|Advocates and Attorneys||Persevere on disability claims by Scott E. Davis, Disability expert|
|Americans with Disabilties Act||Resources|
|Acquiring and Keeping Social Security Benefits for CFIDS and FM Sufferers||Suggested Reading|
|Department of Social Security (United Kingdom)||Support|
|Financial Help||Supreme Court Limits ADA Disability Definition|
|FM Patients ARE Eligible for Disability Benefits||The Employment Experience of Persons with Limitations in Physical Functioning|
|Home||What to expect when filing for benefits.|
|How To Talk with your Physician about Supporting your Disability Claim||Win Your Disability Case by Obtaining Your Personnel File From Work By Scott E. Davis, Esq|
|How To Win Your Case For Social Security Disability Benefits If You Suffer From Chronic Fatigue Syndrome and/or Fibromyalgia||Winning Your Disability Case with the Help of Co-Workers, Family Members and Friends|
|Listing of acceptable Impairments.||Winning Your Disability Case in Three Words|
|Navigating the Disability Insurance Maze||CFS is a medically determinable impairment.|
for your Social Security benefits in the U.S.A. is not for the feint of heart. Just when
you feel your worst you are asked to fill out reams
spending weeks filling out the forms, gathering the needed documentation and fighting for
an appointment with an examiner the day
perhaps months go by as you wait for a reply. Money is tight and you are at the end of
your rope by the time you finally get a letter
you have to make a decision, appeal or let it go. The SSA expects you to give up, they
want you to feel that there is no hope of gaining
Between 60% and 75% of all first time applicants will be denied benefits. Stand up and
fill out the forms for an appeal. Statistics show that
you file an appeal your application has to be reconsidered, many more applicants are still
denied at this level. Again, this process can
next step is a hearing before an Administrative law judge. He must hear your argument and
not just read about you as numbers on a
It is recommended that you have a knowledgable representative on your side at this stage, an attorney who can help you prepare your case.
How to prepare for filing:
Gather copies of your medical records.
Winning a Social Security Disability case for someone who suffers from Chronic Fatigue Syndrome and/or Fibromyalgia (CFS/FMS) can be very difficult. However, with proper preparation I am often able to win client's their Social Security Disability benefits. I approach a Chronic Fatigue Syndrome or Fibromyalgia case using the following five factors:
1) Was the Diagnosis of Chronic Fatigue Syndrome or Fibromyalgia Made by a Specialist?
I am always very skeptical on my chances of winning when a person comes to me and is not being treated by a specialist in Chronic Fatigue Syndrome and/or Fibromyalgia. I usually prefer to see that the client is being treated by a Rheumatologist but I have been successful in these type of cases working with an Infectious Disease Specialist and a Neurologist. I feel that the diagnosis of a primary care or internist is not sufficient in this type of case. It is also important, of course, for this doctor to be supportive of his/her patients disability case and for me and the client to know this from the beginning of my representation. If a person calls me and does not have a specialist working with him/her, I suggest that they contact a local support group for a referral.
2) Has the Clients Doctor Eliminated Other Diseases Through Testing Before Diagnosing Him/Her with Chronic Fatigue Syndrome and/or Fibromyalgia?
I feel that to provide validity to the diagnosis of Chronic Fatigue Syndrome and/or Fibromyalgia certain medical tests need to be performed so as to rule out other conditions. I usually like to see blood work done that excludes other Rheumatic diseases which may share symptoms with, or mimic, CFS/FMS. In cases of Fibromyalgia I look for a physical exam that finds and documents tender points. In Chronic Fatigue Syndrome cases I also normally like to see that a Tilt Table Test has been done.
3) Are the Clients Complaints Typical For Someone Who Suffers With Chronic Fatigue Syndrome and/or Fibromyalgia?
By now I can usually tell by interviewing a prospective client if his/her complaints are typical. The clients medical records should show documented symptoms. Without this documentation, the diagnoses of CFS/FMS may be subject to disbelief by Social Security.
4) Was the Client Treated With Physical Therapy and/or Pain Medication?
I like to show an Administrative Law Judge (ALJ) that my client has tried whatever treatment is available for his/her condition. Whether this is a series of physical therapy appointments, narcotic pain medications or even non-traditional treatments like biofeedback or acupuncture. I feel that the severity of my clients condition will be supported by the fact that he/she has tried everything to find relief.
5) Has the Client Consulted or Been Treated by a Psychiatrist or Therapist?
Because I do not want an ALJ to attempt to say that Chronic Fatigue Syndrome or Fibromyalgia are "mental disorders" I like to show the ALJ that my client is either seeking treatment for depression or anxiety or has had these conditions ruled out by a mental health specialist and are still suffering from Chronic Fatigue Syndrome and/or Fibromyalgia.
About The Author:
Frequency, Severity and Duration Friday, October 1, 2004 By: Scott E. Davis, Esq.
Reprinted from FMOnline
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!
