Winning Your Disability Case in Three Words

Discussion in 'Fibromyalgia Main Forum' started by mike9318, Jan 23, 2003.

  1. mike9318

    mike9318 New Member

    Frequency, Severity and Duration

    By Scott E. Davis, Esq.

    In a disability case, almost any symptom or limitation can be disabling; but to determine whether they preclude work, the relevant questions are how frequent, how severe, and how long do they last?
    A critical point I make to people who contact me every day is that their disability case is won or lost based on symptoms/limitations and not on their diagnosis! Clearly, under federal law, a disability claimant has to have a legitimately diagnosed physical and/or psychological disorder to even allege disability, but this is only the beginning of the analysis.
    Disability cases are almost always won or lost based on the quality (documentation) of your medical records and the subsequent opinions rendered by your treating physicians regarding your ability to sustain full-time employment. The documentation of symptoms and limitations in your medical records is critical, as it provides tremendous credibility to and an understanding of why your doctors have concluded you are unable to work.
    Once a diagnosis is established, the disability inquiry immediately shifts to why you are unable to work due to the symptoms and limitations that result from the diagnosis. I tell my clients that of the total time spent in a disability hearing before a federal judge, 5% is spent on the diagnosis and 95% is spent determining the frequency, severity and duration of symptoms and limitations, and whether they prevent all work. Ignoring this fact places the success of your claim in great peril…don’t ever forget this!
    A common problem disability claimants frequently make is having “tunnel vision” and focusing solely on their diagnosis, as if the fact that they have been diagnosed with a disorder automatically confirms they are disabled and entitled to benefits. This is especially true of people suffering from chronic pain and fatigue disorders such as fibromyalgia and chronic fatigue syndrome. I believe this is true because these folks have almost universally been sent on an “odyssey” by the medical community, simply to obtain a diagnosis. Never forget that obtaining a physical and/or psychological diagnosis is the very beginning, and not the end of your disability case.
    Thus, the question becomes, “How do I document the frequency, severity and duration of my symptoms and limitations?”
    Tip #1: What should I be Documenting?
    Simply put, whatever it is that prevents you from working. For example, let's use chronic pain and fatigue. It is critical that you distinguish why the pain and fatigue is different from what an average person may experience. If I say “I am in pain and fatigued,” that does not tell you much. Why? From time to time we all experience some degree of pain and/or fatigue. But if you tell your doctor, “I am unable to function as I experience severe daily pain and exhausting fatigue lasting most of the day without relief,” or “I am unable to function 2 days per week due to migraine headaches that last all day even with medication,” now you've given the doctor and the judge an idea of why your symptoms are so debilitating.
    Tip #2: Obtain a Copy of your Medical Records from your Treating Physicians
    After you have followed Tip #1, the next question becomes, “Did the doctor write down what I just told him/her?”
    I am often surprised at how many people applying for disability benefits have never seen their medical records. Obtaining a copy of your current treating physician's records is important because it will give you an idea of whether your symptoms and limitations are being recorded. You may be surprised to find that your complaints do not appear in the records or if they do, the doctor's notes are totally illegible! Illegible handwriting is a real problem, because the judges who decide your claim are just like you and I--they don't (and generally won't) try too hard to decipher what the notes say.
    If you are not satisfied with the documentation, address the issue tactfully with your doctor and explain the importance of documentation to your disability case. If they are receptive, I suggest you give them a copy of this article for reference.
    Tip #3: Keep A Short Diary of Your Symptoms and Limitations before your next Visit to the Doctor
    Whether you know it or not, your daily life tells a compelling story about your inability to work. But how do you remember the frequency, severity and duration of your symptoms especially if you can't spell your name at times!
    I advise clients to keep a short and simple diary one week before their visit with their doctor. For simplicity sake, the entries should be short and not detailed (otherwise you will not do it). On a day when you were unable to get out of bed due to pain or fatigue, document it. Or document when you slept for only three hours the night before and then took a couple of naps the next day. Or document the migraine headache that lasted for two days in spite of medication. Then, on your next doctor visit, when he/she asks “How are you doing?” you will have a laundry list of symptoms and limitations rather than giving them a blank stare!
    Of course, winning your disability case is more complicated than this article can address; however, following these tips will significantly increase your odds of winning. Best of luck in your pursuit of disability benefits and remember never to quit!
    Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona.
  2. AmieRock

    AmieRock New Member

    I rarely post here, but saw your message and have a question.

    I have not had health insurance for a long time. I'm unemployed so consistent medical care has been an impossibility for me.

