Multiple Chemical Sensitivity: Recognition to Proof

Thelma S. Cohen, Esq.
Bertram L. Potter, Esq.
Gary J. Shima, M D

This program will treat what is now almost universally known as multiple chemical sensitivity syndrome but which has been known by a variety of names including environmental illness, environmental hypersensitivity syndrome, ecological illness, and chemical susceptibility problem and which in extreme cases so severely affects its victims that they live in bare porcelain-lined trailers, in tents, in rural areas in an attempt to avoid nearly all chemical exposure associated with modem society. Sufferers complain of many symptoms including respiratory problems, headache, fatigue, mental confusion, short term memory loss, joint pains and depression. This enigmatic syndrome has no generally accepted definition or proved physiological mechanism but is increasingly recognized in government regulations and the courts and, specifically, by the Social Security Administration. How to recognize and present a claim for disability benefits under the Act, Regulations and particularly the SSRs will be the focus of the workshop. While diagnosis does not equate to disability, without it there can be no finding of a medically determinable condition.

A diagnosis can be made by "acceptable sources" particularly allergists, family practitioners, internists, specialists in environmental medicine 20 CFR 404.151 3(a)(b), Diagnoses by "other sources" 20 CFR 404.1513(e), acupuncturists, nutritionists, naturopaths, chiropractors and audiologists will not by themselves suffice to establish the "anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable chemical and laboratory diagnostic techniques". 20 CFR 404.1508.

As there is no marker, no litmus test, (like Chronic Fatigue Immune Dysfunction Syndrome (CFIDS), Fibromyalgia, if the tender points are not considered, and Depression) self reporting of symptoms is crucial. It is suggested the claimant complete a symptom checklist and it be made in the form of a declaration and filed as an exhibit with copies provided to treating sources. For invaluable symptom checklist see Welcome to CIIN, 1994, Chemical Injury Information Network, P.O. Box 301, White Sulphur Springs, MT 59645, (406) 547-2255. When completed it will serve to inform the Administrative Law Judge, augment record at the Office of Hearings and Appeals and when provided to him/her remind the treating doctor of all the patient's symptoms.

There is a delicate balance between counsel informing the medical provider what a useful report should contain (which should always have attached all chart/progress notes, and test results) and treading on sensitive toes. Causes of claimant's symptoms other than MCS should be ruled out, just as they must be for the diagnosis of CFIDS, or the reporting will be vulnerable to attack, for failure to have established a specific diagnosis of MCS by medically acceptable laboratory diagnostic techniques and the Decision. These claims are vulnerable to defeat based on the ALJ finding no medically determinable condition.

It cannot be too strongly emphasized that your client, if possible, obtain the services of a medical doctor who not only accepts the existence of MCS but is willing to report in some detail that MCS exists and how in the claimant's condition prevents reliable, predictable, consistent functioning for 8 hours a days and 5 days a week, the standard of SSR 96-9(P) for any Residual Functional Capacity.

It is obviously preferable that the diagnoses and opinion of the extent of impairment be provided by the treating physician and be supported in his/hers progress notes. If claimant's present treating source is unaware of the state of research, here, as in CFIDS and Fibromyalgia, there is no shortage of literature which can be provided to the treating physician. That same literature should be proffered in evidence well before the Hearing so that the Medical Advisor as well as the trier of fact may be charged with knowledge of the material. A sample letter to the ALJ is attached. The material might make a significant difference in Federal Court.

Strongly recommended is referring the claimant not already in a support group to one not only for support but equally for new information to be shared with counsel.

Information is indispensable for the claimant and counsel, and of course, the only tool for cross-examining a skeptical medical advisor, whose non-expertise may well result in opinion that there is no MCS entity, or if there is that the claimant is not afflicted, and if he/she is afflicted ability to perform the full range of light work is supported by the record. In any event, the MA, usually an internist, may then resort to psychiatric pontification which is not only valueless but dangerous as Medical Advisor's mental/cognitive opinions are enough to defeat the client, but inadequate to support a finding of "disabled". Moreover if the claimant is on a Long Term Disability policy with a two year cut-off for emotional benefits it may pique the carrier's interest when, and if, they see the Decision. A win on psychiatric grounds might be disastrous.

If the claimant is receiving Long Term Disability Benefits counsel should request a copy of the carrier's file with the medical reports on which it based its decision to place your client in payment status. But that evidence will assess the claimant only with reference to ability to perform last work.

If additional reporting beyond what may be in Workers' Compensation file, the Social Security file, and the LTD file appears to be, advisable consider requesting the LTD carrier to pay for procuring it. As it will be the principal beneficiary of a favorable Decision the carrier may be receptive to whole or part payment.

On the other hand you may not wish to request help from the carrier as you may not wish to share the report. Payment for reporting may make uncomfortable bedfellows.

