Your CFS Disability Case
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.
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.
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.
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."
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.
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).
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.
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.
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.
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.
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.
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
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 firstname.lastname@example.org.
When can I file my application with SSA?
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
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.
What if I filed a claim within the last couple of years,
got denied and didnít do anything?
This is very common. Nationwide, 50% of the claims that are initially
denied are never appealed. Donít 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.