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Persevere on disability claims

  [ 996 votes ]   [ 1 Comment ]
By Scott E. Davis, Esq. • • January 11, 2002

This article is reprinted with permission from The CFIDS Chronicle Vol. 11 No. 6 November/December 1998.

The application and appeals process for Social Security Disability Insurance benefits can be so overwhelming and intimidating that roughly half of all applicants give up after they are first denied benefits by the Social Security Administration (SSA). The process can make you feel like you are David fighting Goliath. But if you prepare you case with the right legal and medical documentation, and if you persevere, you can significantly increase your odds of obtaining benefits. Proper preparation of your case is critical, as SSA has made it increasingly more difficult to obtain benefits over the past several years.

The following are questions I’m frequently asked regarding the disability system in general and specifically about cases involving CFIDS and fibromyalgia.

Q: SSA denied my claim. What’s the point of appealing? I don’t have any new evidence, so I don’t see how I can fight this huge agency with all of their experts and their complicated regulations.

A: If this is you, you’re feeling exactly the way SSA wants you to feel – defeated. DON’T QUIT! Keep in mind that 75% of all disability applicants are denied benefits during the first step of the SSA process. SSA knows that about half of those denied benefits will give up and not appeal. However, 55%-60% or about three in five of those who do appeal and go before an administrative law judge (ALJ) will obtain benefits.

If you are denied benefits, don’t delay! You must appeal any denial letter from SSA within 60 days. Following your appeal, the second step is similar to the first, in that it is “merely” a paper review of your claim. You still will not meet with anyone. The review, like the initial decision, is based primarily on forms you completed and your medical records. The SSA employees at these first two steps of the process often are looking for reasons to deny your application. While a very high percentage of applications are denied at this review stage—80%--don’t despair. By appealing this denial, you move closer to a hearing before an ALJ.

Q: Do I need an attorney? How can I afford to hire an attorney? Will an attorney really improve my chances of winning benefits?

A: I am asked this question frequently and my reply is always, “Do you know what you have to prove in order to obtain benefits?” The response is always, “I have no idea.”

You can hire an attorney at any stage of the process. Practically all disability attorneys work on a contingency basis, which means no money up front and you pay the attorney for his or her time only if you obtain benefits. Federal law sets a maximum amount for that fee, and in almost every case it is a very small amount compared to the benefits a person will receive.

Now that you can afford an attorney, should you hire one? Absolutely. The earlier you hire an attorney, the sooner he or she can begin preparing your case. You should substantially increase your chances of winning by working with an attorney who specializes in disability law. The system is complex, and an attorney will develop your case by obtaining the necessary medical and vocational records and opinions from your doctors that are critical to providing disability.

An attorney is especially important in the appeals process and in presenting your case to the judge, but he or she can be helpful earlier, too. If you have a treating physician, your attorney can fight to have your doctor perform a disability evaluation rather than an SSA doctor, who will almost always tell the judge you are not disabled. Also, the application requires a dizzying array of forms requesting all sorts of information, and your attorney should help you fill them out as they are important to your case. You won’t win your case with the information you give on the forms, but you could lose it. Your answers should be honest and somewhat brief. It is critical to focus on your exertional and non-exertional limitations and restrictions when completing the forms.

Q: My doctor believes in CFIDS and that I am too sick to work, but is the SSA going to believe my doctor?

A: Your doctor is not thinking about your disability claim when he or she is treating you. You need to tell your doctor you’ve filed a claim for disability and measures his or her response. If you are certain your doctor supports your claim, a reference in the records that you are unable to work is very helpful.

You must be a very detailed historian. Keep notes about the severity and frequency of your pain, fatigue and other symptoms and about what you are able to do—or not able to do—from day to day. Give this information to your doctor and tell him or her that you want it included in your records. Then get and keep copies of all your medical records. Do not assume SSA will have all your records; 95% of the time, critical records are missing.

