Saturday, June 26, 2010

SSDI and Fibromyalgia/CFS

Source: 24-7
Date:   June 26, 2010
URL:    
http://www.24-7pressrelease.com/press-release/social-security-disability-and-fibromyalgia-158003.php


Social Security Disability and Fibromyalgia
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Social Security disability benefits are often the ultimate safety net
for persons suffering from medical impairments that make it impossible
for them to work.

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.

In 2004 SSI will pay a basic monthly benefit of $564.00 which may be
supplemented by some states. 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, http://www.ssa.gov. 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 www.ssa.gov (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.


Representation

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.


Conclusion

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.


Article provided by Jeffrey A. Rabin & Assoc
Visit us at http://www.rabinsslaw.com

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