Helping Fibromyalgia Patients Obtain Social Security
Benefits
by Joshua W. Potter, Esq.
From: The Journal of Musculoskeletal Medicine
September 1992
|
|
WHAT IS DISABILITY?
|
The Social Security Administration test of disability is "An
inability to perform any substantial gainful activity because of a
medically determinable physical or mental impairment which can be
expected to last for a continuous period of not less than 12
months."
|
(1) In Social Security terms, "substantial
gainful activity" means work that "
(a) involves doing significant and productive
physical or mental duties; and
(b) is done (or intended) for pay or
profit."
|
| (2) A person is ineligible to receive Social
Security disability benefits if he or she: Is working (except in a
"sheltered" setting), even though chronically ill At present
has the statutory ability and capacity to work Recovered within 12
months of the onset of a disabling illness
|
|
Has no medically determinable impairment (except for one of the
somatoform disorders, which are considered under a separate set of
rules).
|
|
THE PROCESS BEGINS
|
|
The sequence of actions usually necessary for a
person
- even one who clearly appears disabled -
to obtain disability payments is shown in the Table:
|
|
Table
- Steps in the process of applying for Social Security
Administration disability benefits
|
| Action |
Comments |
| Initial
application |
Filed by
patient |
| Request
for reconsideration |
Filed by
patient within 60 days of initial rejection* |
|
Chart
copied
|
Information
about patient supplied by physician at the request of Social
Security Administration |
| Physical
examination |
Performed
by Social Security Administration physician |
| Request
for hearing |
Filed
by patient within 60 days of rejection of request for
reconsideration |
| Chart
update, report |
Supplied
by physician |
| Trial
|
A
new determination; attorney and physician participate |
| Appeal
Suit
|
Filed
by the attorney with the Appeals Court within 60 days Filed by
the attorney with the United States District Court within 60
days (Attorney must have license to practice in District Court.)
|
|
|
IF
THE 60-DAY LIMIT IS NOT MET,
THE PROCESS IS ENDED
AND A NEW APPLICATIONS MUST BE FILED.
|
|
Physicians
should advise every patient of the option to file for Social Security
disability benefits when that patient has not been able to work because
of illness for 12 consecutive months. Indeed, an application may be
filed as soon as it appears that the duration of disability will exceed
12 consecutive months. Often such a prognosis may be made within 6
months of disease onset, and at that time the filing process for Social
Security disability benefits should commence.
|
|
A
person who has worked and paid Social Security taxes applies for Social
Security Disability Insurance ("Title II"), and a person of
limited income and resources receives disability benefits through
Supplemental Security Income ("Title XVI").
Claims for Social Security disability benefits are made at the local Social Security District Office, either in person or by telephone (800-772-1213). Initial filing - which
asks about the nature of the disease, name of the physician, and vocational background - is made by the claimant; physicians and attorneys are not involved at this time. It is the filing of a claim that alerts the government to a person's
inability to work.
|
|
Once
the initial claim is filed, the
Social Security Administration gathers by
separate inquiry three types of information:
|
|
Medical
- initial description of medical condition, including capacity for
lifting, walking, sitting, and standing (3)
|
|
Vocational
- description of past work; date last worked
|
|
Administrative
- proof of citizenship and, possibly, insurance status
|
|
A response by the Social Security Administration may take as long as 6 to 8 months. The application will be analyzed by both a non-physician and a physician who review medical and vocational issues
for the Social Security Disability Determination Services, a state agency that works under a contract to the Social Security Administration. (4) The physician-reviewer is usually not a practicing clinician and may have had no training
or experience in the medical field under discussion.
|
|
Initial
applications for disability benefits are routinely denied, and your
patient should be prepared for initial denial. The language used by the
Social Security Administration is consistent regardless of the details
of the particular case, with no flexibility for individual situations.
The denial usually observes that the claimant appears to be able to move
hands and arms and to stand, but leaves open the possibility of
reapplication if the patient's condition worsens.
|
|
APPEALS
|
|
An
appeal of the initial unfavorable determination must be made to the
Social Security Administration within 60 days of its mailing. This time
limit is jurisdictional, which means that Social Security will not have
a legal basis to hear the matter if the filing is late.
The
appeal, which is not a new application, is called a "request for
reconsideration." The filing may be made at the Social Security
Administration District Office or through the offices of an attorney who
practices in that field. The attorney will charge 25% of back benefits -
moneys that would have been received if payment of benefits had begun at
the onset of illness - and may not by law charge or receive a fee
without approval by the Social Security Administration.
The
request for reconsideration triggers a request for additional
information about the disease, medical providers, and treatment.
Information about undisclosed impairments is invited, and questions
about activities of daily living are posed. The physician is requested
to submit the patient's medical chart, but is not apprised of the rules
and criteria for disability.