Q: My doctor has suggested a lot of different treatments, but there are a few I’m not sure about and a few I’d like to try that he doesn’t think will help. How could this affect my case?

A: Exhausting all the possible treatments is good for your disability case. It makes your testimony and that of your doctor more credible and supports the severity of your symptoms because you will have tried everything to find relief. I always advise clients to undergo and try any treatment the specialist prescribes, including non-traditional treatment. You don’t want to give an ALJ any reason to wonder whether your condition might be so severe if you had only followed your own doctor’s instructions. The SSA’s doctors will usually tell the judge that your symptoms would improve and allow you to work if you would undergo some type of treatment, and that’s an opportunity for the judge to deny your claim.

It’s important not to panic and not to give up. The SSA and ALJs are increasingly familiar with fibromyalgia and CFIDS, and many people do win their disability case based on those diagnoses. You will need perseverance and knowledge of the system to win your case, but you must not give up! Appeal every denial, hire an attorney and keep fighting.

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Article Comments Post a Comment

still figthing disability
Posted by: mando54
Sep 12, 2007
HOW ABOUT IF YOOR FILES WERE MISPLACED OR LOSTED BY SSA? THIS HAPPENED TO ME? My name is Armand Lopez, and I am 53 years old. I am a USA Army Vet. I served in the Army, from 1974, to 1977. I have worked, as painter since 1977 and have a Certificate of Apprenticeship as a journeyman painter. In July 2002 I suffered an accident in which I injured my knees, my back, and my right shoulder. Due to this accident I developed severe physical impairments and degenerative diseases, such as, as osteoarthritis on the knees, in which I will need total knees’ replacement. In my lower back I have a herniated disc. and spondylosys, and in the shoulder I need total shoulder replacement as well. These impairments, now are preventing me from working,and the arthritis is advancing on my feet and hands. The purpose of this letter is to see if, you can help me to find out what is happening with mi SSD case that I applied on the year 2002. On Nov 09, 2005 I and my representative (Joe Newman) went in front of an Administrative Law Judge here in el Paso, Texas. On, March 2006, I receive a letter from the judge denying my case. So, on the same month I went with my representative Jeannie Peinado and filled an appeal. On or about August 2006 I called the council of appeals at Virginia to find out about my appeal. The council of appeal told me that they didn’t receive any appeal from the SSA. I call my representative to find out what is going on. She told me that everything was fine that sometimes it takes longer. On the same month, I went personally to the SSA here in el Paso, Texas and talked to Liza Shawn (SSA supervisor here in El Paso) she told me that my files were misplaced, but not worry that she will write a letter to the council of appeal giving a good cause for not filing on time. Feeling better to know that my appeal was in progress I went home. But on Nov, 2006, I receive a letter from the council of Appeals stating that my appeal was denied because was filled late. I called my representative again and asked her was is going on? Miss Joe Newman (Jeannie Peinado worker) told me that she will send a letter explaining the causes. Also I called Liza Shawn to find out about my appeal, and she would tell that it will take sometime. On January 2007 I receive a letter from the council of appeal saying that my case was denied because we file late? . I called again to my representative asking her what is happening? This time Miss Peinado told me that she will go personally to the office of the SSA here in el Paso Texas. I waited untill April of 2007, and called the Council of Appeal to find out what is going on? I talked to Miss Jewel and she told me that she will ask for my files? and that she will call me back. On about July of 2007 Miss Jewel called and told me that the Council of Appeals denied my case because there is no proof that we filed on time. Once again called my representative and told her what is going on, she told that she will have a meeting with a supervisor on the SSA. here in el Paso Texas, that Liza Shawn was no longer handling my case. Up to this moment I haven’t heard anything from the SSA nor The Council of Appeals. Therefore I am writing you to see if you can do something for me. I am not asking for a handout, I have worked hard and now that I can't do it I want a fair chance to have my case reviewed.
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