FIBROMYALGIA & DISABILITY BENEFITS

In July 2012 Social Security issued Ruling SSR 12-2p on fibromyalgia.  The gist of it is that fibromyalgia may be a medically determinable impairment and it can be the basis for a finding of disability.  

Social Security has instructed all its administrative law judges and other adjudicators to follow SSR 96-7p to evaluate a claimant's statement about symptoms and functional limitations.

This was kind of a milestone for sufferers of fibromyalgia.

For years, fibromyalgia was a little understood disorder and some Social Security judges did not consider it to be a "medically determinable impairment. Judges often ruled that disability could not be established merely on the basis of symptoms and that a medically determinable impairment must be deomonstrated by medical signs and laboratory findings.  There is no laboratory test for fibromyalgia.  It is usually diagnosed by exclusion of other disorders and by locating "tender points."  Many Social Security adjudicators simply did not believe that the disease existed - or if it did - it was not severe enough to cause disability.

Once a medically determinable Impairment (MDI) has been established by a physician (MD or DO), as required under SSR 06-3p, then SSA will look at evidence from any treating source, including those which are not "acceptable medical sources" (non-doctors). Evidence may also include statements by family, friends, former employers, teachers, etc. to establish daily limitations of function over time.  There still is no specific "listing" for fibromyalgia but it may equal another listing--such as 14.09D for inflammatory arthritis.

It is extremely important that the claimant provide Social Security with the full history of fibromyalgia symptoms and treatment over time.  The SSA acknowledges that it is a disease that can "wax and wane."

At last, a Social Security ruling provides judges and other adjudicators with a framework to find that "widespread pain and other symptoms associated with fibromyalgia, such as fatigue, may result in functional limitations that prevent a person from doing the full range of unskilled work.  Persons with fibromyalgia may also have non-exertional physical or mental limtiations because of pain or fatigue.

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Source:  Some of the information in this blog is from NOSSCR, Social Security Forum, Vol. 34, No. 7, July, 2012.

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MARVIN'S $60,000 DISABILITY MISTAKE

The Forsythe Firm in Huntsville represents persons who are unable to work needing SSDI benefits.

Marvin is a 54 year-old construction worker who has herniated cervical and lumbar discs and recently underwent a lumbar fusion surgery, which will not eliminate all his pain and symptoms. He applied for Social Security disability in late 2017 and was denied in April of 2018. Social Security agreed that Marvin* could not do construction work but stated that he "is able to do other jobs available in the national economy."

Marvin believed them. He looked for other work for months but couldn't find anything that he could do. In September of 2019, Marvin came to my office looking for help. Here is how I figure it:

1. Marvin is indeed disabled, in spite of what Social Security said in their letter.
2. Marvin almost certainly could've won his claim with back benefits if he had appealed within the time limit.
3. His 60 days for appeal has long ago expired - so his claim was now dead as a doornail.
4. Marvin's only choice, unfortunately, is to file a new claim and start over, which gives up the back benefits under his original claim.
5. Marvin's failure to file a timely appeal probably cost him $60,000 or more in benefits and will cause him to wait another 12 to 16 months before he can get a hearing on the new claim.

The moral of my story is very simple. When you get a rejection letter from Social Security, don't fool around. Appeal that decision within the 60 day time limit. Do not file a new claim without getting profesional advice.  Appeal the original claim. Do not wait until you get all your ducks in a row; appeal the denial within 60 days.  Figure it out later.  You'll have plenty of time. 

My office will help you with filing the appeal and also with putting together a case for the hearing judge. We charge no fee until your Social Security back pay arrives. At that point, Social Security will deduct our fee from your back pay, pay us, and put your money into your bank account. If you don't win or if you do not collect back pay, there is no fee for our service.  Local Social Security advocates - See our webpage here.

*Note: I never use clients' real names in my blogs. "Marvin" represents a typical case but a fictitious name is used to protect the real claimant's identity.

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SOCIAL SECURITY DISABILITY Q & A

Q.  Who makes the initial decision whether I am disabled or not?

A.  Social Security hands off that decision to a state agency known as the Disability Determination Service.

Q.  If my claim is denied what should I do?

A.  File a written request for a hearing within 60 days of the denial--if you live in Alabama.  If you live in Tennessee, file a written request for "Reconsideration," which is different than a hearing.  Procedures differ between Alabama and Tennessee but the 60 day rule applies in both states.

Q.  If I hire an attorney or representative, how is he or she paid?

A.  If you win the case, Social Security will withhold an approved fee out of your accrued back pay and pay the representative directly (assuming that the representative is qualified for direct payment of fees). If you don't win there is no fee.

