DISABIILTY BENEFITS FOR FIBROMYALGIA

Will Social Security pay a disability benefit for fibromyalgia?  Yes, it may--if the symptoms are severe enough to prevent the ability to perform any substantial gainful activity.  Simply said, symptoms must be severe enough to prevent any full-time work, and must be medically demonstrated.

On July 25, 2012, Social Security issued SSR 12.02(P) which recognizes fibromyalgia as a medically determinable impairment and establishing guidelines by which the disease will be evaluated for Social Security benefits.

There are really two sets of medical criteria from the American College of Rheumatology for the diagnosis of fibromyalgia.  The 1990 criteria require the finding of 11 specific tender points.  The 2010 criteria do not require the finding of tender points.  Both criteria require that other causes of the symptoms be ruled out--because there is no specific medical test for fibromyalgia.

In short, having a diagnosis of fibromyalgia is not sufficient to get a disability benefit.  A claimant must use medical evidence to demonstrate that his/her symptoms are so severe as to prohibit the performance of any "substantial gainful activity."  Generally, this means that the claimant is not able to perform any full-time work which exists in the national economy.

Frankly, fibromyalgia cases are somewhat difficult to win, especially in persons under age 50.  What I look for is good medical evidence from a claimant's treating rheumatologist.  Then, I try to get written statements from the treating doctor which specify the work-related activities that the claimant cannot perform.

The biggest obstacle in getting any disability case approved is the lack of medical treatment.  Often, we have claimants who are treated by someone other than a medical doctor (MD or DO)--and these providers are not recognized by Social Security as "acceptable medical sources."  Also, we see claimants with fibromyalgia who do not see a rheumatologist, which is the specialist best equipped to diagnose and treat fibromyalgia.

RECOMMENDATINONS

If you have fibromyalgia (or suspect you do), I would make these recommendations from the viewpoint of a Social Security disability claim:

• Get examined by a rheumatologist.
• Follow prescribed treatment if you can.
• Be sure the person who treats you is either an doctor of medicine (MD) or doctor of osteopath (D.O.).  A rheumatologist will certainly be one or the other.  Nurse practitioners (CRNPs), however, are not acceptable medical sources with Social Security.
• Try to see your doctor regularly (at least 3 or 4 times a year) for management.

If you want to read Social Security's ruling on how they evaluate fibromyalgia for disability, I recommend you check out this link:

SSR 12-2(P) on Fibromyalgia

For questions about disability or representation help--contact us at the Forsythe Firm.  (256) 799-0297.

SHOULD YOU HAVE A SOCIAL SECURITY DISABILITY HEARING BY VIDEO?

Responding to the severe backlog of hearings and the long wait time to get a hearing, Social Security is now doing a large percentage of their disability hearings by Video-Teleconference (VTC). 

But do you really want to have your hearing by VTC?

You have a choice.  You can opt out of video hearings, if you do so according to the rules.  (More on that later).

The major advantage of a video-teleconference is that it shortens the wait time for a hearing.  However, my research indicates that it only shortens the wait time by 1 or 2 months.  Therefore, you are waiting 20 months instead of 21 or 22 months, not a significant reduction.

What is the approval rate of VTC hearings vs. in-person hearings? Again, my research indicates that in-person hearings result in awards about 5 percent more often than video hearings.  A 5 percent increase may not sound like much, but it is significant.

What if you want to opt out of a VTC and insist on an in-person hearing where the judge is in the same room with you, not on a TV screen?  Here is the rule you must follow:

Social Security will send you a written notice that you they may schedule a hearing for you by Video-Teleconference.  This is normally in a packet of materials sent out a few months after you submit your appeal.  Once you receive this notice, you must object to a VTC in writing within 30 days of the date of notice.  A form is sent with the notice for this purpose.

There may be instances where attending a hearing by video-teleconference is a good idea.  An example would be if you are in a hearing office with very low award rates.  A video hearing may give you a better chance but there are, of course, no guarantees.

Need help with a Social Security disability claim or appeal?  Get a free consultations and case evaluation by calling the Forsythe Firm here in Huntsville.  (We work with clients all over Alabama and middle Tennessee).

  THE FORSYTHE FIRM
Practice Limited to Social Security disability 
7027 Old Madison Pike NW - Suite 108
Huntsville, AL 35806
(256) 799-0297

SOCIAL SECURITY JUSTICE - MORE INFORMATION 

CONCENTRATION, PERSISTENCE AND PACE ISSUES

I win many Social Security disability cases by showing how my client has trouble with concentration, persistence and pace (CPP).

These issues are not obvious to the casual observer but certainly may qualify for a disability benefit. Under SSR 96-9(p), Social Security considers "work" as the ability to work 8 hours per day, 5 days per week or an equivalent schedule.  CPP issues prevent this and qualify for disability.

