Charity WysongThe David Law Firm is proud to announce and welcome Charity Wysong as a new Legal Assistant.  Originally from West Virginia, Wysong has years of experience with scheduling, switchboard operations and medical records.

Attorney Byron David is pleased to have Wysong as their new Legal Assistant. “Charity is a seasoned office professional and has invaluable skills that we are excited to utilize.  She will be a great addition to our firm,” states David.  As a Legal Assistant at The David Law Firm, she will manage phone operations, scheduling, scanning and various legal tasks; she will also aid in creating legal documents and assisting in court preparations.  Welcome, Charity!

New Ruling on Interstitial Cystitis – Social Security Disability

byron david, conway, scSSA has issued Social Security Ruling (SSR) 15- 1p, which became effective immediately upon publication. 80 Fed. Reg. 14215 (Mar. 18, 2015). This SSR rescinds and replaces SSR 02-2p, which was issued in 2002.

In Section I of SSR 15-1p, SSA describes interstitial cystitis (IC) as “a complex genitourinary disorder involving recurring pain or discomfort in the bladder and pelvic region.” Some medical providers and organizations, including the American Urological Association, consider the disease synonymous with “painful bladder syndrome” and “bladder pain syndrome.” The SSR states that although it uses the term IC, it is designed to address all three disorders. IC occurs more often in women than men, and can co-occur with disorders including fibromyalgia, chronic fatigue syndrome, irritable bowel syndrome, inflammatory bowel disease, vulvodynia, chronic headaches, Sjögren’s syndrome, endometriosis, or systemic lupus erythematosus. It is diagnosed in part by ruling out other disorders with similar symptoms. Tests used to perform this rule-out diagnosis include urinalysis, urine culture, cystoscopy, biopsy of the bladder wall and urethra, distention of the bladder under anesthesia, and culture of prostate secretions. Treatment is generally for the purpose of symptom control, and may not work for everyone.

The new SSR explains in Section II that IC can be a medically determinable impairment (MDI), and describes how adjudicators should evaluate it. It lists specific signs and findings that establish IC as an MDI, despite noting: “There are some signs and findings that could indicate IC, but there are no specific signs or findings that are universally
accepted.” The only acceptable medical sources that can provide information about IC as an MDI are licensed physicians (MD or DO), and they must do so after physical exam, review of medical records, and using testing and the patient’s report
of symptoms to rule out other disorders. Some of the symptoms that can lead to a diagnosis of IC are urinary frequency and urgency; pain in the bladder, pelvis, genitals, thighs, or back; tenderness on physical examination; sexual dysfunction; and sleep problems, including chronic fatigue or tiredness. If a cystoscopy with bladder distention (a procedure, performed under anesthesia, that fills the bladder with fluid) is performed, doctor can use medical signs like stiffening, pinpoint bleeding, or patches of broken skin on the bladder wall to diagnose IC and determine whether it is an MDI. A urinalysis that
shows sterile cultures while symptoms persist, a positive potassium sensitivity test, or accumulation of antiproliferative factor in the urine can also be signs of IC. Anxiety or depression related to IC symptoms, if properly documented, can also help establish IC as an MDI. The SSR notes that its list of signs and symptoms is not intended to be exhaustive, and will likely change as new diagnostic techniques are developed.

Section III of the SSR addresses how IC should be documented, especially since its symptoms often wax and wane over time. Clinical records from medical sources that show evaluation and treatment over time are deemed “extremely helpful.” The SSR also states that evidence from medical sources who are not considered “acceptable medical sources” may also be used, along with third parties like the claimant’s friends, family, employers, clergy, case workers, and SSA staff who interacted with the claimant. Much of the SSR applies existing SSA policy to IC. For example, it states that when adjudication occurs less than 12 months before a claimant’s alleged onset date, SSA will use “information about the person’s treatment and response to treatment, including any medical source opinions about the person’s prognosis at the end of 12 months, helps us decide whether to expect an MDI of IC to be of disabling severity for at least 12 consecutive months.” Also, once an individual is found to have an MDI of IC, the adjudicator must proceed through the sequential evaluation process, determining whether the MDI is “severe,” whether the claimant meets or equals a listing (there is no listing for IC itself), and if not, what the claimant’s residual functional capacity is and whether is allows a return to past or other work. Some of the language in the SSR’s discussion of steps 4 and 5 of the sequential evaluation process in an IC case could be useful when claimants have other impairments or side effects from medication:

