Fibromyalgia is finally being recognized

In 1998 in response to an ALJ who stated that he would never award benefits based on fibromyalgia because it lacked objective medical evidence and was not a "medically determinable impairment", then Deputy Commisioner Susan Daniels stated that "fibromyalgia and Chronic Fatigue Syndrome can constitute medically determinable impairments within the meaning of the statute".  In 1999 SSA issued SSR 99-2p which provided guidance on the evaluation of chronic fatigue syndrome: "CFS, when accompanied by appropriate medical signs or laboratory findings, is a medically determinable impairment that can be the basis for a finding of disability".  Fibromyagia was mentioned only in a footnote "fThere is considerable overlap of symptoms between CFS and Fibromyagia Syndrom, but individuals with CFS who have tender points have a medically determinable impairment.  Individuals with impairments that fulfill the American College of Rheumatology criteria for FMS may also full=fill the criteria for CFS".

Under SSR 99-2p, claimants with fibromyalgia could be evaluated under the criteria for CFS, but there was no way to evaluate fibromyalgia on it's own.  However, ALJs continue to deny claims based on fibromyalgia by finding that the plaintiff is not credible, there is no medical diagnosis and/or that the claimant's occasional daily activities conflict with the allegations of pain.  See for example, Stone v. Astrue, 804 F.Supp.2d 975 (D.Ariz.2011), where the court remanded because the ALJ misunderstood how fibromyagia can be diagnosed.  The ALJ had rejected the plaintiff's allegations that she met the criteria of fibromyalgia because the record showed "benign examininations regarding physical impairment".  The court noted that, because fibromyalia is a diagnosis of exclusion, this benighn evidence is consistent with fibromyalgia. "Fibromyalgia patients may "present no objectively alarming signs' and may manifest normal muscle strength and neurological reactions and have a full range of motion."

As noted by several courts, an ALJ's reluctance to accept fibromyalgia as a severe impairment will then influence the weighing of the treating opinion.  See e.g. Rogers v. Commissioner of Social Security, 486 F.3d 234 (6th Cir.2007)  It can even undermine and ALJ's entire decision.  See e.g. Moraine v. SSA, 694 F.Supp.2d925 (D.Minn.2010) Misunderstanding of how fibromyagia is diagnosed and treated as well as it's effects on daily living caused one ALJ to erroneously reject the paintiff's testimony and the treating physcisian's opinion in Lawson v. Astrue, 695 F.Supp.2s720 and prescriiption for physical therapy and aerobic exercise.  Johnson v. Astrue, 597 F.3d409.  In Galliganother ALJ to incorrectly find that a treating rheumatologist's opinion was inconsistent with his an v. Astrue, 656 F.Supp.2d 1067 the ALJ cited a lack of objective medical evidence to support the plaintiff's pain allegation.  The court found that the plaintiff had produced objective medical evidence of an iunderlying impairment that could reasonably give rise to the symptoms, and remanded for further proceedings with regard to evidence of fibromyalgia.  The court noted that the ALJ's pain conclusion may, in turn, affect his severity analysis and his findings with regard to the plaintiff's allegations of mental impairment, the physical therapists' report, the plaintiff's credibility, and the impat of the plaintiff's obesity, "in short, consideration of the fibromyalgia evidence... may affect the entire sequential disability analyisis".

How Long Does a Claim for Social Security Benefits Take?

The initial application for disability benefits is handled by the local social security office.  In San Diego, the Social Security Administration contracts with the California Department of Disability Services to develop the case.  This department will order and obtain records and employ medical doctors to review records and provide opinions as to the functional capacity of the claimant.  Essentially, they are providing their opinions as to the claimant's maximum work capacity.  This stage typically takes approximately 4 to 6 months.  If the Decision is unfavorable, an appeal known as a Request for Reconsideration needs to be filed within 60 days.  This appeal is also handled by the local social security office and is again referred out to the Department of Disability Services for further development and evaluation.  The Reconsideration phase typically takes an additional 3 to 5 months.

If the Request for Reconsideration is unfavorable, a Request for a Hearing needs to be filed within 60 days.  In San Diego, the average wait for a Hearing with an Administrative Law Judge is 12.5 months.  The wait times vary widely between the various Hearings Offices throughout the country.  For a current publication issued by the Social Security Administration detailing the average wait time, click on the link below.  A request for an expedited hearing can be made under certain circumstances.  For details, please call our office at 619-278-0900.

http://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html

SUPPLEMENTAL SECURITY INCOME (SSI) INCOME REPORTING

WHO REPORTS INCOME
Ø     If you receive SSI benefits, you must report any earnings from work or any other money or help that you, your spouse or children living in your household receive. Ø     If you are the representative payee for an adult who receives SSI benefits, you must report any income that the individual, his or her spouse, or children living in the recipient’s household receive. Ø      If you are the parent, stepparent,  or representative payee for a child under age 18 who receives SSI benefits, you must report any income that the child, his or her parent(s), stepparent, or brother(s) or sister(s) receive.
WHAT INCOME TO REPORT
EARNINGS FROM WORK ü      Any jobs ü      When work starts ü      Amount of pay ü      How often paid ü      When work stops ü      Changes to your amount of pay	OTHER MONEY OR HELP ü      Any money or help received by family members who live with the person who receives SSI ü      Type of money or help (see reverse for examples) ü      Amount of money or help ü      How often payments are received ü      When the payment or help changes or ends
WHERE AND WHEN TO REPORT INCOME
ü      Call the Social Security  toll-free number at 1-800-772-1213. ü      Your local Social Security office. ü      For the deaf or hearing-impaired, call TTY 1-800-325-0778.	ü      Report new income or any change in income as soon as it happens, but no later than the 10th day of the month following the change.  For example, if work begins May 22, report immediately, but no later than June 10.

