SSA: ME patients are malingerers until proven otherwise

[gbells]

In the legal system you're supposed to be innocent until proven guilty. With a typical ME claim your doctor certifies that you have had the illness for 6 months, that it is expected to last 1 year or longer and that you are disabled. However, the Social Security Administration uses their network of hit doctors (occupational MDs and psychiatrists) to certify that you can work. I went through the process as a claim for SSD for ME and was sent to both an occupational MD and psychiatrist. Occ MD and psychiatrist both found me competent to work. Despite having chronic pain for five months the psychiatrist didn't consider the possibility that I could have a somatoform disorder and ruled it out because it hadn't been 6 months yet. SSA's initial fabricated ALJ rejection finding was that I could do light warehouse work. I obtained neuropsychological testing at six months and was found to have undifferentiated somatoform disorder which is on the list of permanent impairments and is an automatic qualifying condition and appealed. At reconsideration the ALJ stated that nobody had any credibility except for the neuropsychologist who was a teacher at the state medical college. So previously he was perfectly fine with pretending his experts were credible and discrediting my personal physician to deny my disability claim which would have made me homeless and probably killed me and only recanted when I presented more evidence that he couldn't dispute. SSA was not going to order the neuropsychological exam to quantify the severity of my mental impairments, that was up to me to know to order. If it wasn't available they were happy to reject the claim.

Additionally, I pointed out additional errors in his initial determination such as falsely saying that I was noncompliant with taking depression medication because he did not go through my medical history thoroughly.

SSA wants to deny all ME claims. Only 15,000 of the 2.5 million ME patients are approved for disability despite the fact that 75% of them are chronically disabled. It is clear that they have an agenda and with them you are considered guilty of malingering until proven innocent, which is the opposite of the way the legal system is supposed to work.

SSA was supposed to stop treating ME patients like this and even published new guidelines in 2014 that discussed evaluating ME claims however the system never really changed and still remains highly adversarial against ME claimants. If you want to know what to expect read the guidelines. During the hearing the judge appeared to believe that I was faking my illness to get out of student loans and spent about 10 minutes questioning me on this which I found insulting. I was fired from my last two jobs are an intraopertive neurophysiologist because of the ME impairments and to think that I would want to be on disability making 18% of my former pay is ridiculous.

 

[geraldt52]

You may not feel like it, but you're actually very lucky, gbells, so maybe the SSA procedures have improved a bit.

My experience 20 years ago started out remarkably similar to yours, but in my case the ALJ wouldn't budge no matter what the evidence, and it was 7 years later that a federal court judge effectively ordered the SSA to pay my claim. I ended up losing $35K in past due benefits to attorney's fees...attorney's fees are not capped if the appeal goes to federal court.

My "favorite" part of the whole sordid experience was when the SSA appointed psychiatrist justified my failing of his short term memory test (which came as a shock to me) by saying that the "patient didn't appear to be trying very hard". How does one properly appear when they are trying hard to remember something they don't remember?

To this day I despise every SSA employee and contractor at every level, and while I've put it behind me I'll never really get over the way I was treated, or the damage it caused me...

 

[gbells]

You may not feel like it, but you're actually very lucky, gbells, so maybe the SSA procedures have improved a bit.

My experience 20 years ago started out remarkably similar to yours, but in my case the ALJ wouldn't budge no matter what the evidence, and it was 7 years later that a federal court judge effectively ordered the SSA to pay my claim. I ended up losing $35K in past due benefits to attorney's fees...attorney's fees are not capped if the appeal goes to federal court.

My "favorite" part of the whole sordid experience was when the SSA appointed psychiatrist justified my failing of his short term memory test (which came as a shock to me) by saying that the "patient didn't appear to be trying very hard". How does one properly appear when they are trying hard to remember something they don't remember?

To this day I despise every SSA employee and contractor at every level, and while I've put it behind me I'll never really get over the way I was treated, or the damage it caused me...

Thank you for sharing some of your experience.

Actually it wasn't luck. They knew they were under scruitiny by a state senator so they decided to play fair.

My fight took 4 years and used up about 77% of my savings (including the $20k in unemployment benefits I grudgingly took). Following the negative decision I wrote a letter to the appeals council complaining that I was suicidal, on the verge of homelessness and that the judge was biased because he mischaracterized my discontinuation with MD supervision of seven different anti-depressant medications due to side effects as noncompliance. As is procedure they remanded it to the same judge who did the original denial. Faced with the new evidence, criticism of his bias which was supported by evidence and scruitiny from a senator he gave up. The statistics are that only 12% of these appeals get approved. My attorney commented before the ALJ hearing that I was in for a tough fight and that SSA hates giving disability to younger males because they don't want to pay the claims over many years.

SSA should have to pay attorney's fees for the denials they lose. Even moreso for federal court.

I do realize and appreciate that I had a fortunate outcome. However, I worked hard to find evidence that would support my case. Fortunately the neuropsychologist's report proved me right.

The system is malicious. People need to appreciate how adversarial and biased they are.

One thing that may have helped me was that I requested assistance from a senator after the ALJ rejection and they had flagged my case file. Corrupt official agencies are always more honest when they are scruitinized.

My mother's doctor relayed a warning to me early in the process about it which I was skeptical of. She said he said they always fight non-mental claims and that a mental claim was the best way to win. He was right.