Disability cases are almost always won or lost based on the quality (documentation) of
your medical records and the subsequent opinions rendered by your
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
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.
R. Lishner 3231 Ocean Park Blvd. Ste 124 Santa Monica, Ca 90405 310-399-1344 310-399-2428
Sheri R. Abrams, P.C. Attorney at Law, 4015 Chain Bridge Road, Suite I, Fairfax, VA 22030 Social Security Disability Law and the Preparation of Wills, Special Needs Trusts, Living Wills, Health and Financial Powers of Attorney. Working with clients in Virginia, DC, and Maryland (703) 934-5450 www.sheriabrams.com firstname.lastname@example.org
W. Proto, Senior Advocate Federal Benefits Advisory Group, Inc. 6057 Tampa Palms Blvd, Ste
338 Tampa FL 33647
Nee: Disability Claims Consultant, specializing in fibromyalgia and chronic fatigue claims
with private insurance companies.
Advocacy for claimants who apply for SSDI, SSIDI, relief from overpayment claims and other social security matters having to do primarily with the disability process
Allsup-Helping people obtain social security benefits Since 1984
Anthony Gonzales of
Fresno, Calif, handles SSDI claims. You need not live in the State of California for Tony
to help you with your case. He works on a contingency basis - he gets 25% of
past due amounts, not to exceed $4,000.
Sheri R. Abrams, P.C. Attorney at Law 3915 Old Lee Highway Suite 22-A Fairfax, VA 22030 Social Security Disability Law Preparation of Wills, Living Wills, Health and Financial Powers of Attorney Serving VA, DC, and MD (703) 934-5450 www.sheriabrams.com email@example.com
Charles R. Ryan Attorney at Law Helps those in Southern Louisiana obtain Disability Social Security and Supplemental Security. Income benefits.
David W. Sutterfield, Attorney at Law Sutterfield Law Offices, P.C. 208 S. Second St P.O. Box 836 Effingham, IL 62401 Phone:(217)342-3100
Disability Advocacy Council is a non-governmental, privately owned firm that assists the injured and disabled in applying for and receiving the disability benefits they deserve. If you have been denied Social Security Disability benefits they can help. They offer advocacy services with low and flexible payment options. Your initial consultation will be done by telephone and is always free.
Help in finding an attorney that can assist with these claims.
Lawyers.com a search engine with listings of 420,000 lawyers, you just type in "social security" and your state, and it pulls up a page with all the disability lawyers in your state, or you can narrow it to your city.
mailto:Managingfirstname.lastname@example.org Carnes, Wamsley, Waid & Hyman, P.C. 140 S. 9th Street P.O. Box 1218 Gadsden, Al 35902-1218
McNeill, Colella & associates, P.C. they specialize in ssdi
cases. They will take cases all over the U.S.A. All
Richmond, Va. Charles E. Samuels. phone 1-800-868-1270. (I was told he is "amazing" with FM cases.)
Social Security Administrations policy on your right to representation. Discusses who may represent you, how much they are allowed to charge you and more.
Social Security Advisory Service, they are not affiliated with the Social Security Administration.
ADA (Americans with disabilities Act) and other resources and links.
Americans with disabilities Act: (ADA) Information on the web.
Arc was a leader in helping to get the Americans with Disabilities Act passed into law. Since then, the organization has been active in educating and assisting consumers, businesses, employers, local/state government and the general public on the law. Numerous ADA activities have been carried out under an initiative called "Access ADA."
Canadian Disability information and advise.
Disinissues. A service of the Disinissues email list.It serves as a gathering point for information and advice about the process of applying for, appealing, and renewing disability insurance from private Long-Term Disability insurers and the U.S. Social Security Administration (SSDI).
LawCrawler: Use Social Security and Fibromyalgia as search parameters and it will get you to some good SSDI sites. It also covers military law.
National partnership for women and children's family medical leave act page. An overview, success stories and hint and tips.
Overview of the Social Security system, covers disability, health insurance protection, state and local statutes and much more.
Pain guide for helping you explain your pain level when questioned for benefits.
Precedent setting decision. you may want to point this out to your lawyer. Denial of claims was overturned on appeal because of the original presiding judge's lack of knowledge about FMS. It was Sarchet vs. Chater #95-3283, US Court of Appeals for the Seventh Circuit 78F. 3rd 305: U.S. App. Lexis 3882, Argued Jan. 23, 1996, Decided March 5, 1996
Social Security benefit programs: How credits are earned, how to receive payments while abroad, get your benefits by direct deposit, pensions not covered by Social Security.
Social Security: Food Stamps and Other Nutrition Programs
Social Security - For the self employed
Social Security -For military personnel, government employees, household workers and others.
SSA has taken a definitive position that fibromyalgia and CFS can constitute medically determinable impairments within the meaning of the statute.