[W]e must consider all of the person’s impairment-related symptoms in deciding how such symptoms may affect functional capacity. For example, many people with IC have chronic pelvic pain, which can affect the ability to focus and sustain attention on the task at hand. Nocturia may disrupt sleeping patterns and lead to drowsiness and lack of mental clarity during the day. Urinary frequency can necessitate trips to the bathroom as often as every 10 to 15 minutes, day and night. Consequently, some individuals with IC essentially may confine themselves to their homes….Pain and other symptoms associated with IC may result in exertional limitations that prevent a person from doing a full range of unskilled work in one or more of the exertional categories in appendix 2 of subpart P of part 404 (appendix 2).People with IC may also have nonexertional physical or mental limitations because of their pain or other symptoms. Some may have environmental restrictions, which are also nonexertional….Adjudicators must be alert to the possibility that there may be exertional or nonexertional (for example, postural or environmental) limitations that erode a person’s occupational base sufficiently to preclude the use of a rule in appendix 2 to direct a decision. In such cases, adjudicators must use the rules in appendix
2 as a framework for decision-making and may need to consult a vocational resource.

The new SSR is available on SSA’s website at The Federal Register notice is at

Will the Police Always Make a Report After a Crash?


You would think the answer is always yes, but you would be wrong.

After a crash with a truck, car, motorcycle or other vehicle, the investigating police officers do not always make out a thorough report. In cases in which the apparent damage to the vehicle is minimal, the investigating officer is less inclined to spend the time filling out a lot of paperwork.

Likewise, if the occupants of the minivan, truck, car or other vehicle tell the police they are uninjured and decline an ambulance, the officers on the scene may again not fill out a report.

In fact, The David Law Firm frequently sees cases of significant injury where the innocent victims declined medical attention at the scene, only to require an emergency room or hospital visit within the next 24 to 48 hours.

The difficulty is, without an official investigation report, the facts can become forgotten over time and the unsafe driver responsible for the crash can change his or her story with seeming impunity.

Also, the police officers do not typically use mirrors to look underneath a vehicle to inspect for damage to the frame, nor do they have the time to take apart the vehicle to see interior cracks, leaks or other problems which require service after an impact.

That is why it is so important to get a full and complete police report at the scene, if possible.

If not, then Attorney Byron David recommends obtaining photographs (even from your cell phone), a brief recitation of the “who, what, where, how, when, and why”, any relevant measurements, and an exchange of information with the other driver.  Having this information can go along way towards preventing later headaches in a car crash accident case.

David also recommends after a car crash you and your love ones get thoroughly checked out by a qualified medical professional. After your health situation has been secured, then you should contact experienced legal counsel.

If you or someone  you know has been involved in a motor vehicle accident and there are questions as to what laws apply, call The David Law Firm at (843) 488-1415.

SSA Implementation of Video Hearing Opt-Out Process

byron david, conway, scAs often happens when SSA changes its procedures, especially on a mass basis, implementation of the final rules [79 Fed. Reg. 35926 (June 25, 2014)] on objecting to video hearings has been rather bumpy. Claimants are confused when they receive the notices, sometimes with envelopes, sometimes without. This results in more calls and visits to their representatives. Representatives are confused when they receive the forms and hearings have already been scheduled, sometimes even for video hearings.

Articles in the July and August 2014 issues of the NOSSCR Social Security Forum described the final regulations and how SSA intended to implement them. However, at a recent meeting with ODAR Deputy Commissioner Glenn Sklar and his top management staff, including Chief Administrative Law Judge Debra Bice, NOSSCR representatives raised many of the questions and concerns experienced by claimants and their representatives. This article will try to answer some of the questions. Also, the SSA website has a brief summary, The regulations provide that prior to scheduling a hearing, SSA will notify the claimant that it may schedule the appearance by video teleconferencing. If the claimant objects to appearing by video teleconferencing, the claimant or his/her representative must notify SSA in writing within
30 days after receiving this notice, although the time can be extended for “good cause” as provided in 20 C.F.R. §§ 404.936(d)(2) and 416.1436(d)(2). To determine whether good cause exists to extend the 30-day deadline, SSA will use the factors in 20 C.F.R. §§ 404.911 and 416.1411.

