Social Security and Chronic Fatigue Syndrome and Fibromyalgia

Does the Social Security Administration recognize Fibromyalgia (FM) and Chronic Fatigue Syndrome (CFS) as the basis for disability?

The short answer is “yes,” but unfortunately there are no objective medical tests to prove the existence of these illnesses, so it is important to know what SSA is looking for.

Prior to 1999 many SSA adjudicators did not recognize CFS or FM as real physical impairments, although they were often treated as disabling mental conditions. In 1999, the SSA issued Social Security Ruling 99-2p, which provided guidelines for evaluating cases involving CTS (FM was included as a footnote). In 2012 SSA issued Social Security Ruling 12-2p specifically addressing FM, and in 2014 a new Ruling updated the process for evaluating CFS.Social Security and Chronic Fatigue Syndrome and Fibromyalgia

SSR 12-2p Evaluation of Fibromyalgia

FM must be diagnosed by a licensed physician, preferably a Rheumatologist. The diagnosis must be supported by medical evidence of all three of the following:

  1. A history of widespread pain in all quadrants of the body (both sides and both above and below the waist) and axial skeletal pain (cervical spine, anterior chest, thoracic spine or low back) – that has persisted for at least 3 months. The pain may fluctuate in intensity and may not always be present.
  1. At least 11 of the 18 tender points on physical examination OR repeated manifestations of six or more FM symptoms or co-occurring conditions (eg. fatigue, fibro fog, waking unrefreshed, depression, anxiety disorder, IBS, muscle weakness, headache, abdominal pain, numbness or tingling, dizziness, insomnia, Raynaud’s, tinnitus, vomiting …)
  1. Evidence that other disorders that could cause the symptoms were excluded.

SSR 14-1p Evaluating Cases Involving Chronic Fatigue Syndrome

CFS must be diagnosed by a licensed physician. The hallmark of CFS is the presence of clinically evaluated, persistent or relapsing chronic fatigue that:

  • Is of new of definite onset (it has not been lifelong)
  • Cannot be explained by another physical or mental disorder
  • Is not the result of ongoing exertion
  • Is not substantially alleviated by rest
  • Results in substantial reduction in previous levels of occupational, educational, social or personal activities

In addition, there must be evidence of 4 or more of the following symptoms that persisted or recurred during 6 or more months of illness and did not pre-date the fatigue:

  • Postexertional malaise lasting more than 24 hours
  • Self-reported impairment in short-term memory or concentration
  • Sore throat
  • Tender cervical or axillary lymph nodes
  • Muscle pain
  • Multi-joint pain without joint swelling or redness
  • Headaches of a new type, pattern, or severity
  • Waking unrefreshed

Once you have proven the existence of FM or CFS, you must also prove that the condition causes functional limitations that would preclude your ability to work. This is usually done with your sworn testimony at a disability hearing, written statements from your medical providers, and lay statements from friends, relatives or former employers who have observed you. Fortunately most SSA adjudicators now recognize FM and CFS as physical impairments, and acknowledge the symptoms which can be very disabling. As with any condition, the more medical evidence you can muster, the better your chances to convince SSA that you are indeed disabled.

The Value (and cost) of Medical Records in a Social Security Case

By law, the Social Security Administration (SSA) is required to consider all medical evidence relevant to your impairments, before determining whether they are disabling. What is written in your doctors’ treatment notes, x-ray and MRI reports, evaluations, hospital records, and therapy notes is the most important factor in winning your case. If you do not receive treatment, or are unable to access your treatment records, it is unlikely that your Social Security Disability claim will be approved.The Value (and cost) of Medical Records in a Social Security Case

Medical records can be very expensive to obtain, especially in the State of Washington, where medical providers and their copy companies are permitted by State law to charge more than any other State in the country. In Washington State you will be charged a $25 administrative fee just to start the process, then $1.12 per page to copy the records. (this drops to 84¢ per page after the first 30 pages). To obtain a copy of a modest 20 page medical record, it will cost you $47.40. If you have been hospitalized, it is not uncommon for the records to number over 100 pages, which would cost you $117.40 in Washington. Compare this with New York where 20 pages would cost $15, or Oregon where you would have to shell out only $56.25 for a 100-page hospital record. Fourteen States have passed laws requiring that medical providers give patients a copy of their records for free when they are needed to support a Social Security Disability claim. (CO, CT, GA, KY, MA, MI, NE, NV, OH, RI, TN, TX, VT and WV).

