Monday, June 28, 2010

Establishing "Disability" for Social Security Claimants with Fibromyalgia or Chronic Fatigue Syndrome


Editor’s Note:  Chronic Fatigue Syndrome and Fibromyalgia, a chronic pain condition, are presumptive conditions for VA service-connected disability purposes.  Veterans who receive VA service-connected disability compensation may also be able to receive Social Security benefits, as this article discusses.

Article provided by Jeffrey A. Rabin & Asoc.,

(24-7PressRelease) - Social Security disability benefits are often the ultimate safety net for persons suffering from medical impairments that make it impossible for them to work. For many people, however, struggling through the Social Security Administration's bureaucracy is frustrating, confusing and slow. For people suffering from conditions such as Fibromyalgia and Chronic Fatigue Syndrome, the requirements of the Social Security Act can become overwhelming. This article will explain and simplify in general terms the requirements of the Social Security disability program and describe the application and appeals process.

Two Different Programs - SSDI and SSI
There are two programs under the Social Security Act providing benefits for persons who are unable to work. The first is the Social Security Disability Insurance (SSDI) program found in Title II of the Social Security Act. The second is the Supplemental Security Income program contained in Title XVI of the Social Security Act. The medical test for both programs is identical. The differences are in the non-medical eligibility requirements.

Non-Medical Requirements
SSDI benefits are paid to totally disabled individuals who have worked and paid into the Social Security system with the FICA taxes that are deducted from paychecks. These FICA taxes are analogous to insurance premiums paid for automobile, homeowners or other private insurance. The FICA payments, which are matched by employers, buy coverage under the Social Security Retirement, Disability and Medicare programs. For SSDI, there are two requirements: a worker must have worked and paid FICA taxes for at least 40 quarters lifetime (10 years) and, also 20 quarters had to have been paid in during the ten years prior to the date of becoming totally disabled. For example, a 40 year-old Claimant who became disabled in 2003 would have had to have worked and paid FICA taxes for at least 10 years during his lifetime, and for at least 5 years between 1992 and 2002.

If approved for SSDI the Social Security Administration pays a monthly benefit based upon how much was earned and paid into the Social Security system. Benefits are also paid to dependent children who are under 16 years old, or who are under 18 years old and still in high school. Medicare eligibility begins twenty-nine months after the onset date of total disability.

The SSI program requires that an individual be totally disabled and "indigent." "Indigent" basically means that a single Claimant has little or no income and less than $2,000.00 in non-exempt assets. A home and furniture are not counted. One car is exempt. Bank accounts, IRAs, profit sharing plans, cash value life insurance and similar assets are all included in determining assets, even if penalties and taxes would be incurred if the asset were converted to cash. In addition, a spouse's assets and income are "deemed" to the disabled Claimant - this deeming rule wreaks havoc on many disabled persons, particularly the stay-at-home parent.

A disabled person receiving SSI will also be eligible for food stamps and a Medicaid card from the state.

The Social Security disability program is designed to pay benefits to claimants suffering from medical problems causing symptoms so severe that it becomes impossible to sustain function at any type of work. Issues of employability, job existence, insurability and location or desirability of alternative work will not be considered, although age and education are often important factors. The fact that a person can not do the work performed in the past is usually not determinative. This is a medical program that focuses upon medically proven symptoms and their impact on the ability to perform work activities.

Therefore, the focus in on function, not on diagnosis; SSA often admits that Claimants have medical problems and are "impaired," but denies that they are "totally disabled." The debate is over what the Claimant can "do" despite the medical problems.

The Social Security Administration's Regulations require determination of disability be based upon on "objective proof" of both the medical problem and of the severity of the symptoms. "Objective proof" means the findings contained in medical tests that are not dependent on the patient's subjective responses. A MRI, a cardiac treadmill test, an x-ray and a pulmonary function test are all "objective" tests. Asking a patient if she is in pain is "subjective." In Fibromyalgia and CFS claims, it is often difficult to objectively prove either the existence of the disease, or the severity of the symptoms. This has caused many claims based upon these conditions to be denied - especially at the first two levels of review.

