Remember the epic battle between
David and Goliath. On paper, David clearly had no chance to win,
fortunately his heart and soul did not know it and with determination,
persistence and divine intervention he prevailed! Ever wonder what
might have happened if he was aware of his predicament? Would he
have fought or ran the other way?
Every day at the Social Security Administration
(SSA), seemingly epic battles between disability claimants and SSA
are fought. The Bounty? Disability benefits.
The battle unfolds like this: you become
unable to work due to a physical and/or mental illness and apply
for disability benefits. After all, you've paid into the system
all these years for this exact situation. Heck, even your doctor
says you can't work. You figure it is simply a matter of completing
paperwork and time until you begin receiving benefits. . .but for now you
are starting to experience financial problems.
As the months go by without an answer,
you reassure yourself this must be a simple case and the delay is "due
to government bureaucracy." After several more months your frustration
grows, you call SSA and get no answers, or worse, the ones you get are
all different! The bureaucrats you spoke with were rude and put off
by your phone call. You remind yourself SSA is on your side.
It's job is to help people like yourself by paying disability benefits,
right? But. . .you begin to feel like David.
The Big Day. . .
You finally receive an envelope from SSA,
tear it open to find a benefit check and instead read: We have Denied
your claim for disability benefits as our trained staff and medical doctors
have determined you are not disabled under our laws."
You're angered, frustrated, scared, intimidated
and now overwhelmed by the thought of fighting Goliath. . .the Federal
Government.
Pages into the decision it mentions appeal
rights, but the decision seemed so final and left you with no hope.
You do not know the law, the system and even if it is worth it or how to
fight. Your alone and defeated. . .exactly how SSA wants you to feel!
As a disability attorney I meet with clients
everyday who tell me this same story. Fortunately, those clients
took the bold step of appealing the denial and fighting for benefits.
What should you do. . .Persevere!
75% of all disability applicants initially
will be denied benefits! Half of those denied will give up and not
appeal the denial! However, 53% of the applicants who persevere to
a hearing before an Administrative Law Judge obtain benefits!
Now you understand how the system
works, it is designed to deny benefits to as many people as possible.
SSA denies initial applications because it knows 50% of the people will
give up and not appeal! But for those who persevere and appeal the
denials, the majority is eventually granted benefits.
Understanding the System
1. Initial application - Every claim
for disability benefits begins with the initial application. 75% of all
applicants are denied at this step. SSA looks for a reason to deny
benefits. The decision is based on forms you completed and medical
records, you won't meet with anyone involved in making the decision.
It is surprising when anyone wins at this step. Don't quit--You must
appeal a denial within 60 days.
2. Reconsideration - The second step
in the system but the results are worse. 82% of all applicants are
denied at this level. SSA reviews your file again and issues a denial,
unfortunately it may take months to receive. At this step, only 50%
of the original applicants are still in the system, the rest gave up.
Appeal the denial immediately.
Up to this point in the system you have
been a social security number and a file.
3. Request for Hearing before Administrative
Law Judge - Congratulations! You have persevered in the system and now
have a good chance to win benefits. 53% of all claimants win at this
stage!
Why? Primarily because your claim
is entitled to a de novo or new review by a Judge who knows the law and
does not work for SSA. Also, you get to testify before the Judge
about your inability to work and she/he assesses your credibility.
Finally, hopefully you have obtained opinions from your doctors about your
inability to work.
You must win your case at the hearing stage;
if you do not, you can appeal but your claim will be tied up perhaps for
years with the likelihood of success dramatically reduced.
Increase your odds of Winning
Now that you have an understanding of how
the system works, here are some tips on how you can maximize your
chance for success.
1. Appeal every Denial - It bears
repeating, DO NOT QUIT after receiving a denial. Now you understand
you must get to a hearing. Up to that point SSA and the odds are
overwhelmingly against you - receiving a denial may be cause to celebrate
because you’re a step closer to a hearing.
2. Retain a Disability Attorney -
Retaining an attorney who specializes in disability law should substantially
increase your odds of winning. Most claimants have no idea what they
need to prove to win their case. Practically all disability attorneys
work on a contingency fee - you only pay a fee if you win your case.
Also, Federal law sets the maximum amount the fee can be in your case.
