Fibromyalgia, as we know, cannot be "seen under a microscope." That is to say, it is a disease which cannot be "objectively" manifested in lab results. This characteristic of the disease has created difficulties in the way that Social Security Administration processes a disability claim for an individual who suffers from fibromyalgia. Years ago, the way in which disability was established (or not established) for persons suffering from fibromyalgia was arbitrary, and seemed to depend on whether the decision maker (usually an Administrative Law Judge) believed in the reality of the disease.

In a memo addressed to an Administrative Law Judge, dated May 11, 1998, Ms. Susan Daniels, then Deputy Commissioner for Disability and Income Security Programs, wrote words of historic significance. Ms. Daniels' memo was addressed to an Administrative Law Judge who had written to say that the Administration "needs to take a definitive position with respect to whether fibromyalgia and chronic fatigue syndrome (CFS) constitute medically determinable impairments." It was the judge's position that neither fibromyalgia nor CFS could be considered a medically determinable impairment within the meaning of the Social Security Act.

In words of pristine clarity, Ms. Daniels wrote that "SSA has taken a definitive position that fibromyalgia and CFS can constitute medically determinable impairments..." From that day forward, it has been the Administration's clearly stated position that no claim based upon fibromyalgia or CFS may be denied on grounds that fibromyalgia and CFS are not "medically determinable" impairments.

Claims relating to fibromyalgia must still document the diagnosis by a competent physician (most typically a rheumatologist) using the diagnostic criteria established by the American College of Rheumatology.. Additionally, the restrictions imposed on an individual by the disease must be established through a body of clinical records reflecting ongoing medical care and assessment.

Persons receiving disability benefits are sometimes reviewed by the Administration to determine whether the medical conditions causing disability have improved. Where the Administration finds sufficient evidence of medical improvement, benefits are terminated.

Persons whose benefits are terminated can file appeals of that termination. If they appeal within 10 days of the termination, they may request that their benefits continue to be paid while their appeals are pending. See 20 C.F.R. ' 404.1597a(f)(1) and 20 C.F.R. ' 416.996(a). If those appeals ultimately fail, the benefits paid in the interim are considered an"overpayment" which the Administration is normally entitled to recover.

Social Security regulations, however, permit persons in this situation to request waiver of the overpayment recovery. See 20 C.F.R. ' 404.1597a(j)(1) and 20 C.F.R. ' 416.996(g)(1).

In order for such a requested waiver to be approved, the person requesting the waiver must be found to be "without fault" in the creation of the overpayment. The regulations provide that persons whose overpayments are the result of a request for continued benefit payment while appeals are pending will be found "without fault" if the appeals were filed in"good faith" See 20 C.F.R. ' 404.1597a(j)(3) and 20 C.F.R. ' 416.996(g)(2).

Furthermore, those regulations require the Administration to assume the appeals were filed in good faith unless the individual failed to cooperate during the appeals process. Such failure to cooperate is established, for example, where the individual failed without sufficient explanation to attend a Consultative Examination.

Many persons whose benefits have been terminated fail to request that benefits be paid during the pendency of their appeals. Often this can be attributed to fear - the fear of becoming obligated to repay thousands of dollars as a result of an arbitrary unfavorable determination. The Social Security regulations governing these situations can, if known, help to alleviate those fears.

THE TICKET TO WORK PEOPLE GET TO WORK AND ISSUE THEIR REPORT

Recipients of Social Security disability insurance benefits become entitled to both Medicare A and B coverage in the 25th month following the first month of benefit eligibility. For persons who are receiving workers’ compensation benefits, and who also are (or may become) eligible for Social Security benefits and Medicare, questions frequently arise about potential conflicts between the medical coverage provided by the workers’ compensation carrier, and that provided by Medicare.

These questions are most critical at the time the workers’ compensation case is settled. Applicants fear the total loss of coverage unless funds are set aside for future medical care. Carriers fear that Medicare will impose liability on them for an impermissible shift of the medical burden onto Medicare. How should settlements be written so as to coordinate the proper allocation of benefits?

Until now, the Social Security Administration has provided little help. However, a new government web site is providing useful and important information on these issues:

http://www.cms.hhs.gov/medicare/cob/attorneys/att_wc.asp

The web site exists primarily for attorneys who represent Medicare beneficiaries in workers’ compensation cases, and provides basic information on what the legal requirement are, how to contact the Coordination of Benefits Contractor (COB), and the workers’ compensation medic are set-aside. Regarding the Medicare set aside, there are links to several letters, a checklist, sample submissions, and frequently asked questions (FAQs).

The House of Representatives Ways and Means Committee publishes each year its so-called"Green Book," providing updated data on major programs within the Committee=s jurisdiction (two of which are the Social Security Administration=s disability insurance benefit program and SSI program).

The 2004 edition of the Green Book contains over 500 detailed tables, statistics and charts reflecting an enormous amount of information on disability programs, and is over 1,500 pages long. It is available for purchase ($78.00) from the Superintendent of Documents by calling 202-512-1808. Individual chapters may be obtained from the Committee's web site at : http://waysandmeans.house.gov/Documents.asp?section=813.