Wisconsin Division of Vocational Rehabilitation works with people with myofascial pain syndrome who have lost their jobs because of the condition, or people who need assistance in making job site modifications so that they can continue working. Please contact the Division of Vocational Rehabilitation office nearest you for more information.
Write to this address to obtain a free booklet on impairments and disability evaluation. Ask for a copy of SSA Publication # 64-039. PUBLIC INFORMATION DISTRIBUTION CENTER P. O. BOX 17743 BALTIMORE, MD 21235-6401
A must read for anyone filing for benefits. A letter written by Joshua W. Potter, Attorney., takes you through the process step by step with advice on how to handle each one.
Practical Guide To Persevering & Winning Your Chronic Pain/Fatigue Disability Case Finally!
A book put out by one of FM's leading advocates. Scott Davis is an attorney who fights,
and wins disability benefits for many with FM/CMP/CFIDS. This publication contains Scott's
top tips for filing and fighting for your benefits. He compiled his years of experience
with today's current law in this easy to follow publication. (You must click on the link
above, then click on "Enter Store", then click on "Public Service
Information", this will take you to the page containing this book) $8.00 U.S.
Dykes, Disability and Stuff This quarterly newsletter is unique as the only publication in the country (and, to the best of our knowledge, in the world) that is expressly devoted to the health and disability concerns of lesbians. It is also unique in the range of accessible media available: standard print, large print, audio cassette, Braille, DOS diskette, and modem transfer. Dykes, Disability & Stuff (DD&S) is a grassroots publication. We promise news, reviews, verse, controversy, essay, and art - all with the disabled lesbian's perspective!
Disinissues is a New list designed to Exchange information and advice about the process of applying, appealing and renewing disability insurance.
Fibro_Canadians on OneList Under "Find a Community" "By Name or Subject" enter Fibro_Canadians. In order to subscribe, you have to be a member of OneList. You'll notice in the left panel at the top a green bar which says "New Member"
List forum maintained by a law firm, and attorneys and victims of personal injury can read archived articles, give feedback etc. Contact Kevin. email@example.com
Written by Robin Thomas, Managing Editor at Personnel Policy
Management groups are proclaiming a win for employers in the recent Supreme Court decision addressing the Americans with Disabilities Act (ADA). In the case, Toyota Motor Mfg. Ky. Inc. v. Williams, No. 00-1089 (January 8, 2002), a unanimous Court (9-0) set the standard for determining when an individual who is limited in the ability to perform manual tasks meets the disability definition and therefore is protected under the ADA. This case is a victory for employers in the sense that it verifies that not all work-related injuries will be automatically considered disabilities protected by the ADA. In doing this, it sets a clearer standard that employees must meet to show that the ADA covers their injuries. For most employers, this case should not have much impact unless you have a lot of job-related injuries that regularly raise disability questions.
The Case in a Nutshell*
The issue before the Court was a very narrow one, as is usually the
case in all matters the Supreme Court decides. Specifically, the Court considered
what the employee had to demonstrate to establish her claim that she was legally disabled
because she was substantially limited in the major life activity of performing manual
The employee in this case claimed that her employer did not
accommodate her when it failed to provide her a job that would not aggravate the carpal
tunnel syndrome (CTS) she developed while working on the employers assembly
line. The employee argued that she was entitled to a disability accommodation under
the ADA because her CTS substantially limited the major life function of performing manual
duties. (The ADA statute defines a disability as a physical or mental impairment
that substantially limits a major life activity. The ADA regulations identify
performing manual tasks as an example of a major life activity.) The
Sixth Circuit Court of Appeals agreed with her and ruled that she was disabled and
entitled to an accommodation. The court based its conclusion on the evidence that
her injuries substantially limited her ability to perform a class of manual activities
associated with assembly line jobs, product handling jobs, and building trade jobs.
The Supreme Court disagreed and found that the appeals court used
the wrong standard to determine if the employee was disabled. It held that the Sixth
Circuit should not have relied so heavily on evidence showing that the employees CTS
prevented her from performing a class of work-related manual tasks. Instead, it
should have taken into account broader evidence regarding her continuing ability to
perform a variety of fundamental, nonwork-related activities. Accordingly, the Court
overturned the Sixth Circuits decision. It ruled instead that in order for a
person to be substantially limited in the major life activity of performing manual tasks,
the person must have an impairment that prevents or severely restricts the individual from
doing activities that are of central importance to most peoples daily
lives. To meet this standard, the impairments impact must be permanent
or long term.
*What Might Have Been*
Although this case is properly viewed as a win for employers since
it limits who is covered by the ADA, it would have had a more significant, and negative,
impact on employers if the Court had agreed with the Sixth Circuits ruling.
