Posted by TENA/DIAMOND on 3/23/2009, 9:36 pm
Tips for Winning a Fibromyalgia or Chronic Fatigue Syndrome Disability Case...and...What actually happens at a Social Security Disability Hearing?
by Jonathan Ginsberg, Attorney, Atlanta, Georgia*
February 21, 2009
Jonathan Ginsberg is a Social Security Disability case lawyer specialized in representing patients with chronic illnesses such as Chronic Fatigue Syndrome and Fibromyalgia. He maintains a "Social Security Disability" website offering resources from disability lawyers all over the U.S., plus a blog and radio program where patients may submit questions and receive professional responses. Though he uses examples from FM cases here, the concepts apply equally to CFS and other "invisible" disabilities.
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Tips for Winning a Fibromyalgia or Chronic Fatigue Syndrome Disability Case
In a disability case, you need to prove one thing - that you are not able to work. If you remember nothing else about Social Security disability, remember that your capacity for performing work is the only thing that matters to a Social Security judge.
Your ability to perform an easy job - the main issue
Your underlying medical condition – FM, CFS, or any other medical problem, is only important to the Social Security Judge if your symptoms limit you from performing a job 8 hours a day, 5 days a week.
Thus, for example:
• I have won cases in the Atlanta hearing offices in which my client’s medical problem was a moderate, functional heart defect, but in this client’s case, her anxiety about her condition was so severe that she could not concentrate at work.
• Similarly, I have seen judges deny cases in which a claimant had three herniated discs, but was able to function in a minimally demanding job because of an unusually high pain threshold.
In most cases, the judge’s decision really boils down to his/her decision about whether you could hold down a simple, sit-down type of job that requires no training; that allows you to sit, stand, and adjust your position; and that is not production oriented.
In fact, in most hearings, the Judge will call a ‘vocational expert’ to testify about work you have done in the past and about simple, minimally demanding jobs that exist in the national economy. [See the detailed description of "What Actually Happens at Your Social Security Disability Hearing," in the accompanying article, below.]
Comprehensive medical records - a key to winning
As a claimant’s lawyer, my job is to identify medical records that suggest work limitations. In many cases this means I need to review all of the medical records, then create a functional capacity checklist that includes both the limitations associated with your particular case and the impairment categories used in Social Security cases.
We then ask your doctor to complete the checklist for submission to the Judge.
Note that:
• We do not ask the doctor to decide if you are ‘disabled’ - that is a legal decision for the Judge.
• Instead, we ask your doctor to help ‘translate’ his medical conclusions into specific work limitations.
What is the Judge thinking?
There is a perception that Social Security disability cases based on Fibromyalgia [or Chronic Fatigue Syndrome] are difficult to win. It is true that some judges have a problem acknowledging a medical syndrome (not a "disease") that cannot be detected by a blood test and that can have a wide range of symptoms. (See the clinical definition of Fibromyalgia as set forth by the American College of Rheumatology, at http://www.nfra.net/Diagnost.htm )
Nevertheless, my experience has been that you can get creative in offering a Judge a theory of disability.
Not too long ago, for example:
• I represented a Fibromyalgia client before a Judge who called a psychiatrist as an expert witness. The Judge granted benefits on the ground that my client’s "fibro fog" was equivalent to a chronic state of anxiety - a psychiatric condition.
• Two weeks later, I tried a different Fibromyalgia case before another Judge in the same hearing office. This Judge awarded benefits (correctly in my opinion) on the basis of a combined impairment - recognizing the combined effect of Fibromyalgia’s impact on my client’s physical and mental condition.
• Yet a third Judge in this same hearing office granted another case on the basis that my client’s condition was equivalent to an orthopedic condition - severe arthritis.
Obviously, I am most interested in winning cases for my clients, although I do find it interesting that some judges must really struggle to find a legal basis to award benefits. Further, I think it is fair to say that judges in big cities like Atlanta are probably more likely to see Fibromyalgia [and Chronic Fatigue Syndrome] patients supported by knowledgeable physicians and long treatment histories.
Fortunately, even if judges don’t understand the condition, many will honor the opinion of your treating physician, especially if you have a long and continuous treatment record. (The legal term for a thorough medical history is a "longitudinal treatment record.")
Focus on specific symptoms
I find that it is important to focus on Fibromyalgia symptoms other than just generalized body pain. Remember, judges see claimants every day complaining of "pain all over." These cases are not Fibromyalgia, but pains caused by arthritis, obesity, poor nutrition, mild diabetes, etc.
Judges are people, and they tend to discount complaints they hear again and again. As you may know, Fibromyalgia or CFS often produce a number of other identifiable symptoms, including loss of balance, digestive problems, irritable bowel syndrome, slurred speech, vision problems, depression, swelling, memory loss, cognitive loss, fatigue, sleeplessness, etc.\
Many patients get used to living with these symptoms and fail to mention all of them to their doctors or to the judge.
One technique I recommend to my clients is to obtain a calendar and keep diary notes about how you feel and what symptoms you experience each day. Make lists. Ask for your spouse’s or children’s observations. It has been my experience that judges may not want to grant your case based on overall body pain, but may feel more comfortable focusing on your digestive or balance problems. Make the judge’s (and your lawyer’s) job easy!
You might find it helpful to read a Judge’s decision in a Fibromyalgia case. (The file at http://www.4socialsecuritydisability.com/Fibro%20decision.pdf offers two of my recent favorable Fibromyalgia decisions from the Atlanta Office of Hearings & Appeals.) The first case involved a 38-year-old woman with an extensive job background who suffers from Fibromyalgia as well as numerous gastrointestinal and other complications. Note that the Judge focuses on my client’s work history and that she is very credible because she has been seeking a medical solution to her problem.
Deciding on a start-date for your disability
I also have found that many of my Fibromyalgia clients were ambitious and hardworking in their careers and jobs. Subconsciously or otherwise, many Judges realize that few claimants would trade the money and job satisfaction of a challenging career for the fixed income offered by Social Security disability.
I therefore usually encourage my clients to testify about:
• What they did before they stopped work,
• How they tried to hang on, even while fighting increasing levels of pain and fatigue,
• And how they would greatly prefer their former way of life.
You may also be able to "push back" the starting date for your benefit payments if your last few weeks or months of work were not in the nature of "competitive employment." For example, if your boss allowed extra absences or changed your job description, the judge may find that you did not engage in competitive work activity.
Similarly, if you previously applied for benefits, received a denial, then tried unsuccessfully to return to work, you may be eligible for months or years of past due benefits. Issues related to amending your onset date are beyond the scope of this article, but should be evaluated.
Note: The comments and opinions expressed here should not be considered legal advice, as every Social Security Disability case is different and depends on your individual case information. Further, the author makes no warranty, express or implied, about the accuracy or reliability of this information. You should not act or rely on any information without seeking the advice of an attorney or qualified non-attorney representative.
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