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Jacques Chambers, CLU, Benefits Consultant
As discussed in prior articles, obtaining disability benefits from Social Security can be a challenge for people with HCV. Many of the symptoms, such as pain and fatigue are subjective, which makes them difficult to prove with laboratory testing. In addition, it is sometimes difficult to demonstrate that the symptoms are expected to last at least twelve months, especially when the primary disabling symptoms are due to the regimen of treatment.
However, Social Security looks at the total person and all symptoms when determining disability. They look at the cumulative effect of all symptoms regardless of their origin, including side effects of medication. HCV infection is only one possible source of severe fatigue.
Often, there are other conditions that make the fatigue even more debilitating. When applying for Social Security Disability, it is important that all diagnosed conditions be listed in the initial applications so they will consider all causes and understand the severity of the fatigue caused by them.
However, Social Security law prohibits accepting a claim for disability on the basis of an individual’s statement of symptoms alone. A claimant’s statement of disabling fatigue without any medical support will not be sufficient to receive benefits. To qualify for Social Security Disability there must be a “medically determinable physical or mental impairment or combination of impairments.” Therefore, it is important there be an underlying diagnosis which supports the symptom of fatigue.
For persons with HCV, the other condition is frequently Fibromyalgia or Chronic Fatigue Syndrome (CFS). And often, the symptoms of the fibromyalgia are more disabling than those of HCV.
Because the symptoms of fibromyalgia are subjective (not measurable by any lab test) and because there is no definitive test to diagnose fibromyalgia, it has been difficult to qualify for Social Security disability benefits. This has been an issue with both Fibromyalgia and with Chronic Fatigue Syndrome (CFS), also called Chronic Fatigue and Immune Dysfunction Syndrome (CFIDS).
Although similar in symptomatology, Social Security looks at each differently.
In many cases, there will be an overlap of symptoms between fibromyalgia and CFS so that the distinction between the two is relatively blurred, but either can be considered as a “medically determinable impairment.”
For fibromyalgia, in the absence of any specific diagnostic test, Social Security recognizes the diagnostic criteria as set forth by the American College of Rheumatology. Under their guidelines, they will determine a diagnosis of fibromyalgia if there is documentation of both:
- History of widespread pain which includes pain on right and life sides of the body and pain above and below the waist; AND,
- Pain in 11 of 18 tender point sites on digital palpation, which means a force of 4 kilograms on the tender point is “painful” and not simply “tender.”
After a review of current medical information, Social Security has determined that they will consider both fibromyalgia and CFS to be “medically determinable impairment” provided there are appropriate medical signs or laboratory findings, and they have put out a bulletin to their disability examiners on what is needed to approve disability with that diagnosis. They have issued a Policy Interpretation Ruling on how they evaluate cases involving CFS. It can be found on Social Security’s website at: http://www.ssa.gov/OP_Home/rulings
Persons with CFS may not fulfill the requirements for a diagnosis of fibromyalgia but Social Security will consider CFS as disabling if they meet the guidelines set forth in the ruling. To meet the Social Security criteria for CFS, one or more of the following medical signs must be clinically documented over a period of at least 6 consecutive months:
• Palpably swollen or tender lymph nodes on physical examination;
• Nonexudative pharyngitis (swelling in the upper throat);
• Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points; OR,
• Any other medical signs that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record.
While there are no specific laboratory findings that are widely accepted as being associated with either fibromyalgia or CFS, certain laboratory findings may establish the existence of a medically determinable impairment in persons with CFS or fibromyalgia. Those laboratory tests include:
• Elevated antibody titer to Epstein Barr virus (EBV) capsid antigen equal to or greater than 1:5120, or early antigen equal to or greater than 1:1640;
• An abnormal MRI brain scan;
• Neurally mediated hypotension as shown by tilt table testing or another clinically accepted form of testing; or,
• Other laboratory findings that are consistent with medically accepted clinical practice such as an abnormal exercise stress test or abnormal sleep studies.
They will also consider mental symptoms as well in arriving at a “medically determinable impairment.” Some of the symptoms reported by people with CFS include short term memory loss, difficulty with information processing, visual-spatial difficulties, problems with comprehension, concentration, speech, word-finding, calculation and other symptoms pointing to ongoing neurocognitive impairment. When these symptoms are documented with neurocognitive evaluations, psychological testing and other mental status examinations, they may establish a “medically determinable impairment.”
Properly documented symptoms of affective disorders such as depression or anxiety may also establish impairment. It is important, however, that if there is a diagnosis of depression that there be some form of treatment either ongoing or attempted, such as therapy or prescribed anti-depressants.
Establishing a “medically determinable impairment” is only the first step in the disability process. Next it is necessary to determine the severity of the impairment. According to Social Security, the severity of an individual’s impairment is determined based on the totality of medical signs, symptoms, and laboratory findings as well as the effects of the impairment on the person’s ability to function.
It is difficult enough to establish the existence of subjective symptoms such as pain and fatigue; it can be even more challenging to show that the severity of the symptoms are sufficient to prevent performance of any meaningful work. The level of impairment(s) must be considered “severe” to be considered disabling.
This is where it is important that the physician note the symptoms at each visit and include a brief notation as to level of severity. When visiting the doctor, describe an incident that illustrates the level of fatigue and insist that it be included in the record. All attempts at treating the fatigue should be well documented even if unsuccessful.
In addition, a symptom diary may be helpful—a daily diary that records symptoms, their severity and their impact on the day’s activities. Any accommodations before leaving work, such as longer lunch hours, longer breaks, or reduced hours should also be documented.
When completing Social Security’s questionnaires, such as the Fatigue Questionnaire or the Daily Activities Questionnaire, it is important to note how fatigue has affected daily activities and the efforts made to ration energy.
Fatigue is never an easy symptom to document; however, careful notation in the medical records and multiple diagnoses of conditions that exacerbate fatigue will improve your chance of obtaining disability benefits.
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[Jacques Chambers, CLU, and his company, Chambers Benefits Consulting, have over 35 years of experience in health, life and disability insurance and Social Security disability benefits. For the past twelve years, he has been assisting people with their rights, problems, and other issues concerning benefits and disability. He can be reached at email@example.com or through his website at: http://www.helpwithbenefits.com.]
Copyright March 2004– Hepatitis C Support Project - All Rights Reserved. Permission to reprint is granted and encouraged with credit to the Hepatitis C Support Project.
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