At the Initial and Reconsideration levels of review, SSA will obtain your medical records as a matter of course. It is important that you advise SSA of all your medical and mental health providers, as well as any hospitalizations, physical therapy, and consultations with specialists. If SSA does not know about a medical record, it cannot get it for you. The cost problem arises at the hearing level of appeal, where the normal process is for you to update your records for the Administrative Law Judge (ALJ). Assuming you do not live in one of the 14 States where you can get a copy for free, there are ways to obtain the medical records you need and may not be able to afford.

Ask Your Doctor In Person

Many medical providers will provide you with a free copy of your medical records, if you ask them nicely. While they are permitted by State law to charge $47.40 for 20 pages, they are not required to.

The Value (and cost) of Medical Records in a Social Security CaseSSA May Obtain the Records

Remember that you only need to get the new records, and SSA will send you an Exhibit List so you will know the date of the most recent medical records that are already in your file (look at the list of “F” exhibits). If you cannot afford to update your medical records, you should contact the Office of Disability Adjudication and Review, in writing, with a list of your medical providers and their addresses, and a request that they update the records for you. This request should be made at least a month prior to your scheduled hearing, to give the ALJ’s staff time to get them. Washington State law requires that the medical records be provided within 15 business days from the date of the request – but often there are backlogs and unexpected delays.

Ask For Your Records In Electronic Format

There is a federal law that can help reduce the cost of you medical records: the Health Information Technology for Economic and Clinical Health (HITECH) Act, 42 U.S. Code §17935. Subsection (e) requires that, if you request your records electronically, your medical providers must provide them, and charge you no more than their actual cost to do. This eliminates the “per page” cost, as well as a flat administrative fee to pick up your file and look at it. You should be charged only for the time necessary for a staff person to move the electronic file onto a disc + the cost of the disc + the postage to send it to you.

There are some limitations to HITECH, and it is a relatively new law, so not all medical providers and copy companies are aware of it. In cases where it works well, however, it can cut that $47.40 or $117.40 to less than $10.

Hire a Representative

If you have a representative to help you with your appeal, he or she will update your records for you prior to your hearing. While law firms are not permitted to pay for your costs outright, they can front them if you agree to reimburse them at the conclusion of your case. Usually you receive a back-award of Social Security Disability benefits at the end, making the cost of medical records relatively painless at that point.

Even if you have a representative, you may want to ask your doctors if they would give you a copy of your records for free. You should also ask your representative to use HITECH to reduce your costs.

Social Security Disability Benefits Will Not See Cuts

 Social Security Disability Benefits Will Not See Cuts in 2016

We have all heard that Social Security funds have been running low for quite a long time. Because of this, many had thought or heard that a 20% reduction to benefits in the New Year would be necessary due to the Social Security Disability trust fund being so depleted by the end of 2016. However, as of November 9, 2015, this crisis has been averted by means of a new two year budget deal. This deal will shift tax revenues from the retirement program into the disability program. The amount of taxes paid by workers will not be affected by this shift. That’s right; no higher taxes will be requested or paid. Social Security Disability Benefits Will Not See Cuts

A Social Security tax of 12.4% is paid by most people who work, half of which is paid by the employer and half by the employee. The money pays beneficiaries of two different social security programs, SSD and Social Security Retirement. 1.8% of that amount is allotted to SSD and 10.6% is for SSR during the year of 2015. The bill of November 9 shifts .57% of that tax revenue from Social Security Retirement to SSD for the next three years. Making this shift increases the portion attributed to the disabled to 2.37% ensuring solvency through the year 2022.

