Social Security Issues New Ruling For Chronic Fatigue Syndrome

SSR 14-1p clarifies the policy on how SSA develops evidence to establish that a person has a medically determinable impairment (MDI) of Chronic Fatigue Syndrome (CFS) and how this impairment is evaluated in disability claims and continuing disability reviews under titles II and XVI the Social Security Act (Act).  

Under the CDC case definition, the hallmark of CFS is the presence of clinically evaluated, persistent or relapsing chronic fatigue that:

  1. Is of new or definite onset (that is, has not been lifelong);
  2. Cannot be explained by another physical or mental disorder;
  3. Is not the result of ongoing exertion;
  4. Is not substantially alleviated by rest; and
  5. Results in substantial reduction in previous levels of occupational, educational, social, or personal activities.

The CDC case definition requires the concurrence of 4 or more specific symptoms that persisted or recurred during 6 or more consecutive months of illness and did not pre-date the fatigue:

  • Postexertional malaise lasting more than 24 hours (which may be the most common secondary symptom);
  • Self-reported impairment(s) in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities;
  • Sore throat;
  • Tender cervical or axillary lymph nodes;
  • Muscle pain;
  • Multi-joint pain without joint swelling or redness;
  • Headaches of a new type, pattern, or severity; and
  • Waking unrefreshed.

Within these parameters, the CDC case definition, CCC, and ICC describe a wide range of other symptoms a person with CFS may exhibit:

  • Muscle weakness;
  • Disturbed sleep patterns (for example, insomnia, prolonged sleeping, frequent awakenings, or vivid dreams or nightmares);
  • Visual difficulties (for example, trouble focusing, impaired depth perception, severe photosensitivity, or eye pain);
  • Orthostatic intolerance (for example, lightheadedness, fainting, dizziness, or increased fatigue with prolonged standing);
  • Respiratory difficulties (for example, labored breathing or sudden breathlessness);
  • Cardiovascular abnormalities (for example, palpitations with or without cardiac arrhythmias);
  • Gastrointestinal discomfort (for example, nausea, bloating, or abdominal pain); and
  • Urinary or bladder problems (for example, urinary frequency, nocturia, dysuria, or pain in the bladder region).

People with CFS may have co-occurring conditions, such as fibromyalgia (FM), myofascial pain syndrome, temporomandibular joint syndrome, irritable bowel syndrome, interstitial cystitis, Raynaud’s phenomenon, migraines, chronic lymphocytic thyroiditis, or Sjogren’s syndrome. Co-occurring conditions may also include new allergies or sensitivities to foods, odors, chemicals, medications, noise, vibrations, or touch, or the loss of thermostatic stability (for example, chills, night sweats, or intolerance of extreme temperatures).

A person can establish that he or she has an medically determinable impairment (MDI) of CFS by providing appropriate evidence from an acceptable medical source, laboratory findings and mental limitations.   In cases in which CFS is alleged, SSA generally needs longitudinal evidence because medical signs, symptoms, and laboratory findings of CFS fluctuate in frequency and severity and often continue over a period of many months or years.  This evidence can be obtained from acceptable medical sources, nonmedical, and lay persons to document severity and functional limitations.

Eligibility For Social Security Disability With Fibromyalgia

Fibromyalgia is a complex medical condition characterized by widespread pain. Fibromyalgia syndrome affects the joints, muscles and soft tissue. Symptoms include chronic muscle pain, fatigue, sleep problems, and painful tender points or trigger points, which can be relieved through medications, lifestyle changes and stress management.

A recent Social Security Ruling, SSR 12-2p, issued in 2012, addresses when fibromyalgia should be found as a medically determinable impairment.  This ruling provides guidance on how SSA develops evidence to establish that a person has a medically determinable impairment. A claimant for disabilty benefits will be found eligible if they satisfy either of two sets of criteria set forth in SSR 12-2p:

The 1990 ACR Criteria for the Classification of Fibromyalgia

A claimant may be found to have a medically determinable impairment of fibromyalgia if he or she has all three of the following:

  1. A history of widespread pain – pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back) – that has persisted (or that persisted) for at least 3 months.
  2. At least 11 positive tender points on physical examination (of 18 tender point sites).  A tender point is positive if the person experiences any pain when applying pressure.  The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist.

The 18 tender point sites are located on each side of the body at the:

  • Occiput (base of the skull);
  • Low cervical spine;
  • Trapezius muscle (shoulder);
  • Supraspinatus muscle (near shoulder blade);
  • Second rib (top of rib cage);
  • Lateral epicondyle (outer aspect of the elbow);
  • Gluteal (top of the buttock);
  • Greater trochanter (below the hip); and
  • Inner aspects of the knee.

3.   Evidence that other disorders that could cause the symptoms or signs were excluded.

The 2010 ACR Preliminary Diagnostic Criteria

  1. A history of widespread pain;
  2. Repeated manifestations of six or more Fibromyalgia symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome;
  3. Evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.

