Tips On Winning Your Disability Claim

ProHealth has a great article by attorney, Jonathan Ginsberg, on how to win your disability claim for ME/CFS & Fibromyalgia and what to expect at your Social Security hearing. Ginsberg specializes in Social Security disability cases for CFS & Fibromyalgia patients. Jonathan also runs the Social Security Disability Resource Website.  Here are a few tips from Jonathan Ginsberg’s article, Tips for Winning a Fibromyalgia or Chronic Fatigue Syndrome Disability Case…and…What actually happens at a Social Security Disability Hearing?

The key to winning your Social Security disability claim is that you have to be able to prove that you can’t work 8 hours a day, 5 days a week.  The one misconception about SSDI is that many people believe that you can’t work at all.  That’s not the case.  Jonathan says:

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. 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.

When I had my hearing, there was a vocational expert that who told the judge that with my health problems I would be unable to work a full-time job and that “no employer would keep me” with my problems. The purpose of the vocational expert is to also tell the judge whether there are any jobs at all that someone with your health condition can do.

Detailed medical records that suggest the patient’s work limitations are important. Jonathan says he will “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.” When the attorney contacts your physician for medical records, the doctor cannot say that you are “disabled”. Their job is to list how your medical conditions affect work limitations.

When talking about your symptoms to the judge, you need to give specific details. Just saying that you “hurt all over” isn’t specific enough. I looked at it as though I were explaining the illness to someone as if they had never heard of CFS or Fibromyalgia. One mistake that is often made is that the patient can overlook some symptoms because we deal with them every day and to us it is just a normal part of life. You want the judge to know about every symptom.

Jonathan recommends his clients do the following:

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!

I did this when I was working on my disability case. I kept a journal and my lawyer was thrilled to receive such detailed information about my daily life.  

There are still judges out there who do not believe that illnesses like CFS & Fibromyalgia exist.  I was fortunate and had a very compassionate judge.  To read more about what all is involved during a Social Security disability hearing, click the source link below and scroll down to the bottom half of the article.

To see what a fully favorable decision looks like, you can view the judge’s remarks HERE.

Source

If You’ve Been Denied Social Security Benefits for FM, Read This!

If you have been denied Social Security benefits for Fibromyalgia, you will want to read the Q & A from the National Fibromyalgia Association.  The Q & A features Edward Swierczek, senior claimant representative at Allsup, a leading nationwide provider of financial and healthcare related services to people with disabilities.

He answers questions such as:

• Why are so many people turned down for SSDI benefits when they have Fibromyalgia?
• Why does it take several years for disability benefits to be awarded?
• What can FM patients do to improve their chances of being approved during the initial application phase?
• What type of trends have been seen over the years with FM-related claims?

Click the link below to read all of Edward’s answers.

Social Security Disability Insurance

Guest Blogger Post: Should you File Your Disability Claim Online or at a Local SSA Office?

Please welcome this week’s guest blogger, Tim Moore, from Disability Secrets and My Disability Blog. Please see the rest of Tim’s bio at the end of his post.

Recently, the Social Security Administration added a disability application process to their online services. The SSA website offers a disability starter kit, an online disability application, and an online disability report form.

While this may seem more convenient at first glance, there are still some problems associated with the SSA internet application process. And these problems add weight to the argument that a potential claimant might consider bypassing the online system in favor of visiting a field office and applying in person.

What does that argument, or rationalization, actually entail?� Well, first of all, even if you complete your disability application and disability report online, you still need to provide the Social Security Administration with signed SSA-827 medical release forms. This can be done easily in person while the online process will not direct a claimant to do this. However, more problematic is the fact that the SSA website does not currently provide a way to file an SSI (Supplemental Security Income) disability application online.

This is a significant shortcoming and a problem to say the least. Why? Because many disability cases are concurrent. In other words, many applicants who visit a social security field office to file for disability actually end up with applications taken in both the SSD and SSI programs, even though the claims are evaluated concurrently, as one (by a disability examiner at a state disability processing agency).

It goes without saying, of course, that very few claimants who visit the SSA website will have any idea as to whether their claim will be for title II social security disability benefits, title 16 SSI disability benefits, or if their paperwork will need to be filed in both programs.

Which is where the system falls short. Individuals who are entitled to SSI will have no way of actually filing a claim online and, quite importantly, having their application date protected (protected dates are important when you consider the issue of back pay and the fact that some claims have been known to sit on someone’s desk for a long time before finally being forwarded to a disability examiner for processing).

