RETURN TO TABLE
and Keeping Social Security Benefits for CFIDS and FM
By Alec G. Sohmer, Esq.
Because chronic fatigue and immune
dysfunction syndrome (CFIDS) and fibromyalgia (FM) are poorly known medical
conditions that are just now gaining widespread recognition, many sufferers are
unaware that benefits may be available to them — even if they are employed
part-time. The inability to provide for yourself or your family may entitle you
to Social Security benefits. With the proper planning and guidance, it’s
possible to overcome the numerous hurdles on the way to winning your
An individual who intends to file a
Security Disability Insurance (SSDI) claim must be unable to engage in any
substantial gainful activity due to a medically determinable mental and/or
physical impairment which has lasted, or is expected to last, at least 12 months
or is likely to result in death. A separate standard applies for a disabled
child, as do other income eligibility requirements. Patients must have
supporting medical evidence from their primary care physician or treating
physician. Fortunately, patients do not have to wait the 12-month period before
applying for benefits, as long as the condition is expected to render them
unable to work for a minimum of that time.
There’s an important difference between
eligibility requirements for SSDI and Supplemental Security Income (SSI)
benefits. For SSI, financial resources are considered. A “resource” is defined
as cash on hand, or other personal or real property that an individual owns or
retains an ownership interest in, has the legal right or authority to liquidate
and is not restricted from using for means of support. For SSDI claims, however,
financial resources are not taken into consideration.
first step in determining your eligibility for SSDI is to complete and file a
written application. You should visit your local Social Security office for this
purpose. Since considerable and specific information is required, you should
visit or call the office beforehand to determine what supporting documentation
Because CFIDS and FM are not listed
“presumptive” disabling conditions for SSDI purposes, expect your initial claim
to be rejected. Presumptive impairments are specific physical or mental
conditions that are so severe that the Social Security Administration (SSA) has
determined that persons suffering from them are considered totally disabled. If
declined benefits, you should appeal. Benefits will be awarded to people with
CFIDS or FM should their symptoms be determined to cause substantially the same
degree of functional limitation as the listed conditions.
After receiving the initial rejection,
must file for reconsideration. The Request for Reconsideration is the first step
in the appellate process, and requires another application. It is helpful to
retain a copy of your initial application, as the Request for Reconsideration
seeks substantially the same information. Also, you should prepare a detailed
list of each and every physician who has treated you during your illness. The
list should include the physicians’ names, addresses, telephone numbers,
approximate dates of treatment and probable diagnoses. Again, be sure to list
every physician and other health care providers you have seen — even those who
have not treated you specifically for CFIDS or FM.
Once again, expect a rejection of your
claim. Unfortunately, this is often part of the process for people with CFIDS or
FM. It’s time-consuming and frustrating — but don’t give up. The next stage,
Administrative Appeal, is where most CFIDS and FM claimants are successful.
CFIDS and FM are not listed among the
qualifying conditions in the SSDI section of the Code of Federal Regulations. So
the Administrative Law judge must determine whether your condition meets or
exceeds the impairments caused by those on the list. Under the statute, the
judge will determine whether the impairment is medically equivalent to those
listed. Symptoms, signs and laboratory findings will be compared with the
corresponding medical criteria shown for any listed impairment. All decisions
will be based on medical evidence only, supported by acceptable clinical and
laboratory diagnostic techniques.
Of importance, an Administrative Law
cannot reject a claim based on the absence of abnormal laboratory and physical
findings in your medical history. This violates SSA policy with respect to CFIDS
and FM. The SSA has accepted that “there is no dip-stick laboratory test for
Chronic Fatigue Syndrome…so the disease is not per se excluded from coverage
because it cannot be conclusively diagnosed in a laboratory setting.”
Hallgring v. Callahan, 975 F.Supp. 84 (D.Mass. 1997) (citing Rose v.
Shalala, 34 F.3d 13, 17 (1st Cir. 1994); Sisco v. Department of Health
and Human Services, 10 F.3d 739, 744 (10th Cir. 1993).
Further, because the methods for diagnosing
CFIDS and FM are limited, the importance of claimant’s testimony and credibility
are enhanced. Reed v. Secretary of Health and Human Services, 804 F.
Supp. 914 (E.D.Mich. 1992). In a nutshell, that means the judge must weigh your
personal word more heavily than he might in other cases.
The Administrative Law judge must use
five-step, sequential evaluation to determine a person’s level of disability.
The judge considers these questions:
1) Is the claimant engaging in
substantial gainful activity?
