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Guidelines for evaluation of ME/CFS disability claims’ by Social Security under SSR 99-2p

  [ 47 votes ]   [ Discuss This Article ] • June 23, 2010

Guidelines for evaluation of disability claims (and for the roles of physicians and patients in testing and record keeping).

[Note: though this information was issued as a news release via the Co-Cure Listserv on June 26, it does not in fact appear to be news (SSR 99-2p became effective in 1999). Nevertheless, it is a clear description of SSI disability guidelines for ME/CFS patients and so may be very useful.]

One of the battles often fought by persons with CFS trying to obtain Social Security Disability Insurance and SSI benefits was resolved with the adoption of Social Security Ruling 99-2p.

In this binding Ruling the Social Security Administration set out guidelines for adjudicators and judges to follow for claims based on Chronic Fatigue Syndrome. This Ruling removes at least one of the barriers faced by claimants.

What Was the Issue?

The Social Security Act allows for SSDI or SSI benefits to be paid to persons unable to work by reason of any medically determinable physical or mental impairment (or combination of impairments)...." (emphasis added) The Act and Regulations define the phrase "medically determinable" as a condition that can be established by medical evidence consisting of signs, symptoms and laboratory findings. It cannot be based only on the Claimant's description of symptoms.

In claims based upon CFS there are obviously a lack of medical signs, symptoms and laboratory findings. Therefore many claims were denied on the failure to prove the existence of a "medically determinable impairment."

What Does the Ruling Say?

• The Ruling states unequivocally that CFS can be a medically determinable impairment.

• It specifies medical signs and laboratory findings that will now constitute proof of a medically determinable impairment for persons suffering from CFS.

• However, whether the Claimant is actually "totally disabled" is a separate determination based upon the severity of functional limitations caused by the disease. That is the same as in any claim based upon any other medical problem.

Specified Medical Signs

This Ruling requires that any of the following medical signs, which are clinically documented over a period of at least 6 consecutive months, can establish a medically determinable impairment:

• Palpably swollen or tender lymph nodes on physical examination;

• Nonexudative pharyngitis ['dry' sore throat];

• Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points;

• Or other medical signs consistent with medically accepted clinical practice which are consistent with the other evidence in the case record.

Specified Laboratory Findings

The following laboratory findings can establish a medically determinable impairment for individuals with CFS:

• An elevated antibody titer to Epstein-Barr virus capsid antigen equal to or greater than 1:5120, or early antigen equal to or great than 1:640;

• An abnormal MRI brain scan;

• Neurally mediated hypotension as shown by tilt table testing or another clinically accepted form of testing;

• Or other laboratory findings consistent with medically accepted clinical practice such as abnormal sleep studies and abnormal exercise stress tests that are consistent with other evidence in the case record.

Documented Mental Impairments

Finally, mental impairments documented by mental status examinations or psychological testing can also establish the presence of a medically determinable impairment.

What Evidence Can Be Used to Show these Signs and Findings?

As in any claim for disability benefits the focus is on the medical evidence, especially the clinical records and test results from treating sources.

• SSA will try to obtain all medical records, generally beginning 12 months prior to the month of application.

• The Ruling notes that conflicts in the medical evidence are not unusual in cases involving CFS and clarification should be sought first from the treating sources.

• Treating source opinions about the severity of the impairment should be given deference if they are well supported by medically acceptable clinical and laboratory techniques and are not inconsistent with other evidence in the records.

It is noted that any information regarding functional abilities before and after the onset of the impairment is helpful in evaluating the claim.

Finally third-party sources may be useful in determining the credibility of the Claimant.

As in any claim, the focus is on a longitudinal view of all of the medical evidence.

• Claimants must be actively treating with medical providers and must be completely describing all symptoms each time they see the doctor.

• The doctors must keep careful, legible, notes during each visit so that the signs and findings noted above can be documented.

• In addition, the physician should be willing to provide a written opinion to SSA regarding the patient's ability to sustain even sedentary work activity on an 8 hour per day, 5 days per week basis.

SSR 99-2p does not provide that every claim based upon CFS should be approved. It does, however, set forth guidelines for evaluation of these claims so that Claimants, physicians and representatives can be assured of a fair evaluation of the impairment and its impact on the individual.

Source: 24-7 press release, June 26, 2010; on behalf of Jeffrey A Rabin & Assoc., distributed by Co-Cure listserv June 27, 2010.

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