Currently, applying for disability in person at your local Social Security office remains, in the opinion of many, including myself, the best method of filing a disability application. This is because a Social Security claims representative will evaluate your potential entitlement to both SSI and Social Security disability benefits. Additionally, the claims representative will complete your application(s) and disability report, as well as make sure that you have signed your medical release forms while you are at your disability interview.

If you complete your disability interview via the phone, the claims representative will still complete your application(s) and disability report, and will also mail the medical release forms to you with a self addressed, postage-paid envelope for their return. On the other hand, if you attempt to file online, you will not be directed (as of this date) to obtain, sign, and return the necessary medical release forms that might otherwise delay your case. You might also not be aware of what you are actually entitled to apply for.

No doubt, the online disability application process will improve in the coming years. But, at this point, it has obvious deficiencies.

By contrast, when it comes to conducting the application process in person with a social security administration representative at a social security office, or over the phone with such a person, a claimant can at least assume that their program eligibility has been properly evaluated and that all the necessary paperwork has been completed.

Tim Moore is a former disability-medicaid caseworker as well as a former disability claims examiner for the social security administration’s DDS, or disability determination services. He has a a website that provides information on the federal disability benefits system at Disability Secrets and also blogs about the subject at My Disability Blog.

The Fifth Annual Chronic Illness and Postsecondary Education Symposium

I received the following information via email from Lynn Roster, Director of the Chronic Illness Initiative.  Please forward this information on to your employer, employees, students – anyone you can think of.

DePaul University’s Chronic Illness Initiative Presents:

The Fifth Annual Chronic Illness and
Postsecondary Education Symposium

April 28, 2009
DePaul University
Chicago, Illinois

After Graduation: Creating Opportunities for Employment, Education, and Community & Family Involvement

Students with chronic illness, like other students, look forward to their future careers. Many, particularly in adult education programs, are already employed. However, employees and prospective employees with chronic illness face not only issues shared by other employees with disabilities but also many that are unique to them. They may ask themselves questions such as: Will I be able to be self-supporting? Will I be able to fit into the workplace? What kinds of accommodations are possible for me? What protections does the law grant me? What should I share about my illness and with whom? Which careers are likely to have more open doors for me? Should I seek a graduate degree? If so, what graduate programs will be best for me? What effect will working have on governmental disability supports?

Students are not the only ones with questions: Employers wonder how to manage chronic illness in the workplace; college faculty and staff wonder how to advise their students so as to help them succeed; vocational counselors wonder how to help people with chronic illness find work.

This interdisciplinary conference will provide opportunities for students, employers, counselors, faculty, and others to consider these questions together and to develop creative answers to them.

The 2009 Chronic Illness and Postsecondary Education Symposium welcomes presentations on the following:

• Understanding the career aspirations and concerns of students with chronic illness
• Empowering students with chronic illness to make good choices about their futures
• Improving the skills of those who advise students with chronic illness
• Utilizing college, community, workplace, and social networks to create opportunities for students with chronic illness
• Advocating for students with chronic illness
• Educating employers regarding reasonable accommodations for workers with chronic illness
• Helping students with chronic illness to develop strategies to successfully combine work and school.
• Understanding the ADA, SSDI rules, insurance, and other legal benefits and constraints
• Educating students about postgraduate educational opportunities
• Educating students about work opportunities, particularly in this age of technology.

Proposals addressing this year’s theme are welcomed. Please visit the Chronic Illness Initiative website here to download the application package and for additional information.

Court Reverses Landmark ME/CFS Wrongful Dismissal Award

In Ontario, Canada, a ruling against Honda has made Chronic Fatigue Syndrome a recognized disability requiring accomodation.

I read a news report online about how a ME/CFS patient was fired from his job for being sick.� Not only was he fired, he was also treated differently than other disabled employees because he didn’t “appear” disabled.� After being on disability benefits and a medical leave, CFS patient, Keays, found that his payments were abruptly stopped despite the fact his physician had given a diagnosis of Chronic Fatigue Syndrome.�

You can read the entire article below…

Court reverses landmark wrongful dismissal award

�

Fibromyalgia Disability Issues & How to Overcome Them

Going through the disability process is enough to give someone Fibromyalgia if they don’t already have it!  It can be a long, stressful and tedious process but, I have said this many times, it is worth it to not give up and to push on.