2) Does the claimant have a severe
3) Does the claimant suffer from an
impairment that equals the severity of a listed impairment?
4) Does the claimant possess the
residual functional capacity to perform past relevant work?
5) Does the claimant possess the
residual functional capacity to perform any other work that exists in
significant numbers in the national economy?
In determining what constitutes a severe
impairment, the Administrative Law judge will consider any condition that
significantly limits your ability to do basic work activities such as walking,
standing, lifting, bending, understanding, remembering, using judgment, etc.
Residual functional capacity is defined as your ability to complete similar
activities despite the functional limitations imposed by your impairments. Under
the current law, the Administrative Law judge must give the claimant increased
credibility in assessing his or her own residual functional capacity. Fragale v.
Chater, 916 F.Supp. 249 (W.D.N.Y. 1996).
After the award
claimants question whether they may continue to work while applying for benefits
or attempt work once benefits have been awarded. Many people wish to work for
not only the extra income, but to overcome their disability.
Under the Social Security statute,
claimant may return to work for a trial period of nine months (not necessarily
consecutive) without interruption of benefits. For a minimum of 36 months after
the trial work period, benefits will continue so long as monthly earnings fall
below the substantial gainful activity level. Currently, this level is $700 per
month for individuals with disabilities and $1,170 per month for those who are
blind. Even if benefits stop due to increased earnings, Medicare coverage can
continue for at least 39 months after the trial work period ends. After that,
Medicare coverage can be purchased by paying a monthly premium.
Of importance, certain disability related
expenses necessary for work might be deducted when calculating monthly earnings.
Therefore, earnings could be substantially higher than $700 per month before
your benefits are stopped.
If you earn more than $700 per month
deductions) during your period of eligibility, disability payments will stop.
But if you remain medically disabled, benefits may be reinstated any time during
the next 36 months. During this time, benefits will be received anytime your
earnings fall below $700 per month. With earnings less than $700 per month,
benefits will remain indefinitely. Medicare coverage will continue through the
trial work period and for at least 39 months afterwards, so long as you remain
Under the Ticket to Work and Work
Incentives Improvement Act of 1999, claimants receive a “ticket” to use for
vocational rehabilitation and other employment support services. The program is
voluntary. While in use, regularly scheduled medical reviews will be waived.
Should work earnings end, reinstatement of benefits may be requested without
filing a new application.
Attorney Alec Sohmer runs a private
practice in Brockton, Mass. He assists individuals and businesses in bankruptcy,
real estate, advanced estate planning, personal injury, small business
litigation and Social Security Disability, specifically helping those with CFIDS
Sohmer’s Web site deals exclusively
with how to apply for disability benefits, as pertains to CFIDS and FM. He may
be reached at 508-583-6510, or through the Web site:
1999 Ruling Aids CFS
In 1999 the Social Security Administration (SSA) adopted a
new policy ruling — SSR 99-2p — recognizing CFS as a potentially disabling
condition. The ruling provides examples of objective evidence, such as high
Epstein-Barr titers and a positive tilt table test, which may indicate CFS. The
ruling also establishes that the applicant’s treating physician should be the
primary information source about the patient’s medical condition. In the past,
medical evaluators who see the patient only once to render an opinion on the
individual’s functional capacity often were given as much credence as the
patient’s doctor of record.
Attorney Mac Sasser has seen improvement
the handling of CFS-related SSDI cases since the ruling was adopted: “Ruling
99-2p is a big step forward for people disabled by CFS. This ruling has improved
the fact finding and analysis stages, particularly at the hearing
Association president & CEO Kim
seconds Sasser’s observation. “CFS cases are decided more quickly and more often
in favor of the applicant than before,” Kenney says. “SSA is gathering data from
its offices around the country to assess approval rates and identify geographic
differences that alert staff to the need for additional training on CFS.”
The CFS ruling is available at
If you have been diagnosed with CFS and are filing for benefits, make sure the
ruling number, 99-2p, is noted in your application.
— The CFIDS Association of America
Tips to minimize your
Although the appellate process for Social Security Disability
Insurance benefits may take as long as two years from start to finish —
excluding the time spent for
diagnosis — there are measures that can reduce
- Get started now.
- Prepare a list of each and every physician you have
seen. This list should include names, phone numbers, addresses, approximate
dates of treatment and probable diagnoses. Remember to include all physicians,
whether or not related to CFIDS or fibromyalgia.
- Keep documents of medical records, and note how the
condition affects your functional capacity on a daily basis.
- Document all necessary work expenses related to your
- Talk to an experienced attorney who understands both the condition and
Social Security laws.