FM disability info

Discussion in 'Fibromyalgia Main Forum' started by heartinheaven, Aug 17, 2005.

  1. heartinheaven

    heartinheaven New Member

    This is legal refrences that have been used for applying for SSD/SSI.

    ESTABLISHING DISABILITY STATUS IN FM AND CFS


    42 U.S.C. § 423(d)4 defines “disability as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months... For purposes of this subsection, a “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
    To emphasize the importance of signs and findings in the disability determination, 42 U.S.C. § 423(d)(5)(A) provides that “[a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings,5 established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities.”
    The Social Security Administration interpretation of the statute contained in SSR-96-4p reinforces this instruction. Although the Act and SSR 96-4p provide that a “symptom” is not a “medically determinable physical or mental impairment,” footnote #2 of SSR 96-4p describes the following circumstances under which what otherwise might be considered to be a “symptom” is really a medical “sign”:

    20 CFR 404.1528, 404.1529, 416.928, and 416.929 provide that symptoms, such as pain, fatigue, shortness of breath, weakness or nervousness, are an individual’s own perception or description of the impact of his or her physical or mental impairment. However, when any of these manifestations is an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques, it represents a medical “sign” rather than a “symptom.”

    SSR 96-2p completes the proof with the following definition of the statutory term of art, “medically acceptable”:

    Medically acceptable. This term means that the clinical and laboratory diagnostic techniques that the medical source uses are in accordance with the medical standards that are generally accepted within the medical community as the appropriate techniques to establish the existence and severity of an impairment.


    The medical standards that are generally accepted within the medical community as the appropriate techniques for establishing the existence and severity of fibromyalgia and chronic fatigue syndrome are detailed in various medical publications. See, for example, Wolfe, F. et. al.: The American College Of Rheumatology 1990 Criteria For The Classification Of Fibromyalgia: Report Of The Multicenter Criteria Committee. Arthritis & Rheumatology (1990) 33:160-72. See also the December 1994 revised working case definition of CFS established by the Centers for Disease Control: Fukuda, et.al. “The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study,” Annals of Internal Medicine, (1994) 121:953-59.
    In a claim involving allegations of disability based in whole or in part on FM or CFS, it is the responsibility of the claimant’s representative to ensure that the claimant’s treating and/or examining physicians are aware of, and employ, the techniques for establishing the existence and severity of fibromyalgia and chronic fatigue syndrome as set out in the above-referenced medical articles and SSR 99-2p.

    NINTH CIRCUIT PRECEDENTS

    The Ninth circuit is the highest federal Court in the western states and its holdings control federal court decisions in Arizona. In Day v. Weinberger, 522 F.2d 1154 (9th Cir. 1975), the Ninth Circuit addressed the fact that disability may be proved by medically-acceptable clinical techniques.
    , “in concluding that Day was not disabled, as “disability” is defined in 42 U.S.C. § 423(d), the Hearing Examiner relied on three other factors. First, he noted that none of Day’s medical experts had been able, through the use of objective diagnostic techniques, to identify specific cause for Day’s alleged pain. Second, the examiner noted that during Day’s appearance at the hearing, she did not exhibit the physical manifestations of prolonged pain that are listed in a leading medical textbook. Finally, the examiner relied on his own observations of Day at the hearing and certain of Day’s own testimony in concluding that she remained capable of doing light work.

    The first two factors upon which the examiner relied provide little, if any, support for his ultimate conclusion. Disability may be proved by medically-acceptable clinical diagnoses, as well as by objective laboratory findings. 42 U.S.C. § 423(d)(3); see Stark v. Weinberger, 497 F.2d 1092, 1097 (7th Cir., 1974); Flake v. Gardner, 399 F.2d 532, 540-41 (9th Cir., 1968). And the Hearing Examiner, who was not qualified as a medical expert, should not have gone outside the record to medical textbooks for the purpose of making his own exploration and assessment as to claimant’s physical condition. Williams v. Richardson, 458 F.2d 991, 992 (5th Cir. 1972).”

    For three cases within the Ninth Circuit addressing FM and CFS see Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998); Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991); and Irwin v. Shalala, 840 F.Supp. 751 (D.Or. 1993).

    In May 11 1998 Deputy Commissioner for Disability and Income Security Programs, Susan Daniels, wrote a memoranda to an ALJ who argued that the symptoms of FM should not be considered medically acceptable clinical and laboratory diagnostic techniques in support of the claimant’s application for disability determination:

    “Your letter states that fibromyalgia and CFS do not constitute medically determinable impairments within the meaning of section 223(d)(3) of the Social Security Act because there are no acceptable medical criteria by which these impairments can be diagnosed…. However, SSA has taken a definitive position that fibromyalgia and CFS can constitute medically determinable impairments within the meaning of the statute. As you noted in your letter, CFS was discussed in the process unification training in 1996-1997...This position is consistent with the instructions in Program Operations Manual System (POMS) DI 24515.075, Disability Digest No. 93-5, and Social Security Rulings (SSRs) 96-3p, 96-4p, and 96-7p, issued on July 2, 1996, which detail our policies as to how symptoms affect determinations of the presence of a medically determinable impairment, impairment severity, and the ability to engage in sustained work activity.

    Establishing the existence of a medically determinable impairment does not necessarily require that the claimant or the medical evidence establish a specific diagnosis. This is especially true when the medical community has not reached agreement on a single set of diagnostic criteria. ..Your argument based on the Rulings seems to misinterpret the explanation in Footnote 2 to SSR 96-4p, which explains our longstanding policy, consistent with 20 CFR §§ 404.1528(b) and 416.928(b), that some symptoms, when appropriately reported by a physician or psychologist in a clinical setting, can also be considered “signs” because sometimes these observations constitute “medically acceptable clinical diagnostic techniques.” This is true for mental impairments in general and for such widely recognizable disorders as migraine headaches”

    CONCLUSION

    FM and CFS are “real diseases" which lead to disability. The key to winning in front an ALJ is to have the physician meticulously follow the guidelines established by the American College Of Rheumatology 1990 Criteria For The Classification Of Fibromyalgia: Report Of The Multicenter Criteria Committee. Arthritis & Rheumatology (1990) 33:160-72. Thorough notes and commitment of the treating physician to assist the claimant in her quest for disability determination are of paramount importance.

  2. JLH

    JLH New Member

    Thanks for sharing this info with us.

    Janet
  3. heartinheaven

    heartinheaven New Member

    I know this is late in comming Janet, but thanks for the post.... I forgot to check to see if anyone read it.


    thanks agin

    Blessings

    H Michael