The focus in all disability claims is upon the medical evidence, i.e. the treating physicians' clinical findings, office notes, reports, and medical test results. This evidence is primary and is often more important than the testimony of the Claimant. While a Claimant's description of the impact on daily activities, social functioning and concentration must be considered by SSA, the content of the medical documentation is the most important source of evidence in deciding the claim.

In Fibromyalgia claims the clinical notes and a report of the treating rheumatologist are most important. A 1996 decision by the Seventh Circuit Court of Appeals established that a rheumatologist is the primary source for proof of this disease. Office notes from the rheumatologist should consistently document the positive findings for the tender points which are diagnostic for this disease. In addition, the patient should be complaining at each office visit of the fatigue and pain that are consistent with this condition. A report that establishes that all other causes for the symptoms have been ruled out helps establish the existence of the disease.

Since the extent of fatigue and pain can not be measured, consistency of complaints in the various medical records will be important. The use of pain medications, even if just for trial periods is an important consideration in evaluating the severity of pain. Use of mild analgesics indicates less severe symptoms; prescription of stronger narcotics indicates that the treating specialist felt the pain problems more severe. Also, documentation by the physicians of concentration impairments, and the inability to perform routine daily activities such as housework, shopping, and social functioning, are also factors considered by Social Security Administration decision makers.

Chronic Fatigue Syndrome claims have been made clearer by the adoption of Social Security Ruling 99-2p. This Ruling finally acknowledges that CFS is a medically determinable impairment and describes the various findings that can establish the diagnosis. This Ruling is quite useful and can be found at the SSA's website, Generally, the focus is on a longitudinal view of the medical evidence and the extent and nature of the treatment provided by the various physicians. The clinical findings and summaries of the patient's complaints in the office notes are critical in terms of establishing the existence of a medical impairment. As to whether the symptoms are totally disabling, SSA will consider the medical opinions, as well as the statements of the Claimant and third parties, as in any other disability claim.

Claimants who suffer from depression should also seek treatment from a mental health professional. Whether the depression is a symptom of the disease, or results from the significant impact on a Claimant's lifestyle, or is a separate disabling medical condition, the treatment notes and histories often lend credibility to the claim. However, SSA will generally not give significant weight to depression treated by a family doctor or social worker - emphasis will always be given to the records and reports of an M.D. psychiatrist or Ph.D. psychologist. Depression does not usually negate the existence of other underlying impairments but instead confirms the severity of their impact. On occasion, this diagnosis provides an alternative theory for an Administrative Law Judge who wishes to award benefits but will not approve a claim based on CFS or Fibromyalgia.

The Application Process
There are multiple levels of review of an application filed under the Social Security Act. In an effort to increase productivity, and decrease processing time, the Social Security Administration is testing different review models across the country. This article will describe the basic system which is still in place throughout most of the United States.

A claim is initiated by filing an application. This can be done over the telephone, on SSA's web site at (for SSDI claims only) or, preferably, in person at the local Social Security Administration District Office. The application will require a list of all of the jobs performed during the last 15 years, a list of all medical providers, a list of current medications, names and dates of all prior marriages and divorces, and a copy of the Claimant's birth certificate. Generally our practice is to recommend as much be done with Social Security face to face at the District Offices - this decreases the chance for errors. At the time of this writing, only SSDI claims can be filed over SSA's web site.

After the application is filed, the Social Security Administration will send the file to a Disability Determination Service (DDS) administered by that State. Each state has a contract with SSA to perform the first two levels of review. At the DDS the file will be assigned to an adjudicator who will be responsible for gathering medical documentation, getting any additional information from the Claimant, arranging for consultative examinations and obtaining medical and vocational opinions from the DDS's internal experts. A written decision is issued in about 90 days on average, although the time frame can vary widely. Historically only about 36% of claims are paid at this level.