Not only is the entire disability process hard, making the decision to apply for disability can be even harder.  Then when very sick patients finally do make the decision to apply, they are often turned down and made to feel like they are not even sick.  With an illness like Fibromylagia and no lab tests to prove how sick you really are,  it may seem like a losing battle.  But it doesn’t have to be. 

Dr. Richard Podell, FM & ME/CFS specialist, has served as a Fibromyalgia disability medical expert witness on behalf of both insurance companies and patients, and lectures legal professionals on the process of disability litigation. While the following advice applies specifically to claims in New Jersey, much of it will be useful in general.

Medical Expert Witness Issue #1
Your insurance company isn’t allowed to assume that you are telling the truth just because you say so.

 Insurance companies have learned by hard experience with other forms of illness that a few individuals exaggerate their symptoms. Therefore, a disability insurance company has not only the right, but an obligation to satisfy themselves that the claims they pay are, in fact, valid.

Expert Medical Witness Issue #2
Fibromyalgia pain is, by definition, subjective. No one can just look and tell for sure how you feel. In contrast, most illnesses that disability companies are used to display “objective” abnormalities that anyone can see.

People with bad backs have trouble bending; people with bad knees may limp. People with heart or lung disease can’t walk very far. EKG or chest X-ray may show damage. However, Fibromyalgia disability is different. You may look fairly normal. So, how can the insurance agent know for sure that you’re truthful?

Medical Expert Witness Issue #3
With Fibromyalgia, when you physically push through your limits the expected flare-up of symptoms might not occur right away.

Often the flare-up is delayed for hours or even a day. This pattern of Fibromyalgia disability is very different from that of most other illnesses. Insurance industry representatives – and indeed many physicians – don’t yet understand this very basic fact.

Consider the Functional Capacity Evaluation (FCE), the insurance industry’s standard “test.” A physical or occupational therapist observes a claimant’s ability to bend, crawl, push, and pull things during a single session of two hours or so.

• That’s fine if the key problems are muscle weakness or stiff joints, where the symptom flare-up occurs quickly. 
• But it misses the point for Fibromyalgia, since the expected flare-up often does not occur. Current FCE protocols make no provision for follow-up; so these delayed reactions are missed.

Expert Medical Witness Issue #4
Physically pushing through your limits for just one day might cause only a minor flare-up. But repeating the same effort – for two, three, four or five days in a row –will usually cause a flare-up that’s much more severe.  

• Current FCE protocols test for just one or two days. But real world work occurs five days every week. FCE testing therefore is not a realistic test of the Fibromyalgia patient’s ability to actually keep at work.

 Practical “Tests” To Substantiate Your Fibromyalgia Disability
We don’t yet have an “objective” lab test to measure how sick you are. However, you can “objectively” document how your fibromyalgia disability has affected how you live.

 Test #1: Keep a diary of how you feel each day, how you spend your time, when you were too tired to undertake a normal task, and how your symptoms were affected when you tried to do too much.

 It’s easy to dismiss as self-serving an essay you write the day you apply for disability, but a six to twelve month long diary should be taken seriously. That’s how you can serve as your own “expert medical witness”.

 Test #2: Obtain written statements from friends, clergy, employers, neighbors, even family – who know how your illness has affected or limited your life. This “objective” testimony is impossible to ignore.

 Test #3: Be sure your physician actually writes down in his or her office notes the specific ways that your illness limits your life style and activities. Your doctor’s office notes may be your most important medical expert witness.

 Test #4: Ask your physician to document ALL your fibromyalgia related complaints, not just your muscle pain. For example: poor stamina and fatigue, prolonged exacerbation of pain and/or fatigue after modest activity, muscle pain, poor sleep and cognitive difficulties may be as important as fatigue for affecting your ability to work.

 Note: Many people with Fibromyalgia disability also satisfy the diagnostic criteria for Chronic Fatigue Syndrome. In other settings such as social security, the standards for proving disability due to chronic fatigue syndrome are clearer than they are for fibromyalgia. However, in other settings it’s the opposite. As a practical matter, if you qualify for both diagnoses, it may be best to present them both.

 Test #5: Consult at least one physician who has special expertise, sympathy and experience with fibromyalgia.