CONCENTRATION is the ability to remain focused and on task for at at least 2 hours at a time and to complete an 8-hour workday.  Most workers will be off task about 5 to 9 percent of the workday and this is tolerated.  However, concentration can be hindered by pain, fatigue, depression or other mental health issues.  When a worker is off task more than about 10 percent of the workday on a consistent basis due to one of these medical issues,  they become unemployable.

PERSISTENCE is the ability to report to work and do a job  8 hours a day, 5 days a week, 52 weeks out of the year.  Some individuals can work part of the time but not on a dependable, regular schedule.  For example, if you can work 3 or 4 days per week but would have to be absent 2 or 3 days, you don't have the persistence for full-time work under 96-9(p).  The same is true if you can work 4 or 5 hours a day but not 8.  If you can work but require a few additional rest breaks during the day due to pain or fatigue you don't have the persistence for full-time work and may be disabled.

PACE is the ability to work fast enough and steady enough to meet the job's requirements.  If you need additional time to complete your work, require excessive help or supervision or other special accommodations, you may not be able to sustain the pace required of full-time, competitive work.  A worker is expected to be able to "keep up" with job demands, and this includes goal setting, planning and the independent execution of job duties.

Your attorney or representative will examine these CPP issues and determine if your disability case will be strengthened by making these arguments.  In a hearing, there is nearly always a vocational expert present to testify.  Your representative will want to pose questions to the vocational expert about concentration, persistence and pace problems--which may result in the decision that you cannot perform full time, competitive work, thus resulting in approval of benefits.

Call us if you need a free evaluation of your case without cost or obligation.

SOCIAL SECURITY BENEFIT IS NOT WELFARE

I speak truthfully when I tell people that Social Security disability is not welfare.  You paid for it, you earned it.  Claim it.

Here's why the Social Security disability program is not welfare:

1)  You paid FICA tax every day you worked.  FICA stands for "Federal Insurance Contribution Act."  It's actually a Social Security tax.  It came out of every paycheck you earned.

2)  You were forced to purchase Social Security disability insurance (SSDI) by the US government.  You were not given a choice.  This is a government sponsored disability insurance plan, just like you would purchase from an insurance company.  The only difference, it was mandatory--you were forced to buy it, no choice.

3)  The Social Security program is self-financing.  It is not paid for out of the general US treasury.  FICA taxes come out of your paycheck, are matched by your employer, and go into a special trust fund.  When you become disabled, money comes out of the trust fund to pay your benefit.  This is the same principle used by large insurance companies to offer benefits to their policyholders.  When you get an SSDI benefit check, you are not spending government tax money.

If you bought an insurance policy from Allstate, State Farm, Met Life or any other large insurance company, and paid premiums for years, wouldn't you expect them to pay a claim on the policy?  That would not be welfare.  That would be business under contract.

The same is true with Social Security disability.  You paid the premium every day you worked.  Now, you have a claim.  Expect the government insurance plan to pay off on it.  No welfare involved here.   

BAD BACK: GOOD CASE

Spinal disorders are the Number One cause of disability in the United States.  They can make good SSDI cases.  If you have a bad back, you may have a winning claim if you........

a)  Have had an MRI of the spine and it shows bulging or protruding discs or other severe spinal impairments;

b)  Have a history of medical treatment for back pain without significant improvement;

c)  Get a statement from your orthopedic specialist which lists your restrictions in sitting, standing, walking, bending, lifting and reaching.

Your odds will be improved if your past work involved a great deal of standing, walking, lifting and bending.  However, many individuals with bad backs also have trouble sitting for prolonged periods and this can impair the ability to do sedentary type work, as well.

Objective medical evidence, including imaging studies are critical.  Social Security does not like to pay for back pain where the cause (etiology) is not clearly demonstrated. But if there is physical evidence, spinal disorders may certainly be legally disabling conditions.

DISABILITY DUE TO INFLAMMATORY BOWEL DISEASE

There are a number of inflammatory bowel diseases which can so interrupt the workday as to make an individual disabled.These would include Crohn’s disease, ulcerative colitis, schistosomiasis and amebic colitis, among others.  Such illnesses are evaluated in Section 5.00 of Social Security's Blue Book.

These illnesses may preclude the ability to perform any full-time work because of regular symptoms, including:

• need to take frequent unscheduled restroom breaks
• unscheduled time away from work station to use the restroom
• need for a work station near an always-open restroom
• gastric pain that interferes with attention and concentration
• excessive missed days from work due to symptoms
• medication side effects

Judges are usually going to want to see treatment using various medication and to see that the treatment does not eliminate your symptoms. When possible, I also try to get statements from former employers or co-workers about how the symptoms caused problems performing work.  These are often winning cases.

DISABILITY APPEALS & HEARINGS FRANKLIN TN

The Forsythe Disability Firm
725 Cool Springs Blvd.
Franklin, TN 37067
PHONE (615) 732-6159

Gregory W. Forsythe, Partner
Charles W. Forsythe, Partner

Practice Focused on Social Security Disability 

Office also located in Huntsville, AL (256) 799-0297