DISABILITY

Printable Articles to help you through the process.

Win Your Disability Case by Obtaining Your Personnel File From Work By Scott E. Davis, Esq
Supreme Court Limits ADA Disability Definition
The Employment Experience of Persons with Limitations in Physical Functioning
FM Patients ARE Eligible for Disability Benefits
Persevere on disability claims by Scott E. Davis, Disability expert
Department of Social Security (United Kingdom)
Winning Your Disability Case with the Help of Co-Workers, Family Members and Friends
How To Talk with your Physician about Supporting your Disability Claim
Acquiring and Keeping Social Security Benefits for CFIDS and FM Sufferers
Listing of acceptable Impairments. Musculoskeletal System listings and criteria.

Filing 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
of paperwork and gather documents from your medical team to back up your claims and proof of your income.

After spending weeks filling out the forms, gathering the needed documentation and fighting for an appointment with an examiner the day
finally arrives. You turn in your paperwork, you endure the agony of a face to face interview and are told you will hear from them soon.

    Weeks, 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
    from the government. Ripping open the envelope you expect to see a well deserved check, instead you find a form letter informing you that
    your claim has been denied. The government doctors have deemed that you are not disabled according to the current laws.

Now 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
benefits. What now? Stick with it!

    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
    over 50% of applicants are awareded benefits after filing an appeal.

    What can you expect? Once you submit your initial application it is doubtful that you will even meet with a real person. Someone will scan
    your application and medical records only to stamp you as disapproved. Don't quit! You have sixty days to file an appeal, do it!

    Once you file an appeal your application has to be reconsidered, many more applicants are still denied at this level. Again, this process can
    take any where from a few weeks to month to get a response. If you are denied at this level, do NOT give up, they expect you to give up at
    this point.

The 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
piece of paper. Over 50% of people win their benefits at this stage.

It is recommended that you have a knowledgable representative on your side at this stage, an attorney who can help you prepare your case.

     Gather copies of your medical records.
     Make sure your doctor is on board and willing to help. If not, try to find a doctor willing to participate.
     Be prepared to fill out reams of forms, over and over again.
     Find an attorney who specializes in disability law. Many of them will work on your case and collect their fees from your winnings. A reputable
     attorney will only charge the legal percentage of your award. (There is a legal cap on the amount they are allowed to earmark from your initial
     award.)
     Enter this journey knowing that you will most likely be denied on your first attempt, be willing to appeal.

     Frequency, Severity and Duration Friday, October 1, 2004 By: Scott E. Davis, Esq. Reprinted from FMOnline

     In a disability case, almost any symptom or limitation can be disabling; but to determine whether they preclude work, the relevant questions are how frequent,
     how severe, and how long do they last?

     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!
     Clearly, under federal law, a disability claimant has to have a legitimately diagnosed physical and/or psychological disorder to even allege disability, but this is
     only the beginning of the analysis.

     Disability cases are almost always won or lost based on the quality (documentation) of your medical records and the subsequent opinions rendered by your
     treating physicians regarding your ability to sustain full-time employment. The documentation of symptoms and limitations in your medical records is critical,
     as it provides tremendous credibility to and an understanding of why your doctors have concluded you are unable to work.

     Once a diagnosis is established, the disability inquiry immediately shifts to why you are unable to work due to the symptoms and limitations that result from the
     diagnosis. I tell my clients that of the total time spent in a disability hearing before a federal judge, 5% is spent on the diagnosis and 95% is spent determining
     the frequency, severity and duration of symptoms and limitations, and whether they prevent all work. Ignoring this fact places the success of your claim
     in great peril…don’t ever forget this!

     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
     diagnosed with a disorder automatically confirms they are disabled and entitled to benefits. This is especially true of people suffering from chronic pain and
     fatigue disorders such as fibromyalgia and chronic fatigue syndrome. I believe this is true because these folks have almost universally been sent on
     an “odyssey”by the medical community, simply to obtain a diagnosis. Never forget that obtaining a physical and/or psychological diagnosis is the very
     beginning, and not the end of your disability case.

     Thus, the question becomes, “How do I document the frequency, severity and duration of my symptoms and limitations?”

     Tip #1: What should I be documenting?

     Simply put, whatever it is that prevents you from working. For example, let's use chronic pain and fatigue. It is critical that you distinguish why the pain and fatigue is different from what an average person may experience. If I say “I am in pain and fatigued,” that does not tell you much. Why? From time to time we all experience some degree of pain and/or fatigue. But if you tell your doctor, “I am unable to function as I experience severe daily pain and exhausting fatigue lasting most of the day without relief,” or “I am unable to function 2 days per week due to migraine headaches that last all day even with medication,” now you've given the doctor and the judge an idea of why your symptoms are so debilitating.