Once it is established that a person has a medically determinable impairment, SSA will evaluate the case under the sequential evaluation process to determine whether the person is disabled.  SSA will consider the severity of the impairment, whether the impairment medically equals the requirements of a listed impairment, and whether the impairment prevents the person from doing his or her past relevant work or other work that exists in significant numbers in the national economy.  For more information on the 5-step sequential evaluation process for Social Security Disability, please click here for our post.

Qualifying For Disability With Crohn’s Disease

Crohn’s disease, also known as Colitis, is a chronic inflammatory disorder of the digestive system that creates ulcers along the digestive tract.  Crohn’s disease primarily causes breaks in the lining of the small and large intestines.  In severe cases, these ulcers can scar, narrow, and obstruct the bowel. Symptoms of Crohn’s often include abdominal pain, persistent diarrhea, bloody stool, vomiting, diminished appetite and weight loss.  Treament plans for Crohn’s disease may include antibiotics, anti-inflammatories or even surgery for severe cases to repair damages to the digestive tract.

Crohn’s disease can qualify for disability benefits if the symptoms are severe enough to meet or equal a Social Security listing.  Crohn’s disease is evaluated under the listing for inflammatory bowel disease.

5.06  Inflammatory bowel disease (IBD) documented by endoscopy, biopsy, appropriate medically acceptable imaging, or operative findings with:

A. Obstruction of stenotic areas (not adhesions) in the small intestine or colon with proximal dilatation, confirmed by appropriate medically acceptable imaging or in surgery, requiring hospitalization for intestinal decompression or for surgery, and occurring on at least two occasions at least 60 days apart within a consecutive 6-month perio

OR

B. Two of the following despite continuing treatment as prescribed and occurring within the same consecutive 6-month period:

1. Anemia with hemoglobin of less than 10.0 g/dL, present on at least two evaluations at least 60 days apart; or

2. Serum albumin of 3.0 g/dL or less, present on at least two evaluations at least 60 days apart; or

3. Clinically documented tender abdominal mass palpable on physical examination with abdominal pain or cramping that is not completely controlled by prescribed narcotic medication, present on at least two evaluations at least 60 days apart; or

4. Perineal disease with a draining abscess or fistula, with pain that is not completely controlled by prescribed narcotic medication, present on at least two evaluations at least 60 days apart; or

5. Involuntary weight loss of at least 10 percent from baseline, as computed in pounds, kilograms, or BMI, present on at least two evaluations at least 60 days apart; or

6. Need for supplemental daily enteral nutrition via a gastrostomy or daily parenteral nutrition via a central venous catheter.

If you do not meet or equal the Social Security listing for inflammatory bowel disease, you still may qualify for benefits if you prove there are no jobs you can still perform given your age, education and residual functional capacity.  Please call our office if you have any questions or to discuss your particular case.

Substantial Gainful Activity

What does substantial gainful activity mean (SGA)?  I get this question all the time, and it is difficult to answer without a lengthy explanation.  According to Social Security’s POMS (Program Operations Manual System) manual, SGA is defined as “the performance of significant physical or mental activities in work for pay or profit or in work of a type generally performed for pay or profit. Work may be substantial even if it is performed on a seasonal or part-time basis, or even if the individual does less, is paid less, or has less responsibility than in previous work.”

A person who is earning more than a certain monthly amount (net of impairment-related work expenses) is ordinarily considered to be engaging in SGA.  In 2013, the earnings amount threshold that SSA considers SGA is $1,040 ($1,740 for blind applicants).  This does not mean that if you earn less than the amount set by SSA, you automatically are working less than SGA level.  If you have the ability to work at SGA level, regardless of earnings, your claim may be denied.  For example, illegal activity can be considered to satisfy SGA.  In Dotson v. Shalala, 1 F.3d 571 (7th Cir. 1993), the claimant was supporting a $200-$300 per day heroin habit by stealing.  The Administrative Law Judge (ALJ) found that in order to steal he must “case” the area in which he has determined to steal the property. He must then plan on how he is going to steal the property and then actually steal it. During the month in which the hearing was held the claimant was stealing chainsaws. Lifting and carrying the chainsaws would also be significant physical activity. The planning and execution of the larceny entails significant mental activity. From these activities the claimant earns enough money to support his cocaine habit and provide him with other money in substantial amounts exceeding $200 to $300 a day. [Emphasis in original.]  Shalala, 1 F.3d at 574.  Similarly, volunteer work may be considered SGA if it is the type of work that others may receive earnings from.

On the other hand, high earnings doesn’t necessarily mean that the claimant was engaging in SGA.  For example, if he or she was working under special conditions that, but for the special conditions, the claimant would not have earned the amount they received.