Following
a request for reconsideration, the claimant may be referred for an
independent medical examination by a physician under contract to the
Social Security Disability Determination Service. Frequently, waits are
long, examinations are brief, and medical records are not available for
review by the Social Security Administration physician, who is paid
approximately $88 for the examination and report.
The
examination data are reviewed in the same manner as the initial
application and, again, denial of benefits is the usual result. There is
no requirement that Social Security act on a request for reconsideration
within a given number of days. (For example, in California, the wait is
approximately 7 months.
The
denial usually contains suggestions for alternative work possibilities,
which may bear no relationship to the applicant's work history or
experience. The job titles offered may include such examples as coil
winder and doll stuffer; the titles are found in the Dictionary of
Occupational Titles. The claimant should be aware that the suggestion
does not necessarily have to be acted on but, rather, should be
considered merely as a step in the process of obtaining disability
benefits.
|
|
REQUESTING
A HEARING
|
|
Following
denial of the request for reconsideration, a "request for
hearing" may be filed. This is an appeal of a prior unfavorable
determination, not a new application. Filing must be within 60 days,
which is jurisdictional.
The
request for a hearing will result in a trial before an administrative
law judge, probably within 4 months of filing the request. The trial is
a new determination, wholly independent of the previous administrative
decisions. It is at the trial level that experts in forensic medicine
and trial advocacy are needed.
At
the hearing, which is evidentiary (oral and written evidence is used),
the patient is given an opportunity to testify regarding symptoms, past
work, and residual functional capacity. The physician should provide a
narrative report, after reviewing the chart and the Social Security
Administration criteria for disability. For this hearing, the medical
provider and attorney must work in close cooperation. The judge usually
does not have the background to be able to extract from the medical
evidence a finding of disability, and will be guided by clear forensic
medical reporting and by testimony by the patient.
If
the trial results in a finding that the claimant is not disabled, an
appeal to the Appeals Council may be made within the jurisdictional 60
days. The Appeals Council decision, usually issued within 7 months, is
likely to affirm the decision of the trial judge. An unfavorable Appeals
Council decision may be appealed by filing a suit in the United States
District Court. This is an area of great legal complexity, and an
attorney must be licensed in order to appear in District Court.
The
District Court may reverse the decision of the administrative law judge,
but more frequently it returns the matter for a new hearing (a remand).
This trial is based on the initial application filed in the district
office, which clearly should be as complete and correct as possible. It
is not uncommon that 2 years will have elapsed between the initial
application for disability benefits and the district court ruling. All
the while, the Social Security Administration has provided neither
stipend nor payments for Medicare to the unemployed claimant.
|
|
THE
ROLE OF THE PHYSICIAN
|
|
The
physician's role in the application process is shown in "Steps for
the physician assisting in a disability claim."** The key to a
successful disability claim is the medical report. However, success
ultimately arises out of the mix of medical evidence, law, and
testimony. Seldom will disability benefits be granted if any of these
elements is deficient.
Establishing a medically determinable condition is the shared province
of the treating physician, the attorney, and the patient. Case law and
regulations require clearly articulated medical findings. The
administrative law judge faces a heavy burden to disregard the opinion
of the treating physicians on all issues save the ultimate issue of
disability.
Occasionally a judge disregards the opinion of the treating physician,
and that decision is likely to be overturned on appeal. Other judges
follow proper procedure and practice and base decisions on the
physician's testimony. The quality of the medical chart and report is,
thus, of extreme importance. (6)
Physicians who wish to assist their patients in establishing disability
must become familiar with the body of regulations that the Social
Security Administration uses to evaluate medical conditions. These rules
are known as the "Listing of Impairments," (7) which
constitute a keystone in the disability process. The listing is
contained in the booklet "Disability Evaluation Under Social
Security," available from the Office of Medical Evaluation of the
Office of Disability, SSA, 6401 Security Boulevard, Baltimore, MD 21235.
This office is the source of all Social Security information pertaining
to medical issues.
There is no specific listing for Fibromyalgia or many of the other
diseases that have gained recognition recently or whose existence as a
disease is under debate. This, when assisting a patient disabled with
such a disease, physicians should consider whether any other listed
criteria apply. For example, chronically ill patients who are afflicted
with Fibromyalgia frequently manifest many of the criteria for
psychiatric disability (listing 12) or have somatoform disorders
(listing 12.07). (6) Basing an appeal on one of these criteria may be
inelegant but appropriate.
When a patient meets the qualifications of a listing and the treating
physician provides only a conclusion of disability, unsupported by the
medical record or factual bases, failure to attain disability status is
assured.
|
|
MEDICAL RECORDS
|
|
Disability
claims that arise from diseases such as Fibromyalgia mandate the most
scrupulous and detailed medical charting, if the application for
benefits is to succeed.
Chart entries for Fibromyalgia and similar diseases often are brief and
incomplete, reflecting the poor doctor-patient relationship with these
patients, who may be impatient for relief and disillusioned with
physicians.