The Sixth Circuit determined that in order to prove a substantial limitation, the employee
only had to show that her impairments affected a class of manual activities
that limited her ability to perform tasks at work. If the Court had accepted that
standard, it would have opened the ADA door to thousands (if not millions) of workers who
have been injured on the job and can no longer perform specific job functions, but who are
not significantly impaired in other activities. (Keep in mind that this case does
not deal with workers compensation, which is an available remedy for most serious
job-related injuries.) Instead, the Court relied on a narrower view of the
statutes disability definition to emphasize that the ADA really is intended to
protect people who are limited in many aspects of their daily lives, not just in their
ability to perform certain specific job-related tasks.
Winning Your Disability Claim Mark D. DeBofsky, Esq.
Fibromyalgia is a recognized disability and all authorities agree that if the condition is severe enough, disability benefits can be obtained. There are several sources of disability payments: Social Security disability, state disability programs (California and New Jersey), long term disability (LTD) available under group insurance plans; and individual disability income insurance purchased directly from insurers, which pays a fixed monthly indemnity in the event of sickness or accident causing an inability to work. Regardless of which type of claim is pursued, to establish an entitlement to benefits, it is necessary to meet either a statutory or contractual definition of disability. Those definitions are divided generally into two groups: occupational disability and general disability. Under the first category, benefits are payable upon an inability to perform the material duties of ones own occupation; otherwise, a claimant must prove an inability to perform the duties of any occupation.
Group disability, or LTD insurance, is often a hybrid and will pay benefits for a limited period of time if the insured cannot work at his or her regular occupation. After that period, total disability must be shown. Because most LTD coverage is provided by employers as an employee benefit, claims under those policies are usually governed by the ERISA law (Employee Retirement Income Security Act). ERISA does not apply, though, if insurance coverage is provided by a government or religious employer. Because ERISA is a federal law, claims are mostly decided in federal court. ERISA claims do not allow for jury trials and there is no claim for any damages whatsoever.
However, there is one advantage afforded by ERISA: the insurer must conduct a meaningful appeal of the claim upon request. That affords claimants a powerful weapon because the federal regulations governing ERISA appeals mandate the claimant be provided with the entire claim record, free of charge, as well as all standards, criteria, and other documents that cover the administration of the claim. Armed with that information, a claimant can more easily discern why the claim was denied and target precisely what evidence might be needed to overcome a claim denial.
Fibromyalgia claims present a particular challenge because there are no laboratory tests available to diagnose or rate the severity of the impairment. Thus, it is crucial to put in the record the basis for the diagnosis and why other conditions causing the same symptoms were ruled out. It is also important to keep in mind that the diagnosis alone will never suffice to prove the claimthe degree of impairment must be established. Therefore, it is frequently helpful to place into the claim record as much evidence as possible that will humanize the claimant. Letters from family, friends, co-workers and clergy can describe not only the loss of occupational functionality, but the loss of ability to engage in normal family and social functions. Photographs and even videos can also illustrate the degree of disability and make the claim analyst see what the claimant looks like rather than considering the claim as just another statistic.
Most important, though, is a well-supported opinion from the treating doctor. Several recent cases give deference to the treating doctors opinion so long as the doctor has expertise (i.e., preferably a rheumatologist) and the medical opinions are not inconsistent with the other evidence. Such opinions must also counter another growing trend: to limit benefits for self-reported illnesses, including fibromyalgia. In Russell v. UNUM Life Insurance Company of America, 40 F.Supp.2d 747 (D.S.C. 1999), a court found a doctors detection of trigger points during the examination of a patient to constitute objective proof of fibromyalgia, thus taking the disorder out of the realm of a self-reported illness.
Because disability insurance claims can be extremely complex, it is important to retain experienced, competent counsel to assist in these cases starting with the appeal of the denial of benefits. It may be too late if hiring counsel is delayed until court is imminent because the standard and scope of review applied by courts may bar additional evidence and doom the litigation to failure even before it starts. Through local support groups and on-line discussion groups, recommendations of attorneys can usually be obtained. Depending on the facts and circumstances of the case, it may also be feasible to find an attorney willing to accept cases either on a contingency fee basis (fees are payable only if benefits are obtained) or by placing most of the fee obligation on a contingency fee basis after payment of an initial retainer.
Mark D. DeBofsky, Esq. is a member of the Chicago law firm of
Daley, DeBofsky & Bryant in Chicago, Illinois, specializing in disability insurance
claims and litigation and Social Security disability claims. He also serves as
adjunct professor of law at the John Marshall Law School in Chicago, Ill. DeBofsky
is a graduate of the University of Michigan and University of Illinois College of
Acquiring and Keeping Social Security Benefits for
CFIDS and FM Sufferers
The application and appeals process for Social Security Disability
Insurance benefits can be so overwhelming and intimidating that roughly half of all
Benefits Check Up quickly gives you a personal report of public programs and benefits that you may qualify for. Give them some basic information and they will check over 1,100 programs for you, including those covering more than 1,450 prescription medications, to see what you may qualify for. Do not be put off by the department of aging label. Many of these programs are for people of any age.