Q.  What's the timetable for Social Security disability decisions?

A.  Times vary by location but here is the general time frames:  You will get an initial decision within 3 to 4 months of filing the application.  If you must appeal and have a hearing, it will take 12 months on average. Wait times for hearings vary from office to office with the national average being just over one year.  You will receive a notice of the judge's decision by mail usually within 6 to 8 weeks after the hearing. Payment is usually made within 60 days after notice of decision, barring any complications.  Be sure your banking information on file with Social Security is correct because payments will be made by direct deposit.  An error in your account or routing number can cause untold misery and delay.  Also, be sure Social Security has your correct mailing address.  Returned mail can delay payments, even if you are getting direct deposit.  The post office will not forward Social Security mail and when mail gets returned to Social Security, it can hold up things for a long time.

Q.  Can my attorney get my hearing expedited?

A.  Expedited hearings are available only in two extreme situations:  (1) Your condition is expected to result in death within one year, (2) you have a dire need.  Examples of "dire need" might be:  no food, inability to get urgent medical care, you are homeless or about to be evicted, etc.  Most situations do not qualify for expedited handling.

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MENTAL DISORDERS AND SOCIAL SECURITY DISABILITY

Which of the following mental disorders can qualify for Social Security disability benefits?

• Anxiety
• Major Depressive Disorder
• Agoraphobia
• Post Traumatic Stress Disorder
• Paranoia
• Schizophrenia
• Bipolar Disorder
• Personality Disorders
• Panic Disorder
• General Anxiety Disorder

ANSWER:  All of the above, and more.

Social Security will recognize any mental disorder that can be medically documented and which is severe enough to cause major limitations in the ability to work.  The duration requirement is the same as for physical conditions; you must be unable to work (or expect to be unable to work) for 12 continuous months or more.

How Can We Help You Get Disability Benefits?


The Forsythe Firm specializes in obtaining Social Security disability benefits for adults who cannot work because of mental, emotional or psychological impairments.  While we also handle claims for physical impairments, we win a great many disability claims based on mental conditions.  There is no charge for our services unless you win your case and collect back pay.  Click this link for information on the Forsythe Firm in Huntsville.

WHAT IS A SOCIAL SECURITY DISABILITY HEARING LIKE?

A Social Security disability hearing occurs when your claim has been denied at the initial level. 
Hearings are face-to-face proceedings before a US administrative law judge (ALJ).  They are held in small conference-like rooms, typically with the following persons present:

• the administrative law judge (ALJ)
• the claimant
• the claimant's attorney or representative
• a Social Security employee who makes a recording of the proceeding
• a vocational expert, called by Social Security to give job related testimony

The ALJ will place the claimant and vocational expert (VE) under oath.    Some questions commonly asked by the ALJ include:

• Describe what you did at your past job(s).
• Can you drive a car?  How did you get here today?
• Tell me why you believe you can't work.
• How do you spend your day?
• What are your limitations on (bending, lifting, carrying, standing, sitting, remembering...)

The claimant's representative will also get a chance to ask the claimant questions, designed to help win the case by presenting additional evidence.

The judge will ask a vocational expert (called in by Social Security) to testify about the claimant's past work.  After a series of hypothetical questions that pose certain hypothetical restrictions, the expert will be asked if the claimant can still perform any of his/her past relevant work.  If "Yes," the hearing is probably over and the claimant loses. If "No," the hearing goes to the final step.

Is there any other work in the national economy which exists in significant numbers that the claimant can do?  If the VE says, "No, there is no other work that the claimant could perform," then a finding of disabled should occur.  However, if the VE finds some jobs that the claimant could perform, that could lead to a denial of benefits.  Then, the representative must cross examine the VE to refute or weaken the testimony.  This is a critical area where the representative earns his or her pay.  

The  typical hearing will last about 45 minutes.  Unlike the commercials on TV, your representative will probably NOT be able to tell you whether you won or lost on the day of the hearing.  Typically, the decision will be mailed to the claimant within 2 months after the hearing. 

  

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BIPOLAR DISORDER AND SOCIAL SECURITY DISABILITY

Bipolar Disorder is a relatively recent term for what used to be called "manic depression."  It refers to an affective mood disorder characterized by periods of abnormally high energy level, cognition and mood, with or without one or more depressive episodes.  The term bipolar refers to the cycling between high and low episodes (poles).  Some patients experience both manic and depressive episodes at the same time (mixed).  Many individuals experience "normal" moods that separate the high and low episodes.  If depressive and manic symptoms rapidly alternate, such a condition is referred to as "rapid recycling."

Social Security has always recognized bipolar disorder as a potentially disabling mental disorder.  In order to obtain disability benefits the claimant must establish not only the diagnosis of bipolar disorder but also the severity and duration of symptoms and the fact that the ability to function in a work environment is significantly limited. 