New request for hearing: For a hearing request received after September 6, 2014, the hearing request acknowledgement will include language that the hearing may be a video hearing. A form will be provided, with a barcode on the form. As provided in the instructions, the form is to be returned either by mail in the envelope provided to the representative or by fax to the dedicated number provided. The fax number is provided with these notices and forms. Using this fax number directly uploads the form to the electronic folder.

Pending request for hearing but hearing not yet scheduled. For a pending hearing request for which the acknowledgement has already been sent, but the hearing has not yet been scheduled, SSA will send a notice that the hearing may be either in person or by video and an “opt-out” form will be included. SSA began to mail out these notices on a staggered basis over a 6-week period beginning September 19, 2014. These forms will have no barcode. They are to be mailed back in the envelope provided to the representative. They will be scanned into the electronic folder (although there may be a delay) and will appear in the “Case Documents” section. We know that the notices and forms have been sent in cases already scheduled for hearing, in some cases, even video hearings. We were told that a cut-off date was selected that was apparently overly broad. It is possible that at the time of the cut-off date, the case was not scheduled but by the time the notice was sent and received, the case was scheduled. What should you do? We were told that ODAR will not change already scheduled hearings. But just to be safe, you may want to send back the opt-out form if the claimant wants an in-person hearing. It is important to note that these are “onetime” notices and any confusion regarding pending cases will eventually disappear. conference_room_system

Answers to questions and practice tips:

Representatives can sign the forms. Consistent with the regulation, an authorized representatives can sign the opt-out form on behalf of the claimant. See 20 C.F.R. § 404.1710. However, be sure to discuss this with your client as the choice to opt-out or not is the claimant’s decision. Some practitioners address this with their clients at the initial interview, which
is a good time to discuss the pros and cons of video hearings vs. in-person hearings.

Submit the form after the acknowledgment notice is sent, not before. Some members have asked if the form, HA-55, is available online and can be submitted with the request for hearing. The answer is “no.” The regulation provides that the claimant respond after receipt of the hearing request acknowledgment and the notice and form to opt out of a video hearing. From a systems perspective, it was explained at our meeting with ODAR that there would be problems associating the form if sent before the case is logged in to the ODAR case management system, e.g., if the form is sent with the request for hearing. The process is set up, so that the form be submitted after the case is logged in and thus will be associated with the case. It will appear in the Case Docs section of the electronic file.

SSA also is uploading copies of the initial notice to the claimant’s electronic file. The notice date reflected in the file is the same date the notice was mailed. SSA also is including the actual mailing date on all of the notices as well.

Use the envelope or fax number sent with the acknowledgment letter and form. If you are mailing back the form, use the envelope sent with the form. If you are faxing back the form (only for cases with a new acknowledgment letter), use the fax number provided with the letter since this is a dedicated fax number. Do not submit by ERE!

For already scheduled hearings, no need to respond. If you receive one of the one-time notices (for cases where acknowledgment letter previously sent) by mistake for cases are already scheduled, you do not need to respond. The scheduled hearing (whether in-person or video) will not be changed. However, as mentioned above, if the claimant is scheduled for an in-person hearing, you may want to go ahead and send the opt-out form back, just to be safe.

Claimant obtains representation more than 30 days after the opt-out form was received. We know that a common occurrence is that claimants often retain representation after a hearing has been scheduled and the hearing notice has been received. This will undoubtedly occur more than 30 days after the opt-out form was sent earlier with the request for hearing acknowledgment.

The new regulation requires the objection to be made within 30 days of receipt of the new notice that the hearing could be held by video and receipt of the opt-out form. 20 C.F.R. §§ 404.936(d) and 416.1436(d). The prior regulations provided that an objection to a video hearing be made “at the earliest possible opportunity” (with no time limit) and would automatically result in scheduling of an in-person hearing. If the objection was not “timely,” then the ALJ would determine if “good cause” existed under the other factors in the regulations. 20 C.F.R. §§ 404.936 and 416.1436.

