Tips for Winning a Fibromyalgia or Chronic Fatigue Syndrome Disability Case...an

[Guest guest]

Tips for Winning a Fibromyalgia or Chronic Fatigue Syndrome Disability

Case...and...What actually happens at a Social Security Disability Hearing?

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by Jonathan Ginsberg, Attorney, Atlanta, Georgia*

February 21, 2009

 

Jonathan Ginsberg is a Social Security Disability case lawyer specialized in

representing patients with chronic illnesses such as Chronic Fatigue

Syndrome and Fibromyalgia. He maintains a _ " Social Security Disability " website_

(http://www.4socialsecuritydisability.net/) offering resources from disability

lawyers all over the U.S., plus a blog and radio program where patients may

submit questions and receive professional responses. Though he uses examples

from FM cases here, the concepts apply equally to CFS and other " invisible "

disabilities.

___________

Tips for Winning a Fibromyalgia or Chronic Fatigue Syndrome Disability Case

In a disability case, you need to prove one thing - that you are not able to

work. If you remember nothing else about Social Security disability,

remember that your capacity for performing work is the only thing that matters

to a

Social Security judge.

Your ability to perform an easy job - the main issue

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.

Thus, for example:

• I have won cases in the Atlanta hearing offices in which my client’s

medical problem was a moderate, functional heart defect, but in this client’s

case, her anxiety about her condition was so severe that she could not

concentrate at work.

• Similarly, I have seen judges deny cases in which a claimant had three

herniated discs, but was able to function in a minimally demanding job because

of an unusually high pain threshold.

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.

In fact, in most hearings, the Judge will call a ‘vocational expert’ to

testify about work you have done in the past and about simple, minimally

demanding jobs that exist in the national economy. [see the detailed

description of

" What Actually Happens at Your Social Security Disability Hearing, " in the

accompanying article, below.]

Comprehensive medical records - a key to winning

As a claimant’s lawyer, my job is to identify medical records that suggest

work limitations. In many cases this means I need to 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.

We then ask your doctor to complete the checklist for submission to the

Judge.

Note that:

• We do not ask the doctor to decide if you are ‘disabled’ - that is a

legal decision for the Judge.

• Instead, we ask your doctor to help ‘translate’ his medical conclusions

into specific work limitations.

What is the Judge thinking?

There is a perception that Social Security disability cases based on

Fibromyalgia [or Chronic Fatigue Syndrome] are difficult to win. It is true

that

some judges have a problem acknowledging a medical syndrome (not a " disease " )

that cannot be detected by a blood test and that can have a wide range of

symptoms. (See the clinical definition of Fibromyalgia as set forth by the

American College of Rheumatology, at _http://www.nfra.net/Diagnost.htm _

(http://www.nfra.net/Diagnost.htm) )

Nevertheless, my experience has been that you can get creative in offering a

Judge a theory of disability.

Not too long ago, for example:

• I represented a Fibromyalgia client before a Judge who called a

psychiatrist as an expert witness. The Judge granted benefits on the ground

that my

client’s " fibro fog " was equivalent to a chronic state of anxiety - a

psychiatric condition.

• Two weeks later, I tried a different Fibromyalgia case before another

Judge in the same hearing office. This Judge awarded benefits (correctly in my

opinion) on the basis of a combined impairment - recognizing the combined

effect of Fibromyalgia’s impact on my client’s physical and mental

condition.

• Yet a third Judge in this same hearing office granted another case on the

basis that my client’s condition was equivalent to an orthopedic condition -

severe arthritis.

Obviously, I am most interested in winning cases for my clients, although I

do find it interesting that some judges must really struggle to find a legal

basis to award benefits. Further, I think it is fair to say that judges in

big cities like Atlanta are probably more likely to see Fibromyalgia [and

Chronic Fatigue Syndrome] patients supported by knowledgeable physicians and

long

treatment histories.

Fortunately, even if judges don’t understand the condition, many will honor

the opinion of your treating physician, especially if you have a long and

continuous treatment record. (The legal term for a thorough medical history is

a

" longitudinal treatment record. " )

Focus on specific symptoms

I find that it is important to focus on Fibromyalgia symptoms other than

just generalized body pain. Remember, judges see claimants every day

complaining

of " pain all over. " These cases are not Fibromyalgia, but pains caused by

arthritis, obesity, poor nutrition, mild diabetes, etc.

