By Donna Gregory Burch
Donna Gregory Burch
Between the pain, fatigue and other troublesome symptoms, maintaining employment can be a big challenge for many of us living with fibromyalgia.
According to National Pain Report’s most recent fibromyalgia survey, 58 percent of respondents said they can’t work due to health reasons. Only 21 percent said they are employed full time. These numbers reflect how debilitating fibromyalgia can be.
Unable to work, some fibro warriors end up applying for Social Security disability, but getting approved for benefits is anything but easy. As you’ll soon read, disability judges are questioning fibromyalgia cases even more closely these days because our condition is sometimes seen as a wastebasket diagnosis.
So what can we do to put forth the strongest disability case possible if we have fibromyalgia? I recently interviewed Jonathan Ginsberg, an Atlanta-based Social Security disability attorney and managing partner of Ginsberg Law Offices, to get his best advice for winning a fibromyalgia disability case.
Jonathan Ginsberg
Jonathan has published two how-to books about Social Security disability – the Disability Answer Guide and the Child SSI Disability Answer Guide. Jonathan is also the publisher of a national Social Security disability information website and, more recently, has developed ssdRadio, an Internet radio program about Social Security disability. He also maintains an active presence on YouTube with more than 150 educational videos.
Below, Jonathan shares his expertise in navigating the Social Security disability system with fibromyalgia.
I’ve heard varying opinions regarding the difficulty of getting approved for Social Security disability for fibromyalgia. Can you get Social Security disability for fibromyalgia on its own? Or is it usually people with multiple conditions, including fibromyalgia, who are most successful at getting approved for benefits?
You can get Social Security disability for fibromyalgia (FMS). The Social Security Administration (SSA) has even published a ruling that instructs judges how to evaluate FMS cases. However, Social Security judges give FMS cases much more scrutiny than they did even five years ago, perhaps because FMS is over diagnosed by family doctors when they need a diagnosis to help explain a patient’s intractable pain.
In 2016, judges are much more comfortable approving claims for diseases and conditions that can be identified using a diagnostic test like an MRI, CT scan, EMG, etc. As such, if I am representing a client with fibro and another condition that can be radiographically confirmed, I’ll usually focus my argument on the condition with the objective evidence. If I have no other condition to work with, I can build a winning case based on fibro alone, but I will need the right kind of evidence.
The right kind of evidence for a fibromyalgia case consists of long-term treatment notes from a rheumatologist or pain management specialist, a statement that the patient’s condition meets the criteria set forth by the American College of Rheumatology, and evidence from medical records and testimony that the patient has been fully compliant with all treatment and medical recommendations.
I also find that judges expect a certain type of claimant – the classic profile is a “type A” female – usually in their mid to late 40s with a very strong work history. Typically this person is an overachiever, often ending up in a job that would otherwise require more education or work experience than what my client has. My classic FMS client will have gone from doctor to doctor seeking relief. Often my client brings me one or two three-ring binders containing medical records organized with color-coded tabs.
I have never known any male to recover Social Security disability based on fibromyalgia.
There are people who don’t believe fibromyalgia exists. Most physicians recognize it as a syndrome, not a disease. Does that make it more difficult to get approved? Are judges becoming more educated in the condition?
Years ago, I appeared before judges who did not believe that fibromyalgia existed. They would bring in psychiatrists, internists and other specialists to try to better understand what this condition was. Now, most Social Security administrative law judges do understand that fibromyalgia exists and is real, but some are still skeptical because it cannot be confirmed radiographically. Even these judges will approve cases where there is unqualified support (in the form of a functional capacity evaluation form) from a treating rheumatologist or pain doctor.
Last year, the United States finally started using the ICD-10 coding system for medical billing. For the first time, fibromyalgia has its own code. Does that bring legitimacy to the condition?
The ICD-10 coding status has never come up at a hearing I have attended. I do think that the majority of medical providers do recognize that fibromyalgia does exist in some patients. Again, the struggle is to separate patients who really have the syndrome from those that may have pain but not FMS pain.
Can you still work and apply for benefits?
In theory you can work part time and still apply. Social Security defines “disability” as the inability to engage in substantial gainful activity because of a medical condition or condition that has lasted or is expected to last 12 consecutive months or result in death.
For 2016, “substantial gainful activity” is equal to monthly gross income of $1,130, so, in theory, one could work part time, earning less than that and still pursue disability.