Based on comments to the 2013 proposed rule, including those from NOSSCR, the final rule added a “good cause” provision for extending the 30 days to object and send back the opt-out form if the objection is made beyond that period. 20 C.F.R. §§ 404.936(d) (2) and 416.1436(d)(2). To determine whether good cause exists to extend the 30-day deadline, SSA will use the factors in 20 C.F.R. §§ 404.911 and 416.1411.

At the ODAR meeting, we specifically asked what a claimant and representative should do if the claimant retains representation more than 30 days after the opt-out form is received and has not been sent back to ODAR and, after consulting with the representative, the claimant decides she/he wants an in-person hearing. The response was that the form should be returned with a request for good cause to extend the 30-day limit, with an explanation why the time should be extended. While not directly addressed, the request should be sent to the ALJ, if already assigned. If no ALJ has yet been assigned, send the request to the Hearing Office Chief ALJ.

Attorney Byron P. David Asked to Speak at the South Carolina Association for Justice Auto Torts Advanced Trial Lawyers College

Byron David

Attorney Byron P. David of Conway, has been asked to speak at the South Carolina Association for Justice’s (SCAJ) Advanced Trial Lawyer College this December in Atlanta.  David will be on the panel with esteemed colleagues, Attorneys John S. Nichols, Allison P. Sullivan and Bert G. “Skip” Utsey.  David’s segment is noted under the Expert College – Learning from the Experts and is titled “The Devil is in the Details: Settlement Agreements, Indemnity Liens”.

“I am truly humbled to be speaking at the conference with such respected and accomplished attorneys.  The Auto Torts conference is always informative and insightful; I look forward to being on the other side this year,” says David.

 The Auto Torts Advanced Trial Lawyer College will be at the Ritz-Carlton, Buckhead, Atlanta the first weekend in December. Often described as “the best seminar in the region, if not the country,” the SCAJ Auto Torts seminar is enjoyed by trial lawyers from across the south.  It will include a variety of presentations on subjects ranging from technology and toxicology to neuropsychology and ethics.  Speakers will include well-known AAJ members and experts in their fields.

Attorney Byron David Named “Kiwanian of the Year”

Check out Attorney Byron David in this week’s Horry Independent!  Attorney David was awarded the “Kiwanian of the Year” award and passed the gavel to Chief of Police, Reggie Gosnell.

Byron David


Attorney Byron David presents Kiwanis check to South Conway Elementary School

Byron DavidAttorney Byron David, President of the Kiwanis Club of Conway, presented a $2,000 check to South Conway Elementary School on behalf of the Kiwanis Club.  The money will be used to help meet the needs of students. Pictured are, left to right, Denise Williams, SCES family school coordinator; Leon Hayes, SCES principal; Byron David, Kiwanis Club president; and Kiwanians Betty Moore, Larry Moore and Gail Anderson.


DLF - Diabetes Foundation Scholarship

The David Law Firm is excited to announce they are reinstating their juvenile (Type 1) diabetes scholarship, “The Davids’ Diabetes Scholarship.” In 2015, there will be 2 scholarships available, each being $1,000.  The donations from the law firm will be awarded to South Carolina residents with juvenile diabetes, entering as freshmen to the college of their choice.

Attorney Byron David, a Type 1 diabetic himself, believes the scholarship will greatly benefit the recipient.  “I know, personally, the hardships of having Type 1 diabetes.  The insulin, needles, glucose testers, test strips and pills are very costly.” says David.  “I am honored to be able to help someone starting a new life chapter.  I hope to remind younger Type 1 diabetics that they are not alone and can still be successful, despite the disease.  I am proud of them for pursuing higher education and feel blessed to be able to help.”

The David Law Firm established the scholarships through the Diabetes Scholars Foundation, who will process the applications and ultimately choose the recipients. “The Diabetes Scholars Foundation is a non-profit organization that creates a platform for funding scholarships for juvenile diabetics.” says David. “I trust their expertise and sophisticated systems in choosing a deserving recipient.”