 It is extremely helpful to have a psychiatrist evaluate and treat cases of bipolar disorder from a Social Security advocate's viewpoint.  Social Security generally gives more weight to evidence presented by a specialist testifying within his or her own area of specialty.  A psychiatrist will also be able to prescribe medications if appropriate.

My firm has won many cases involving bipolar disorder and other mental conditions.  An individual may apply for Social Security disability without the assistance of an advocate or attorney.  However, if the claim is denied at the initial level, I recommend having an experienced advocate handle the appeal.  In Alabama, the appeal involves appearing in person before a US administrative law judge to have the case reviewed in its entirety.  The hearing is a wonderful opportunity to obtain a favorable review of the case and an award of benefits.  It is the only scenario where the claimant and his representative get a face-to-face meeting with the decision maker.  That does not happen at the initial application level and it does not happen in any later appeal proceedings - only at the hearing level.

If you would like for me to evaluate your case - please contact me through our Huntsville office at (256) 799-0297.  There is never a charge for looking at a claim or answering questions.  If we are retained to represent you, there will not be a charge unless the case is won and results in back payments.  We often get involved in cases after they have been initially denied.  We can also help claimants to file the initial application.

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BACK TROUBLE? - GET BACK PAY

Back trouble is one of the leading causes of disability.  It comes in many forms, including degenerative disc disease caused by rheumatoid arthritis, osteoarthritis, bulging  or herniated discs, neural forminal stenosis or a variety of other back related problems.  Back pain can also affect the use of upper and lower extremities and severely limit the ability to lift, bend, reach, stoop, walk or even to sit.

Social Security recognizes serious back disorders as disabling conditions and with the proper evidence may award disability benefits - including back pay (no pun intended).

It isn't enough, however, just to file a claim with "back pain."  You will need imaging studies to show the cause of back pain.  And the disease must be of such severity that it significantly restricts your capacity to work.

An experienced disability expert may be able to help you file a disability claim or appeal a claim that was recently denied.  Preparing evidence for a Social Security disability claim can be a complicated and time consuming chore.  

A professional firm such as the Forsythe Firm of Huntsville will offer free consultations and represent qualified claimants on contingency, meaning that no fee is charged unless the case is won and cash is collected from Social Security.

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THINGS THAT DON'T MATTER IN SOCIAL SECURITY DISABILITY

I see individuals with all types of impairments who need to file a Social Security disability claim.  As I listen to their stories, I am reminded of how important it is to focus on why you cannot work. Social Security law provides disability for thousands of various impairments, both physical and mental.  However, there are many factors that simply do not matter in a disability claim.  Here are some of them.

It doesn't matter that you can't find a job or that nobody will hire you.  The inability to find work is not a disability; it is an unemployment issue.  Social Security only wants to know if you are unable to work, not whether you can find work.

One claimant told me, "No one will hire me when they find out I filed a workers compensation claim because I am a liability."  It doesn't matter to Social Security.  

It doesn't matter if your education or job skills have become outdated by rapidly changing technology.  I sometimes hear, "My job has been taken over by machines."  Or, "The skills I learned in typewriter repair 35 years ago are no longer in demand."  Social Security will not consider such factors when deciding if you qualify for a disability claim.

The fact that you can't drive to work doesn't mean that you are disabled. Neither does being overweight or obese - if that is the only impairment. Recessions or economic slowdowns don't count in disability decisions.    It doesn't matter how high the unemployment rate is.

It doesn't matter if you prefer not to work in a particular industry or job classification.  "I sold cars (or insurance) for years, but I'm burned out and I don't want to work in sales any more."  That will not be considered in a Social Security disability claim.  Also, it doesn't count if you are unwilling relocate to find a job.

When it comes down to it, only 2 things matter to Social Security when it comes to determining whether you are disabled.  One, can you do any of your past relevant work?  Two, if not, can you do any other work as it is being done in the national, regional or local economy?  If you can, you are not disabled.

We might note that it doesn't matter whether there are any job openings for the work that you could do.  For example, if you could work as bench work assembler, it doesn't matter that there are no openings for bench work assembly.  The fact that you are capable of doing the work and that kind of work is being done in significant numbers, is enough to classify you as "not disabled."

I know this is frustrating.  As a friend of mine says, "It's enough to make you  scratch your head and pull your hair out."  But it's the way Social Security works.

The trek through the Social Security disability wilderness is best undertaken with a qualified guide.  Consider getting help from someone who understands the process, procedure, laws and practices.  Remember, your "guide" cannot charge you a feel unless you are successful.

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