     Tip #2: Obtain a copy of your medical records from your treating physicians.

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.

     Whether you know it or not, your daily life tells a compelling story about your inability to work. But how do you remember the frequency, severity and duration of your symptoms especially if you can't spell your name at times! I advise clients to keep a short and simple diary one week before their visit with their doctor. For simplicity sake, the entries should be short and not detailed (otherwise you will not do it). On a day when you were unable to get out of bed due to pain or fatigue, document it. Or document when you slept for only three hours the night before and then took a couple of naps the next day. Or document the migraine headache that lasted for two days in spite of medication. Then, on your next doctor visit, when he/she asks “How are you doing?” you will have a laundry list of symptoms and limitations rather than giving them a blank stare!
     Of course, winning your disability case is more complicated than this article can address; however, following these tips will significantly increase your odds of winning. Best of luck in your pursuit of disability benefits and remember never to quit!

Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of their disability practice is devoted to representing individuals with FM and/or CFIDS. They do represent clients throughout the United States. In most cases, a fee is charged only if their client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via email (harris.davis@azbar.org) or telephone at (602) 482-4300.

Paul W. Proto, Senior Advocate Federal Benefits Advisory Group, Inc. 6057 Tampa Palms Blvd, Ste 338 Tampa FL 33647
813-977-6072 866-807-7686 (Toll-free)

Linda Nee: Disability Claims Consultant, specializing in fibromyalgia and chronic fatigue claims with private insurance companies.
Her website is located at: http://disabilityconsulting.net She can be reached by phone at 207-793-4593 or email at:lindanee@cyberwc.net

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

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.
He only gets paid if he gets your claim approved. 8658 N Cedar Avenue #104, Fresno CA 93720-1833. Toll-Free Nationwide: 1-877-818-6251. FAX: 1-800-508-2939. Local Phone Number: 559-298-3275. Email: gonzalesanthony@prodigy.net. ( I belong to 3 or 4 online support groups for FM/CMP and other disorders, I have heard Tony recommended as reputable and reliable from many people seeking help)

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 sheri@sheriabrams.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.

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.

McNeill, Colella & associates, P.C. they specialize in ssdi cases. They will take cases all over the U.S.A. All
preliminary work can be done by phone, mail or fax...and they will come into see you for your hearing. email: mcassoc@shore.net Phone: 1-800 825-7734 for the east coast ( MA), 800-655-4298 for the west coast (CA).

Richmond, Va. Charles E. Samuels. phone 1-800-868-1270. (I was told he is "amazing" with FM cases.)

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."

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.

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 -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.

A 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.

A courts decision concerning long term disability

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!

Canadian FM-ME Email list: For the discussion of CPP and Revenue Canada and the courts etc. You need to write to them and tell them you are interested in participating in the group and you will be added to the discussion. Just send an email with a blank subject but in the text area type "SUBSCRIBE CANADIAN_FM-ME_SIG" (without the quotes)

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. kevin@prairielaw.com

Written by Robin Thomas, Managing Editor at Personnel Policy Service, Inc.
Copyright � 2002

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 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 tasks.

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 employer’s 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 employee’s 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 Circuit’s 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 people’s daily lives.” To meet this standard, the impairment’s impact must be permanent or long term.

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 Circuit’s 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 statute’s 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.

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 one’s 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 claim—the 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 doctor’s 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 doctor’s 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 Law.

Main Disability menu

Acquiring and Keeping Social Security Benefits for CFIDS and FM Sufferers
(By Alec G. Sohmer, Esq.)

   Because chronic fatigue and immune dysfunction syndrome (CFIDS) and Fibromyalgia (FM) are poorly known medical conditions that are just now
gaining widespread recognition, many sufferers are unaware that benefits may be available to them - even if they are employed part-time. The inability to
provide for yourself or your family may entitle you to Social Security benefits. With the proper planning and guidance, it's possible to overcome
the numerous hurdles on the way to winning your claim.
An individual who intends to file a Social Security Disability Insurance (SSDI) claim must be
unable to engage in any substantial gainful activity due to a medically determinable mental and/or physical impairment, which has lasted, or is
expected to last, at least 12 months or is likely to result in death. A separate standard applies for a disabled child, as do other income
eligibility requirements. Patients must have supporting medical evidence from their primary care physician or treating physician. Fortunately, patients do
not have to wait the 12-month period before applying for benefits, as long as the condition is expected to render them unable to work for a minimum of that time.
There's an important difference between the eligibility requirements for SSDI and Supplemental Security Income (SSI) benefits. For SSI, financial
resources are considered. A "resource" is defined as cash on hand, or other personal or real property that an individual owns or retains an ownership
interest in, has the legal right or authority to liquidate and is not restricted from using for means of support. For SSDI claims, however,
financial resources are not taken into consideration.