Judges are people, and they tend to discount complaints they hear again and

again. As you may know, Fibromyalgia or CFS often produce a number of other

identifiable symptoms, including loss of balance, digestive problems,

irritable bowel syndrome, slurred speech, vision problems, depression,

swelling,

memory loss, cognitive loss, fatigue, sleeplessness, etc.

Many patients get used to living with these symptoms and fail to mention all

of them to their doctors or to the judge.

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!

You might find it helpful to read a Judge’s decision in a Fibromyalgia case.

(The file at _http://www.4socialsecuritydisability.com/Fibro%20decision.pdf _

(http://www.4socialsecuritydisability.com/Fibro%20decision.pdf) offers two of

my recent favorable Fibromyalgia decisions from the Atlanta Office of

Hearings & Appeals.) The first case involved a 38-year-old woman with an

extensive

job background who suffers from Fibromyalgia as well as numerous

gastrointestinal and other complications. Note that the Judge focuses on my

client’s work

history and that she is very credible because she has been seeking a medical

solution to her problem.

Deciding on a start-date for your disability

I also have found that many of my Fibromyalgia clients were ambitious and

hardworking in their careers and jobs. Subconsciously or otherwise, many Judges

realize that few claimants would trade the money and job satisfaction of a

challenging career for the fixed income offered by Social Security disability.

I therefore usually encourage my clients to testify about:

• What they did before they stopped work,

• How they tried to hang on, even while fighting increasing levels of pain

and fatigue,

• And how they would greatly prefer their former way of life.

You may also be able to " push back " the starting date for your benefit

payments if your last few weeks or months of work were not in the nature of

" competitive employment. " For example, if your boss allowed extra absences or

changed your job description, the judge may find that you did not engage in

competitive work activity.

Similarly, if you previously applied for benefits, received a denial, then

tried unsuccessfully to return to work, you may be eligible for months or

years of past due benefits. Issues related to amending your onset date are

beyond

the scope of this article, but should be evaluated.

Note: The comments and opinions expressed here should not be considered

legal advice, as every Social Security Disability case is different and depends

on your individual case information. Further, the author makes no warranty,

express or implied, about the accuracy or reliability of this information. You

should not act or rely on any information without seeking the advice of an

attorney or qualified non-attorney representative.

______________

What Actually Happens at a Social Security Disability Hearing?

by Jonathan Ginsberg, Attorney - Atlanta, Georgia*

You have waited a year or longer. The big day is finally here. Your Social

Security hearing is tomorrow. What is going to happen? Who will be there? What

does the Courtroom look like? Will you be asked a lot of questions?

Your hearing is your best chance for winning disability benefits. Prior to

the hearing, your case was evaluated by a State Agency Adjudicator - a

government employee whom you did not meet face to face and whose evaluation of

your

case was based on your medical records only. And, since your doctor’s reports

did not contain certain medical terms, nor did they discuss specific

vocational restrictions, your case was denied. For more information about the

initial application and the reconsideration stage of your case, go to

_http://www.4socialsecuritydisability.com/Appeal_process.htm _

(http://www.4socialsecuritydisability.com/Appeal_process.htm) .

At a hearing, you will have the opportunity to tell your story to an

experienced Administrative Law Judge. Your Judge is not bound by any of the

findings

made by the State Agency Adjudicator. In other words, the Judge will look at

your case with a fresh pair of eyes and he or she will have the chance to

meet you and look you over.

While it is normal for you to be nervous, you should realize that most

Judges want to make a fair decision and that you will be treated with dignity

and

respect. It is important, however, to know what to expect.

What does the Hearing Room look like?

The hearing room in a Social Security case is much different than

traditional courtrooms you may have seen live or on TV.

• Your hearing room will be small and informal.

• The hearing will be held around a conference table.

• You will also notice an audio tape recorder and microphones used to tape

the hearing.

• Unlike regular court cases, Social Security hearings are not open to the

public - therefore, there are no seats for spectators.

• Most people like the small, informal setting. This type of set-up should

help you relax and establish a dialog with the judge.

Who will be there?

The participants at a hearing will be the Judge, a hearing assistant (who

operates the tape machine), you, your lawyer, and possible one or more expert

witnesses.

