saying to me, I have headaches and I'm like, okay, great, but you look fine. But it's another thing when you have three, four people around you saying, I've seen how these headaches impact her. And they give real life examples of it. Because again, no, we're starting to create a story that's all adding up. The doctor is saying my client's credible, the spouse, the coworkers, everyone's starting to say the same thing. And all these pieces of the puzzle are now coming together. One of the things that you have to look at with chronic migraines is, as an example, is the treatment, right? Is the complaints by the patient in terms of severity and frequency, adding up to the level of treatment they've been receiving, right? Like we know you get to a point where you've gone through, right? I look at my client's medical records and you see the full gambit of medications they've been trying. And then you see Botox injections. Like once you start, you get a sense of, they've been trying everything. So clearly there's something here. So again, another piece to the puzzle. I know the picture starts to emerge. One last thing I would say, sometimes we'll have certain insurance companies that are tough and they just fight migraine cases, any kind of headaches, really. What we do is we tap into a network of doctors around the country and we have the doctor examine our clients, review the client's medical history and write a report, a peer review report, an independent medical examination report that basically says I've taken her history. I've reviewed all her medical records. I've looked at her migraine log. I've spoken with her doctor. Check, check, check, check, check. And basically says this person has these types of headaches and it's this frequent, it's this severe. She's not able to function on a reliable and consistent basis. That type of evidence kind of brings it all together in one report and it can be used for both social security disability and private long-term disability. I'm curious in your experience, Eddie, if you have, I know you've said you've helped people with headache disorders, but can you give us any examples of different types? Is it, have you had success with clients who've had migraine? What about other types of headache disorders like post-traumatic headache or possibly trigeminal neuralgia cluster? I mean, what kind of, have you seen? All of it. Like we've seen all of the, every headache you can imagine. We, I had a client with trigeminal neuralgia about 10 years ago. It left a mark on me because his was so bad. He was a successful, thriving attorney, the top of his game. And then this just knocked him right off his feet. And he ended up basically bed-bound, not even able to really shave. In my area, we see it all. We see clients, we actually have a lot of clients with TBIs and a lot of the milder TBIs are not showing up on MRIs or CAT scans, right? So you really have to look at the symptom, the trajectory of the symptoms that the person has been experiencing. But to me, all kind of falls back into the same subjective, as far as insurance companies are concerned, realm. And therefore that's, we have to kind of start building the puzzle piece by piece again, as I mentioned earlier. Anything to be aware of? I can tell you something I can think of that insurance companies try to get, which is surveillance, right? You don't see that on the government side, but you see it on the insurance company side. And they like it in headache cases because they like to see people out in a boat. I had a client who had to always wear sunglasses and she was doing fine that day and she didn't have her sunglasses on. That became a big issue for the insurance company. You know, and with headaches, you have some days you don't have headaches. It's the nature of the beast, right? And then some days you have a headache and some days you have a headache for two or three days. The surveillance isn't going to catch that, but that's something I would tell people to be kind of aware of that in the context of migraine-based or any headache-based disability claim, insurance companies like surveillance. If someone's interested in filing a disability insurance claim, how can we talk to our doctor? What are some things that we can say to them to say, hey, this is, I need this to happen or whatever the case may be? That's a great question. I get that question from clients all the time, right? What I have seen is someone with headaches didn't get, didn't start getting headaches last month and then stopped working. It's usually, there's usually a long history of someone struggling with headaches, unless you have like a TBI or something, right? But, so most of my clients have already established care with a doctor who's really, by this point, have come to know their patient really well and they've been trying a lot of medications. Nevertheless, I tell my clients that I think it's time to have an in-person, not through a portal, not over the phone, an in-person heart-to-heart conversation with your doctor. Go in there and go back through everything you've been experiencing the last several months or years and that you appreciate that the physician has been trying his or her very best to help you. And once, I think there's this heart-to-heart conversation about we have been trying, I've been hanging in there, but it's affecting every aspect of my life right now and I need to take a step back from work and really put 100% of my effort into feeling better. It's been my experience that every doctor is going to say, yes, I will help you. Navigating this whole system seems like it can be complicated. So some people might want to hire an advocate or an attorney who specializes in disability. So you're one of those people. What are some things that are helpful to look for if you want to hire someone, an advocate, an attorney, lawyer, to help you navigate this process? The starting point is, does the attorney or law firm specialize in disability insurance? If not, then that probably isn't the right fit because disability insurance is really a very niche area of the law, comes with its own rules, its own insurance policy. It's really different than almost every other area. So you need specialty representation. But then once you start to hone in on different lawyers or law firms, really, how do you separate those attorneys who maybe on paper all look the same? And I think the only thing I could say is to objectively verify that the attorney is the right attorney is you have to look at the attorney's track record on these cases, right? So because it's a niche practice area, all the attorneys in this space go up against the same maybe dozen insurance companies in the United States. And those insurance companies use the same defense attorneys. So it becomes a really small group of the plaintiff's lawyers, knows the defense lawyers and