Don't Start Over

Fibrositis Association

Education and
Research in Fibromyalgia,
TMJ, Chronic Pain Syndrome

Robert S. Ryan, CEO B.D. Miskimen, Chai Box 20408 Columbus. Ohio 43220 Phone Association (614) 442-8344 FAX: (614) 885-9370

Includes US Fibrositis/Fibromyalgia Association USA Fibromyalgia (614) 764?8010 2671 Sawbury Blvd. Columbus, OH 43235 USA

Don't Start Over

By Joshua W. Potter, Esquire

March 1995 - 31

It is important to remember not only that the standard for disability under the Federal Social Security Disability program is the inability to perform any substantial gainful activity because of medically determinable impairment, but also that one should never start over.

The Disability Program has been engineered and tempered in the crucible of the Courts to provide for an orderly and rational process of appeal and progress. Social Security Regulations provide for an initial Application, followed by a Request for Reconsideration, followed by a Request for Hearing. Social Security provides for measured and predictable intervals between each step. For an individual who has been granted Social Security Disability, the importance of following the sequence is of little moment. For the majority of individuals who are attempting to establish disability based either upon Chronic Fatigue or Fibromyalgia, the chances are extremely high that their initial Application to Social Security for disability benefits will be denied.

A denial must be followed by a timely Application for Reconsideration. The first page of the denial letter from Social Security describes the appeal rights: You have 60 days to ask for an appeal. The Appeal is done by requesting reconsideration on form SSA 561-. That is the best way to stop the "60-day clock". If Social Security sends a Notice indicating that the initial determination denying benefits was correct, there are only sixty (60) days to request a hearing. A Request for Hearing is filed on Social Security form HA 501-U5.

Failure to take the appropriate step within the prescribed period of time will result in serious and negative consequences to an individual attempting to establish disability. One of the most significant and frightening consequences of failing to take the appropriate appellate step at the appropriate time is the potential for having a claim denied based solely upon as the result of res iudicata. Res Judicata means that the issue has already been decided. Administrative finality can be based upon the last administrative action, i.e. the denial in the file. No matter how important the merits of the case, they may not be reached because of late filing. For example, in the 9th Circuit case of Taylor v. Heckle r, 765 F.2d 872 (9th Cir. 1985), the Court wrote "Further, a claimant is not entitled to a hearing where she has failed to seek reconsideration within sixty (60) days after receiving notification of an adverse determination unless she can prove "good cause" for missing the deadline". (20 CFR 404.911). The Court in Taylor correctly observed that it is solely at the Secretary's discretion to allow for late reconsideration. Virtually all Circuits have case law addressing the question of Res Judicata with uniformly strict interpretations.

It would be a mistake to assume that an individual who applies for Social Security Disability has the luxury to abandon the Application and then return at some later time to pick up the pieces. 20 CFR 404.957 states that the "doctrine of res judicata applies in that we have made previous determination or decision under this Sub Part about your rights on the same facts and on the same issue or issues and that this previous determination or decision has become final by their administrative or judicial action; the person requesting a hearing has no right to it under Section 404.930". Judges are allowed under Regulation 20 CFR 410.650 to dismiss on their own initiative a request for hearing where there is found to be res judicata "where there has been a previous determination or decision by the Secretary with respect to the rights of the same party on the same facts pertinent to the same issue or issues which have become final either by judicial affirmance or, without judicial consideration, upon the claimant's failure to timely request reconsideration, hearing, or review to commence civil action with respect to such determination or decision." This is the rule of law that governs Social Security. A Social Security Hearing Office provides instruction for similar stringent results is present Hallux 1-2-440 B. The judge's instruction in Hallux underscores the importance that waiver will not be granted to consider the same evidence.

With impairments like Chronic Fatigue and Fibromyalgia the constellation of symptomatology is relatively well defined, it may not be a static disease. Whether the passage of time will give rise to such new and distinct symptomatoloy as to create a different set of facts which will protect an individual from the jaws of res judicata is a risk not worth pursuing. It would be much better to simply take the appropriate appeal step at the appropriate time. For an individual unlucky enough to have walked away from a claim, the prospects of judicial application of res judicata invites the use of an attorney. The principles of res judicata are also announced in the Social Security Ruling 91-5P.

This is a follow-up article by Joshua W. Potter, Esq. to his article published in the March 1994 issue "Helping Fibromyalgia Patients Obtain Social Security Benefits". Any questions should be directed to him in writing c/o Potter, Cohen & Samulon, 3852 E Colorado Blvd. Pasadena, CA 91107. We are grateful for these helpful comments of Mr. Potter. Permission to reprint received from the writer. All rights reserved.

Fibrositis vs Fibromyalgia This publication continues to be criticized because we do not up-date the thinking of thisstaff and forget the word "Fibrositis" as the advancement of science has eliminated same. Can that be? No, in 1904 this problem was identified as "Fibrositis". This association began searching for help to identify this pain in about 1968. All references were found to call the symptoms "Fibrositis" and in no place was the word "Fibromyalgia" ever printed. All research and write-ups used the name - "Fibrositis". At least that was in the references located by this association. Now the linguists and expert word syllablists informed the association it is out dated and misdirecting it's efforts. Would it not be better to use that time to help solve the "whys" and "wherefores" as to the causes of the terrible pains and hours of suffering of the many persons on our mailing list? This association predates "Fibromyalgia". Is that suffering individual caring what the handle is? To that person the plain name is "HELL". Would you sufferers agree? Your help is most needed to come up with the right research and answers? Will you help financially or otherwise?