Why will expert witnesses be present at my hearing?

• Social Security Judges use expert witnesses to help them better understand

the issues in your case.

• Expert witnesses are not there to hurt you or to help you.

• Expert witnesses come from a panel of experts selected by Social Security.

• When the Judge decides to call an expert witness, he cannot ask for a

particular witness - instead, a member of the panel is assigned randomly.

The Vocational Expert

In most cases, the Judge will call a " Vocational Expert " (also called a VE).

• The VE may be a job placement professional, a professor, or a vocational

rehab counselor.

• The VE’s job is to classify your past work and describe for the judge the

skill level of your past work (unskilled, semi-skilled or skilled) along

with the exertional level called for in this job (sedentary/sit-down, light,

medium, or heavy).

• The judge needs this information to determine whether your claimed

impairment would prevent you from returning to your past work and whether you

have

acquired any skills that would transfer to less demanding work.

• Vocational experts will be familiar with a publication called they of Occupational Titles - which is a book published by the U.S.

Department

of Labor that describes the physical and mental requirements of all jobs that

exist in the United States.

Examples of Vocational Expert testimony

The Judge will use the VE to " translate " your medical problems into work

limitations. After listening to your testimony, the Judge will turn to the

Vocational Expert and pose one or more questions about your job capacity. For

example, in a recent hearing the Judge posed the following questions to the VE:

1. " Mr. VE, assume I find that the claimant is 48 years old, with a high

school education and has past work as a machine operator, as a shift supervisor

at a convenience store and as a shift supervisor at a retail store. Further

assume that I find that the claimant has been diagnosed with fibromyalgia and

has a moderate level of pain all the time. Further assume that the claimant

can stand for no more than 20 minutes at a time, and that standing can

constitute no more than 2 hours total during a work day. Sitting is unlimited,

although the claimant needs a " sit/stand " option. Could this claimant return to

her past work? Could she do any other work?

2. " Mr. VE, assume the same limitations set out in question 1, but add the

following limitations. Assume that I find that the claimant’s testimony is

credible in her statement that her pain level rises to a " severe " level at

least

one hour per day at unpredictable times. This severe level of pain would

cause a significant interference with attention and concentration. Assume

further that as a result of pain, the claimant would likely leave work early or

miss work entirely 1 to 2 days per week.

What does all this mean?

In response to question Number 1, the VE testified that the claimant could

not return to past work, but could perform a variety of unskilled, sedentary

jobs.

In response to question Number 2, the VE testified that the claimant could

not return to either past work or to any other job.

The point of this is to show you how the wording of the question to the VE

can result in a win or a loss. That is why it is so important to get your

doctor’s cooperation in identifying specific work activity limitations

arising

from your medical condition.

Further, your testimony should be both truthful and consistent with the

limitations set out by your doctor. As your attorney, our job is to explain to

you what is in your file and practice your testimony.

The Medical Expert

In some cases, your Judge will call a Medical Expert as well as a Vocational

Expert. In our experience, a Judge will call a Medical Expert:

• If your medical record is long and complicated;

• If you have been diagnosed with multiple conditions;

• If there is contradictory information in your medical record.

Some Judges call Medical Experts (also called ME’s) frequently. Other judges

call them rarely. Currently, the ME panel includes psychiatrists,

psychologists, orthopedists, internists, cardiologists, and other specialists.

It has been our experience that the quality of testimony from various

medical experts varies widely. Some Medical Experts testify frequently and

understand the underlying vocational nature of a Social Security case. Other

ME’s

provide very little help.

Your attorney is permitted to cross examine the ME, either to clarify a

point or to discredit the testimony if it is out of line.

Vocational Expert testimony, by contrast, is usually much more consistent

and predictable than Medical Expert testimony.

Where do you sit and who says what?

When you enter the hearing room, you will be directed to sit in a specific

chair, usually one that is facing the Judge. The Judge will introduce

himself/herself along with the Hearing Assistant and the Vocational and/or

Medical

Expert witnesses. He will then ask your attorney to state his/her name. The

Judge will then read a very brief statement setting out the issues to be heard.

In most cases, he will ask your lawyer to waive a formal reading of the

issue.

The Judge will then ask your lawyer if he/she has any objections to exhibits

in the record and if there are any outstanding records not in your file.