Getting Started
     The first step in determining your eligibility for SSDI is to complete and file a written application. You should visit your local Social Security
office for this purpose. Since considerable and specific information is required, you should visit or call the office beforehand to determine what
supporting documentation is required. Because CFIDS and FM are not listed as "presumptive" disabling conditions for SSDI purposes, expect your initial
claim to be rejected.
     Presumptive impairments are specific physical or mental conditions that are so severe that the Social Security Administration (SSA) has determined
that persons suffering from them are considered totally disabled. If declined benefits, you should appeal. Benefits will be awarded to people with CFIDS or
FM should their symptoms be determined to cause substantially the same degree of functional limitation as the listed conditions. After receiving the
initial rejection, you must file for reconsideration. The Request for Reconsideration is the first step in the appellate process, and requires
another application.
It is helpful to retain a copy of your initial application, as the Request for Reconsideration seeks substantially the same
information. Also, you should prepare a detailed list of each and every physician who has treated you during your illness. The list should include
the physicians' names, addresses, telephone numbers, approximate dates of treatment and probable diagnoses. Again, be sure to list every physician and
other health care providers you have seen - even those who have not treated you specifically for CFIDS or FM. Once again, expect a rejection of your
claim.
Unfortunately, this is often part of the process for people with CFIDS or FM. It's time-consuming and frustrating - but don't give up. The next
stage, Administrative Appeal, is where most CFIDS and FM claimants are successful. CFIDS and FM are not listed among the qualifying conditions in
the SSDI section of the Code of Federal Regulations. So the Administrative Law judge must determine whether your condition meets or exceeds the
impairments caused by those on the list.
     Under the statute, the judge will determine whether the impairment is medically equivalent to those listed. Symptoms, signs and laboratory findings
will be compared with the corresponding medical criteria shown for any listed impairment. All decisions will be based on medical evidence only, supported
by acceptable clinical and laboratory diagnostic techniques. Of importance, an Administrative Law judge cannot reject a claim based on the absence of
abnormal laboratory and physical findings in your medical history. This violates SSA policy with respect to CFIDS and FM. The
SSA has accepted that "there is no dip-stick laboratory test for Chronic Fatigue Syndrome…so the disease is not per se excluded from coverage because
it cannot be conclusively diagnosed in a laboratory setting. "
Hallgring v. Callahan, 975 F.Supp. 84 (D.Mass. 1997) (citing Rose v. Shalala, 34 F.3d 13, 17 (1st Cir. 1994); Sisco v. Department of Health and Human Services, 10 F.3d 739, 744 (10th Cir. 1993). Further, because the methods for diagnosing CFIDS and FM are limited, the importance of claimant's testimony and credibility are enhanced. Reed v. Secretary of Health and Human Services, 804 F. Supp. 914 (E.D.Mich. 1992).
     In a nutshell, that means the judge must weigh your personal word more heavily than he might in other cases. The Administrative Law judge must use a
five-step, sequential evaluation to determine a person's level of disability.

The judge considers these questions:
1) Is the claimant engaging in substantial gainful activity?
2) Does the claimant have a severe impairment?
3) Does the claimant suffer from an impairment that equals the severity of a
listed impairment?
4) Does the claimant possess the residual functional capacity to perform past
relevant work?
5) Does the claimant possess the residual functional capacity to perform any
other work that exists in significant numbers in the national economy?

     In determining what constitutes a severe impairment, the Administrative Law judge will consider any condition that significantly limits your ability
to do basic work activities such as walking, standing, lifting, bending, understanding, remembering, using judgment, etc. Residual functional capacity
is defined as your ability to complete similar activities despite the functional limitations imposed by your impairments.
     Under the current law, the Administrative Law judge must give the claimant increased credibility in assessing his or her own residual
functional capacity. Fragale v. Chater, 916 F.Supp.249 (W.D.N.Y.1996).