In reality, however, I advise my clients that ongoing part-time work is a problem. Most judges see disability in a black or white context. Either you are disabled or you are not. When a claimant is working part time, the judge may conclude that the claimant could work full time at an easier, less demanding job.
Here is more about the problems with part-time work.
Here is a video I recorded about how to explain part-time work at a hearing.
Some of us are able to work a few hours, but can’t handle a full-time job. Does partial disability exist?
No, Social Security only awards full disability. Either you are disabled or you are not. There is no “partial” disability under Social Security law at this time.
Can you explain what happens when you apply for disability?
When someone applies for Social Security disability that application is considered an “initial application.” The case file is sent to an adjudicator, who functions like an insurance claims adjuster, who works for the state (not federal government) in the state where the claimant lives. This is called the “state agency,” and every state has one. The adjudicator sends out requests for medical records, requests for work or education records, and statements from third parties. This initial evaluation process takes 3-5 months.
When the evidence comes back, the adjudicator will review it and ask an in-house physician or psychologist to review it as well. Most of the time in a FMS case, the conclusion will be that the claimant is not disabled, and a denial notice will be sent out.
Upon receipt of the denial notice, the claimant has 60 days to file an appeal. This appeal is called a “request for reconsideration.” When the reconsideration request is received by the state agency, it will be sent to an adjudicator for review. If the reconsideration appeal references new medical or non-medical evidence, the adjudicator will request it. Otherwise the file will again be reviewed by an in-house medical source and a decision issued. This process takes 3-5 months as well. Only about 10 percent of claims are approved at reconsideration.
When the reconsideration denial is issued, the claimant has 60 days to request a hearing. Currently there is a one- to two-year delay from the time a hearing is requested to the time a hearing is scheduled.
You can and should appeal an initial denial and a reconsideration denial. The hearing is your best chance at winning because you have a judge who has more authority and training to review the entire file.
If you lose at the hearing, you can file an appeal to the Appeals Council. It can take one to two years to get a decision, and very few hearing decisions are remanded (sent back) or reversed. If you lose at the Appeals Council, you can appeal to federal court, but here, too, the odds are very small.
Appeals to the Appeals Council or federal court will generally only be successful if you can show the judge made a mistake in analysis or if the judge misrepresented the evidence. The Appeals Council or federal court will not take a new look at the evidence.
If a claimant loses at the hearing, I look at the unfavorable decision for a possible appeal, but I would estimate that I accept no more than 5 percent of the denials I see for appeal.
You can start over, but your onset date for your new claim will be the day after the unfavorable hearing decision.
Why does the process of seeking disability benefits take so long?
It takes so long because the SSA is underfunded and understaffed. They also use a kludgy procedure for every claim – even the ones that are clearly without merit. Eight years ago, SSA invested $300 million in a computer system to replace a system that used 54 separate computer systems, but basically had to write off that investment and start over. The number of claims has continued to rise but Congress has been unwilling to increase SSA’s budget to evaluate these claims.
SSA has made great strides in porting over to a paperless file system, which has been very helpful, but the delays in claim processing continue to rise without any indication that wait times will level out and decrease. I regularly try cases for clients who applied 2.5 to three years previously.
At what point should you hire a disability attorney? And how do you choose a good one?
My feeling is that you don’t need an attorney to file your application. It is easy and free to file. Just go to ssa.gov/applyfordisability, or call (800) 772-1213. At the initial application stage, the Social Security adjudicator will gather information about your case, including medical records, statements from third parties, work records, etc. and make a decision.
If you get denied at your initial application stage, it may make sense to hire a lawyer to prepare and file your appeal. A lawyer can help in four ways:
- Once a lawyer is associated with your case, both you and your lawyer will receive notices from SSA. This may not seem like a big deal, but SSA loses files on a regular basis, and they also can be unreliable with their mailing. Every year I get calls from potential clients whose initial applications were denied, but the claimant never got notice. Having a second recipient for notices makes it more likely that at least one of you will get any notice, and your lawyer will know when to start calling if no notice comes when it should be there.
- SSA insists that all medical conditions must be identified early on – at initial or at reconsideration. A lawyer will review your records and make sure that all relevant medical issues are revealed on the forms. Hearing judges will not consider medical issues not previously raised at the initial/reconsideration stage, so it is crucial that all relevant medical issues are raised early.
