Social Security Disability: Regulation 99-2p

One of the toughest and most important battles fought by individuals suffering with Chronic Fatigue Syndrome and Fibromyalgia can be trying to obtain Social Security Disability Insurance and SSI (Supplemental Security Income) benefits. The issue of whether someone does or does not qualify under the disability critera was resolved a long time ago with the adoption of

With the wording of this binding regulation, the Social Security Administration sets out guidelines for adjudicators and judges to ascertain claims based upon accepted criteria for Chronic Fatigue Syndrome and Fibromyalgia cases. This regulation removed at least one of the barriers faced by those individuals making claims of disability.

The Social Security Act allows for SSDI or SSI benefits to be paid to persons unable to work by reason of any medically determinable physical or mental impairment (or combination of impairments)….” (emphasis added) The Act and Regulations define the phrase “medically determinable” as a condition that can be established by medical evidence consisting of signs, symptoms and laboratory findings. It cannot be based only on the Claimant’s description of symptoms.

Suggested by a report, claims based upon CFS (and Fibromyalgia, too, for all practical purposes- my words) are tougher to establish because of a lack of medical signs, symptoms and laboratory findings. Therefore many claims are denied on the failure to prove the existence of a medically determinable impairment.

Per Jeffrey A Rabin and Associates:

The Ruling states unequivocally that CFS can be a medically determinable impairment. It specifies medical signs and laboratory findings that will now constitute proof of a medically determinable impairment for persons suffering from CFS. However, whether the claimant is actually “totally disabled” is a separate determination based upon the severity of functional limitations caused by the disease. That is the same as in any claim based upon any other medical problem.

This Ruling requires that any of the following medical signs, which are clinically documented over a period of at least 6 consecutive months, can establish a medically determinable impairment:

- palpably swollen or tender lymph nodes on physical examination;
- nonexudative pharyngitis;
- persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points; or,
- other medical signs consistent with medically accepted clinical practice which are consistent with the other evidence in the case record.

The following laboratory findings can establish a medically determinable impairment for individuals with CFS:
- an elevated antibody titer to Epstein-Barr virus capsid antigen equal to or greater than 1:5120, or early antigen equal to or great than 1:640;
- an abnormal MRI brain scan;
- neurally mediated hypotension as shown by tilt table testing or another clinically accepted form of testing; or,
- other laboratory findings consistent with medically accepted clinical practice such as abnormal sleep studies and abnormal exercise stress tests that are consistent with other evidence in the case record.

Finally, mental impairments documented by mental status examinations or psychological testing can also establish the presence of a medically determinable impairment.

What Evidence Can Be Used to Show these Signs and Findings?

As in any claim for disability benefits the focus is upon the medical evidence, especially the clinical records and test results from treating sources. SSA will try to obtain all medical records, generally beginning 12-months prior to the month of application. The Ruling notes that conflicts in the medical evidence are not unusual in cases involving CFS and clarification should be sought first from the treating sources. Treating source opinions about the severity of the impairment should be given deference if they are well supported by medically acceptable clinical and laboratory techniques and are not inconsistent with other evidence in the records. It is noted that any information regarding functional abilities before and after the onset of the impairment is helpful in evaluating the claim. Finally third-party sources may be useful in determining the credibility of the Claimant.

My insertion here: I advise you to get copies of all your medical records going back to the beginning of when your health impairments began. With people with a gradual onset case, that may mean several years of files.

… the focus is upon a longitudinal view of all of the medical evidence. Claimants must be actively treating with medical providers and must be completely describing all symptoms each time they see the doctor. The doctors must keep careful, legible, notes during each visit so that the signs and findings noted above can be documented. In addition, the physician should be willing to provide a written opinion to SSA regarding the patient’s ability to sustain even sedentary work activity on an 8 hour per day, 5 days per week basis.

SSR 99-2p does not provide that every claim based upon CFS should be approved. It does, however, set forth guidelines for evaluation of these claims so that Claimants, physicians and representatives can be assured of a fair evaluation of the impairment and its impact on the individual.

This is the newest information available. One thing important to note is that this regulation is neither taken into account at the initial application stage or the reconsideration stage. Social Security’s normal procedure is to deny all claims during the first two phases of the disabilitiy process. Not until a person get to the hearing stage do they get in front of a real person, an adjudication judge, to plead the whole case. At that point it is vital to have all of your records up to date and add in any other information that is pertinent to the case, such as a disability evaluation by an independnt disability evaluating examiner.

Currently this entire disability process with Social Security Administration is taking between two and 2 1/2 years. It’s critical that you meet all of their criteria in Regulation 99-2p, and that includes showing “no” history of working for gainful employment. After all, you’re trying to prove that you are completely disabled and unable to do any work in the marketplace.

Good luck, Cinda Crawford
Host of the Health Matters Show

Tagged as: 99-2p, Chronic Fatigue Syndrome, disability, disabled, Fibromyalgia, medically determined impairment, regulation, social security