Five Crucial Steps to Winning Your CFS Disability Case
The New CFS Disability Ruling: Friend or Foe?
Scott E. Davis, Disability Attorney
you one of the legions of people who believe you cannot win a disability
claim based on a diagnosis of Chronic Fatigue Syndrome (CFS)? If so, continue
reading because this article could change your opinion and possibly your
In April 1999, the Social Security Administration (SSA) delivered an early holiday gift to individuals trying to obtain disability based on CFS in the form of SSR 99-2p, "Evaluating Cases Involving Chronic Fatigue Syndrome." This landmark ruling should forever change (for the better) how SSA decides CFS disability cases. Indeed, if the ruling is used properly by a CFS claimant, SSA has finally "leveled the playing field."
The ruling is SSA's formal policy statement that CFS is a legitimate medical disorder that can be the basis for a finding of disability. The fact that SSA found it necessary to issue a formal statement legitimizing CFS is both surprising and disturbing. Rumor has it the ruling is SSA's attempt to provide consistent nationwide treatment for CFS claims by educating its employees who decide eligibility for disability. You may be thinking, "Doesn't everybody believe CFS is a legitimate medical disorder?!" Unfortunately, prior to the ruling not everyone did, as some CFS claims were denied by SSA employees and/or Judges due to a lack of education. The ruling is clearly an important landmark because it mandates fair and consistent nationwide treatment for CFS claims. However, you must understand the new ruling in and of itself will not win your claim...it only insures your claim will not be denied simply because it is based on CFS. The truth is, the ruling simply elevates CFS to the same status as other more widely accepted disabling medical disorders.
The ruling places an absolute premium on the diagnosis of CFS through signs, symptoms and/or laboratory findings. This requirement could make the ruling a friend or foe to your case depending on how well the diagnosis, and more importantly, physical and cognitive impairments/limitations are documented in your medical records. As I will discuss later, if you do not use the ruling to your advantage it may become more foe than friend...
This article will educate you on how to use the ruling to maximize your odds of winning by utilizing the following five crucial steps:
Step 1. Don't believe
it when SSA says you don't have a CFS disability claim.
Unfortunately, failing to file a claim cost her two years of monetary benefits and Medicare. Although I do not think this type of misinformation from SSA is common, it does occur. SSA implemented the new ruling to avoid exactly this kind of scenario. The longer you wait to file a claim the more it will cost you. It is easy to do, there is no charge and SSA must accept your claim. Every person who has been unable to work for twelve consecutive months (or it is expected they will be), should immediately file a disability claim with SSA; call toll free (800) 772-1213 to apply.
Step 2. A Supportive
CFS Medical Specialist should make the diagnosis and be involved in your
In my experience in representing clients, CFS too often is overly diagnosed, misdiagnosed or the basis for the diagnosis is not adequately documented in their records. Having the diagnosis made or confirmed by a board certified medical doctor (or osteopath) such as a rheumatologist, internist or infectious disease specialist, should eliminate any questions about the diagnosis and/or treatment course.
The Ruling provides several acceptable bases for the diagnosis: (1) the CDC criteria, (2) an elevated antibody titer to the Epstein Barr virus capsid antigen equal to or greater than 1:5120, or early antigen equal to or greater than 1:1640, (3) an abnormal MRI scan of the brain, (4) Neurally Mediated Hypotension confirmed by tilt table test, (5) any other laboratory findings consistent with medically acceptable clinical practice (i.e., abnormal stress test or sleep studies).
Documented neurocognitive impairments as well as anxiety and depressive disorders can also establish the existence of CFS as a medically determinable impairment. However, your diagnosis and case will be much stronger by using one or more of the five referenced above as I believe it is very important for you to either meet the CDC criteria or have an objective test result that confirms the diagnosis. A medical specialist is important because they should know how to diagnose CFS by documenting your symptoms, making objective findings and then ordering the proper tests. Without sounding like you are only seeing them for your disability claim, be sure to tell the specialist early on you have a pending claim and need their support. If the doctor seems reluctant to be involved I suggest you immediately find one who is more compassionate. Unfortunately, too many disability claimant's cases have been left for dead by an unsupportive doctor...don't let your claim be one of them!
Step 3. Your case
is won or lost based on the severity of your symptoms (limitations) and
not on the CFS diagnosis
It is critical to have all of your limitations (physical, psychological and cognitive) and their severity documented in your records. The primary limitations in a CFS case generally will be unrelenting fatigue, multi-joint pain, muscle pain, headaches, cognitive dysfunction...resulting in unreliability as an employee. If your symptoms are not documented in the medical records, SSA and/or a Judge may deny your claim because the records fail to show how your condition meets the criteria set forth in the ruling. At each visit, give your doctor a detailed history of all your complaints and their severity. After several visits to the same doctor, obtain your records and check to see if the records adequately reflect your condition.
Step 4. Have your
doctor perform your disability examination rather than Social Security's
Did you know SSA Regulations permit your own doctor/psychiatrist/psychologist to perform the examination? The advantage in a CFS case is obvious. Hopefully, your doctor is a specialist and knows how disabling CFS can be. Hopefully, s/he knows you better than any other doctor and supports your claim for disability. Thus, your claim is much stronger when your doctor performs the examination, confirms the diagnosis and then concludes your symptoms and limitations are so severe they are disabling. Your doctor's opinion is persuasive because your symptoms and limitations are well documented. Moreover, you have avoided the admission of contrary evidence (SSA's doctor) that could be used to deny your claim. Using this strategy is usually only effective (and permitted) if you have followed Steps 1, 2 & 3 of this article. Of course, knowing how and when to utilize this strategy is critical.
Step 5. Hire an attorney
who specializes in disability law and has experience handling CFS cases
Remember, keep fighting for what you deserve and don't ever quit!
About the Author: Scott E. Davis is a social security and long-term disability insurance attorney in Scottsdale, Arizona. The majority of his disability practice is devoted to representing individuals with FMS and/or CFS. Scott has extensive experience in handling FMS/CFIDS cases and does represent clients throughout the United States. In most cases he charges a fee only if his client obtains benefits. He invites your questions and inquiries regarding representation at (480) 367-1601, or via email. Originally published on www.immunesupport.com/articles/disabilityinsurance/di001.htm.
Melissa Kaplan notes: The nice people you talk to on the phone when you call for the application forms are not the people who will be adjudicating your claim, going through your application documents, all the medical and other records they get from your doctors and other health care providers, and from the doctors and psychologists contracted by SSA to interview you. In other words, when the nice person on the phone sounds so nice and empathetic and understanding, it doesn't mean SSA isn't going to deny your claim and may keep denying your claim until an administrative law judge tells them you are indeed disabled.
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