After the award
Many claimants question whether they may continue to work while applying for benefits or attempt work once benefits have been awarded. Many people wish to work for not only the extra income, but to overcome their disability. Under the Social Security statute, a claimant may return to work for a trial period of nine months (not necessarily consecutive) without interruption of benefits. For a minimum of 36 months after the trial work period, benefits
will continue so long as monthly earnings fall below the substantial gainful activity level.
Currently, this level is $700 per month for individuals with disabilities and $1,170 per month for those who are blind. Even if benefits stop due to
increased earnings, Medicare coverage can continue for at least 39 months after the trial work period ends. After that, Medicare coverage can be
purchased by paying a monthly premium. Of importance, certain disability related expenses necessary for work might be deducted when calculating
monthly earnings. Therefore, earnings could be substantially higher than $700 per month before your benefits are stopped. If you earn more than $700 per
month (after deductions) during your period of eligibility, disability payments will stop. But if you remain medically disabled, benefits may be
reinstated any time during the next 36 months. During this time, benefits will be received anytime your earnings fall below $700 per month. With
earnings less than $700 per month, benefits will remain indefinitely. Medicare coverage will continue through the trial work period and for at
least 39 months afterwards, so long as you remain disabled.
     Under the Ticket to Work and Work Incentives Improvement Act of 1999, claimants receive a "ticket" to use for vocational rehabilitation and other
employment support services. The program is voluntary. While in use, regularly scheduled medical reviews will be waived. Should work earnings end,
reinstatement of benefits may be requested without filing a new application. Attorney Alec Sohmer runs a private practice in Brockton, Mass. He assists
individuals and businesses in bankruptcy, real estate, advanced estate planning, personal injury, small business litigation and Social Security
Disability, specifically helping those with CFIDS and Fibromyalgia.
     Sohmer's Web site deals exclusively with how to apply for disability benefits, as pertains to CFIDS and FM. He may be reached at 508-583-6510, or
through the Web site: <A HREF="http://www.disabilityassistance.com">http://www.disabilityassistance.com</A>.
1999 Ruling Aids CFS Claimants
     In 1999 the Social Security Administration (SSA) adopted a new policy ruling - SSR 99-2p - recognizing CFS as a potentially disabling condition.
The ruling provides examples of objective evidence, such as high Epstein-Barr titers and a positive tilt table test, which may indicate CFS. The ruling
also establishes that the applicant's treating physician should be the primary information source about the patient's medical condition. In the
past, medical evaluators who see the patient only once to render an opinion on the individual's functional capacity often were given as much credence as
the patient's doctor of record.
     Attorney Mac Sasser has seen improvement in the handling of CFS-related SSDI cases since the ruling was adopted: "Ruling 99-2p is a big step forward
for people disabled by CFS. This ruling has improved the fact finding and analysis stages, particularly at the hearing level. "Association president &
CEO Kim Kenney seconds Sasser's observation. "CFS cases are decided more quickly and more often in favor of the applicant than before," Kenney says.
"SSA is gathering data from its offices around the country to assess approval rates and identify geographic differences that alert staff to the need for
additional training on CFS."
     The CFS ruling is available at <A HREF="www.cfids.org/resources/ss-disability.asp">www.cfids.org/resources/ss-disability.asp</A>
. If you have been diagnosed with CFS and are filing for benefits, make sure the ruling number, 99-2p, is noted in your application. - The CFIDS
Association of America Tips to minimize your wait
     Although the appellate process for Social Security Disability Insurance benefits may take as long as two years from start to finish - excluding the
time spent for diagnosis - there are measures that can reduce delay:

Get started now.
     Prepare a list of each and every physician you have seen. This list should include names, phone numbers, addresses, approximate dates of
treatment and probable diagnoses. Remember to include all physicians, whether or not related to CFIDS or Fibromyalgia.
Keep documents of medical records, and note how the condition affects your functional capacity on a daily basis.
Document all necessary work expenses related to your disability. Talk to an experienced attorney who understands both the condition and Social
Security laws. � 2001, The CFIDS Association of America, Inc. Privacy Policy Reprinted with permission:

The application and appeals process for Social Security Disability Insurance benefits can be so overwhelming and intimidating that roughly half of all
applicants give up after they are first denied benefits by the Social Security Administration (SSA). The process can make you feel like you are David fighting Goliath. But if you prepare you case with the right legal and medical documentation, and if you persevere, you can significantly increase
your odds of obtaining benefits. Proper preparation of your case is critical, as SSA has made it increasingly more difficult to obtain benefits over the past several years.

The following are questions I’m frequently asked regarding the disability system in general and specifically about cases involving CFIDS and fibromyalgia.