Winning Your Disability Case with the Help of
Co-Workers, Family Members and Friends by Scott E. Davis, Disability Attorney
How To Talk with your Physician about
Supporting your Disability Claim by Scott E. Davis, Disability Attorney 04-17-2001
Listing of Impairments.
A. Disorders of the musculoskeletal system may result from hereditary, congenital, or acquired pathologic processes. Impairments may result from infectious, inflammatory, or degenerative processes, traumatic or developmental events, or neoplastic, vascular, or toxic/metabolic diseases.
B. Loss of function.
1. General. Under this section, loss of function may be due to bone or joint deformity or destruction from any cause; miscellaneous disorders of the spine with or without radiculopathy or other neurological deficits; amputation; or fractures or soft tissue injuries, including burns, requiring prolonged periods of immobility or convalescence. For inflammatory arthritides that may result in loss of function because of inflammatory peripheral joint or axial arthritis or sequelae, or because of extra-articular features, see 14.00B6. Impairments with neurological causes are to be evaluated under 11.00ff.
2. How we define loss of function in these listings.
a. General. Regardless of the cause(s) of a musculoskeletal impairment, functional loss for purposes of these listings is defined as the inability to ambulate effectively on a sustained basis for any reason, including pain associated with the underlying musculoskeletal impairment, or the inability to perform fine and gross movements effectively on a sustained basis for any reason, including pain associated with the underlying musculoskeletal impairment. The inability to ambulate effectively or the inability to perform fine and gross movements effectively must have lasted, or be expected to last, for at least 12 months. For the purposes of these criteria, consideration of the ability to perform these activities must be from a physical standpoint alone. When there is an inability to perform these activities due to a mental impairment, the criteria in 12.00ff are to be used. We will determine whether an individual can ambulate effectively or can perform fine and gross movements effectively based on the medical and other evidence in the case record, generally without developing additional evidence about the individuals ability to perform the specific activities listed as examples in 1.00B2b(2) and 1.00B2c.
b. What we mean by inability to ambulate effectively.
(1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. (Listing 1.05C is an exception to this general definition because the individual has the use of only one upper extremity due to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.
c. What we mean by inability to perform fine and gross movements effectively. Inability to perform fine and gross movements effectively means an extreme loss of function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. To use their upper extremities effectively, individuals must be capable of sustaining such functions as reaching, pushing, pulling, grasping, and fingering to be able to carry out activities of daily living. Therefore, examples of inability to perform fine and gross movements effectively include, but are not limited to, the inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above waist level.
d. Pain or other symptoms. Pain or other symptoms may be an important factor contributing to functional loss. In order for pain or other symptoms to be found to affect an individual's ability to perform basic work activities, medical signs or laboratory findings must show the existence of a medically determinable impairment(s) that could reasonably be expected to produce the pain or other symptoms. The musculoskeletal listings that include pain or other symptoms among their criteria also include criteria for limitations in functioning as a result of the listed impairment, including limitations caused by pain. It is, therefore, important to evaluate the intensity and persistence of such pain or other symptoms carefully in order to determine their impact on the individual's functioning under these listings. See also §§ 404.1525(f) and 404.1529 of this part, and §§ 416.925(f) and 416.929 of part 416 of this chapter.
C. Diagnosis and evaluation.
1. General. Diagnosis and evaluation of musculoskeletal impairments should be supported, as applicable, by detailed descriptions of the joints, including ranges of motion, condition of the musculature (e.g., weakness, atrophy), sensory or reflex changes, circulatory deficits, and laboratory findings, including findings on x-ray or other appropriate medically acceptable imaging. Medically acceptable imaging includes, but is not limited to, computerized axial tomography (CAT scan) or magnetic resonance imaging (MRI), with or without contrast material, myelography, and radionuclear bone scans. "Appropriate" means that the technique used is the proper one to support the evaluation and diagnosis of the impairment.
2. Purchase of certain medically acceptable imaging. While any appropriate medically acceptable imaging is useful in establishing the diagnosis of musculoskeletal impairments, some tests, such as CAT scans and MRIs, are quite expensive, and we will not routinely purchase them. Some, such as myelograms, are invasive and may involve significant risk. We will not order such tests. However, when the results of any of these tests are part of the existing evidence in the case record we will consider them together with the other relevant evidence.
3. Consideration of electrodiagnostic procedures. Electrodiagnostic procedures may be useful in establishing the clinical diagnosis, but do not constitute alternative criteria to the requirements of 1.04.
D. The physical examination must include a detailed description of the rheumatological, orthopedic, neurological, and other findings appropriate to the specific impairment being evaluated. These physical findings must be determined on the basis of objective observation during the examination and not simply a report of the individual's allegation; e.g., "He says his leg is weak, numb." Alternative testing methods should be used to verify the abnormal findings; e.g., a seated straight-leg raising test in addition to a supine straight-leg raising test. Because abnormal physical findings may be intermittent, their presence over a period of time must be established by a record of ongoing management and evaluation. Care must be taken to ascertain that the reported examination findings are consistent with the individual's daily activities.