An attorney will develop your case by obtaining the necessary medical and
vocational records and opinions from your doctors that are critical in
proving disability.
3. Completing Social Security Forms
- You will complete a dizzying array of forms requesting all sorts of information.
Be honest and very brief when completing forms. You won't win your
case with the information you give on the forms but you could lose it.
4. Involve your Treating Physician
- Your treating physician is critical to success. Judges give a treating
physician's opinion regarding a patient’s disability tremendous weight.
If your physician is not sympathetic to your claim you may want to make
a change to one who is.
The purpose of this article is to convey
hope that you can win your case and obtain benefits with perseverance and
knowledge of the system. Please do not give up. . . appeal and keep
fighting!
[Top]
In my last article I analogized
obtaining social security disability benefits based on any disease or ailment
to the epic battle between David and Goliath. Unfortunately, obtaining
disability benefits based on fibromyalgia (FMS) and/or CFIDS sometimes
can be similar to David versus Godzilla.
Why?. . in part due to a lack of education
at the social security administration (SSA) and human bias against claimants
who appear to be "healthy" compared to those afflicted with a more understood
and obviously disabling diagnosis. Indeed, I must confess that three years
ago I had never heard of fibromyalgia.
However, the good news is FMS and CFIDS
claimants can and do obtain benefits with proper preparation of their
case coupled with an understanding of how the system may view them.
TAKE A DEEP BREATH AND RELAX!!! Before
you call SSA to give up, please read on, as this article will give you
important (maybe critical) information to use in your pursuit of disability
benefits.
As a disability attorney who concentrates
on representing those with FMS and/or CFIDS, I find two things interesting
about my clients; most are very educated about their disease(s) while others
have never heard of a tender point. Second, almost all have great
difficulty explaining to family, friends and other people (they could care
less about!) that even though they appear "healthy," in fact, the diseases
have left them debilitated. Many feel as if their disease and the
resulting limitations are often not taken seriously. Undoubtedly,
every client has experienced the look of disbelief and a raised eyebrow
from another person when trying to tell him or her the diseases has literally
ruined their life.
Thus, similar to the real world, it is
not surprising that at the SSA the problems of education and bias can be
alive and well. This reality is of paramount importance. Why?.
. Because it should dictate how one proves they are disabled. Please
understand I am not saying SSA discriminates, intentional or otherwise
against FMS and/or CFIDS claimants; but rather that your claim (especially
if under 50 years old) may be viewed by SSA or an administrative law judge
(ALJ) with a raised eyebrow.
FMS and/or CFIDS are no strangers to SSA
and ALJs who decide whether you are disabled; however, that doesn't mean
they understand or appreciate the diseases. In what may be considered
the landmark FMS disability case, Preston v. Secretary of Health and Human
Services, 854 F.2d 815 (6th Cir. 1988), a Federal Court of Appeal unknowingly
provided a framework within which SSA and ALJs should evaluate FMS (and
logically CFIDS) disability claims.
In May 1997, 9 years later after working
at bureaucratic breakneck speed, a Regional Chief Judge issued a memorandum
to other ALJs which provided a framework to follow at a disability hearing
before a diagnosis of FMS is accepted. Although the following will
focus on FMS I believe it can also apply to CFIDS. Ignoring these
factors could be fatal to your claim. They are as follows:
1. Was the diagnosis made by a rheumatologist
or other specialist familiar with FMS?
I am always surprised (and skeptical) when
a person calls or comes to meet with me and says they have FMS and/or CFIDS
but it was not a rheumatologist or other specialist who made the diagnosis.
Other medical doctors can and do make the diagnosis of FMS, but many use
the terms FMS/CFIDS generically and more as a description of a patients'
symptoms rather than making the diagnosis following the American College
of Rheumatology's (ACR) 1990 Criteria for Fibromyalgia or using the CFIDS
Centers for Disease Control criteria.
If you learn one piece of information from
this article, let it be this: It is critical your diagnosis is either made
or confirmed by a rheumatologist or specialist. If not, you risk
having SSA and/or an ALJ rejecting the diagnosis altogether, which could
be fatal to your claim. Whether or not you (or your diagnosing doctor)
agree with SSA's position, it is senseless to try to fight the system.
Addressing this issue is always my first priority in representing a FMS/CFIDS
client.