    I haven't worked in about six months for several reasons. I worked from home for a year prior to company lay-offs and since then I haven't been able to work due to this disease.

    I started my 'on-line' application for disability yesterday, which I've put off doing for months because I figure I don't stand a snowball's chance in he** of getting approved because of my lack of consistent medical care.

    Any suggestions for strengthening my case or how to argue my case given the fact that I haven't had consistent care?

    Thank you for your time.

  3. Dara

    Dara New Member

    don't you think that some attorney's (like mine, whom I refer to as a slug), don't tell you everything you need to know that would help you win your case sooner is because the longer it takes you to win, the larger your settlement, and hence the more money they make. I'm not saying they are all like this, but I'm beginning to think that this is the majority.

    [This Message was Edited on 01/25/2003]
  4. sofy

    sofy New Member

    His advise is excellent. When I filled out the papers for ss I concentrated on symptoms and not diag. You need to tell how your symptoms interfer with your everyday life so that work is not possible. When I went to the two dr. they sent me to they asked me how I spent my days. I live alone in a house with no help. I told them everyday I made a decision as to what was most important because I could not get groceries, cook a meal, take a bath on the same day. Each day I did the most pressing things. Some days it was 4 or 5 and some days none. (I suspect the fact that I started to fall asleep at both am appts bolstered the truth about my condition) I did not elaborate nor did I leave anything out. If you are truthful then it is easier to make yourself believable. I must add that my Dr. agreed that I was ill and not responsive to drug therapy. I tried everything they suggested and nothing helped and that was in my medical file and I stated it at the end of the form. They do not want to hear you wine about you have fibro or cfs. They want to hear what symptoms make it impossible for you to work.
    [This Message was Edited on 01/25/2003]
  5. jackiec

    jackiec New Member

    I have often read Mr. Davis's suggestions....and this is one of the best! Thank you for posting it here. The struggle for deserved benefits takes its toll, but with help like this it is much easier to understand.

    Jackie C
  6. CATLADY912

    CATLADY912 New Member

    I have to agree that this was a very good report. It took me a year to get my disability and I had every move that I could take and couldn't take documented, and all my doctors wrote me a letter to go along with my file. when I finally had to go before the administrative judge, my file was very very thick. He asked me a few questions and my lawyer a few questions all of which took a total of 10 minutes, and I was out of there. He mostly talked to me. 6 weeks later I had the answer yes and 1 month later I had all of my back pay. That was in 1997. I got a letter from SS in 2001 from Socal Security asking me questions about the condition that I was disabled for. I wrote everything down as I knew it especialy the part where my doctor told me that I woulld never get any better and there is no surgery to take care of my back problem. Mailed it back in and I bet it took almost a year before I heard back that they were not going to audit my social security that year. Next time I get that letter I will have this fibro and osearthritis to add to it. Like he said the judge even spent most of the time on what i was and was not able to do rather than the disgnosis. the fact that I was unable to stand ot sit very long without pain was better than just the diagnosis of my back. Also social security is the one that determines how much your lawyer is to be paid and whether you can use him or not. I think these lawyers must establish themselves as disabiltiy lawyers in order to help you. i think he did a find job in describing what each person needs to get there disability.
  7. justnan1

    justnan1 New Member

    Thank you. I am seriously considering applying. I haven't till now because I am obstinant and thought I would have won my fight by now. I haven't worked since October 1998! Is there any other information you think a newbie shoudl know? thanks. Nan
  8. DebP

    DebP New Member

    And remember one thing, you may not win the first time, I have been trying for almost 3 years now. I am about to get my second hearing in front of a federal law judge. The point I want to impress upon you is.....DONT GIVE UP!!!! Thats what they want u to do and if you cant work, if you dont give up they will eventually realize this...Good Luck on your journey!! And God Bless!!!
  9. tmstanz45

    tmstanz45 New Member

    I hope someone can help me.I have lost twice because my doctors think it's awful not to work! You need to lose a limb or be on your death bed before anyone should receive disabilty.I FIRED THEM! I have a new doctor and I think she understands.I went to her in tears because I hurt so bad and had all these werid things happening to me and I couldn't get any one to hear me.I have read everything that Mr.Davis has written and have learned alot.I need someone in my area like Mr.Davis!!!
  10. mike9318

    mike9318 New Member

    i thought mr davis practice all over the usa.

    i'll post more info in a bit. looks like theres more people than i thought getting screwed.
  11. blondieangel

    blondieangel New Member

    will take your case in any state. he was my attorney! So sorry to those of you who were turned down...i've been there! Don't give up!!!