One of the things you should expect from your lawyer is a diligent effort to

obtain up-to-date copies of your medical records. Remember, the Hearing

Office will not update your records - this is your responsibility. It has been

our experience that your Judge will be upset (and may even postpone the

hearing) if important medical reports are missing. For this reason, you should

contact your lawyer’s office regularly to advise them of new treatment, new

doctors, etc.

Assuming no objections, the Judge will swear you in to tell the truth. If

your religious beliefs do not permit you to take a sworn oath, you may affirm

that your statements will be true.

The Judge may then ask your lawyer for an Opening Statement. Again, some

Judges do and others do not.

Your testimony

Every Judge has a different technique with regard to questions and

testimony. Most Judges will ask all the questions, offering your lawyer a

chance to

follow up. Other Judges leave all questioning to your lawyer. The subjects

covered in your direct examination include:

• Background information - your age, education, marital status, living

arrangements (home, apartment, etc.)

• Discussion of past work as performed - lifting, carrying, supervisory

roles, etc.

• Specific discussion of medical problems and activity limitations.

What you must remember when testifying

The most important things for you to remember when testifying are as

follows:

• Tell the truth.

• Be specific - instead of saying " I can’t walk very far and I can’t lift

very much, " say " It’s about 25 yards to my mailbox. When I get to the

mailbox,

I have to stop because my knees hurt so bad and my chest hurts. When I come

back, I have to support myself on a fence so I won’t lose my balance " " As far

as lifting, I tried to lift a gallon of milk about a month ago, but I could

not hold it, even with both hands, and it fell and spilled all over the

floor. "

• It is very important that you remember and practice being specific. It has

been our experience that you will be nervous, and that at a hearing, it will

be hard to think about how much you can lift, how far you can walk, etc.

Practice ahead of time!

• Be very descriptive when describing pain. Don’t say " it hurts a lot. "

Instead, say " when I get a migraine, I can’t do anything. I feel nauseated

and

sick. I turn off the lights, lie in bed with a cold compress on my forehead,

and try not to think at all. It usually takes my medicine about an hour to

kick in - even that does not help - it just puts me to sleep. "

• If you need to stand up and walk around, do so. Judges don’t mind if you

have to stretch out. This is especially important if you testify that you can

sit without interruption for no more than 15 minutes, then sit still at your

hearing for an hour.

• Say " yes " or " no, " not " uh-huh " or " huh? " or just nod or shake your head.

Remember that your hearing is being tape recorded.

• Don’t curse.

• Dress neatly - you don’t need your Sunday best, but you should avoid blue

jeans and T-shirts.

• Bring your bottles of medicine - the Judge may want to see them.

• Your attitude during your testimony is important. Remember that your Judge

sees claimants every day who want benefits. Your attitude ought to be " if I

could work I would work. " Describe for the Judge what you did and how you

enjoyed being productive and useful.

• Don’t tell the Judge that you are " disabled " - that is his job to decide.

After listening to your testimony, the Judge will then take the Expert

Witness testimony and ask questions of the Expert Witnesses. Your attorney will

also be given an opportunity to ask questions of the Expert Witnesses.

Finally, the Judge may ask you if you have any final comments. If everything

was covered in your testimony, its OK to say " no. " Respect the fact that the

Judge has other hearings and time constraints.

In most cases, the Judge will not issue a decision at the end of the

hearing. You can expect to receive a written decision in four to six weeks,

sometimes longer.

Note: The comments and opinions expressed here should not be considered

legal advice, as every Social Security Disability case is different and depends

on your individual case information. Further, the author makes no warranty,

express or implied, about the accuracy or reliability of this information. You

should not act or rely on any information without seeking the advice of an

attorney or qualified non-attorney representative.

___

* Jonathan Ginsberg is a practicing Social Security attorney in Atlanta.

This material is reproduced with kind permission of the author from his " Social

Security Disability " resource website -

_http://www.4socialsecuritydisability.net _

(http://www.4socialsecuritydisability.net/) . © 2007, Six Point

Advertrising and Marketing LLC. In addition to his website, Mr. Ginsberg

maintains a

blog (http://www.ssdanswers.com) where patients may submit questions and

receive professional responses; and an Internet Social Security Disability

radio

program featuring Q & A and interviews " about winning case strategies and

forthcoming changes to the disability adjudication process. "