the insurance companies. We all kind of know each other, right? Okay, small world. Small world. I'm hanging out and having lunch with them, but we know each other. And so the attorney you have is important because of the reputation of your attorney. And the way to figure it out is to ask any attorney you're considering hiring. Can you prove to me that you've regularly won cases with my condition? Because unfortunately I have a lot of law firms that their objective is to settle cases and move on to the next client, right? Like, I'm not really gonna get you your benefits. They're not gonna tell you that, right? But I'll get you a settlement. And that might not be the best outcome, right? And if it's a settlement, you want a higher settlement, not a lower settlement. So some lawyers have a business model of just taking whatever settlement they can get and move on to the next case. Then you have other firms that have a track record of winning these cases in court and therefore have a reputation in the industry as the attorneys not to mess with. Obviously everyone is going to be different and cases are gonna be different. Work requirement is different. I'm not sure if it matters where you're located, but can you give us an idea of cost for hiring representation to deal with these cases? On the social security side, and just to stress my law firm, we do not specialize in social security disability. We specialize in private long-term disability. But I do know that on the social security side, by federal statute, the fees are capped at 25% of the retroactive benefits that are awarded to someone. Okay. So it depends on what you've paid in, what... It just totally depends. Yeah, let's just hypothetically say someone was approved for social security benefits and the government is gonna send them a check for $30,000 in retroactive benefits. The fees capped at 25%, but the max fee is somewhere around, it got increased somewhere around 9,000 and something dollars as that one-time payment. Okay. On the private side, it's different, right? So the fees reflect more, I guess, of the attorney industry and how fees are structured. It usually has a component of a percentage of the past benefits. Again, hypothetical insurance company approves a long-term disability claim and sends a first payment. The first payment will represent retroactive benefits for all the months that the person hasn't received their benefits. If it's hypothetically $30,000, the attorney fees is a percentage of that. Some law firms, I think probably almost all in this space now will take a percentage of the monthly benefits moving forward because they'll continue to represent. Like I know our firm, we have the option of continuing to represent clients after approved because once approved, not always approved. The insurance company is gonna continuously perform these reviews. And so we stay on representing clients. They never interact with the insurance company. We manage all the paperwork. We interface with the insurance company and our clients are really removed from any sort of stress. And that kind of transitions into my next question is what happens next? You file, you hire an attorney, your claim either gets approved or it gets denied. Can you tell us briefly what happens after that? You mentioned once approved, not always approved. So what does that look like? And then what are your options if you get denied? Yeah, so let's say you're denied from the outset or you were approved, but then benefits got terminated down the line. In either of those two situations, you have a legal right under federal law to appeal that decision. So same on the government side with SSDI, you can appeal it. And on the private long-term disability side, yeah, you have to appeal it. These are mandatory appeal procedures. You can't file a lawsuit at this juncture. So you have to, what we call in the industry, exhaust appeals. You have to go through the appeals process. Now, I have to stress how important the appeal stage of any disability case is. It is quite possibly with some exceptions, the last opportunity to get your best evidence of disability into that file. If the appeal is denied on the long-term disability side, your next step is to file a lawsuit in federal court. And that file from the insurance company in most situations become the only evidence a federal judge can look at when deciding your case. So I sometimes have people call me after handling their own appeal and the appeal was denied. And I say, I want to help you because I believe in your case, but I need to go get that file from the insurance company to see what's in there and what's not in there before I can file a lawsuit. And that's a tough conversation to have because there have been a few cases where I've had to have conversations with someone saying, I know you're disabled, I believe you're disabled, but the appeal was mismanaged and I cannot take this case into court now. There's just not enough proof of disability in there. Okay. If we handled it right, we make sure we go through that conversation I had with you earlier, putting the pieces of the puzzle together to create a very clear picture supporting disability. So by the time we end up in court, most of our cases never end up in court because of this strategy. But those that do, at least our clients have a really strong case. Say everything gets approved. You are able to access benefits and then you get better. So you want to return to work. We have to look at the insurance policy provisions. Some have returned to work provisions that we would have to follow that language. Some do not. In any event, what we have to always do is when we communicate to the insurance company that our client's returning to work, it's not a blanket, my client is better and going back to work because they'll shut that claim down. It is more of a, my client is attempting to return to work. We do not know how my client will do once she returns to work, especially once she's placed in stressful situations and deadlines, et cetera, et cetera. Do not close the claim. We will continue to communicate with you. And that's a strategy we can use up to a certain point. I'd say usually within a six month window, we can do that. That's so helpful. Mr. Dubdub, thank you so much for joining us today. This has been so eyeopening and beneficial. I feel like I could ask a million more questions, but unfortunately we're out of time. Thank you for having me. We really appreciate you being here today and sharing all your knowledge. My pleasure. We do appreciate it. And to all of our followers, thank you so much for listening. This podcast is made possible by supporters like you. If you enjoy our content and would like to hear more, you can make a tax deductible donation today at MigraineDisorders.org. And that's Spotlight on Migraine. I'm Molly O'Brien. We'll see you next time.