To obtain reporting that is concise, to the point and easily digestible this office mails a Questionnaire to the treating doctor with a letter explaining what we hope to receive. It covers the bases even though, when completed, it is perhaps less persuasive than a narrative report its value is augmented significantly when chart notes are attached. In the time of HMOs this may be the best one can do. A copy of our letter to the treating doctor and his completed Questionnaire is attached. It was instrumental in obtaininga Favorable Decision.

As a major component of MCS is its variability, the claimant should be encouraged to keep a diary so that hearing testimony does not become a generalized recital of symptoms lacking impact. Third party witnesses are invaluable as their credibility is not easily subject to attack.,

Claimants will experience "bad" days and 'good" days, somewhat better days, depending upon the wind, the weather, and the whereabouts. Travel to work, much less remaining there may be an unsurmountable challenge. In accord is 9th Circuit law, specifically Kornock v. Harris, 648 F.2d 525 (9th Cir. 1980), Erickson v. Shalala, 9 F.3d 813 (9th Cir. 1993), Cox v. Califano 587 F. 2d 988, 990 (9th Cir.1978).

An annotated case list and bibliography are attached. All materials mentioned are not of equal value. Telephone area codes as well as addresses may have changed or become obsolete. What is provided is only the best information we have.

For an overview of MCS, the treatment by Sarah Bohr, Esq. which heads the attached bibliography is strongly recommended.

ANNOTATED CASE LIST - MULTIPLE CHEMICAL SENSITIVITIES

FIRST CIRCUIT

Creamer v. Callahan 981 F. Supp. 703 (U.S.D.C. Mass.11 /5/97)

ALJ relied on agency physician statement that MCS is not a medically acceptable diagnosis, denied benefits at non-severe stage of sequential analysis. On appeal, the commissioner filed brief in District Court stipulating that SSA DOES recognize MCS as a medicalIy determinable impairment. REMANDED to allow ALJ to complete sequential analysis.

FIFTH CIRCUIT

Greenspan v. Shalala 38 F.3rd 232 (C.A. 5th, 1994)

Extensive discussion of POMS §24515.065 re: environmental illness. ALJ Finding that Greenspan could return to past work notwithstanding her "ecological illness" was AFFIRMED. Court noted conflicting medical evidence and found that the treating physicians opinions' were properly discounted because they used "few recognized medical techniques."

SEVENTH CIRCUIT

Lawson v. Sullivan 1990 U.S. Dist. LEXIS 18758 (N.D.111.1990) Unpublished

Lawson claimed disability based on environmental illness causing excruciating migraine headaches. Testimony reflected that she had drastically changed her lifestyle, living in an "oasis" in her home where she bakes the newspaper, installed air purifiers, switched to all cotton, removed her carpeting, etc. ALJ denial was AFFIRMED, holding that plaintiff had not met her burden of establishing a medically determinable impairment.

(ED.'S NOTE: the medical community's position has changed over the past nine years. This case might be decided differently today, but see Brown, infra.)

Shelson v. Shalala 1993 U.S. Dist. LEXIS 10448 (N.D.111.1993) Unpublished

ALJ denied Shelson's disability based on "environmental illness caused by excessive exposure to industrial chemicals" (especially formaldehyde), finding that she could work in an office setting without heavy concentrations of industrial chemicals. REVERSED and REMANDED, the Court finding that the ALJ disregarded treating physicians, and that he "improperly substituted his own opinion for those of the medical experts. "REMANDED for determination of extent of disability.

Bemauer v. Chater 1995 WL 803663 (N.D. Ind.1995) Unpublished

ALJ denial of MCS claim AFFIRMED. The Court pointed to multiple conflicting medical opinions and found that Bernauer failed to establish a medically determinable impairment. The Court approved the ALJ's reliance on a letter from a non-examining physician who reviewed the records and wrote that the treating doctors used "unproven procedures and with unsubstantiated reliability".

(ED.'S NOTE: Case contains a very extensive discussion of case law, regulations and POMS, in addition to a lengthy description of plaintiff's restricted lifestyle.)

EIGHTH CIRCUIT

Brown v. Shalala 15 F.3rd 97 (C.A.8 1994)

ALJ denied claim based on environmental illness, finding that plaintiff had not established a "medically determinable impairment" through evidence of "medically acceptable clinical and laboratory diagnostic techniques." ALJ accepted testimony of nontreating employer examiner and MA testimony, and rejected opinion of treating physician. ALJ did find medical evidence of mold allergy, but VE identified jobs in "clean rooms" such as in computer manufacture. Denial AFFIRMED by 8th Circuit, based on substantial medical evidence including testimony about the lack of double blind studies to establish existence of environmental illness". Kouril was distinguished based on differing symptoms and conflicting medical evidence.

Kouril v. Bowen 912 F.2nd 971 (C.A.8 1990) Seminal case, extensive discussion on effects of multiple chemical allergies on ability to function in workplace. Uncontradicted medical documentation of multiple allergies to both industrial chemical and regular household irritants. The ALJ denial based on ability to return to past work was REVERSED and REMANDED to complete balance of sequential analysis.