Breakthrough In Down Syndrome Research at UMass Medical

I read a very interesting article recently on the UMass Medical School website regarding Down Syndrome research.  Scientists at UMass have found a way to block or neutralize the extra chromosome that causes developmental problems and intellectual disabilities in people with Down Syndrome.   The discovery “may one day help establish potential therapeutic targets for future therapies.”  To read the entire article, see the UMass website.  Please  refer to Nature to read the details of the study.

What Is a Medical-Vocational Allowance In Social Security Disability?

A medical vocational allowance is the term used by Social Security (SSA) when your condition does not meet the criteria in SSA’s listings but it is determined that you are still unable to work.

To be approved for Social Security disability benefits, SSA will evaluate your claim using the five step sequential evaluation process.  At steps 1 and 2, SSA addresses whether you are performing substantial gainful activity and if  you have a severe impairment.  At step 3, SSA evaluates your claim to determine if you meet a listing.  To meet a listing, you must meet specific criteria to be found disabled.  The criteria is different  for each listing as it applies  to different conditions and, unfortunately, most claimants do not meet a listing.

If you do not meet a listing, SSA will further evaluate your claim under steps 4 and 5  to determine the impact your disability has on your ability to work.  SSA will examine your illness, conditions and limitations to determine if you can do your past work, and if not, if there are any other jobs that you could still perform based upon your age, education and work history.  This is called your residual functional capacity.  If it is determined that there are no jobs that you could perform based on your residual functional capacity, then your claim will be approved under a medical vocational allowance.

Autism Legislation

Massachusetts Advocates for Children posted an interesting summary of the Massachusetts legislative priorities for Autism Commission related bills.  One is particularly interesting in that it would require the Board of Education to provide a mechanism for Special Education teachers to receive an Autism Endorsement.  The endorsement will address the specific competencies needed for teachers to address the complex and unique needs of students with autism.  If passed, starting in 2016, IEP Teams for students with autism would include a teacher with an Autism Endorsement to ensure that the school can fully address the complex communication, behavioral, sensory, social, and academics needs of youth in the least restrictive environment.

To see a summary of the Bill, click here for the Massachusetts Advocates for Children website.

Ticket To Work Program

AARP posted an interesting article recently regarding the Social Security Administration’s (SSA) Ticket To Work Program. The Ticket To Work program allows beneficiaries to attempt to reenter the workforce without automatically losing their benefits.  The program arranges free vocational training,  rehabilitation, job referrals, and employment assistance. To read the full article, click here.

Redetermination For Children’s Disability at 18

Many parents have asked what happens to their child’s disability benefit when they turn 18.  Do they automatically lose the benefit?  The answer is no.

At age 18, the child must go through a process called a redetermination of benefits to determine whether or not their benefits should continue.  The reason for this process is because the standard to determine disability is different for adults as it is for children.  As a child, the Social Security Administration (SSA) determines limitations based on functioning over six domains of function.  When the child turns 18, SSA must examine the child’s limitations and how it affects their ability or capacity to work.

So how does SSA determine a child’s ability to work at age 18 with little or no work experience.  SSA will assess the child’s ability to work or enter the workforce based on limitations observed in school, part-time work or volunteer position, and discussing the child’s limitations with persons that may have made observations regarding the ability to work.

Documentation will be needed to show these limitations and may include:

  • Medical records
  • School records
  • Teacher statements
  • Counseling records
  • Statements by employers, charities, internships and volunteer opportunities
  • Statements by family

Qualifying For Disability Benefits With Chronic Fatigue Syndrome

Chronic fatigue syndrome (CFS) is a complicated disorder characterized by extreme fatigue that can’t be explained by any underlying medical condition. The fatigue may worsen with physical or mental activity, but doesn’t improve with rest.  Because there is no medical test to diagnose CFS, you may need to undergo a variety of tests to rule out other medical conditions with similar symptoms.

You can qualify for disability benefits based upon a diagnosis for chronic fatigue syndrome (CFS) if it impacts your ability to work.  You must be out of work, or expected to be out of work, for at least twelve (12) months.  Social Security (SSA) will then analyze your claim using the five step sequential evaluation process.  For a detailed discussion on the five step sequential evaluation process, see other posts here.  Essentially, SSA will evaluate whether you can perform your past work, and if not, will then analyze whether there are any jobs you can transition to.

To be approved for disability benefits, you must suffer from at least four of the following symptoms for a period exceeding six months:

  • muscle pain
  • pain in multiple joints without redness or swelling
  • memory or concentration problems that cause a serious reduction in your activities
  • frequent sore throats
  • tender lymph nodes in the neck or under the arm
  • headaches of a different quality than before onset of chronic fatigue
  • sleep that does not refresh you, and
  • a general feeling of being unwell that lasts at least 24 hours following a period of exertion.

SSA will review your medical records, test results and any other evidence that you submit to determine your eligibility for benefits.  It may also be helpful to have your treating physician provide a statement detailing your limitations.