Disability update:
A lawyer reviews what you need to know
By Meyer Silver, Esq.

Though long dismissed by cynics as simply a form of hypochondria, chronic fatigue syndrome (CFS) is finally receiving the recognition it deserves as a very real illness that often leaves its victims unable to perform even the simplest of everyday tasks. Fortunately, the disability claims process is, slowly but surely, becoming more receptive to claims for benefits by those afflicted with CFS.

In a case our office handled recently, we were pleasantly surprised by an administrative law judge out of Baltimore, who sent us a letter just prior to the claimant's hearing indicating that the court would "be taking official notice" of the Center for Disease Control's article, "The Chronic Fatigue Syndrome: A Comprehensive Approach to Its Definition and Study." Though this article was published in 1994 by the Annals of Internal Medicine, we were gratified that more and more judges at the administrative level are finally becoming knowledgeable about this disease and are trying to utilize consistent standards for the awarding of disability benefits based solely or in part by the limitations imposed by CFS.

Over the last few years, our federal courts have demonstrated more willingness to recognize the limitations associated with this disease and in 1998, the Ninth Circuit joined the Seventh and Tenth Circuits in recognizing chronic fatigue syndrome. The court in Reddick specifically referred to the diagnostic criteria issued by the Centers for Disease Control (CDC) as well as the Social Security Administration's Program Operations Manual System's (POMS) guidelines for evaluating this impairment. The court held that it was an error for the administrative law judge to assess the claimant using a traditional pain approach without considering the factors recognized by the CDC and the POMS, and that the Residual Functional Capacity analysis must include the claimant's fatigue. The court also noted that the claimant's ability to pursue simple and minimal daily activities, by itself, was not a proper basis for questioning her credibility.

Finally, the Reddick court held that a medical report cannot be discredited or given less weight simply because it was requested by the claimant's attorney.

A few of the more recent court decisions provide some valuable pointers for winning a Social Security disability case for a claimant who suffers from CFS:

Document steps in diagnosis
The medical evidence presented to the court should include thorough documentation of the clinical steps taken in diagnosing the claimant. The Social Security Act requires an attorney representing a claimant diagnosed with CFS to show the court, through the use of medical evidence, that the health professional made the diagnosis by using "medically acceptable clinical or laboratory diagnostic techniques." Courts recognize that there is no "dipstick" laboratory test for diagnosing CFS; rather, it is diagnosed by a clinical technique that involves testing, the matching of a detailed list of symptoms, the painstaking exclusion of other possible disorders, and a thorough review of the claimant's medical history. Careful documentation of each of these steps can be very helpful in winning a CFS case in court.

Show evidence of disability
A claimant's attorney must show the court not only that the claimant has been diagnosed with CFS, but also that the illness has caused the claimant to be "disabled." In a case involving a disability of nontraumatic origin, such as CFS, the crucial point in time is not the date of diagnosis of CFS, but the date the illness became "disabling" for Social Security purposes. To be "disabling," the illness must be of such severity that, considering the claimant's age, education and work experience, he or she is unable to engage in any kind of substantial gainful work that exists in the national economy. A health professional's opinion that CFS has had a disabling effect on the claimant, and an assessment of the time at which it became disabling, is an important ingredient of a successful CFS case.

Your testimony is vital
In showing the disabling effect of CFS on a claimant, the claimant's own testimony is also important. Because the methods for diagnosing CFS are limited, the claimant's own testimony concerning the symptoms he or she has suffered and their effect on day-to-day activities has greater significance. A health professional's documentation of these symptoms and their effects on the claimant over a period of time can enhance the credibility of the claimant's testimony in court.

What the SSA wants to know
Despite its initial skepticism, the SSA now at least recognizes CFS as a potentially disabling illness. One's eligibility for benefits must be adjudicated on a case-by-case basis. According to an SSA fact sheet, information helpful in proving CFS includes:

• Documentation of the existence, severity, and duration of the illness;
• Medical reports that contain thorough medical histories and all pertinent clinical and laboratory findings from the health professional's examination of the claimant, including the results of any mental status examination;
• Longitudinal clinical records and detailed historical notes discussing the course of the disorder, including treatment and response, to assist to the SSA in assessing the impact of the illness over a period of time;
• Information contrasting the claimant's medical condition and functional capabilities before and after the onset of CFS;
• The health professional's opinion concerning the work-related activities (including both physical and mental functions) the claimant can still do despite the impairment and, if possible, the reasons for each opinion (e.g., clinical findings, personal observations); and
• Descriptions of functional limitations that the health professional noted throughout the time he or she treated the claimant.
   

An SSA team consisting of a physician or psychologist and a specially trained disability examiner are responsible for evaluating disability for individuals with CFS. In conducting the evaluation, the team will look at all available evidence, including the clinical course from the onset of the illness, and will consider the impact of the illness on each affected body system.

As advocates, our job is to educate the court to understand that chronic fatigue syndrome is much more than just "being tired"; it is a genuine clinical condition that can drastically alter an individual's ability to function from day to day. As more information is discovered about CFS, the SSA is becoming more open-minded when evaluating benefit claims by those who suffer from its debilitating effects. Careful documentation of the course of a patient's bout with CFS over time, as well as any resulting functional limitations, are especially useful in helping a disability attorney convince a skeptical Social Security examiner or judge.

Mike Silver has been practicing disability law for more than 23 years.  His law firm, Silver & Silver, is located in Ardmore, Pa, near Philadelphia.  In 1990, he was elected president of the National Organization of Social Security Claimants' Representatives (NOSSCR).