Social Security Reviewing Doctors guilty of Fraud?

  The 2 highest earning state civil service employees working in San Diego County made hundreds of thousands of dollars in bonuses last year reviewing Social Security disability claims.  The 2 doctors in question are both psychiatrists.  Dr. Robert Paxton made $440,068 and Dr. Kelly Loomis made $368,917.   These doctors earned this money from the Social Security Administration by allegedly reviewing the medical records of disability applicants and rendering opinions as to the claimants mental functional capacity.  According to the San Diego Union Tribune, Watchdog article, Dr. Paxton would have spent less than 9 minutes to review a claimant's medical records, formulate and then author his opinions.  This assumes that he took only 1 week of vacation and observed normal state holidays and worked 10 hour days with no breaks.  To earn $440,068 during calendar year 2010 he would have had to review more than 15,000 cases which equates to 70 cases per day.  If he only worked 8 hours a day he would have spent less than 7 minutes per case.  Obviously, it is impossible to review the extensive medical records that many of the claimants have often totaling more than a hundred pages and make conclusions in such a brief amount of time.  It is evident that the reviews were either not done, were inadequately done, or the opinions of other doctors were simply "rubber stamped" by these doctors.

     For those of us who practice in this field of law we see first hand the impact that these reviewing physicians have on our client's lives.  A denial of a claim for social security disability benefits is devastating for someone who is unable to work as a result of a disability.  The Social Security Administration relies heavily on the opinions from it's reviewing physicians.  For these doctors to abuse the system for their own financial gain while running roughshod  over the rights of the disabled is nothing but outrageous.  Yet Social Security when presented with these facts simply downplayed these doctors as hard working and helping to clear out the backlog of cases. For more information contact http://www.delellis.com/.

Unemployment Benefits - What Impact do they have on the Disability Application

     Many of our clients are collecting Unemployment Benefits while they are waiting for their Social Security Disability Hearing.  The average wait for a hearing with an administrative law judge is 12 months. During that time, making ends meet can be challenging and some are able to obtain unemployment benefits to hold them over.  The potential conflict is that to obtain these benefits the claimant must certify that he or she is looking for full time employment.  Arguably, looking for work is not inconsistent with a social security disability application.  However, the Judge may consider this to be inconsistent and use the unemployment benefits as an excuse to deny the claim.  I am of the opinion that our clients need to survive during the long wait to get a hearing and if that means lawfully obtaining unemployment benefits while they wait.  Recently the Chief Administrative Law Judge issued a Memorandum to administrative Judges stating "The receipt of unemployment benfits is only one of many factors that must be considered in determining whether the claimant is disabled."        In 1999 the Supreme Court held that a claim for social security disability benefits is often consistent with a claim for relief under the Americans with Disabilities Act even though there must be an ability to work in order to obtain relief under the ADA.  The Supreme Court noted that under the presumptions emnbodied in our five step sequential evaluation process, a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work.  Similar logic applies to applications for unemployment benefits.  For this reason, the memorandum from the Chief Administrative Law Judge states, "Accordingly, ALJs should look at the totality of the circumstances in determining the significance of the application for unemployment benefits and related efforts to obtain employment".  For more information please go to http://www.delellis.com/

Social Security forces claimants to chose between Appealling or Re-applying

In the event that a claimant receives an unfavorable decision at a hearing with an administrative law judge, the question becomes what does the claimant do next.  Typically, an appeal is filed with the Appeals Council which is the branch of the Social Security Administration that reviews the judges' decisions.  In addition to filing an Appeal, the claimant had been able to file a new application for disability benefits with the SSA.  The Social Security Administration has today revised their policy for filing subsequent applications where a prior application is pending at the Appeals Council.  The SSA "will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process".  The revision in policy does not apply to cases where an appeal is pending in Federal District Court.  Nor does it apply to subsequent applications that were filed prior to today. 

Key Provisions:

1.  A claimant who wants to file a new disability claim under the same title and of the same benefit type will have to choose between continuing with the administrative appeal or declining to pursue administrative rev iew and filing a new application.
2.  If the choice is to pursue the administrative appeal, SSA will not accept the subsequent application.
3.  Additional evidence reporting a new medical condition or a worsening of existing medical conditions can still be submitted.
4.  If the claimant decides to pursue the first claim and it is pending at the Appeals Council and additional evidence is submitted, the Appeals Council will first determine if the evidence relates to the period on or before the date of the ALJ hearing decision.  If it does, the Appeals Council will consider this new evidence with the rest of the record.
5.  If the new and material evidence relates to the period on or before the date of the hearing decision and "shows a critical or disabling condition, the Appeals Council will expedite its review of the pending claim".
6.  If the evidence relates to the period after the date of the ALJ decision, the Appeals Council will return the evidence to the claimant.
7.  If the claimant decides not to pursue further review of the pending claim, a new application can be filed.  However, the claimant will need to withdraw the request for review.

Obviously this change in policy is terrible for unsuccessful claimants who have legitimate issues to raise on Appeal and who wish to file a new claim that may be approved due to a worsening of their condition.  They are now forced to chose between reapply and giving up their claim for their retroactive benefits from their prior case or waiting 6 to 9 months for the Appeals Council to act on their appeal.  If the Appeal is unsuccessful, the new application will revert back to the same date that the Appeal was filed.  A link to the ruling is at: http://www.gpo.gov/fdsys/pkg/FR-2011-07-28/pdf/2011-19103.pdf .  For more information contact us at http://www.delellis.com/