Second, if a rheumatologist has not made
the diagnosis, find one (a.s.a.p.!) who is board certified and sympathetic
to your diagnosis and disability claim. Eventually, you or your attorney
will need to obtain opinions from him/her regarding how the diagnosis was
made along with your inability to work. An unsupportive and/or uncooperative
rheumatologist (or any treating physician for that matter!) can create
real and sometimes insurmountable obstacles to winning your case.
Why?. . . because you can bet SSA will have its own doctor who will
tell the ALJ you are able to work. How do you find a supportive doctor?
FMS/CFIDS support groups are a good place to find a referral.
2. Whether the claimant's physician(s)
systematically attempted to eliminate other diseases before making the
diagnosis of FMS?
A frequently heard comment made by non
FMS specialists, SSA case workers and even federal courts is that "FMS
is a diagnosis made by exclusion of other diseases." Of course, the
implication is that doctors really don't know how to diagnose FMS and that
somehow invalidates the fact the disease exists. Such a belief shows
unfamiliarity with the ACR 1990 criteria for diagnosis. However,
it reinforces why a specialist should make the diagnosis after a physical
exam (finding and documenting tender points) and blood work excludes other
rheumatic diseases which may share symptoms with or mimic FMS/CFIDS.
That process provides validity to the diagnosis.
3. Whether the patient's complaints are
typical for the disease?
This question is usually answered by reviewing
the patient's medical records and comparing them to the ACR criteria.
Hopefully, the medical records provide detail regarding the patient's symptoms
or complaints. FMS/CFIDS specialists almost always document the defining
symptoms. For FMS patients it is also critical that a physical examination
was performed confirming the existence and location of the classic tender
points. Without documentation, the diagnosis may be subject to attack.
4. Whether the claimant was referred
to physical therapy or a pain clinic for treatment, whether pain
medication was prescribed for mild or severe pain and whether the
claimant received pain relief through injections into focal tender points?
The "exhaustion of remedies requirement."
I always counsel clients to undergo and at least try any treatment the
specialist prescribes, including non-traditional treatment. Why?
Because you do not want to be at a hearing before an ALJ who is wondering
whether your condition would be as severe if you had followed your own
doctors' instructions. Moreover, SSA's doctor will usually tell the
ALJ that your symptoms would improve (of course, allowing you to work)
if you would undergo some type of treatment. Don't give the ALJ an
open door to deny your claim.
Exhausting each type of prescribed treatment
is good for your health and your disability case. After doing so,
your testimony will be more credible because nothing exists (including
an injection!) to alleviate the severity of your symptoms. Moreover,
the severity of your condition will be supported by the fact that you have
tried everything to find relief.
Trying to stay within the framework provided
by the Preston case should increase your odds of winning and avoid any
unfortunate surprises.
Additional tips to keep in mind:
Involve your treating physician!
Tell your doctor as soon as possible you have filed a disability claim.
If he/she is lukewarm to the idea, try to find another doctor. Unfortunately,
there are many doctors who could care less about a patient's legal issues.
Do not get stuck with one! As an attorney, nothing is more frustrating
than a doctor with no backbone or worse, he/she refuses to be involved
at all.
Medical records can be your best or worst
friend! It is your job to be a very detailed historian with your
doctor regarding the severity, frequency and nature of your pain, fatigue
and other symptoms. I tell clients to convey information regarding
pain, fatigue, sleeplessness, flare ups, days spent in bed, inability to
do simple daily activities and brain fog problems. Tell the doctor
you want the information in your records.
Hire an attorney who has experience handling
FMS/CFIDS cases! During initial meetings with FMS/CFIDS clients I
sometimes say to myself "If I didn't know better, I'd say this 40
year old woman looks perfectly capable of working!." It is only through
an understanding of the diseases and talking to clients that I realize
they will pay for the trip to my office for the next couple of days!
Through understanding comes compassion and the ability to convey the effect
the diseases have on a client's life to SSA or a judge. Your attorney
should at least be familiar with the 1990 ACR and/or CDC criteria and be
able to talk intelligently with your doctor.
Remember: people obtain disability benefits
every day based on FMS/CFIDS. Do not quit! Keep fighting! Use
this article as the cornerstone to preparing and hopefully winning your
case.
[Top]