- A lawyer will develop a working theory of disability for your case. Many claimants, for example, have never heard of the listing or the grid rules, nor do they understand what they have to prove in a functional capacity argument. While it is arguably rare that a FMS case will be approved at reconsideration, it does happen if the lawyer gets a treating specialist to complete a functional capacity form and when medical records are complete. (As an aside, I wrote a book called the Disability Answer Guide that explains how to best complete the administrative forms if someone does not want to hire a lawyer at reconsideration.)
- A lawyer can also take some of the stress from a claimant. SSA speaks its own language and requires literally dozens of forms to be completed.
As far as how to find a good lawyer, I would use Google to search for a lawyer with 10+ years of experience in this field. Avoid lawyers who dabble in Social Security disability. This is not an area where you can take two or three cases a year and stay sharp. I am also not a fan of the giant legal mill advertising firms. Many of these big advertisers use contract lawyers to try cases, and the hearing lawyer may not be familiar with the judges in your area. There is a professional association called NOSSCR with a lawyer referral service.
How important are medical records in building a disability case?
Medical records are 90 percent of what makes a successful case. SSA looks for what they call a “longitudinal treatment record” (ongoing treatment over an extended period of time) and medical source statements (either a statement on a listing or a functional capacity form).
The law requires SSA to help “develop the record” if a claimant does not have much treatment but this usually amounts to SSA sending the claimant to one or more consultative examinations. The physical medicine consultative examinations are usually worthless; they typically use the same types of doctors that insurance companies use to deny claims (industrial clinic docs). The psychological evaluations are usually a bit more helpful but it is not wise to rely solely or mostly on a consultative evaluation in an SSD case.
Typically, fibro claimants do not have a shortage of medical records. There can be issues with doctors who don’t believe in the concept of disability and thus won’t complete forms, or when a claimant moves from doctor to doctor seeking relief, and no one doctor has enough contact with the claimant to fill out a form.
In online forums, well-meaning people sometimes advise others not to wear makeup or style their hair in an attempt to look sicker during their hearing. What are your thoughts on that advice?
I advise my clients to dress comfortably and casually. I would not deliberately try to look sick but I wouldn’t try to mask how the claimant really feels. In my view, the medical record represents about 90 percent of what makes up a decision. One’s appearance and testimony at a hearing are far less important than a strong medical record.
What factors do the judges consider when rendering their decision?
The judge’s role is to translate medical records into specific work limitations. So, a comprehensive set of medical treatment records and opinion evidence in the form of a functional capacity evaluation make up 90 percent of what a judge needs.
Testimony is also important. I advise my clients to avoid showing an attitude of entitlement. Come across as a fighter – someone who does not want to be asking for disability and who would return to work immediately if possible.
Judges also expect claimants to be prepared for their hearings. For example, there are certain background questions that are always asked (work history, job titles, etc.). You should not waste time pondering these questions while on the clock at your hearing. Hearings last 45 minutes to an hour, so don’t waste the judge’s time. It is also important to describe your limitations specifically. Avoid phrases like “not very much” or “not very far.” You need to give answers using specific measurements – pounds, minutes, feet/yards. I have almost 60 videos on my YouTube channel discussing hearing advice, which covers hearing strategy in great detail.
What general advice can you give to someone applying for disability for fibromyalgia?
I think that, in general, fibro cases are more difficult to win than in years past. You need more than a FMS diagnosis from your family doctor and your own testimony. If you meet the profile (see question #1 above) and if you have medical records from both your family doctor and a rheumatologist and/or pain doctor, and if you have support from one or more specialists (a functional capacity evaluation that identifies significant work limitations), you stand a strong chance at winning.
Always keep in mind that your diagnosis is much less important than opinion evidence from your treating doctor setting out specific activity limitations that arise from your fibro.
*****
Donna Gregory Burch was diagnosed with fibromyalgia in 2014 after several years of unexplained pain, fatigue and other symptoms. Earlier this year, she was diagnosed with chronic Lyme disease. Donna covers news, treatments, research and practical tips for living better with fibromyalgia on her blog, FedUpwithFatigue.com. She is an award-winning journalist whose work has appeared online and in newspapers and magazines throughout Virginia, Delaware and Pennsylvania. She lives in Delaware with her husband and their many fur babies.