E. Examination of the spine.
1. General. Examination of the spine should include a detailed description of gait, range of motion of the spine given quantitatively in degrees from the vertical position (zero degrees) or, for straight-leg raising from the sitting and supine position (zero degrees), any other appropriate tension signs, motor and sensory abnormalities, muscle spasm, when present, and deep tendon reflexes. Observations of the individual during the examination should be reported; e.g., how he or she gets on and off the examination table. Inability to walk on the heels or toes, to squat, or to arise from a squatting position, when appropriate, may be considered evidence of significant motor loss. However, a report of atrophy is not acceptable as evidence of significant motor loss without circumferential measurements of both thighs and lower legs, or both upper and lower arms, as appropriate, at a stated point above and below the knee or elbow given in inches or centimeters. Additionally, a report of atrophy should be accompanied by measurement of the strength of the muscle(s) in question generally based on a grading system of 0 to 5 , with 0 being complete loss of strength and 5 being maximum strength. A specific description of atrophy of hand muscles is acceptable without measurements of atrophy but should include measurements of grip and pinch strength.
2. When neurological abnormalities persist. Neurological abnormalities may not completely subside after treatment or with the passage of time. Therefore, residual neurological abnormalities that persist after it has been determined clinically or by direct surgical or other observation that the ongoing or progressive condition is no longer present will not satisfy the required findings in 1.04. More serious neurological deficits (paraparesis, paraplegia) are to be evaluated under the criteria in 11.00ff.
F. Major joints refers to the major peripheral joints, which are the hip, knee, shoulder, elbow, wrist-hand, and ankle-foot, as opposed to other peripheral joints (e.g., the joints of the hand or forefoot) or axial joints (i.e., the joints of the spine.) The wrist and hand are considered together as one major joint, as are the ankle and foot. Since only the ankle joint, which consists of the juncture of the bones of the lower leg (tibia and fibula) with the hindfoot (tarsal bones), but not the forefoot, is crucial to weight bearing, the ankle and foot are considered separately in evaluating weight bearing.
G. Measurements of joint motion are based on the techniques described in the chapter on the extremities, spine, and pelvis in the current edition of the "Guides to the Evaluation of Permanent Impairment" published by the American Medical Association.
1. General. Musculoskeletal impairments frequently improve with time or respond to treatment. Therefore, a longitudinal clinical record is generally important for the assessment of severity and expected duration of an impairment unless the claim can be decided favorably on the basis of the current evidence.
2. Documentation of medically prescribed treatment and response. Many individuals, especially those who have listing-level impairments, will have received the benefit of medically prescribed treatment. Whenever evidence of such treatment is available it must be considered.
3. When there is no record of ongoing treatment. Some individuals will not have received ongoing treatment or have an ongoing relationship with the medical community despite the existence of a severe impairment(s). In such cases, evaluation will be made on the basis of the current objective medical evidence and other available evidence, taking into consideration the individual's medical history, symptoms, and medical source opinions. Even though an individual who does not receive treatment may not be able to show an impairment that meets the criteria of one of the musculoskeletal listings, the individual may have an impairment(s) equivalent in severity to one of the listed impairments or be disabled based on consideration of his or her residual functional capacity (RFC) and age, education and work experience.
4. Evaluation when the criteria of a musculoskeletal listing are not met. These listings are only examples of common musculoskeletal disorders that are severe enough to prevent a person from engaging in gainful activity. Therefore, in any case in which an individual has a medically determinable impairment that is not listed, an impairment that does not meet the requirements of a listing, or a combination of impairments no one of which meets the requirements of a listing, we will consider medical equivalence. (See §§ 404.1526 and 416.926.) Individuals who have an impairment(s) with a level of severity that does not meet or equal the criteria of the musculoskeletal listings may or may not have the RFC that would enable them to engage in substantial gainful activity. Evaluation of the impairment(s) of these individuals should proceed through the final steps of the sequential evaluation process in §§ 404.1520 and 416.920 (or, as appropriate, the steps in the medical improvement review standard in §§ 404.1594 and 416.994).
I. Effects of treatment.
1. General. Treatments for musculoskeletal disorders may have beneficial effects or adverse side effects. Therefore, medical treatment (including surgical treatment) must be considered in terms of its effectiveness in ameliorating the signs, symptoms, and laboratory abnormalities of the disorder, and in terms of any side effects that may further limit the individual.
2. Response to treatment. Response to treatment and adverse consequences of treatment may vary widely. For example, a pain medication may relieve an individual's pain completely, partially, or not at all. It may also result in adverse effects, e.g., drowsiness, dizziness, or disorientation, that compromise the individual's ability to function. Therefore, each case must be considered on an individual basis, and include consideration of the effects of treatment on the individual's ability to function.
