RETURN TO TABLE OF CONTENTS
Winter 2002

Acquiring and Keeping Social Security Benefits for CFIDS and FM Sufferers
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 claim.

An individual who intends to file a Social 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 the 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.

Getting started
The 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 is required.

Because CFIDS and FM are not listed as “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, you 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 judge 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 a 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 impairment?

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
Many 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, a 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 (after 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 disabled.

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 and fibromyalgia.

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: http://www.disabilityassistance.com.

Attorney Mac Sasser has seen improvement in 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 level.”

Association president & CEO Kim Kenney 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 www.cfids.org/resources/ss-disability.asp. 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