The Davids’ Diabetes Scholarships will begin taking applications in January 2015.  Deadlines for applications are not yet determined.  Attorney David will present the scholarship to the recipients once chosen.  For more information about applying and qualifications, visit or call The David Law Firm at (843) 488-1415.

Social Security Administration’s Reduction of Field Office Hours

byron david, conway, scThe SSA OIG examined the impact of SSA’s decision to reduce Field Office (FO) hours to the public. For budget reasons, in August 2011, SSA closed FOs 30 minutes earlier each day and in November 2012, it extended the early closure to one hour earlier. In January 2013, FOs also closed every Wednesday at noon. As a result, FOs were open 27 hours compared to the previous 35 hours. SSA staff still works during the hours that the FOs are closed to the public, allowing them to complete work with
reduced overtime costs. The OIG found that the public was sometimes unaware and personally affected by the reduced FO hours, e.g., lost work time, increased transportation costs and time, and increased physical pain in repeated visits. Drawbacks included longer wait times, crowded lobbies, and limited appointment availability. The Social Security Administration’s Reduction in Field Office Operating Hours, No. A-01-14-14039 (Aug. 2014),

SSA Issues Final Regulations on Changes to Scheduling Hearings

Byron David Conway, SCAs hearing level workloads continue to grow, SSA is “implementing final rules that will help us provide better service by allowing us to conduct hearings and issue decisions more expeditiously.” 79 Fed. Reg. 35926 (June 25, 2014). These final rules became effective on July 25, 2014. The final rules provide changes in scheduling and notice procedures for hearings, with a focus on video hearings and are essentially the same as the June 2013 notice of proposed rulemaking (NPRM). The one change, recommended by NOSSCR in its comments, is to provide a good cause exception for extending the time to object to appearing at a video hearing or to object to the time
and place of the hearing.

These final rules and the June 2013 notice of proposed rulemaking (NPRM), 78 Fed. Reg. 38610 (June 27, 2013), appear to be an outgrowth of now defunct “secret ALJ” policy, which ended in April 2013. According to the preface to the final rule:

 … [W]e remain concerned that some individuals are manipulating our rules in order to obtain a hearing with an ALJ with a higher allowance rate. As we previously noted, this may be an unintended consequence of our commitment to transparency as we make more information, such as an ALJ’s allowances rates, available to claimants and their representatives. Until the effective date of this final rule, these types of efforts to undermine the random assignment of ALJs have generally been successful….

Our continued concerns about efforts to undermine our rules are not merely anecdotal. At the time of this fi nal rule, we brought and pursued sanction actions against an appointed representative for misrepresenting facts in order to have cases transferred to a hearing office with a higher allowance rate. We have observed some individuals decline hearings by video teleconferencing after learning that the claimant is scheduled to appear before an ALJ with a lower allowance rate. 79 Fed. Reg. 35926.

Time limit to object to VTC hearing. The final rule requires that the claimant be notified prior to scheduling a hearing that the hearing may be held by video teleconferencing (VTC). This will occur before the case is assigned to an ALJ. The claimant has 30 days from the date this notice is received (this is not the official “notice of hearing”) to object to the VTC hearing in writing. The general rule is that if the objection is “timely,” an in-person hearing will be scheduled (see exception below if the claimant changes residence).  The prior regulations provided that an objection to a VTC hearing be made “at the earliest possible opportunity” (with no time limit) will automatically result in scheduling of an in-person hearing. If the objection was not “timely,” then the ALJ would determine if “good cause” existed under the other factors in the regulations. 20 C.F.R. §§ 404.936 and 416.1436. The change requires the objection to be made within 30 days of receipt of the new notice that the hearing will be held by VTC. 20 C.F.R. §§ 404.936(d) and 416.1436(d).

Based on comments to the NPRM, including those from NOSSCR, the final rule adds a “good cause” provision for extending the 30 days to object if the objection is made beyond that period. 20 C.F.R. §§ 404.936(d)(2) and 416.1436(d)(2). To determine whether good cause exists to extend the 30-day deadline, SSA will use the factors in 20 C.F.R. §§ 404.911 and 416.1411.