If denied, the second step is the filing of a Request for Reconsideration at the SSA District Office. A Claimant is allowed 60 days from the date of the initial denial to file this appeal, although there is usually little to gain by waiting. The Request for Reconsideration is also processed by the state DDS. Historically only about 17% of claims are approved at this level and SSA is testing elimination of this step.

The third level of review, for those claims denied at Reconsideration, is the hearing before the Administrative Law Judge (ALJ). These are informal administrative hearings held before independent judges who hear testimony, review the medical records and issue written decisions. While progress had been made in reducing the backlog in setting hearing dates, the delays have been increasing once more. Time frames vary widely across the nation, many hearing offices now take at least twelve months from the date the Request for Hearing is filed to set a hearing date.

The hearing is critical to the review process because it is the only time that a Claimant has the opportunity to see, and talk to, the decision maker. Up until this time all decisions are based upon paper, i.e. medical reports and written questionnaires. This is the only time in the process where the decision maker gets to see and question the Claimant. That face to face observation is critical and in this author's experience is one of the factors causing ALJs to reverse many reconsideration denials.

While all Social Security cases first focus on medical proof, the testimony at an administrative law judge hearing may tip the scale in favor of a sympathetic and credible Claimant. It is important that a Claimant fully explain the limitations and the effects of the disease on their daily activities. Testimony, which is consistent with the medical evidence and credible, can persuade a Social Security judge to award benefits in a claim based upon Fibromyalgia or CFS.

The final two steps in the review process are the Appeals Council, and if unsuccessful, the United States District Court. These reviews are primarily based upon the medical evidence and testimony from the ALJ hearing. Since there is no additional testimony, and very little additional medical evidence can be supplied, these two levels of review are helpful in only a small percentage of claims. The backlog at the Appeals Council is now almost two years.

NOTE: SSA has begun testing different application processes in different parts of the nation. Some Claimants will not have a reconsideration stage; some will not have Appeals Council review. All Claimants will have an opportunity for an Administrative Law Judge hearing.

This Social Security disability application and appeals process was designed so that Claimants are not required to obtain representation. However, people with representation have much higher success rates. Familiarity with SSA's Regulations, Rulings, the federal caselaw interpreting the Act, and with SSA's internal guidelines called the POMS and HALLEX, help guide preparation of a claim. Representatives do not have to be licensed attorneys and there are paralegals and other non-attorneys who do provide representation.

This author's strong preference is to become involved in a claim as early in the process as possible. The earlier a Claimant understands the issues in her particular situation, and the earlier the review of the existing available medical proof, the greater the chance the assistance will be granted at some point in the process. In addition, care needs to be exercised in the completion of many of the early questionnaires sent by the DDS adjudicators - many answers on these forms end up being twisted and serving as the basis for denials by adjudicators and ALJs.

Almost all attorneys who focus in this area of the law will agree to representation on a contingency fee basis - that means that fees are only awarded in the event of a favorable outcome. In addition, the Social Security Administration always retains the right to review attorney fees.

Many claims for SSDI and SSI benefits are approved for persons with Fibromyalgia and Chronic Fatigue Syndrome. Claimants must have the support of their treating specialists - especially the rheumatologist and/or pain specialist and must maintain good communication regarding their symptoms and limitations.

If depression has become an issue then treatment with either a Ph.D. psychologist or M.D. psychiatrist is important. The earlier a Claimant obtains experienced representation the greater the chance for success, and the less stressful the battle through the various levels of appeal and review. Perseverance will prevail and disabled persons can obtain this much needed assistance.

Nothing in this article is intended to be specific legal advice or to create an actual or implied attorney-client relationship. This article has been a brief summary of the basic law and persons seeking benefits should contact experienced representatives for advice upon which they can rely. Hopefully, however, this brief analysis will provide some insight into the disability system.

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