Tips for Winning a Fibromyalgia or CFS Disability Case...and...What actually happens at a Social Security Disability Hearing?
(EXCERPTS)
by Jonathan Ginsberg, Attorney, Atlanta, Georgia* Fibromyalgia.com
Jonathan Ginsberg is a Social Security Disability case lawyer specialized in representing patients with chronic illnesses such as Chronic Fatigue Syndrome and Fibromyalgia. He maintains a "Social Security Disability" website offering resources from disability lawyers all over the U.S., plus a blog and radio program where patients may submit questions and receive professional responses. Though he uses examples from FM cases here, the concepts apply equally to CFS and other "invisible" disabilities.
Tips for Winning a Fibromyalgia [or CFS] Disability Case
In a disability case, you need to prove one thing - that you are not able to work. If you remember nothing else about Social Security disability, remember that your capacity for performing work is the only thing that matters to a Social Security judge. Your ability to perform an easy job - the main issue Your underlying medical condition -- FM, [CFS], or any other medical problem, is only important to the Social Security Judge if your symptoms limit you from performing a job 8 hours a day, 5 days a week.
What is the Judge thinking?
There is a perception that Social Security disability cases based on Fibromyalgia [or Chronic Fatigue Syndrome] are difficult to win. It is true that some judges have a problem acknowledging a medical syndrome (not a "disease") that cannot be detected by a blood test and that can have a wide range of symptoms. (See the clinical definition of Fibromyalgia as set forth by the American College of Rheumatology, at http://www.nfra.net/Diagnost.htm ) Judges are people, and they tend to discount complaints they hear again and again.
As you may know, Fibromyalgia often produces other identifiable symptoms, including loss of balance, digestive problems, irritable bowel syndrome, slurred speech, vision problems, depression, swelling, memory loss, cognitive loss, fatigue, sleeplessness, etc. You might find it helpful to read a Judge’s decision in a Fibromyalgia case. (The file at http://www.4socialsecuritydisability.com/Fibro%20decision.pdf offers two of my recent favorable Fibromyalgia decisions from the Atlanta Office of Hearings & Appeals.)
The first case involved a 38-year-old woman with an extensive job background who suffers from Fibromyalgia as well as numerous gastrointestinal and other complications. Note that the Judge focuses on my client’s work history and that she is very credible because she has been seeking a medical solution to her problem.
Deciding on a start-date for your disability
I also have found that many of my Fibromyalgia clients were ambitious and hardworking in their careers and jobs. Subconsciously or otherwise, many Judges realize that few claimants would trade the money and job satisfaction of a challenging career for the fixed income offered by Social Security disability. I therefore usually encourage my clients to testify about:
* What they did before they stopped work,
* How they tried to hang on, even while fighting increasing levels of pain and fatigue,
* And how they would greatly prefer their former way of life.
Note: The comments and opinions expressed here should not be considered legal advice, as every Social Security Disability case is different and depends on your individual case information. Further, the author makes no warranty, express or implied, about the accuracy or reliability of this information. You should not act or rely on any information without seeking the advice of an attorney or qualified non-attorney representative.
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What Actually Happens at a Social Security Disability Hearing? by Jonathan Ginsberg, Attorney - Atlanta, Georgia*
The Vocational Expert
In most cases, the Judge will call a Vocational Expert (also called a VE). * The VE may be a job placement professional, a professor, or a vocational rehab counselor. * The VE’s job is to classify your past work and describe for the judge the skill level of your past work (unskilled, semi-skilled or skilled) along with the exertional level called for in this job (sedentary/sit-down, light, medium, or heavy). * The judge needs this information to determine whether your claimed impairment would prevent you from returning to your past work and whether you have acquired any skills that would transfer to less demanding work. * Vocational experts will be familiar with a publication called the Directory of Occupational Titles - which is a book published by the U.S. Department of Labor that describes the physical and mental requirements of all jobs that exist in the United States.
What you must remember when testifying
The most important things for you to remember when testifying are as follows:
* Tell the truth.
* Be specific - instead of saying "I can’t walk very far and I can’t lift very much," say "It’s about 25 yards to my mailbox. When I get to the mailbox, I have to stop because my knees hurt so bad and my chest hurts. When I come back, I have to support myself on a fence so I won’t lose my balance" "As far as lifting, I tried to lift a gallon of milk about a month ago, but I could not hold it, even with both hands, and it fell and spilled all over the floor."
* It is very important that you remember and practice being specific. It has been our experience that you will be nervous, and that at a hearing, it will be hard to think about how much you can lift, how far you can walk, etc. Practice ahead of time!
* Be very descriptive when describing pain. Don’t say "it hurts a lot." Instead, say "when I get a migraine, I can’t do anything. I feel nauseated and sick. I turn off the lights, lie in bed with a cold compress on my forehead, and try not to think at all. It usually takes my medicine about an hour to kick in - even that does not help - it just puts me to sleep."
* If you need to stand up and walk around, do so. Judges don’t mind if you have to stretch out. This is especially important if you testify that you can sit without interruption for no more than 15 minutes, then sit still at your hearing for an hour.
* Say "yes" or "no," not "uh-huh" or "huh?" or just nod or shake your head. Remember that your hearing is being tape recorded.
* Don’t curse.
* Dress neatly - you don’t need your Sunday best, but you should avoid blue jeans and T-shirts.
* Bring your bottles of medicine - the Judge may want to see them.
* Your attitude during your testimony is important. Remember that your Judge sees claimants every daywho want benefits. Your attitude ought to be "if I could work I would work." Describe for the Judge what you did and how you enjoyed being productive and useful. Don’t tell the Judge that you are "disabled" - that is his job to decide.
After listening to your testimony, the Judge will then take the Expert Witness testimony and ask questions of the Expert Witnesses. Your attorney will also be given an opportunity to ask questions of the Expert Witnesses.
* Jonathan Ginsberg is a practicing Social Security attorney in Atlanta. This material is reproduced with kind permission of the author from his "Social Security Disability" resource website - http://www.4socialsecuritydisability.net. © 2007, Six Point Advertising and Marketing LLC. In addition to his website, Mr. Ginsberg maintains a blog (http://www.ssdanswers.com) where patients may submit questions and receive professional responses; and an Internet Social Security Disability radio program featuring Q&A and interviews "about winning case strategies and forthcoming changes to the disability adjudication process."
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