NINTH CIRCUIT

Ermey v. Chater 11 6 F.3rd 483 (C.A.9 6/20/1997)

ALJ denied benefits to plaintiff with multiple chemical sensitivities, finding that although she could not function in a "typical work environment", she could work at home as a telemarketer. The Ninth Circuit upheld the finding that telemarketing work at home is substantial work and that based on the vocational evidence, there is a significant number of such jobs. The case was REMANDED, however, for proper evaluation of vocational factors in Rule 201.00(h) on transferability of skills for claimant of advanced age.

Shore v. Callahan 977 F.Supp. 1075 (USDC Ore 8/27/197)

Primarily CFS case, with additional impairment of chemical exposure problems. The District Court REVERSED ALJ finding that plaintiff could return her past clerical work, and REMANDED for payment of benefits. Plaintiff suffered from metal toxicity (aluminum) and multiple allergies which contributed to her overall disability.

Taddeo v. Callahan U.S.D.C. N.D. Cal 6/20/97, 1997 WL 361274 (N.D.Cal) Unpublished

ALJ denial AFFIRMED. The Court held the ALJ properly found plaintiff's symptoms of breathing and bladder problems, sinus infections, skin rashes etc. not credible due to conflicting medical evidence and plaintiff's ability to do light housework, swim, ride horses and engage in other activities. The finding that plaintiff could perform light work was likewise upheld based on ALJ discretion to weigh conflicting medical evidence.

TENTH CIRCUIT

Vogt v. Chater 958 F.Supp. 537 (U.S.D.C. Kan., 1 997)

The Court REVERSED ALJ denial. Held, inter alia, that ALJ had improperly failed to credit the opinion of the envirorunental specialist that plaintiff was totally disabled by chemical sensitivities. (The case primarily focuses on plaintiff's disabling CFS; but there is also a good discussion about the symptoms of MCS and allergies).

BIBLIOGRAPHY

TIRED OR TOXIC, A BLUE PRINT FOR HEALTH, Sherry Rogers, M.D., Prestige Publishing, Syracuse, N.Y. 1990

BOHR'S SOCIAL SECURITY ISSUES ANNOTATED, James Publishing 1997, Sections 303 and 1303.

ALLERGY RELIEF PREVENTION, Jacqueline Krohn, M.D. Hartley and Marks 1950 pp. 121 -125, Emotional & Psychiatric Impact, pp. 282-289

CHEMICALS CAN BE HAZARDOUS TO YOUR HEALTH, Phamplet, Environmental Health Network. P.O. Box 1155, Larkspur, CA 94977 (415) 541-5075.

MULTIPLE CHEMICAL SENSITIVITY, SPEREPORT 7/2291 (15 pp) Chemical and Environmental Network, Washington, D.D.

CHEMICAL INTOLERANCE: HALLMARK FEATURE OF MCS AND PORPHYRIA, Our Toxic Times, 10/96, P.O. Box 301, White Sulphur Springs, Montana 59645-0301. Telephone or Fax (46) 547-2255

RECOGNITION OF MULTIPLE CHEMICAL SENSITIVITY (Article) MSC Referral & Resources, 2/97, updated bimonthly, telephone (41 0) 362-6400

WHAT IS ENVIRONMENTAL MEDICINE- Phamplet, American Academy of Environmental Medicine, P.O. Box 16106, Denver, CO 80216

PATIENTS WITH MULTIPLE CHEMICAL SENSITIVITIES (MCS) article; Gordon P. Baker, M.D., MCS Referral and Resources 2/97 (available from Chemical Injury Information Network (CIIN).

MEDICAL & LEGAL BRIEFS, A Referenced Compendium of Chemical Injury, article "U.S. Federal Court Recognizes Severity of MCS Diagnosis in SSD Case", Cindy Duehring, Published by Environmental Access Research Network, Nov/Dec. 1997, P.O. Box 1089, Minot, ND 58702-1089, Telephone (701 ) 837-0161.

MEDICAL & LEGAL BRIEFS, The Global Problem of MCS Part One. "Overview of Investigative Reports Findings", Cindy Duehring - see address. Supra

MULTIPLE CHEMICAL SENSITIVITY: TREATMENT AND FOLLOW-UP WITH AVOIDANCE AND CONTROL Of CHEMICAL EXPOSURES, Grace E. Ziem, M.D., Dr Ph. Toxicology and Industrial Health 8: 73-86, 1992.

REGULATORY ACTION: UNDERSTANDING M ULTIPL E CHEMICAL SENSITIVITY, Article, Patricia E. Dougherty, Associate, Stateside Associates, Arlington, Virginia 2/96 http//w.w.p., appa-org/publish/Regula.

Other web sites with significant information include:

1. http://www.u/cs.cmu.edu/books/multiplechem/multO45.htm
   
2. http://www.spe.sony.com/classics/safe/m isc/mcs.htm
   
3. http//www.acenet.edu/programs/HEATH/MCS.htm
   
4. http//www.snowcrest.net/lassen/eibook.htm