Q: SSA denied my claim. What’s the point of appealing? I don’t have any new evidence, so I don’t see how I can fight this huge agency with all of their
experts and their complicated regulations.

A: If this is you, you’re feeling exactly the way SSA wants you to feel –defeated. DON’T QUIT! Keep in mind that 75% of all disability applicants are
denied benefits during the first step of the SSA process. SSA knows thatabout half of those denied benefits will give up and not appeal. However,
55%-60% or about three in five of those who do appeal and go before anadministrative law judge (ALJ) will obtain benefits.

If you are denied benefits, don’t delay! You must appeal any denial letterfrom SSA within 60 days. Following your appeal, the second step is similar
to the first, in that it is “merely” a paper review of your claim. You stillwill not meet with anyone. The review, like the initial decision, is based
primarily on forms you completed and your medical records. The SSA employeesat these first two steps of the process often are looking for reasons to
deny your application. While a very high percentage of applications aredenied at this review stage—80%--don’t despair. By appealing this denial,
you move closer to a hearing before an ALJ.

Q: Do I need an attorney? How can I afford to hire an attorney? Will an attorney really improve my chances of winning benefits?

A: I am asked this question frequently and my reply is always, “Do you know what you have to prove in order to obtain benefits?” The response is always,
“I have no idea.”

You can hire an attorney at any stage of the process. Practically all disability attorneys work on a contingency basis, which means no money up
front and you pay the attorney for his or her time only if you obtain benefits. Federal law sets a maximum amount for that fee, and in almost
every case it is a very small amount compared to the benefits a person will receive.

Now that you can afford an attorney, should you hire one? Absolutely. The earlier you hire an attorney, the sooner he or she can begin preparing your
case. You should substantially increase your chances of winning by working with an attorney who specializes in disability law. The system is complex,
and an attorney will develop your case by obtaining the necessary medical and vocational records and opinions from your doctors that are critical to
providing disability.

An attorney is especially important in the appeals process and in presenting your case to the judge, but he or she can be helpful earlier, too. If you
have a treating physician, your attorney can fight to have your doctor perform a disability evaluation rather than an SSA doctor, who will almost
always tell the judge you are not disabled. Also, the application requires a dizzying array of forms requesting all sorts of information, and your
attorney should help you fill them out as they are important to your case.You won’t win your case with the information you give on the forms, but you
could lose it. Your answers should be honest and somewhat brief. It is critical to focus on your exertional and non-exertional limitations and
restrictions when completing the forms.

Q: My doctor believes in CFIDS and that I am too sick to work, but is the SSA going to believe my doctor?

A: Your doctor is not thinking about your disability claim when he or she is treating you. You need to tell your doctor you’ve filed a claim for
disability and measures his or her response. If you are certain your doctor supports your claim, a reference in the records that you are unable to work
is very helpful.

You must be a very detailed historian. Keep notes about the severity and frequency of your pain, fatigue and other symptoms and about what you are
able to do—or not able to do—from day to day. Give this information to your doctor and tell him or her that you want it included in your records. Then
get and keep copies of all your medical records. Do not assume SSA will have all your records; 95% of the time, critical records are missing.

Q: My doctor has suggested a lot of different treatments, but there are a few I’m not sure about and a few I’d like to try that he doesn’t think will
help. How could this affect my case?

A: Exhausting all the possible treatments is good for your disability case. It makes your testimony and that of your doctor more credible and supports
the severity of your symptoms because you will have tried everything to find relief. I always advise clients to undergo and try any treatment the
specialist prescribes, including non-traditional treatment. You don’t want to give an ALJ any reason to wonder whether your condition might be so
severe if you had only followed your own doctor’s instructions. The SSA’s doctors will usually tell the judge that your symptoms would improve and
allow you to work if you would undergo some type of treatment, and that’s an opportunity for the judge to deny your claim.

It’s important not to panic and not to give up. The SSA and ALJs are increasingly familiar with fibromyalgia and CFIDS, and many people do win
their disability case based on those diagnoses. You will need perseverance and knowledge of the system to win your case, but you must not give up!
Appeal every denial, hire an attorney and keep fighting.

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

09-21-2001 In a social security disability claim, the credibility of the client is often the determining factor of whether the claim is approved or
denied. For cases involving chronic pain or fatigue, such as fibromyalgia or chronic fatigue syndrome, the credibility of the client is usually crucial
to success. The reason for this of course is due to the fact that those diagnoses involve subjective symptoms and limitations that usually cannot be
objectively quantified by medical or laboratory tests. Thus, SSA and judges will listen to the client’s story about why they are
unable to work due to the frequency, severity and duration of their symptoms; but they will also look for corroborating evidence from other
sources such as doctors or individuals who know the client.