If you go in blindly and naively they will walk all over you. Here are some traps:

1. You didn't take and save all the unemployment benefits you could because you stated you were disabled before the determination was made. Unless you have a short term disability policy always state that you are ready, available and willing to work. It will not be used against you if you say you only did it because you desperately needed the money and were unsure of your disability determination.(per my lawyer)
2. You used a physician assistant or nurse practitioner.
3. You didn't verify that the physician was competent in disability, took good notes, performed necessary testing to document your case.
4. You didn't ask for a neuropsychology exam to quantify mental impairment.

SSA acts exactly like any other biased insurance company reviewer, they are fighting for you to lose and they hope you aren't crafty enough, smart enough and tenacious enough to stick with the claim. Most ME patients aren't. They can barely keep themselves alive. They are not going to help you document and prove your claim. Anything they demand is solely to help support a rejection. Aside from that they don't want to waste time and money on claimants. It is only because they hope to prevent several hundred thousand dollars in future claims and medical support that they are willing to fight this hard.

News stories support this by exaggering the few cases of fraud and not mentioning that the true case percentage is only 3%.

 

[gbells]

Former reporter and ME patient Brian Vastag's case is a good illustration of unfair ME denials by insurance companies. Despite having an excellent ME specialist MD he was put through the ringer but ultimately prevailed in court and was one of the few ME patients to get long term disability benefits because he worked his tail off to document the disability and the judge was competent and honest.

 

[SnappingTurtle]

attorney's fees are not capped if the appeal goes to federal court.

I was not aware of this. This is good to know!

 

[geraldt52]

SSA should have to pay attorney's fees for the denials they lose. Even moreso for federal court.

I absolutely agree with this, and I have to think that if any attorney fees on appeals came out of their budget, and they had to justify their incompetence every year, then maybe things would change. As the system stands they have little incentive to do anything other than deny, deny, and deny on appeal...which is exactly what they generally do.

My case should have been slam-dunk, but my ALJ didn't believe that CFS was real, and said so to my attorney, and that predjudice followed my case all the way to federal court. The federal judge dismissed SSA's ridiculous arguments entirely, but it cost me $35k and SSA nothing.

 

[Rufous McKinney]

has anyone tried a Class Action?

they are systematically discriminating against a legitimate debilitating illness.

 

[geraldt52]

I was not aware of this. This is good to know!

SSA caps attorneys fees within the SSA appeals process, but when a case moves from the SSA appeals process to the federal courts (when SSA appeals are exhausted) the attorney submits a claim for their fee to the federal judge, who can approve it or approve whatever fee they deem appropriate.

 

[gbells]

has anyone tried a Class Action?

they are systematically discriminating against a legitimate debilitating illness.

The US government has sovereign immunity so you can't sue them unless they let you. The only way to change this is mass protest and new legislation requiring them to cover attorney's fees for appealed and won claims.

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit.[7] The United States as a sovereign is immune from suit unless it unequivocally consents to being sued.[8]

Sovereign immunity in the USA

 

[gbells]

People should try writing their congressional representatives and proposing new legislation to cover attorney's fees for won disability appeals. Here's some sample text you can use to draft such a letter. You should also share it on social media and write to disability advocacy groups and disability attorneys who will support it.

Dear Congressperson [name]:

I am writing you to request that you sponsor new legislation to protect the disabled. I am a diagnosed patient with myalgic encephalomyelitis who is disabled. I contracted my disease and filed for Social Security Disability insurance in (year). Despite having the support of my doctor my claim was initially denied which forces me to retain an attorney at my own expense for the appeal. Most people are not approved for disability at their initial application, 70% are rejected. In light of the fact that SSA says the rate of false applicants is only 1% this shows that SSA is acting as a biased insurance company trying to reject a legitimate claim rather than its proper role as an unbiased judge assisting disabled people get deserved benefits in a timely manner. Even after retaining an attorney, if I win I am forced to pay attorneys fees myself which are capped around $6,000 pretrial and uncapped post trial. These fees are not tax deductible since the 2017 Tax Cuts and Jobs act. This situation is blatantly unfair. As a struggling disabled person I deserve to have my claim evaluated in a fair and unbiased manner. SSA's delaying of claims puts people like myself at risk of homelessness and death because of a lack of financial support and the delay in receiving Medicare health insurance benefits. Additionally, lack of insurance worsens the covid pandemic. SSA needs a financial disincentive to prevent them from rejecting legitimate claims. This should be done by allowing applicants to receive full tax free financial reimbursement for attorney's fees to defend improperly rejected Social Security insurance claim denials. Please sponsor this new legislation.

Sincerely yours,
[Your name]

References:

• WHAT ARE THE CHANCES OF WINNING A SOCIAL SECURITY DISABILITY APPEAL?. https://justicecounts.com/social-security-disability/chances-of-winning-social-security-disability-appeal/#:~:text=Of the 53% of those,the ALJ's denial of benefits.
• The Faces and Facts of Disability https://www.ssa.gov/disabilityfacts/facts.html#:~:text=Social Security, along with the,a fraction of one percent.

Disability advocacy groups to contact for the proposed legislation:

• National Association of Disability Representatives
• National Association of Social Security Claimants Representatives
• Disability Organizations

How to find your congressperson or senator

 

[gbells]

I emailed NADR to get it started.