Representing clients nationwide has given my firm a unique perspective on what matters most in winning chronic pain and chronic fatigue Social Security disability cases. In other words, what factors are usually the difference between winning and losing?
Over the past several years, my firm has won cases in over 40 states and I have appeared before approximately 200 judges throughout the country. My journeys from Las Vegas to Phoenix and Providence to Seattle have provided a broad understanding of why judges approve these cases.
This article is my effort to distill this experience down to seven important steps. This is not a complete list, but what I believe are the most important factors.
Step 1: A disability claim is the beginning of your recovery; you do not need to be permanently disabled
A common mistake people make is thinking a disability claim is the "last act of their career." I often hear, "I can't believe my life has come to this" or "I have never asked the government for anything."
I have news for you… filing a disability claim is the first step in your recovery. Trying to get healthy when you have been out of work for an extended period and experiencing tremendous stress is extremely difficult. Your road to recovery begins by filing a disability claim with the Social Security Administration (SSA).
Did you know the federal government sold you a disability policy? Did you pay for one?
Indeed, you did; every two weeks your employer withheld taxes from your paycheck and sent it to SSA. Some of your money went to fund retirement benefits and part went to fund your disability insurance policy.
By the way…you never had a chance to tell SSA you did not want the policy. You were forced into buying the policy, so you best use it or lose it! Knowing this, please change your mindset from "I have never asked the government for anything" to "I paid for this disability policy and I'm entitled to these disability benefits."
It is critical to understand you only need to be unable to work for a minimum of 12 months to be eligible for SSA disability benefits. Contrary to social wisdom, one does not need to be permanently disabled. Also, federal law states that any medical diagnosis can be disabling if the symptoms are severe.
So don't complicate the decision by thinking "filing a claim is the last act of my career" or "my diagnosis is not recognized by SSA." Both are not true.
With the right frame of mind, filing a disability claim will be one of the first steps in your recovery. The benefits will assist your family, pay for medical care (your eligible for Medicare) and lift the financial weight off your shoulders…and that's good medicine.
Step 2: Don't wait to file your claim
The biggest mistake people make is not filing a disability claim when they should. If you wait more than 18 months after you last work to file a claim, each month thereafter begins to cost you monetary benefits. Regardless of when you became disabled, SSA will only pay monetary benefits 12 months prior to the month that you actually apply.
Waiting years to file will cost you literally tens of thousands in lost monetary benefits.
The loss can be staggering; one client waited 5 years to file and the delay cost him $90,000 in lost benefits!
Also, it is critical to understand you're only insured for disability benefits with SSA for at most 5 years after you stop working. It's possible your insurance could end sooner than 5 years. This means you must prove you became disabled before the insurance with SSA ends. A common scenario is not filing because your spouse has a good income or you're a stay at home mom. Waiting years to file or worse, not filing at all is simply a terrible decision.
Use this guide on when to file…if you expect to be off work for one year or more then file a claim. In a chronic pain or chronic fatigue case, I suggest waiting until at least the 4th month you have been off work to consider filing because at that time you will be in a good position to evaluate it you will be off work for 12 months. Start the process by calling SSA at (800) 772-1213, there is no charge.
Step 3: Judges are impressed by a consistent work history
A person's credibility is key in a chronic pain or fatigue disability case. If your pain and fatigue are disabling and the judge believes your testimony, the claim should be approved.
Judges always look at a person's work history when evaluating credibility. The issue is how consistently a person has worked throughout their life and not how much they actually earned. Judges prefer consistent work because it's then easier to believe your testimony that you are now unable to work.
A judge recently told me "Counsel, her work history speaks loudly to me." He approved the claim.
If you do not have a consistent work history, of course you can still win but you may have a tougher road to hoe.
Step 4: Consult with a disability attorney as soon as possible
SSA statistics confirm you are much more likely to win if you are represented by an attorney.
Some food for thought…if you can represent yourself are you really disabled? Yes, people can win on their own, but also consider that you do not hear from those who tried and failed.
A disability case usually begins before a person stops working. Why?…most people with chronic pain and fatigue cases work much longer than they should. People often obtain advice that they should wait until their claim has been denied once or until they are going before a judge to retain a disability attorney.
I don't agree with this advice. Evidence in a case is created beginning the day you stop work. You have the burden of proving you are disabled, the sooner you understand what evidence is necessary, the sooner you can develop it.
When I consult with clients at the beginning, we develop a strategy to win their case at the initial levels of SSA review and try to win early. I prefer this approach rather than waiting a year into their case because at that time the record is made and we must live with it, good or bad.