As you may know, my practice is exclusively disability law and I specialize in chronic pain and fatigue cases representing clients throughout the United
States. Over the past several years I have been very successful in winning disability cases before SSA and judges throughout the United States. While
winning hundreds of cases and losing only a small percentage of them, I have learned a great deal about how to win chronic pain and fatigue disability
cases as well as the importance of a client’s credibility.

A tool I have used extensively for the past several years is to obtain affidavits or statements from a client’s former co-worker (or preferably a
supervisor), family member or long-time friends. What is an affidavit? It is simply a notarized document that essentially is a narrative letter regarding
a person’s observations of problems the client has functioning on a daily basis due the symptoms and limitations, with a conclusion that they are
unable to work in any occupation as a result. In my opinion, it is essential that SSA and a judge have corroborating evidence from those who know a
client the best and the affidavit performs that function.

Because I view a client’s credibility as paramount to the case, I want to protect it, develop it and support it from as many different independent
sources as possible. The quality of the affidavits or statements and from whom they are from matters more than having a large volume of them by people
who do not know the client well. I know thoughtful affidavits have a big impact on SSA and judges because I have seen countless judges from all over
the country reference them as a reason why they approved my client’s claim. I have also talked with judges after a hearing and they have told me the
affidavits provided persuasive support of my client’s allegations regarding their limitations.

It must be noted that it is unlikely an affidavit alone will win a disability case; but along with other corroborating medical records and
doctor’s opinions it can be a powerful tool. Use this article as a foundation for developing this important part of your claim.

Tip #1 The Affidavit should be Brief

To avoid lulling weary SSA personnel or a judge to sleep, I believe the affidavit should be no more than two (2) pages in length. Please remember
your file will contain several hundreds of pages of records…you want the affidavit to be read and be factored into your claim.

Tip #2 The Affidavit should be on regular paper and be Notarized

The document itself can be on any regular paper (preferably 8 � x 11 inches), preferably typewritten and should be titled “Affidavit.” However,
any paper will do and a handwritten one is better than nothing. It should be notarized because this will confirm that the person who purported to draft
the affidavit actually signed it before a notary public. The notary stamp and signature should go at the end of the text and after your signature
(remember not to sign it until you are before the notary!).

Having the affidavit notarized eliminates any question with regard to authenticity of the document (i.e. you are not trying to pull one over on
SSA or a judge!). If it is not possible to obtain a notary then simply submit a handwritten statement.

Tip #3 The Content of the Affidavit is Critical

The contents of the affidavit determine whether it is a piece of evidence that will be persuasive in the case. The affidavit should always conclude
with a sentence that the client is unable to engage in any occupation and due to what reasons.

The contents should be organized by paragraph, numbered and should discuss the following in a separate paragraph or less: the background of the person
making the affidavit (i.e. occupational status and title, address); how long they have known the client, how they met (family, work, friends), and how
often they have in person or telephone contact; discuss what the client’s activity/work (work ethic) level was like before they became unable to work.

The bulk of the affidavit and several paragraphs should be devoted to discussing the physical or psychological changes that the client exhibited
at the time they last worked (i.e. observations of chronic pain and fatigue, spending days in bed, dramatic changes in appearance, lack of stamina,
absences from work, being unreliable); discuss the physical limitations they have (the ability to sit, stand, walk, or do anything for only short periods
of time); a medical treatment/medications/therapy they have tried without success; discuss how limited the are in activities of daily living.

The last two (2) paragraphs must conclude with a statement that due to the above discussed reasons the client is not able to work in any occupation and
that you are willing to discuss your affidavit with the judge if necessary.

Tip #4 How Many Affidavits should you Obtain?

With regard to quantity, less is better, the nature of the relationship with the client and content of the affidavit are the issues. I like to obtain as
many as we can from former co-workers or supervisors. Then I like to obtain one from a spouse or long-time significant other, family members and then
finally long-time friends. Generally, the complete story of the client can be told with three (3) or at most four (4) affidavits from those people who
know them the best.

Best of luck in your pursuit of disability benefits and remember never to
quit!

Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the
United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of
his practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged only if
his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via telephone (602) 482-4300, or email:
harris.davis@azbar.org.