 Note: My patients from New Jersey, New York, Pennsylvania, and some states across the country appreciate that now many rheumatologists, physical medicine specialists, internists and family physicians do understand that fibromyalgia is a real, difficult and physical illness. However, they also report that other physicians remain skeptical.

 Check with your local fibromyalgia support groups for a read on which local doctors are both knowledgeable and sympathetic.

 Test #6: You, your physician and your attorney should discuss the pro’s and con’s of accepting your disability insurance company’s invitation to undergo functional capacity evaluation (FCE) testing.

 As currently performed – on a single day, without attention to the typical delayed symptom flare-up, the FCE is a misleading test of your ability to function in the workplace on an on-going basis. And, if you are very ill, the physical effort involved in the FCE testing, might make you worse for many weeks or for months.

 Test #7: Consider obtaining a formal evaluation by a psychologist or a psychiatrist. If depression or anxiety have developed, it’s best that you recognize and treat it.

 Once that’s been done, your psychologist or psychiatrist can attest that the physical aspects of your illness are the main reasons why you are not able to work. Without this support a skeptic might dismiss your claimed impairment as mainly “psychological.”

 Test #8: If a major part of your disability claim relates to mental concentration difficulties, consider formal neuropsychological testing.

 This entails several hours of standardized pencil and paper testing, and is expensive. But it’s the most objective way to document cognitive impairment. However, the cognitive defects we can measure can be fairly subtle. So be sure the neuropsychologist you see has experience as an expert medical witness testing people with severe fibromyalgia and/or ME/CFS.

Sources:

Dr. Podell.org

Immunesupport.com

For more Fibromyalgia disability information, you can also read Dr. Podell’s article Fibromyalgia Disability: Medical Evidence That Supports the New Neural Sensitization Paradigm.

Postexertional Malaise Testing Can Help With Disability Claims

One of the main issues with Chronic Fatigue Syndrome is the postexertional malaise we experience.� To some people, we appear healthy because they see us participating in an activity or at work and they think we are okay.� Usually what happens and what other people don’t see is the consequences of that activity later that day or the following days or weeks.�

Many investigators have used exercise testing to identify markers of fatigue.� I actually had the exercise testing done that I will be talking about in this article over two years ago.� It it sort of like a stress test, except you are riding a stationary bike, and wearing a mask at the same time.� This test determines how much oxygen is consumed (VO2) for volume of oxygen consumed.� Your heart rate and blood pressure are monitored and tracked throughout the entire test.�

An important part of this test for CFS patients is you need to get to the maximum target heart rates and exercise level and you can’t quit if you get tired.� You do have to push yourself, but as I was told, it is necessary in order for the testing to be accurate and to prove if you are or are not disabled.

According to the article by the CFIDS Association, Science & Legal News on Postexertional Malaise:

“To survive and to carry out activity, the body must extract oxygen from�the atmosphere and transport it to every cell in the body, where it’s used for essential metabolic processes. Oxygen and energy are inexorably linked.”

The research team found and noted in their paper that reduced capacity is evident with using the test-retest approach. During the study, six CFS patients and six sedentary, but otherwise health people were put through the exercise test on two consecutive days.

The first exercise test on the first day showed no difference between the CFS patients and the healthy people.� After the second exercise test a day later, the CFS patients showed a significant decreased oxygen consumption when compared to the mean of their first test and compared to the VO2 of the healthy people in the second test.� This is what the authors of the study (J. Mark VanNess, PhD, Christopher Snell, PhD, & Staci Stevens) had to say:

“The fall in oxygen consumption among the CFS patients on the second test suggests metabolic dysfunction rather than sedentary lifestyle as the cause of diminished exercise capacity in CFS.”

Implications for CFS disability claims
The exercise stress test is one of several tools used by the SSA to determine disability. For CFS disability and other conditions, the SSA requires that there be proof of the existence of a “medically determinable impairment” and the inability to do any kind of work. The SSA considers an abnormal exercise test an objective medical impairment in CFS.

The researchers on this study though want those with CFS to realize that just a single exercise test will probably not offer up the proof necessary that the SSA requires for disability.� For me it did, but everyone is different.� The single exercise test does not show a difference in oxygen consumption between people with CFS and those who are healthy in most cases.

The authors said that:

“The initial data from this study suggests that the test-retest format offers a superior basis to establish disability consistent with SSA policy and other relevant case law.”

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