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11Jan

Overlooking this impairment could be costing you!


Overlooking this impairment could be costing you!

When I was a new rep (in my first year) I was presenting a case to an ALJ who had a reputation for being very tough (harsh) with claimants and their representatives.  I was only 20 years old at this time and was thrust into representation earlier than planned because my father (our main representative) had to be in Houston weekly for chemotherapy treatments and we didn’t want to postpone hearings for an unknown length of time.   I had seen this judge a few times before this hearing and he had been tough before – and especially loved to go “back and forth” during my opening statement, challenging everything I said.  

On this particular day we were nearing the end of the hearing – I had just lived through a contentious 45 minutes – when all of the sudden the ALJ asked the reporter to go off the record for just a minute….as soon as the recording stopped he turned to me and asked: “Do you even want to win this case?” I really thought at this point he was going to tear into me in front of my client, but I realized shortly that he was actually about to have compassion on me and make me a better representative.  He continued: “there is enough in the record for me to find {some impairment I don’t even remember now} a severe impairment, yet you haven’t even alleged it, why?” 

I explained that I had wanted to focus on the conditions I thought were more severe. That’s when he said: “I shouldn’t tell you this, but I’m close to paying this case but I need just a little more…if you have the kitchen sink now would be the right time to throw it in…. back on the record”. I immediately argued that this impairment was severe and further reduced the claimant’s RFC, he agreed and paid the case.  

What was the takeaway for me from this experience? To be double sure that we allege, document, and argue every impairment that has more than a minimal effect on the claimant’s ability to do basic physical or mental work activities. Seems obvious – but as a new representative this advice served me well in how I approached advocating for my clients.

There have been so many cases that just need that one more limitation to get the RFC reduced far enough to get a win.  Maybe you just need to rule out skilled or semi-skilled PRW to win on the grids. Or perhaps if you could just have a little more support for your claim of time off-task or excessive absenteeism, or prove the need for unscheduled breaks, or further limit their ability to lift and carry, stand or walk.  

I’ve reviewed thousands of claim files, and one of the most common issues I notice when comparing the applications to the medical evidence is that many claimants do not accurately list their severe impairments and it’s hard for them to understand sometimes what actually makes them disabled.  Finding these additional impairments in the record before you build your case theory and present the case could mean the difference between winning and losing – and not doing this well could be costing you money and letting down your client. 

One severe impairment I’ve encountered that may be hiding in the record and masquerading as merely a symptom is Chronic Fatigue Syndrome (CFS). If your review of a claimant’s medical records finds complaints of fatigue or diagnoses of fatigue in the record, it should be a trigger for you to analyze the possibility of alleging CFS as a severe impairment.  

I have encountered several cases recently where we had sufficient evidence to establish CFS as a medically determinable severe impairment, and NOWHERE in the record had the claimant alleged this impairment!   They simply did not understand that their fatigue could be considered an impairment under the regulations, and thought it was just a symptom they were experiencing. (SSR 14-1p gives guidance on establishing CFS as a medically determinable impairment, and in a future post I’ll review this SSR.)

What should I look for in the record? 

When there are complaints of fatigue, be on lookout for the following medical signs or laboratory findings:

  • Palpably swollen or tender lymph nodes on physical examination;
  • Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points;
  • Nonexudative pharyngitis;
  • Any other medical signs that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record. For example, the CCC and ICC explain that an acute infectious inflammatory event may precede the onset of CFS, and that other medical signs may be present, including the following:
    1. Frequent viral infections with prolonged recovery;
    1. Sinusitis;
    1. Ataxia;
    1. Extreme pallor; and
    1. Pronounced weight change
  • An 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 1:640;
  • An abnormal magnetic resonance imaging (MRI) brain scan;
  • Neurally mediated hypotension as shown by tilt table testing or another clinically accepted form of testing; or
  • Any other laboratory findings that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record (for example, an abnormal exercise stress test or abnormal sleep studies, appropriately evaluated and consistent with the other evidence in the case record).

What should I do if I find these signs? 

  1. Allege the impairment as a medically determinable severe impairment and make sure to show the support for this allegation in the record.
  2. Seek to further document the impairment by asking the claimant’s physicians to complete a medical source statement regarding fatigue, or perhaps write a letter. 
  3. Make sure that if your claimant is experiencing symptoms of fatigue that they are telling their doctors! 
  4. Question your client during the hearing regarding their fatigue and its effect on them (prepare carefully before the hearing of course). 
  5. Study SSR 14-1 further to prepare yourself to argue this impairment. 
  6. Know that SSR 14-1 states that “Conflicting evidence in the medical record is not unusual in cases of CFS due to the complicated diagnostic process involved”in case the ALJ pushes back by pointing out visits that don’t document fatigue.  

How will this help our case?

If we can establish that CFS is a severe impairment, the RFC must reflect a corresponding limitation!  CFS is an impairment that can be useful for reducing the mental RFC and/or the physical RFC.  In an ideal world the ALJ would see your argument and supporting documentation, agree that CFS is a medically determinable severe impairment and assign corresponding limitations in the RFC which helps rule out all occupations and issue a Fully Favorable decision!   Sometimes this happens (as in the case I presented 10 years ago) and it feels so good to get the win!

Most of the time, however, we don’t live in an ideal world and perhaps this won’t help convince the ALJ this go around.  If not, then read the denial carefully to see if the ALJ made any errors regarding this allegation.  A few things to be on the lookout for would include:

  1. Did the ALJ ignore your alleged impairment and not evaluate whether it is indeed an MDI? 
  2. Did the ALJ find that CFS was not an MDI but their evaluation did not follow the guidance in SSR 14-1p? 
  3. Did the ALJ find that it was an MDI but “not severe”? If so, does the record support the allegation that it causes more than a minimal effect on the person’s mental or physical ability to do basic work activities? 
  4. Did the ALJ find the impairment severe but not assign a corresponding reduction to the RFC? 
  5. Did the ALJ consider the combined effectof all of a claimant’s impairments when making a determination of disability per 20 CFR 404.1523 “we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity”?

With adequate documentation, lots of preparation, and a little luck, chronic fatigue syndrome could be the impairment hiding in your next file that is the final push the ALJ needs to pay the case.  So, train your eyes to be on the lookout for complaints of fatigue and the accompanying signs and symptoms!  

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