3. Documentation. A specific description of the drugs or treatment given (including surgery), dosage, frequency of administration, and a description of the complications or response to treatment should be obtained. The effects of treatment may be temporary or long-term. As such, the finding regarding the impact of treatment must be based on a sufficient period of treatment to permit proper consideration or judgment about future functioning.
J. Orthotic, prosthetic, or assistive devices.
1. General. Consistent with clinical practice, individuals with musculoskeletal impairments may be examined with and without the use of any orthotic, prosthetic, or assistive devices as explained in this section.
2. Orthotic devices. Examination should be with the orthotic device in place and should include an evaluation of the individual's maximum ability to function effectively with the orthosis. It is unnecessary to routinely evaluate the individual's ability to function without the orthosis in place. If the individual has difficulty with, or is unable to use, the orthotic device, the medical basis for the difficulty should be documented. In such cases, if the impairment involves a lower extremity or extremities, the examination should include information on the individual's ability to ambulate effectively without the device in place unless contraindicated by the medical judgment of a physician who has treated or examined the individual.
3. Prosthetic devices. Examination should be with the prosthetic device in place. In amputations involving a lower extremity or extremities, it is unnecessary to evaluate the individual's ability to walk without the prosthesis in place. However, the individual's medical ability to use a prosthesis to ambulate effectively, as defined in 1.00B2b, should be evaluated. The condition of the stump should be evaluated without the prosthesis in place.
4. Hand-held assistive devices. When an individual with an impairment involving a lower extremity or extremities uses a hand-held assistive device, such as a cane, crutch or walker, examination should be with and without the use of the assistive device unless contraindicated by the medical judgment of a physician who has treated or examined the individual. The individual's ability to ambulate with and without the device provides information as to whether, or the extent to which, the individual is able to ambulate without assistance. The medical basis for the use of any assistive device (e.g., instability, weakness) should be documented. The requirement to use a hand-held assistive device may also impact on the individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling. (They mentioned I was slow and deliberate in my walking even with my cane.)
K. Disorders of the spine, listed in 1.04, result in limitations because of distortion of the bony and ligamentous architecture of the spine and associated impingement on nerve roots (including the cauda equina) or spinal cord. Such impingement on nerve tissue may result from a herniated nucleus pulposus, spinal stenosis, arachnoiditis, or other miscellaneous conditions. Neurological abnormalities resulting from these disorders are to be evaluated by referral to the neurological listings in 11.00ff, as appropriate. (See also 1.00B and E.)
1. Herniated nucleus pulposus is a disorder frequently associated with the impingement of a nerve root. Nerve root compression results in a specific neuro-anatomic distribution of symptoms and signs depending upon the nerve root(s) compromised.
2. Spinal arachnoiditis.
a. General. Spinal arachnoiditis is a condition characterized by adhesive thickening of the arachnoid which may cause intermittent ill-defined burning pain and sensory dysesthesia, and may cause neurogenic bladder or bowel incontinence when the cauda equina is involved.
b. Documentation. Although the cause of spinal arachnoiditis is not always clear, it may be associated with chronic compression or irritation of nerve roots (including the cauda equina) or the spinal cord. For example, there may be evidence of spinal stenosis, or a history of spinal trauma or meningitis. Diagnosis must be confirmed at the time of surgery by gross description, microscopic examination of biopsied tissue, or by findings on appropriate medically acceptable imaging. Arachnoiditis is sometimes used as a diagnosis when such a diagnosis is unsupported by clinical or laboratory findings. Therefore, care must be taken to ensure that the diagnosis is documented as described in 1.04B. Individuals with arachnoiditis, particularly when it involves the lumbosacral spine, are generally unable to sustain any given position or posture for more than a short period of time due to pain.
3. Lumbar spinal stenosis is a condition that may occur in association with degenerative processes, or as a result of a congenital anomaly or trauma, or in association with Paget's disease of the bone. Pseudoclaudication, which may result from lumbar spinal stenosis, is manifested as pain and weakness, and may impair ambulation. Symptoms are usually bilateral, in the low back, buttocks, or thighs, although some individuals may experience only leg pain and, in a few cases, the leg pain may be unilateral. The pain generally does not follow a particular neuro-anatomical distribution, i.e., it is distinctly different from the radicular type of pain seen with a herniated intervertebral disc, is often of a dull, aching quality, which may be described as "discomfort" or an "unpleasant sensation," or may be of even greater severity, usually in the low back and radiating into the buttocks region bilaterally. The pain is provoked by extension of the spine, as in walking or merely standing, but is reduced by leaning forward. The distance the individual has to walk before the pain comes on may vary. Pseudoclaudication differs from peripheral vascular claudication in several ways. Pedal pulses and Doppler examinations are unaffected by pseudoclaudication. Leg pain resulting from peripheral vascular claudication involves the calves, and the leg pain in vascular claudication is ordinarily more severe than any back pain that may also be present. An individual with vascular claudication will experience pain after walking the same distance time after time, and the pain will be relieved quickly when walking stops.
