Winning Your CFS Disability Case
Five crucial steps you need to know

In April 1999, the Social Security Administration (SSA) delivered a gift to individuals trying to obtain disability with the release of SSR 99-2p, "Evaluating Cases Involving Chronic Fatigue Syndrome (CFS)." 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.

Prior to the ruling, 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 ensures 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.   A woman recently called me from the east coast and said she contacted SSA years ago to file a disability claim. The SSA employee told her CFS was only a symptom and not a basis for obtaining disability. She hung up and did not file a 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 12 consecutive months (or it is expected they will be), should 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 care.   The ruling places a premium on medical documentation. It explains that CFS, when accompanied by appropriate medical signs or laboratory findings, is a medically determinable impairment that can be the basis for a finding of "disability."
In my experience in representing clients, CFS too often is misdiagnosed or the basis for the diagnosis is not adequately documented in their records. Having the diagnosis made or confirmed using the Centers for Disease Control criteria by a board certified medical doctor (or osteopath) such as a rheumatologist, internist or infectious disease specialist, should eliminate questions about diagnosis and/or treatment.

The ruling provides several acceptable bases for a finding that a CFS patient has a medically determinable impairment: (1) 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, (2) an abnormal MRI scan of the brain, (3) neurally mediated hypotension confirmed by tilt table test or (4) any other laboratory findings consistent with medically acceptable clinical practice (i.e., abnormal stress test or sleep studies).

Documented neurocognitive impairments and anxiety and depressive disorders can also establish the existence of a medically deter-minable impairment. However, your diagnosis and case will be much stronger if you have an objective laboratory test to support your claim.

A medical specialist is important because he or she 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 him for your disability claim, be sure to tell the specialist early on that 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. Unfor-tunately, too many disability claimants' 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.   With the ruling, winning a CFS disability case is 10% documentation of the diagnosis and 90% documentation of impairments and limitations. Never lose sight of that crucial fact. Remember, no one is disabled simply because of the diagnosis. It is the severity of your symptoms and limitations resulting from CFS that makes the difference between obtaining disability benefits or not.

If you learn one tip from this article let it be this: adequately documented medical records and medical opinions from treating doctors are everything in a disability case. Focus on the severity of your symptoms and limitations, not the 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 and 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 doctor.  In most disability cases, SSA will request that you undergo a physical and/or psychological examination to determine disa-bility. In my experience, more often than not SSA's doctor will conclude you have CFS but it is not severe enough to be disabling. Armed with this opinion, SSA usually issues a claim denial.

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 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. You have also avoided the admission of contrary evidence (SSA's doctor) that could be used to deny your claim. This strategy is usually only effective (and permitted) if you have followed Steps 1, 2 and 3 of this article.

Step 5. Hire an attorney who specializes in disability law and has experience handling CFS cases.   I talk with and exchange e-mail with hundreds of people nationwide who have been told it is virtually impossible to win a CFS disability claim. This simply is not true. However, I have talked with too many people who tried to represent themselves and lost. Don't let it happen to you---you have too much to lose.

Hire an attorney who specializes in disability law as soon as possible after filing your claim so your case can be developed and the record protected. You have nothing to lose by hiring a quality attorney; in almost every case you pay a fee only if you win your case and obtain benefits.

Remember, keep fighting for what you deserve and don't ever quit!

This article is reprinted with permission from the Fall 1999 issue of HEALTHwatch, the quarterly newsletter of the CFIDS and Fibro-myalgia Health Resource.

Scott E. Davis is a Social Security and long-term disability insurance attorney in Scottsdale, Ariz. Scott has extensive experience in handling CFIDS and fibromyalgia cases. He invites your questions and inquiries regarding representation at 602/482-4300, or via e-mail at harris.davis@azbar.org.

1. When can I file my application with SSA?
   When you meet any of the following requirements: (1) you have been out of work due to disability for 12 consecutive months, (2) it is expected that you will be out of work for a minimum of 12 consecutive months (if 12 months have not yet passed since you last worked) or (3) your medical condition is expected to result in death.
   
2. How much time will pass before I receive a decision?
   The answer varies from state to state. In general, you should expect to wait a minimum of four months to receive a reconsideration decision. If your claim is denied at reconsideration and you have a hearing before an Administrative Law Judge (ALJ), your claim will likely have been pending for a year to a year and a half before you receive the ALJ decision.
   
3. What if I filed a claim within the last couple of years, got denied and didn’t do anything?
   This is very common. Nationwide, 50% of the claims that are initially denied are never appealed. Don’t quit. Get angry. If you are covered for disability insurance benefits, federal law allows you to reopen the prior claim within one year of the date of the initial denial for any reason. You can even reopen a prior claim within four years of the original denial if SSA finds good cause to do so.

--Compiled by Scott E. Davis, Esq. and Scott M. Harris, Esq., founding partners of Harris Davis, PLC, in Scottsdale, Ariz.