Fibromyalgia

If you are basing your disability claim on a fibromyalgia diagnosis, there are a number of factors that you should keep in mind as you pursue your claim.

First, you should be aware that over the past ten to fifteen years, the number of fibromyalgia disability cases has risen dramatically.  This may be a function of increased awareness about fibromyalgia and chronic fatigues in the general community as well as an increased acceptance of these chronic conditions in the medical community at large.

Fifteen years ago, many Social Security judges had never heard of fibromyalgia and many others were skeptical about awarding disability based on a medical condition that could not be verified by a diagnostic test such as an x-ray, MRI or blood chemistry lab results.  In the late 1990′s and early 2000′s I often found myself having to educate the judges hearing my clients’ cases about fibromyalgia and the various symptoms of this disorder that created work limitations.   I distinctly remember one judge calling a psychiatrist as an expert witness to testify that fibromyalgia was nothing more than a type of depression that could be treated easily with available anti-depressant medications.

Fortunately, most Social Security disability judges are now familiar with fibromyalgia as a medical condition, even if there is not necessarily consistency regarding how judges approach it.   In my practice, I have seen judges take the position that fibromyalgia is a mental health disorder, that it is a function of depression, that it is a form of a somatoform disorder, or that it is a condition similar to complex regional pain syndrome.  I am seeing a general recognition that severe fibromyalgia is a serious medical problem that cannot be easily treated, and one that can support a finding of disability.

Unfortunately, along with the increased awareness of fibromyalgia comes an overuse of the diagnosis.  Claimants who don’t really exhibit the classic indicia of the condition claim that they have it.  Physicians who are not trained to diagnose fibromyalgia throw out the term in their medical records and in their discussions with patients.  As such, I regularly see claimants who casually include fibromyalgia as one of their disabling conditions even though the medical record does not support the diagnosis.

Social Security judges, therefore, have become much more cynical about approving fibromyalgia cases because they are not as willing to accept these casual diagnoses by internists or family doctors who have not carefully evaluated the claimant’s condition using the fibromyalgia guidelines set out by the American College of Rheumatologists.

Fibromyalgia Relies on Subjective Reporting Made by the Patient

Second, Social Security administrative law judges are reasonably concerned about any medical condition that does not lend itself to objective testing.  If a claimant has a herniated disk at L5/S1 with nerve root impingement, it can be seen clearly on an MRI scan.  If a claimant has congestive heart failure, resulting in significantly reduced heart pumping capacity, the heart’s pumping capacity can be measured as an “ejection fraction.”  By contrast, the very diagnosis of fibromyalgia arises from the claimant’s self-reporting to her doctor and the doctor’s acceptance of the veracity of the claimant’s allegations.

Third, Social Security judges will look closely at any medical condition that requires long term use of opioid pain medications.  From the judge’s perspective, any claimant they approve may end up receiving disability benefits for twenty, thirty even forty years, along with Medicare.    A stated policy of the Social Security Administration is to return claimants to work if their condition stabilizes.   Thus, claimants who consume narcotic pain medications can expect an increased likelihood of case review in years to come.

Common Features of Winning Fibromyalgia Disability Claimants

This is not to say that a Social Security judge will not approve a legitimate fibromyalgia based claim.  While every case is different, here are some common attributes that I see in cases involving individuals who truly are dealing with severe and disabling fibromyalgia:

  • claimants are typically females 35 to 50 years old
  • most claimants are type A personalities
  • often the claimants have been high achievers beyond their educational and work training – in other words, these individuals have taken on and been successful with tasks and duties far beyond their training and education
  • as the fibromyalgia becomes more symptomatic, the claimants aggressively search for answers, visiting doctor after doctor and trying different medications, therapies and cures
  • often the claimant have had some sort of trauma in the 10 to 15 years prior to developing fibromyalgia – a serious auto accident, a fall from a horse, an emotional shock

There is no “listing” for fibromyalgia.  Therefore, the strategy I use to win fibromyalgia disability cases revolves around my client’s functional capacity for work.  I develop a case strategy around the idea that the various limitations arising from my client’s condition would significantly interfere with her ability to perform even simple, unskilled work.

I am finding that judges are denying fibromyalgia cases when there is no rheumatologist, pain management physician or psychiatrist/psychologist involved.   Further, judges expect that we will have a functional capacity form detailing specific activity limitations.

Social Security has offered some guidance regarding how they evaluate fibromyalgia cases.  Social Security Ruling 12-2p explains in detail what SSA adjudicators and judges will consider appropriate evidence of FMS. If you read this ruling you will see that your medical records must contain evidence of trigger point involvement and long time evaluation and treatment from a medical doctor.   It is not sufficient for a family doctor to include “suspected fibromyalgia” in his notes without trigger point testing.

In the past, in my experience, judges would accept a functional capacity form from a family doctor but this rarely works now.   If you hope to win, you will need on-going treatment records from a specialist who regularly deals with fibromyalgia and a form that identifies limitations that would cause reliability problems at work (i.e., excessive absences, inability to maintain attention and concentration).  Another strategy that can work is to submit evidence of depression or another psychological condition such as somatoform disorder.

Case Studies:

Social Security Disability and Fibromyalgia Case Study #1 – this case involved a 44 year old female who had previously worked as a business consultant for a large, consulting firm.  She has a college education and previously earned over $90,000 per year.  This case resulted in a favorable decision.

Social Security Disability and Fibromyalgia Case Study #2 – this case involved a 53 year old woman with a high school education who had previously worked as a medical transcriptionist. A favorable decision was issued in this case.

Social Security Disability and Fibromyalgia Case Study #3 – this case involved a 54 year old female with a high school education and past work as a machine operator and inventory control clerk.  This case resulted in an unfavorable decision.

Social Security Disability and Fibromyalgia Case Study #4 – this case involved a 61 year old female with a high school education who had worked as an engineering support clerk for a large telephone service provider.  This case resulted in a favorable decision based on mental health grounds.

Social Security Disability and Fibromyalgia Case Study #5 – this case involved a 52 year old female with a college education and past work as an accounting manager.  This case resulted in a favorable decision.

Social Security Disability and Fibromyalgia Case Study #6 – this case involved a 50 year old female with past work as a nurse.

Social Security Disability and Fibromyalgia Case Study #7 – this case involved a 43 year old female with past work as a head clerk at a grocery store. The pre-hearing brief in this case convinced the judge and no testimony was necessary.

Social Security Disability and Fibromyalgia Case Study #8 – this case involved a 52 year old female with past work as a teacher.  This case resulted in an unfavorable decision because the medical record did not document a disabling level of impairment.

Social Security Disability and Fibromyalgia Case Study #9 – this case involved the claim of a 59 year old woman with past work as a high end computer sales consultant.   The judge issued a fully favorable bench decision after hearing testimony and without questioning the vocational expert witness.

Social Security Disability and Fibromyalgia Case Study #10 – this case was somewhat unusual in that it involved the claim of a 41 year old male with past work as a heavy machine operator.  After an 8 foot fall from a truck and back surgery, my client developed fibromyalgia