A disability attorney should develop a strategy to win your case from the beginning. The strategy may involve many issues: when should you file? Which doctors do you see and are they supportive ? How to best document your medical records? How to approach the forms? Should you see SSA's doctors for an examination or your own?
Consulting a disability attorney as early as possible develops your case properly by avoiding costly mistakes.
Also, it costs nothing to retain an attorney. You only pay a fee if you win and obtain monetary benefits from SSA, so you have nothing to lose by retaining an attorney early in the process.
Step 5: All cases begin and end with well documented medical records and treating physicians who support your inability to work
There is no substitute for well documented medical records. Medical records are critical because judges review them to determine if your story regarding chronic pain and fatigue add up. The medical records also set up and support your doctor's opinion that you are unable to work. You can win with poorly documented records but it's not easy.
Judges review your medical records for the consistency of medical care, and whether there is an explanation for your symptoms. Obtaining all available medical tests such as MRI's, x-rays, laboratory work and clinical evaluations from numerous specialists is important.
In a fibromyalgia case, Judges look to see if a rheumatologist or specialist has made the diagnosis and whether tender points are present. It is most helpful if the location and number of tender points on examination are documented and whether you meet the American College of Rheumatology criteria. Judges are not impressed by a fibromyalgia diagnosis which simply appears to be based on your story and is not supported by reference to tender points on examination.
In a chronic fatigue case, the diagnosis is usually not well documented in the medical records so I suggest obtaining a full panel Epstein-Barr virus titer (EBV). Pursuant to Social Security Ruling 99-2p, an elevated titer is accepted by SSA as a diagnosis of chronic fatigue syndrome. An elevated EBV titer may not be important to diagnosing your medical problem, but judges generally look for it.
Medical records that document the frequency, severity and duration of chronic pain, fatigue or other symptoms are golden. Be careful to provide a detailed (but brief) history with your doctor on each visit regarding how your symptoms affect your ability to function on a daily basis. Rate the severity of your pain and fatigue with your doctor so a Judge will understand the severity of your condition over time.
I often tell clients, "when your medical records tell the same story you do before the judge, you have a strong case and should win."
Step 6: Specific physical and psychological limitations from your doctors are more important than a conclusory statement that you are disabled
There is no substitute for treating physicians who support your claim. One can win a chronic pain or fatigue disability case without them but it's not easy. Federal law requires judges to give significant weight to the opinions of treating physicians.
However, a one sentence conclusory statement that the doctor believes you are "permanently disabled" is not enough to win your case. In fact, SSA can and will likely ignore the letter because it addresses the ultimate issue of whether you are disabled; only SSA can make this determination.
What opinions do SSA and judges look for? The opinions that matter relate to your physical and/or psychological ability to perform work on a regular and continuous basis (i.e. a 40 hour week). Specific opinions relate to sitting, standing, walking tolerances, levels of pain and fatigue, absenteeism, the frequency of work breaks, side effects from medications, to name only a few.
I like to obtain a one page narrative letter from each doctor addressing their background, diagnoses, objective findings, treatment rendered and success (if any), and a statement regarding why you have been unable to work since your onset date for disability. You should expect to pay for their time. I suggest paying them for their time by giving a check when you take in the paperwork. The doctor may not take your money but will appreciate the gesture.
Step 7: Use creative ways to support your credibility
Chronic pain and fatigue disability cases are often won by intangible factors.
First, it is imperative to address psychological issues in your case. SSA, Judges and many doctors believe fibromyalgia or chronic fatigue syndrome have a psychological component; thus, you should rule depression/anxiety in or out as a factor in your case. If you are taking a psychological medication then it will be an issue.
At some point, dealing with chronic pain and fatigue is depressing and causes anxiety. A judge may not be impressed by your pain or fatigue; but could believe your psychological problems are disabling, so use this to your advantage. In the end, you want to win your case anyway you can.
Second, I have won cases solely on work records like a client's personnel file documenting extensive absenteeism or annual evaluations that either were consistently stellar or better yet, stellar and then deteriorated along with their medical condition.
I have also won cases solely on the strength of affidavits or narrative letters from those who know my client the best. Most penetrating are those authored by former bosses or co-workers but your family members and close friends are also important.
Remember, if a judge believes your story they will usually approve your claim. Addressing psychological issues, and obtaining documents such as work records and affidavits support your credibility and complete the picture of why you are disabled.
I am certain that implementing these seven factors will have a dramatic impact on your case.
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