Press Release:FM- CFS Guidelines Social Security Disability Insurance and SSI benefits (2)

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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. 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, 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 A. Rabin

& Assoc

Visit us at www.rabinsslaw. com