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Social Security Ruling Sets Standards For Finding Chronic Fatigue Syndrome Disabling

In Volume I I of this JOURNAL, we published an article based on a memorandum from Social Security Deputy Commissioner, Susan M. Daniels, Ph.D., on Social Security Administration (SSA) policies for evaluating whether chronic fatigue syndrome (CFS) is disabling. The memo, dated May 11, 1998, was in response to a memo from an administrative law judge stating that the SSA needed to take a definitive position on whether CFS is a medically determinable impairment.* The SSA recently issued a “Social Security Ruling” (SSR 99-2p, “the Ruling”), which has the force and effect of law, stating the criteria for finding CFS disabling for purposes of awarding of Social Security benefits. The Ruling went into effect April 30, 1999.

CFS is defined as “a systemic disorder consisting of a complex of symptoms that may vary in incidence, duration, and severity.” The Ruling adopts the criteria for CFS developed by an international group convened by the Center for Disease Control and Prevention. These criteria require the concurrence of 4 or more of the following symptoms:

– Self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social or personal activities;

– Sore-throat;

-Tender cervical or axillary lymph nodes;

– Muscle pain;

– Multi-joint pain without swelling or redness;

-Headaches of a new type, pattern or severity;

– Unrefreshing sleep; and

– Postexertional malaise lasting more than 24 hours.

Four or more of these symptoms must have persisted or recurred for 6 or more consecutive months of illness and must not have pre-dated the fatigue.

Disability may not be established on the basis of an individual’s statement of symptoms alone. When these complaints are reported to a provider of treatment and are accompanied by appropriate medical signs or laboratory findings, they become a “medically determinable impairment” which may be the basis for a finding of “disability.”

The Ruling recognizes that within these parameters, an individual with CFS may also exhibit: muscle weakness, swollen underarm (axillary) glands, sleep disturbances, visual difficulties (focusing, photosensitivity), light-headedness or increased fatigue with prolonged standing, other neurocognitive problems (e.g. difficulty comprehending and processing information), fainting, dizziness and mental problems (e.g. depression, irritability and anxiety).

In order to establish that CFS is a “medically determinable impairment,” one or more of the following medical signs must be clinically documented for at least 6 consecutive months:

– Palpably swollen or tender lymph on physical examination;

– Nonexudative pharyngitis;

– Persistent reproducible muscle tenderness on repeated examinations, including the presence of positive tender points; or

– Any other medical signs that are consistent with medically accepted clinical practice and are consistent with other evidence in the case record.

With regard to tender points, the Ruling explains in a footnote that there is considerable overlap of symptoms between CFS and Fibromyalgia Syndrome (FMS). For CFS to be medically determinable impairment, individuals with CFS who have tender points need not have the specified number of tender points required by the American College of Rheumatology criteria for FMS.

While no laboratory findings are widely accepted to definitively establish CFS, the following laboratory findings establish a medically determinable impairment in persons with CFS:

  • 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 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 with other evidence in the case record; for example, an abnormal exercise stress test or abnormal sleep studies.

The Ruling notes that standard laboratory tests result in the “normal” range for many individuals with CFS; therefore, such laboratory findings should not be used to exclude other clinical evidence in determining the presence or severity of CFS as a medically determinable impairment.

Mental findings may also establish a medically determinable impairment in an individual claiming CFS. When mental status examinations or psychological tests document problems with: short-term memory, information processing, visual-spatial difficulties, comprehension, concentration, speech, word-finding, calculation, and/or other symptoms suggesting persistent neurocognitive impairment – the existence of a medically determinable impairment is established.

CFS has been debated and doubted in the medical community due to difficulties nailing down clear-cut and concrete diagnostic criteria. In this Ruling, the SSA sets out the criteria developed by the consensus of an international group of medical professionals. This helps doctors develop the documentation needed so those patients truly disabled by this mysterious malady may have their Social Security claims fairly evaluated.

*The memo also involved fibromyalgia, but the new Ruling only concerns CFS.

This article was prepared by Arthur W. Stevens, III.

Posted in: Social Security Disability Lawyer Articles