There are a couple of other changes to Social Security including the closing of a loophole that allowed married couples to increase their SSR benefits, as well as increased funding for fraud investigations.

So, this is good news for now for those who benefit from Social Security Disability as well as for all of us tax payers! Thanks to November 9, 2015, 2016 is already shaping up to be a pretty decent year!

Social Security Benefits May See a Raise

You may have heard the buzz over recent years that the Social Security disability fund will run out of funds in 2016 unless something happens to change it. The Social Security Disability Insurance program and the Supplemental Security Income program are what people are referring to when they discuss Social Security disability. The money for benefits comes from the Social Security Administration’s disability fund and it’s the SSA that administers both these programs.Social Security Benefits May See a Raise

Additionally, there’s a Social Security retirement fund which pays Social Security retirement benefits to those people who are said to be collecting Social Security. The SSA administers both funds via tax withholdings maintained in separate funds due to their separate purposes. Until recently, however, if the money was getting low in one fund, it could simply borrow money from the other fund so that benefits were not reduced. This happened many times over the disibility program’s existence until a Congress passed a recent law.

Fixing this problem is not difficult with the current amount in the retirement fund being enough to last until 2034. If one year of funding were transferred out of the program, there’d be enough money for the retirement program to operate without a hitch until 2033, then the disability programs would have enough funding for at least 15 years. The reason for the large descrepency is that the number of those collecting retirement benefits far outweighs the number of those collecting disability benefits. Approximately 10 millions Americans collect disability.

However, although reallocating funds has previously worked well, it’s now harder to implement, since the GOP passed a regulation against this occurring, in a party line vote. One side of the issue vows not to fund the program unless major changes are made, yet they don’t indicate what changes need to be made. On the other side of the issue, people are urging the continuation of reallocation so that 10 million Americans don’t see their monthly income cut by 19%.

Forbes has published a recent article indicating that Congress is currently considering a proposal to increase Social Security disability benefits. This increase wouldn’t put an end to cuts in late 2016 but would increase individual benefits based on cost of living increases since the current level was set. Clearly, current disabled Americans could use more monthly income to meet their needs, however, it’ll be interesting to see if this proposal goes anywhere given the current issues with funding.

Can My Disability Claim Be Denied for Non-Compliance?

Yes, Your Disability Claim CAN be Denied for Non-Compliance

If you’re in the process of applying for Social Security Disability benefits, be certain you are complying with your doctor’s treatment plan or the Social Security Administration (SSA) just might deny your claim for non-compliance. Basically, by denying your claim for benefits due to your failure to comply with your doctor’s treatment plan, Social Security is claiming that if you were to follow your doctor’s prescribed course of treatment, your disability wouldn’t be as bad and you’d be able to work.Can My Disability Claim Be Denied for Non-Compliance?

Circumstances That May Allow For Non-Compliance Denials:

There are only certain circumstances where your disability benefits can be denied for non-compliance with medical treatment.

-your disability/impairments must be expected to last at least a year or more, or result in death, AND they must be expected to keep you from performing substantial gainful activity (SGA).

-the prescribed treatment must be expected to restore your ability to perform full-time work.

-the treatment (therapy, surgery, medications etc) must be prescribed by your treating physician; those of consulting physicians do not qualify.

Exceptions:

Your Social Security claim can be denied if you fail to comply with your doctor’s treatment plan, except when certain circumstances are present. Such a circumstance would be if your doctor’s treatment plan goes against your religious beliefs. However, to claim this, you must be able to document the violation the treatment makes to your religion and that you’re a part of that religion.

Another exception would be that you have a severe mental illness that keeps you from complying. Your mental health provider would be able to give an opinion addressing these types of issues.

Lastly, an exception could be made if the treatment of one treating physician conflicts with the opinion of another treating physician. This tends to happen in cases of surgical procedures.

Should you have questions about compliance, please contact us today.