Exception if claimant moves. There is a “limited exception” to the general rule that a claimant can object to a VTC hearing if the claimant moves while the request for hearing is pending. In that case, “we will determine whether the claimant will appear in person or by video teleconferencing, even if the claimant previously objected to appearing by video teleconferencing.” 79 Fed. Reg. 35927. Why this exception to the rule? The preface states:

This limited exception to the rule allows us to protect the integrity of our programs while providing us with the flexibility to transfer cases when there is a legitimate change in residence and such a transfer would allow us to process the case more efficiently.

Id. According to the response to a comment, SSA states that the “integrity” of the program needs to be protected for the following reason:

… [W]e are concerned that some claimants or their appointed representatives may be misusing our procedures regarding a change in residence to undermine the random assignment of cases to our ALJs. We are aware of situations in which a representative instructed claimants to report a change of address, which was not a change of residence, so that cases would be reassigned to a different hearing office with higher allowance rates. As a result of such practices, we must have a means to ensure the integrity of our program. 79 Fed. Reg. 35928. SSA anticipates “that we will apply this exception infrequently.”

Other important changes include:

New time limit for objecting to the time or place of the hearing. The claimant must notify SSA “at the earliest possible opportunity” but no later than 5 days before the hearing date or, if earlier, within 30 days after receipt of the official notice of hearing. The ALJ will decide if “good cause” applies to reschedule. 20 C.F.R. §§ 404.936(e), (f) and 416.1436(e), (f). The final rule adds a “good cause” provision for extending this time limit, using the factors in 20 C.F.R. §§ 404.911 and 416.1411.

Under the previous regulations, there was no time limit for objecting other than doing so “at the earliest possible opportunity before the time set for the hearing.” Under the final rules, “good cause” must be found in two circumstances: (1) If the claimant or representative is unable to attend or travel to the scheduled hearing because of a serious physical or mental condition, incapacitating injury, or death in the family; or (2) Severe weather conditions make it impossible to travel to the hearing. 20 C.F.R. §§ 404.936(f)(1) and 416.1436(f)(1).

In other circumstances, the ALJ will look at the reasons given, including a nonexhaustive list of factors. Id. at (f)(2). These “good cause” factors to reschedule are retained in the final except for “minor revisions,” as described by SSA.

One factor deleted from the previous regulations, which we do not view as “minor,” is that the claimant lives closer to another hearing site [previous 20 C.F.R. §§ 404.936(f)(6) and 416.1436(f) (6)]. We have been particularly concerned about deleting this factor, given the difficulties claimants have had with attending in-person hearings in some locations. According to SSA, this factor was removed to allow more flexibility if a hearing needs to be transferred to a different location. In addition, SSA again states it is concerned with “misuse” of procedures “to undermine the random assignment of cases to our ALJs.”

This change represents a departure from longstanding SSA policy and even though the list is nonexhaustive, removal of this factor from the list could prove to be a problem for many claimants with limited transportation options. The list of factors to consider does still include: “Transportation is not readily available for you to travel to the hearing …” Id. at (f)(2)(v).

Telephone hearings. Under the final rule, the ALJ is able to schedule a telephone hearing when (1) an in-person appearance is not possible, e.g., the claimant is incarcerated and VTC is not available at the facility; or (2) the ALJ determines, on his own or at the claimant’s request, that “extraordinary circumstances” prevent the claimant from appearing in person or by VTC.

While the preface to the NPRM seemed to focus on hearings at correctional facilities as “extraordinary circumstances, the problem is that the actual regulation presents a potentially broader application.

The final regulation, 20 C.F.R. §§ 404.936(c)(1)(ii) and 416.1436(c)(1)(ii), was not changed from the proposed rule. In response to comments, including those of NOSSCR, that claimants should have the ability to object to a telephone hearing, SSA stated that this was not necessary since “we will use this provision on a limited basis, and its goal is to promote efficiency of hearings.” The response goes on to note that a claimant scheduled to appear by telephone has the right to object to the time or place of hearing under 20 C.F.R. §§ 404.936(d), 405.317, and 416.1436(d).


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