This afternoon, I tried an interesting fibromyalgia case that resulted in a favorable decision.  My client meets the classic profile of a fibromyalgia patient – she is a highly motivated, Type "A" female with a long work history and a lot of outside interests including painting and craft making.  Eight years ago, she began experiencing numbness in her arms and hands – an MRI showed spinal cord compression in her neck as well as a herniated disk in her lower back.

She worked through these disk issues for five years until the pain and numbness got to a point where she could not function.  Her surgeon decided to operate on her neck because of an immediate danger to her spinal cord.

You can probably sense that my client has a high pain tolerance and that she was a motivated and high achieving employee.

Several months after the surgery, the treating doctor released my client back to work.  After just a few weeks, she found that she could not get through her workday because of an achy, constant pain throughout her body as well as overwhelming fatigue.  She also discovered that she had become susceptible to recurrent urinary tract infections as well as chronic tonsillitus tonsillitis.

After a few months of just feeling ill all the time, my client went to the Shepherd Spinal Center to be test for multiple sclerosis.  The Shepherd’s doctor did not find MS, but he did sugges that she speak with her primary care doctor about fibromyalgia.

The primary care doctor has accepted this diagnosis and has been treating my client with various pain medicines.

As I began preparing for the hearing, I noted that I did not have several documents common to most fibromyalgia cases:

1) I did not have a functional capacity form from any of the treating doctors

2) the medical records themselves were somewhat vague – my client’s primary care doctor referenced "fibromyalgia" in his notes but really never conducted a thorough fibromyalgia exam.  He did not identify trigger points nor did he address the American College of Rheumatology fibromyalgia diagnostic criteria.  My sense is that this primary care doctor does not really know all that much about fibromyalgia, or perhaps he is not knowledgeable about current diagnostic and treatment options.

3) I also discovered that the Social Security hearing office had not gotten around to preparing the file for the hearing.  The exhibits were not numbered, and all of the medical records were basically hole punched and dumped into the file.

My client also had advised me that for the past several months she had been visiting her ailing mother out of state.  Although she insisted that she was not involved in caretaking activities, I know from experience that some judges look at travel and "visiting" an ailing relative as work like activity.

Prior to the hearing, I met for over an hour with my client and her husband.  We talked about the importance of stressing her dedication and hard work at her past jobs.  I also learned that my client had attempted to volunteer on three different occasions within the past two years.  This volunteer work consisted of packing food for Hurricane Katrina victims or packing items for soldiers overseas.  She advised me that despite her desire to volunteer, each time she tried, she only lasted a day or so.

I instructed my client to speak up at the hearing about this volunteer work as well as her past work as I saw her work ethic as a great credibility builder.  I guessed, correctly as it turned out, that credibility would be a key to this case.

I also advised her to avoid talking about her sick mother or her sick daughter as those issues could add confusion to the case.  We identified five different problem areas arising from the fibromyalgia and prioritized them in order of importance:

– fatigue
– chronic pain, especially in the hands
– digestive upset
– balance issues
– poor sleep

We also practiced answering questions in a very specific manner – for example, when I asked "how much can you lift" her first response was "not very much."  We corrected that to "ten pounds on occasion and no more than five pounds frequently."  Walking went from "not very far at all" to "about a city block."

I asked my client’s husband to describe the changes he saw in his wife and he spoke about her reduced energy level and her frustration about not being able to perform activities she did previously.

When the hearing was called, the judge started out by asking me for a brief synopsis of the case and I brought up my client’s work history and introduced my argument that the combination of 5 years of chronic pain coupled with the trauma of surgery most likely had triggered an onset of fibromyalgia. 

The judge then turned to my client and asked her why she felt that she could not work.  My client responded by using the example of her trouble performing the volunteer work to illustrate her problems.   This, in my view, was a much more effective expression of her fibromyalgia symptoms than simply naming them.   I felt that her testimony was very effective in that she did not simply say, "my hands and arms hurt and I cannot grip."  Instead, she gave examples of instances when her pain or lack of strength left her unable to perform an activity.

After questioning my client for about 25 minutes, the judge announced that he was going to approve her case.  He also noted that he rarely approves a case where the medical evidence was so limited, but he was convinced by my client’s work history and failed attempts to volunteer that she was a credible witness.

I think that the lessons anyone can learn from this case include:

1) credibility is a key – we did not have a lot of medical evidence, but we did have a great work history and a great story to tell about the volunteer work

2) my client’s complaints of pain and discomfort were consistent throughout the record.  There was also no evidence of symptom mangification, and this credibility was also noted by the Social Security consultative exam.

3) my client had been consistent in seeking treatment.  There were no 8 or 10 month gaps in treatment;

I saw this case as a real challenge because we did not have a functional capacity evaluation, which is usually necessary to win a fibromyalgia case.   Fortunately we found a work-around and I think that justice was served here.

[tags] fibromyalgia and social security disability, american college of rheumatology, witness credibility, ODAR, Social Security judge, Social Security hearing [/tags]