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by Janet Mizrahi
September 1, 2000
You feel awful all the time. You can barely dredge up the energy to take a bath, no less get dressed, go to work, and actually be productive. You know you’re disabled--your doctor knows you’re disabled. So you’ll win that disability case to get SSDI, right? Well, not necessarily so, says Scott Davis, an attorney who specializes in FM/CFS disability cases.
According to Davis, “One of the biggest reasons people lose disability cases is because they don’t retain an attorney at the beginning of the process. It sounds self-serving, but it’s not,” he adds. “Disability attorneys work on contingency fee basis, meaning you only pay a fee if you win your case – you have nothing to lose.”
Using a lawyer before or at the time of filing a claim will help build the proper case to show to Social Security and a judge, who will ultimately hear the case and decide your fate.
But besides that, Davis says, an attorney can help you forge ahead with the process. Many people never bother to file a claim because they don’t have the energy or feel it’s just hopeless or simply because they don’t know what to do. An attorney not only can give you hope that you have a case, he or she guides you through the process.
Another death knell to a disability case, Davis says, is inadequate medical records. “Disability cases are ultimately won and lost on adequately documented medical records and detailed opinions from the treating physician regarding their ability to work, or their inability to work,” he states.
Lack of documentation can happen in a number of ways. One may be a result of a lack of adequate treatment. “Particularly in the FM/CFS arena,” Davis says, “people are repeatedly told by their doctors that there’s nothing medicine can do, to live with their illness and deal with it. Which is exactly what people do. They stop seeking treatment.
“Or I’ve seen people do the opposite. They go to a host of doctors on an odyssey to get a diagnosis. After being worn out from seeing doctor after doctor and getting treatments without any benefit, they quit going. The attitude becomes, why bother? Nothing is helping to alleviate the symptoms.”
Both tactics result in barren medical records -- a huge mistake. “Even if you have a very good attorney, I’m only the orchestrator,” Davis says. “My ability to help a client is more limited if there are no medical records or if the medical records don’t say anything. Medical records load the gun for me to use when I argue a client is unable to work.”
Davis suggests that ideally, people should view their medical records on a regular basis. This way you can see for yourself if your complaints of pain or other symptoms are being documented. If they are not, patients can tactfully ask their doctors to work with them to get the records in shape for their cases. Many general practitioners and HMO physicians are overburdened and do not take the time to dictate their reports and their handwriting is illegible. Davis explains that the reality of this is that SSI people evaluating the case and judges won’t take the time to read something that’s difficult to sift through. Sometimes making the physician aware that your entire claim is dependent on the medical records can help.
Davis cautions people with claims that sometimes, even if everything is in order, you still won’t win. “I recently lost a case where two treating physicians, a physical therapist and her husband who she worked with, all concluded that a woman with FM wasn’t able to work. The judge wouldn’t listen to either of them and her claim was denied. Her case was adequately documented, but the judge was looking for a reason to deny her.
“Unfortunately,” Davis says, “once social security and the judge look to deny the claim, they’ll say the doctor’s opinion is not supported by objective medical evidence or by medical records, even though it is. This happens even in good cases! If you get in front of the wrong judge, he or she will use that as the way to support a denial of your claim.”
Davis will appeal the recent case, but he advises people to make absolutely certain, from the outset, that they get treatment, that the treatment is properly documented, that the claims they make verbally to SSDI are consistent with those in their written records, and to retain an attorney. “It’s not the only way to win,” he says, “but it can’t hurt.”
Scott E. Davis is a social security and long-term disability insurance attorney who represents clients throughout the United States. Although he represents a wide spectrum of cases, a majority of his practice is devoted to representing individuals with FM and/or CFIDS. In most cases a fee is charged only if the client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via email info@scottdavispc.com or telephone (602)482-4300.
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