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Disability Benefits and Fibromyalgia: Getting Your Ducks Lined Up

  [ 704 votes ]   [ Discuss This Article ]
By Scott E. Davis, Esq • • May 18, 2000

Unfortunately, applying for and obtaining disability benefits can be similar to playing a game. The skill with which you play the game often determines whether your claim is approved or denied. When a claim is based on a primary diagnosis of fibromyalgia (FM), you can’t afford to make a mistake early in the game; otherwise it could be fatal to your claim. To coin a popular phrase, “You gotta have your ducks lined up!”

Several years ago I wrote an article entitled, “Disability Benefits and Fibromyalgia: What you don’t know could be fatal to your claim!” Since that time my disability practice has changed dramatically. My firm now represents clients nationwide where the main diagnosis is FM and/or CFS. Over 50% of my practice involves FM and/or CFS cases, and I have learned a few things about winning them. I have been fortunate to speak with or correspond via email with literally thousands of people from around the country seeking disability due to FM.

I would like to share my experiences so you can be “battle ready” when you file your claim. Today we’re going to go find those ducks and line them up!

Duck #1: You need a Strategy to Win the day you file your Claim.

While it is true that your best chance of winning is at a hearing before an Administrative Law Judge (ALJ), unless you have seriously thought about what you must prove prior to the hearing, your case could be in real trouble. It is imperative to have a strategy beginning with the day you file your claim.

Duck #2: All Doctors are Not Created Equal.

Nothing torpedoes a disability case faster than a treating physician/psychologist who does not support your disability or refuses to assist in your claim. Federal law mandates that SSA and especially ALJs give considerable and, at times, controlling weight to the opinions of treating physicians (SSA defines them as M.D.’s, D.O.’s, psychologists). However, be careful! With regard to disability claims, doctors tend to fall under one of the following categories: (1)They believe a patient and support their claim; (2)They will support a claim after a treatment regimen fails; (3)They will never support a disability claim regardless of the patient’s medical condition -– using the excuse they are not qualified to complete a disability form, or, they simply refuse to complete disability forms. Simply put, some doctors are more compassionate and interested than others.

Where does your doctor fall on this spectrum? If you answered, “I don’t know!” welcome to the club. You will need to know soon after you file your claim, since federal law gives so much weight to their opinions. It is very difficult to win any disability case without the support of your doctor. I suggest you raise the issue after you have established a relationship and the doctor knows your condition. In your conversation, do not use the words “disabled” or “permanent,” instead ask, “Do you believe I am unable to sustain full time work in a sit-down occupation.” If the doctor supports your claim, ask them to please note your inability to work in the record. If they do not support your claim, you must evaluate your ability to win your case with that doctor.

Duck #3: A Rheumatologist/Internist (Specialist) is Critical to Your Case.

SSA and ALJs have been instructed that a rheumatologist/internist is the specialist best trained to treat FM. While this may be debatable within the medical community, to ignore this fact in your disability case can be fatal. Moreover, federal law mandates that the opinions of a specialist related to their practice area are entitled to more weight than those of a non-specialist. Thus, your specialist’s opinion is entitled to more weight than your primary care doctor or the doctor SSA sends you to! Use this to your advantage.

Duck #4: Your Credibility is Critical to Winning Your Case.

Virtually all disability cases are won or lost based on a claimant’s credibility. I recently had a conversation with an ALJ who told me that in every case he looks at two items. First, he looks at a claimant’s lifelong earnings record. Why? Because when a claimant says they can not work, their assertion carries more weight if they have worked most of their life. In fact, federal law requires SSA and ALJs to give substantial weight to a claimant’s work history when they testify they can’t work. Thus, regardless of your diagnosis, if you have worked most of your life, you have a good shot at winning. The ALJ also looks at the medications the claimant is taking. The presumption being that if the symptoms are severe, the claimant and his/her doctor are trying to alleviate them with medications. If no medications are prescribed, the claimant’s credibility will be attacked. (More on medications later). The ALJ told me he holds a hearing in every FM case because he wants a chance to evaluate the claimant’s credibility. The bottom line is if the ALJ believes your story, you will likely win – if not, you will lose.

Duck #5: Do Not Focus on the FM Diagnosis to the Exclusion of Other Conditions.

A problem I see every day are claimants who focus on the FM diagnosis and forget about other diagnoses that may also be disabling. In my practice, people with FM are unable to work for three main reasons: pain, fatigue and cognitive problems. However, I have won FM based cases due to other diagnoses such as carpal tunnel syndrome, chronic headaches (migraines), IBS and psychological disorders. Usually, a claimant is unable to work due a combination of diagnoses and symptoms, not just FM. With regard to your disability claim, if you have ever been diagnosed with a psychological disorder, don’t be afraid to develop this as contributing factor in your inability to work.

Duck #6: Pain is a Critical Component to Any FM Claim.

It is of no surprise that pain is the primary component to a FM diagnosis and disability claim. However, it is the severity of your pain, how well it is documented, how significantly it affects your life, and whether the ALJ believes your reported level of pain that often determines whether you win or lose. Thus, with regard to pain, it is critical your doctor documents the severity, frequency, location and its response, if any, to medication/therapy. In my opinion, you should try every type of therapy prescribed to alleviate your pain (i.e. medications including narcotics, injections, physical/aquatic therapy). An ALJ will expect that you are either taking pain medication or you have a very good story why you are not (i.e. you’ve taken them in that past and received no benefit). If your medical records adequately reflect the severity/frequency and limitations due to pain, then your testimony should be accepted by the ALJ and you should win. If your testimony is not supported by your records or doctor, you will in all likelihood lose your case.

Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis is a founding partner of the law firm of Harris * Davis, PLC. Although Mr. Davis and Mr. Harris have experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of their disability practice is devoted to representing individuals with FM and/or CFIDS. They do represent clients throughout the United States. In most cases, a fee is charged only if their client obtains benefits. Mr. Davis and Mr. Harris invite your questions and inquiries regarding representation via email or telephone (602) 482-4300.

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