How To Talk with your Physician about Supporting your Disability Claim by Scott E. Davis, Disability Attorney 04-17-2001

Well, it happened again this week. What am I referring to? The all too familiar story of a treating physician who does not support a patient’s
claim for disability benefits. This usually comes as a complete shock to the patient who thought the physician was in their corner. (In this article I
use physician interchangeably to mean medical physicians, psychiatrists, psychologists or podiatrists).

I am aware of this problem because I often talk with treating physicians about a client’s disability claim. The client has told me they are certain
the physician supports their claim. I am always surprised when the physician does not support the claim or does not “want to be involved in the claim.”
To be sure, the physician’s response of “not wanting to be involved” is the same as not supporting your claim.

In this article I will discuss why is it critical to have the support of your treating physicians and hopefully how to obtain it.

Tip #1 The Support of a Treating Physician is Often Critical to Claim Approval

In a social security disability (SSA) claim, federal law gives the greatest weight to the opinions of treating physicians. If SSA has your physician’s
opinion that you are unable to work, you should have a strong case. If you do not have your physician’s support, or they are “silent” on the issue of
your disability, your claim will likely be compromised. This is not to say cannot win your case, but the mountain you must climb will be steeper
without a physician’s support.

The fact that SSA gives the greatest weight to your treating physician’s opinion is critical because one of SSA’s physicians (who may have only
reviewed your records) will usually conclude that you are able to work. If confronted with differing opinions, federal law requires SSA or a judge to
give greater weight to your physician’s opinion because they know your medical condition best. Thus, if your physician has told SSA you are unable
to work, SSA should use that opinion and approve your claim.

If your physician does not want to be involved in your disability case, or will not complete a form, this is the same as not supporting your claim.
Why? Because you can bet SSA has an opinion in your file from its own physician that you can work. Without your physician’s opinion, SSA will use
its own physician’s opinion (even if they have never seen you!) to deny your claim. Thus, if your physician has told you he/she does not support your
claim, or does complete disability forms, you have a real problem that needs to be addressed as soon as possible.

Tip #2 When to Talk with Your Physician About Supporting Your Disability Claim

Remember the old adage, “Keep it Simple Stupid!” Let this adage guide your conversation with your physician. First, you should talk with them about
supporting your claim only after you have been evaluated by them 3 or 4 times, or after you feel they know your condition well.

Never talk with a physician about your claim after the first or even second visit. Why? Your first priority in the relationship should be for treatment
that allows you to return to work. The physician will be very reluctant to support your disability claim if they believe you are motivated by
disability benefits rather than getting better. The physician will be more willing to support your claim after they have treated you for a period of
time without meaningful results.

Tip #3 How to Talk with Your Physician About Supporting Your Disability Claim

With all due respect to the medical community, many physicians do not know how SSA defines disability. The problem is most physicians think they know
who is and is not disabled.

I know this to be true because I have personally spoken with hundreds of physicians whose definition of disability was completely different than SSA’
s. In almost every case, the physician’s definition of disability is much stricter and harder to meet than SSA’s definition!

Invariably, the treating physician concludes the patient is not disabled using their definition and will not support the case. However, after I
explain SSA’s definition, the physician agrees the patient is disabled and unable to work! The key to obtaining your physician’s support is how you
frame SSA’s definition of disability.

Tip# 4 Discussing SSA’s Definition of Disability with your Physician

To obtain the support of your physician, I believe the following is an effective approach. First, never tell your physician you are “disabled” or
have a “permanent disability.” Why? Because those expressions are terms of art our society uses but are totally irrelevant to a social security
disability claim. Remember, your physician will usually save those labels for only their most seriously ill patients. You probably don’t “look” like
one of those patients.

Instead, ask the following questions. First, tell them you have filed a claim for disability benefits because you are “unable to sustain full time
work.” Ask your physician if they also believe you are “unable to sustain full time work at the present time.” Notice that I did not use the words
“disabled” or “permanent” in either question.

If your physician agrees with you then ask for their support for the next 18 to 24 months. Why such a short time? For one, this will get you past SSA’s
requirement that you be unable to work (or you are expected to be unable to work) for at least 12 months.

Second, most physicians believe disability is a “permanent” condition and once your claim is approved, you will never return to work. Countless
physicians have told me they don’t want to be put in the position of saying a patient is permanently disabled. You would not want to be put in that
position either. So…don’t put them in that position.

However, almost all physicians will agree that a patient is unable to work for a period of time. Your physician will feel more comfortable supporting
your disability claim when they know it is for a limited period of time and that you want to return to work after a period of recuperation If after 18
to 24 months you are not able to return to work, then address the issue again with your physician. If your physician does support your claim, ask
them to please write into the medical record that you are unable to work and to document the reasons why.

