Can This Case Be Won?
This feature will appear from time to time as a means of illustrating the challenges that most applicants for social security disability benefits undergo, in their efforts to be approved. These challenges include the many levels of decision-making for a social security disability claim (Initial application, Reconsideration, Hearing, Appeals Council, Federal Court), the specific issues raised by alcohol and drugs, the need to demonstrate that you cannot do past work or sometimes, any work at all, and the like. Cases are derived from actual clients I have represented but their names, details and key facts are changed to protect privacy.
“I didn’t choose to be in pain. Why won’t they believe that this is real?”
“I can’t imagine how I could work again – I feel like my brain is in a fog,” said Lisa, age 45. A petite woman, Lisa’s face showed the strain she was feeling.
“You can’t imagine how different I used to be. I loved to hike and camp; my husband and I used to go bike riding with the kids. And I loved my job as a preschool teacher.”
“Now, I am in pain all of the time, even with medication. And the meds make me sleepy. Sure, I have good days and bad days but even on my good days, I couldn’t handle a full-time job.”
I asked Lisa to try to describe what Social Security refers to as ADLs – her activities of daily living.
“I can only lift a few pounds these days. I can sit for about two minutes before I’m in pain and it’s the same for standing. I can’t bend or squat at all. You know, the worst part is my brain – when I’m having a bad day, I can’t remember common words or finish sentences. And I get so distracted – even in the middle of conversations!”
Lisa’s doctor felt differently. “As far as I’m concerned, Fibromyalgia is a diagnosis in search of a disease. It really just describes symptoms…and even those vary from person to person. Doctors who even acknowledge the existence of fibromyalgia give the diagnosis as a last resort. To me, a diagnosis of Fibromyalgia just means that the cause of the patient’s problems haven’t been found,” she explained.
“Lisa’s symptoms have been all over the map. She’s complained of depression and fatigue, then it was headaches and then it was insomnia. I think it’s all pretty subjective and frankly, I think her problems are primarily mental.” Lisa’s doctor was firm; she would not write a letter on her patient’s behalf.
The lawyer’s view:
Lisa’s case posed challenges:
1. Her doctor was not supportive of her disability application because she did not accept Fibromyalgia as a disease. And, because the Social Security Listings[1] don’t include Fibromyalgia, Lisa could not be said to meet a listing.
2. Lisa’s disease involved a constellation of symptoms.
3. Lisa had good days and bad days.
What happened?
In fact, Lisa’s application for benefits was not only denied initially and at Reconsideration, she also lost at her first hearing. She came to us for representation when she appealed to the Appeals Council.
We were able to get Lisa’s case remanded for a new hearing as our first step. In anticipation of the new hearing, we recommended to Lisa that she find a new healthcare provider who was familiar with Fibromyalgia. We also asked Lisa to keep a daily journal of how her Fibromyalgia was affecting her life. Although a consulting physician hired by SSA to evaluate Lisa’s disability reported that she could do light work, we obtained a letter from Lisa’s new treating source, who had also reviewed her past medical records. Her treating source gave the strong opinion that Lisa would miss at least two days of work each month due to her symptoms and in addition, would be off task the equivalent of one day per month due to to cognitive limitations. We won the case.
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[1] The listings, also known as the Manual and as the Blue Book, describe, for each major body system, impairments considered severe enough to prevent an individual from doing any gainful activity. In other words, if you meet a listing, you will be presumed to be disabled.