A hastily written chart note will not support a physician's later
statement that a patient is unable to sustain regular and substantial
employment. Even the structured "symptoms, observations,
assessment, plan" (SOAP) format is inadequate to convey the squeal
of a complex disease such as Fibromyalgia.
When a physician recognizes that a patient may become a candidate for
Social Security disability payments, chart entries should be made in
detail. Not only are height, weight, and blood pressure essential
elements in charting, but also adaptive reactions, physical
capabilities, and functional deficits must be noted.
Every patient visit should result in entries concerning physical
capabilities for lifting, bending, and carrying (verified with measured
weight); time duration's for sitting, standing, and walking (by
history); psychosocial and adaptive behavior, including the ability to
interact appropriately with others, follow instructions, and adhere to a
regular schedule; and the complex of depressive symptoms.
Although this may seem to be a heavy reporting burden, with a properly
designed chart this information can be quickly set forth. At a
trial, the value of such a contemporaneous and complete record is
immeasurable.
|
|
PAST WORK
|
|
NARRATIVE
REPORT: Attorneys often request the treating physicians to
prepare, for the hearing, a narrative report, which is central to the
development of the claim. This report is most effective when the legal
issues to be discussed are identified by the attorney. The narrative
report should follow the familiar forensic format: History - a
description of work history, demonstrating familiarity with the
patient's past work, including its physical and intellectual demands
Examination - reference to the patient's medical chart, including a report
on pain and the side effects of pain medication; an assessment of mental
health; a report on measured physical capacity (capacities based on
regular, sustained effort); physical findings, including reference to
tolerance for sitting, walking, and lifting.
Discussion - a review of objective physical test results and
clinical observations; a discussion of pain, specifying the activities
that exacerbate the pain; support for your prognosis accompanied, where
applicable, by an indication that you have seen many similar cases and
are familiar with the pathology of the disease; assertions, if true, of
your expertise in this field that the complaints are credible, and that
the patient is not malingering or seeking secondary gain; as well as a
statement strongly conforming the diagnosis and stating that the
symptoms are consistent with the signs and diagnosis.
A
complete narrative forensic report supported by a good chart need be
only two to three pages long, requiring perhaps a half hour of
dictation. This report can make the difference between a rejection of
the claim of disability and thousands of dollars of needed benefits for
your patient.
|
|
IN-PERSON TESTIMONY
|
|
Testimony
from a treating physician greatly increases a patient's chance of
success at the disability hearing. An administrative law judge gives
serious consideration to live medical testimony, especially when
deciding about a disease, such as Fibromyalgia, that is not yet on the
list of impairments. Testimony is most effective when supported by a
complete and detailed chart and when the testifying physician has a
clear understanding of the Social Security system, the formalities of
disability proof, the relationship of age to the listed disorders, and
vocational considerations. Careful preparation with the patient's
attorney is required for the testimony, which is likely to take a half
hour. Judges often accommodate a physician by allowing testimony out of
order, thus speeding the process. Not every case, of course, calls for
live physician testimony. The attorney is best able to make such a
strategic assessment.
DISABILITY ECONOMICS - Social Security disability benefits range between
$350 and $1,000 per month, and Medicare begins 24 months after onset of disease.
(8) The amount of Federal Insurance Contributions Act (FICA) tax paid by
the patient while employed determines the amount of benefit. In my experience, persons who claim disability due to Fibromyalgia are
typically bright, articulate women who have excellent earnings records.
Past work is usually in middle to upper management and is generally
well-paid for the geographic location. Because such patients have had
high FICA payments, they will likely receive $750 to $1,000 per month
until age 65. At that time, the disability payment comes from regular
Social Security retirement, without penalty for early retirement or
quarters of no income subsequent to the onset of disability.
In
addition to ongoing monthly benefits, most Fibromyalgia patients receive
substantial retroactive moneys. Social Security benefits begin with the
sixth month following the cessation of work activity. The first 5 months
of benefits are retained by the government as a "waiting
period." It is not uncommon for more than 24 months to have elapsed
before a favorable determination. Because of delays during the filing
process, early recognition of disability and early filing are important:
Disability benefits are payable as of 1 year before application;
Supplemental Security Income is payable from the application date.
|
|
STEPS FOR THE PHYSICIAN
ASSISTING IN A DISABILITY CLAIM
|
1.
When it becomes clear that the patient will be unable to perform any
work for at least 12 consecutive months, suggest that the patient apply
to the Social Security Administration for disability payments.
2.
Make sure that all entries on the patient's chart are complete and
detailed.
3.
Once the application and appeals processes have been exhausted and a
hearing is scheduled, work with the patient's attorney to prepare a
narrative report on both the patient and the illness causing the
disability.
4.
Prepare, with the attorney, testimony to be presented in person in
court.
| |