Conclusion

If you approach your physician in the manner discussed in this article I can assure you that you will have more success. I know this to be true because I
use it every day when I talk with a physician about supporting a client’s disability claim.

Best of luck in your pursuit of disability benefits and remember never to quit!

Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the
United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of
his disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged
only if his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via telephone (602) 482-4300, or email:
harris.davis@azbar.org.

Listing of Impairments.

The revised Musculoskeletal System listings and related criteria that became effective February 19, 2002, as well as a number of technical revisions to the listings that became effective on May 24, 2002) This is from SSA Pub. No. 64-039

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.

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.

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 individual’s ability to perform the specific activities listed as examples in 1.00B2b(2) and 1.00B2c.

(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.

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.

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).

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.

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.

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).

In contrast to information on labor force status, much less is known about the differences between persons with and without disabilities in such qualitative aspects of employment as expectations for the future, job satisfaction, and job content. Research on the impact of the shifting economy during the 1980s indicated that workers with disabilities experienced greater losses in declining industries, such as manufacturing, and greater gains in the rapidly growing service industry than their counterparts without disabilities (Yelin, 1992).
Have these patterns continued in this decade? Are persons with disabilities typically employed in large or small firms? Are they more likely to work for themselves, to work at home, or to work in temporary jobs than their counterparts without disabilities?

This report describes differences between persons with and without disabilities over a greater range of employment characteristics than those used in prior studies. It then compares the qualitative aspects of employment, including job content, job satisfaction, and expectations of future employment, among the two groups. As part of these analyses, the report compares persons with and without disabilities in measures of underemployment as defined by Clogg and Sullivan (1983) and in history of job loss.

Documenting differences in the qualitative aspects of work between persons with and without disabilities is important because of the association between such characteristics and numerous health outcomes, including morbidity, disability, and mortality (Adler & Matthews, 1994; Lerner, Levine, Malspeis, & D'Agostino, 1994). Persons in highly stressful jobs may be at increased risk for occupational injury or chronic disabling conditions. Persons with disabilities in such jobs may be at greater risk of exiting the labor force, or of developing secondary conditions. Yelin and colleagues have found that autonomy and decision latitude on the job serve to enable persons with chronic disease to remain at work longer (Yelin, Greenblatt, Hollander, & McMaster, 1991; Yelin, Henke, & Epstein, 1987). Other researchers have found a link between job insecurity and health outcomes (Heaney, Israel & House, 1994, Catalano & Dooley, 1983).

This report uses data from the California Work and Health Survey (CWHS), conducted in July 1996. Based on a random sample of 2,310 California adults, the survey allows us to compare labor force status, employment history, and experience of work for persons with and without disabilities. We use physical functional limitation status as a proxy for disability.

NOTES: Disclaimer
This report was prepared under ED Grant #H133B30002. The views expressed herein are those of the participants. No official endorsement by the U.S. Department of Education is intended or should be inferred.

Suggested Citation
KTrupin, L. and Yelin, E.H. (1999). The Employment Experience of Persons with Limitations in Physical Functioning: An Analysis of the 1996 California Work and Health Survey. Disability Statistics Report, (12). Washington DC: U.S. Department of Education, National Institute on Disability and Rehabilitation Research.PUBLISHER: Published by U.S. Department of Education, National Institute on Disability and Rehabilitation Research (NIDRR). CREDITS: Acknowledgments
This report was supported by the National Institute on Disability and Rehabilitation Research, U.S. Department of Education and the Centers for Disease Control and Prevention. Sean Sweeney and David Keer were the project officers. The authors would like to acknowledge Corinne Kirchner for her thoughtful comments on an earlier draft of this work. The research on which this report is based was conducted at the Disability Statistics Rehabilitation Research and Training Center.AVAILABILITY: The full text of this public domain publication is available at the Department's home page at www.ed.gov
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large-print, audio tape, or computer diskette) on request.
For more information, please contact:
David Keer
U.S. Department of Education
OSERS/NIDRR
Switzer Bldg. Room 3431, FB6
Washington, DC 20202
WWW.ed.gov"
E-mail: david_keer
Telephone: (202) 205-5633

Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m. Eastern Time, Monday through Friday. The Disability Statistics Report series is produced by the Disability Statistics Rehabilitation Research and Training Center, Institute for Health & Aging, School of Nursing, University of California, Box 0646, Laurel Heights, 3333 California St., San Francisco, CA 94143-0646, with funding from NIDRR.

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