4. Other miscellaneous conditions that may cause weakness of the lower extremities, sensory changes, areflexia, trophic ulceration, bladder or bowel incontinence, and that should be evaluated under 1.04 include, but are not limited to, osteoarthritis, degenerative disc disease, facet arthritis, and vertebral fracture. Disorders such as spinal dysrhaphism (e.g., spina bifida), diastematomyelia, and tethered cord syndrome may also cause such abnormalities. In these cases, there may be gait difficulty and deformity of the lower extremities based on neurological abnormalities, and the neurological effects are to be evaluated under the criteria in 11.00ff.
L. Abnormal curvatures of the spine. Abnormal curvatures of the spine (specifically, scoliosis, kyphosis and kyphoscoliosis) can result in impaired ambulation, but may also adversely affect functioning in body systems other than the musculoskeletal system. For example, an individual's ability to breathe may be affected; there may be cardiac difficulties (e.g., impaired myocardial function); or there may be disfigurement resulting in withdrawal or isolation. When there is impaired ambulation, evaluation of equivalence may be made by reference to 14.09A. When the abnormal curvature of the spine results in symptoms related to fixation of the dorsolumbar or cervical spine, evaluation of equivalence may be made by reference to 14.09B. When there is respiratory or cardiac involvement or an associated mental disorder, evaluation may be made under 3.00ff, 4.00ff, or 12.00ff, as appropriate. Other consequences should be evaluated according to the listing for the affected body system.
M. Under continuing surgical management, as used in 1.07 and 1.08, refers to surgical procedures and any other associated treatments related to the efforts directed toward the salvage or restoration of functional use of the affected part. It may include such factors as post-surgical procedures, surgical complications, infections, or other medical complications, related illnesses, or related treatments that delay the individual's attainment of maximum benefit from therapy.
N. After maximum benefit from therapy has been achieved in situations involving fractures of an upper extremity (1.07), or soft tissue injuries (1.08), i.e., there have been no significant changes in physical findings or on appropriate medically acceptable imaging for any 6-month period after the last definitive surgical procedure or other medical intervention, evaluation must be made on the basis of the demonstrable residuals, if any. A finding that 1.07 or 1.08 is met must be based on a consideration of the symptoms, signs, and laboratory findings associated with recent or anticipated surgical procedures and the resulting recuperative periods, including any related medical complications, such as infections, illnesses, and therapies which impede or delay the efforts toward restoration of function. Generally, when there has been no surgical or medical intervention for 6 months after the last definitive surgical procedure, it can be concluded that maximum therapeutic benefit has been reached. Evaluation at this point must be made on the basis of the demonstrable residual limitations, if any, considering the individual's impairment-related symptoms, signs, and laboratory findings, any residual symptoms, signs, and laboratory findings associated with such surgeries, complications, and recuperative periods, and other relevant evidence.
O. Major function of the face and head, for purposes of listing 1.08, relates to impact on any or all of the activities involving vision, hearing, speech, mastication, and the initiation of the digestive process.
P. When surgical procedures have been performed, documentation should include a copy of the operative notes and available pathology reports.
Q. Effects of obesity. Obesity is a medically determinable impairment that is often associated with disturbance of the musculoskeletal system, and disturbance of this system can be a major cause of disability in individuals with obesity. The combined effects of obesity with musculoskeletal impairments can be greater than the effects of each of the impairments considered separately. Therefore, when determining whether an individual with obesity has a listing-level impairment or combination of impairments, and when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual's residual functional capacity, adjudicators must consider any additional and cumulative effects of obesity.
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);OR
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; OR
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b
The literature on employment among persons with disabilities
indicates that such persons experience lower labor force participation rates, higher
unemployment rates, and higher rates of part-time employment than persons without
disabilities (Yelin, 1997; Bennefield & McNeil, 1989). These findings are consistent
across numerous national surveys, including the Current Population Survey (CPS), Survey of
Income and Program Participation (SIPP), and the National Health Interview Survey (NHIS)
(Yelin & Katz, 1994a; Trupin & Armstrong, 1998; Trupin, Sebesta, Yelin &
LaPlante, 1997). They also hold for several definitions of disabilities, including work
capacity, activity limitation, or functional limitation (McNeil, 1993). Moreover,
disabilities appears to accentuate other labor market liabilities, including gender, age,
and race (Yelin & Katz, 1994b). A recent national survey on disabilities found that
two-thirds of working-age adults with disabilities were not employed and that nearly 80
percent of them wanted to work (National Organization on Disability, 1994).
All of the attorneys listed here were given to us by word of mouth only, we have no experience with any of them and can not vouch for their success rate at Disability cases other than what has been told to us. We place them here only as a starting point for those that may need to find Social Security attorneys and information about filing claims.
Designed, developed and
Page Updated: September 19, 2009