Social Security disability judges are increasingly reluctant to award benefits to fibromyalgia claimants unless these claims meet a certain profile. Let me tell you about this profile – what is currently working for me in disability hearings I try here in the Atlanta area hearing offices. Continue reading →
Category Archives for Fibromyalgia and disability
Fibromyalgia Better Understood – New Testing and Treatment Hopefully on the Way
USA Today published a very interesting article on December 15, 2013 about a research which identifies a physiological cause for fibromyalgia. Currently, fibromyalgia is recognized as a medical “syndrome,” which means that it can be identified by symptoms, while the source of those symptoms remains unknown. In the case of fibromyalgia, the American College of Rheumatology has published guidelines for physicians to use for diagnostic purposes, although treatment options remain limited.
The USA Today story quotes neurologist Anne Louise Oaklander at the Massachusetts General Hospital in Boston. Dr. Oaklander has published two studies which show that at least half the cases of diagnosed fibromyalgia arise from small fiber neuopathy, in which patients get faulty signals from tiny nerves all over the body, thereby causing symptoms. Here is a direct link to Dr. Oaklander’s article.
Researchers at Albany Medical College published a paper showing that fibromyalgia patients have excessive nerve fibers lining the blood vessels of the skin. This excess of nerve fibers can lead to increased sensitivity to pain. Interestingly, women have more of these fibers than men, which is consistent with statistics which show more female fibro patients than male patients. Here is a link to the news release from Dr. Frank Rice who conducted the research at Albany Medical College, and who now leads a research team at a private company. Continue reading →
How do I Win for a Medical Condition that Cannot be Seen on a Diagnostic Test
I get a lot of questions about fibromyalgia and other medical conditions that rely on subjective reporting by patients. These cases are definitely getting more difficult to win. Here is a question sent to me by a blog reader that describes an increasingly typical situation:
I'm 41 yrs old and have been suffering for many years with narcolepsy and fibromyalgia. My sleep disorder actually falls between narcolepsy and idiopathic hypersomnolence. My family and myself are falling apart because of my disabilities. I've applied for disability in the past and was denied. I'm applying again and wanting to ask you how do i go about applying to prove my disability since its been denied in the past? How much weight does testimonials from family and friends carry? How much weight does a signed letter from my doctor saying, i can't work/drive its unsafe, carry?
I am not surprised that you have had a difficult time with Social Security. As you probably know, Social Security defines disability in terms of your capacity to work a simple, entry-level type of job. Basically you have to prove that the symptoms of your medical condition or conditions are so intrusive, that you cannot work at any job, full time.
As the person claiming disability you have to prove that you are unable to work – you do this by submitting medical records, and, even better, a functional capacity form completed by your doctor that identifies specific activity limitations.
Helpful Tips for the Disability Claimant: Knowing How To Describe Pain
In a recent post on the importance of claimant credibility, I made a point that your ability to effectively describe your physical pain at the hearing may play a role in helping you win your case. Since physical pain is common to many disability cases, I want to elaborate on this point. Not only should you be able to effectively describe your pain at the hearing, but also throughout the claims process and during doctor’s visits as well.
Pain is subjective and can be hard to describe
All individuals have experienced some degree of pain at some point throughout life. The intensity of pain can range from a dull headache, to an agonizing toothache, to the more severe type of pain commonly associated with chronic conditions such as migraine headaches, Fibromyalgia, and Reflex Sympathetic Dystrophy (RSD). Although pain is a symptom and we easily recognize it when we experience it, pain is nevertheless hard to describe. Fellow Blogger Tomasz Stasiuk, whose Colorado Social Security Disability Blog contains a wealth of information about the disability claims process, made note of this fact in his December 2009 article on how to describe pain in a Social Security Disability case.
As Thomas suggests, pain can be hard to describe because 1) it is subjective and cannot be felt by others and 2) it is not a visible condition. Thus, a judge assigned to your case may not fully understand the extent your pain if you merely state you have pain. Stating you have pain is not enough; in order to strengthen your chances of winning your disability case, you must learn how to effectively describe your physical pain so that the caseworkers, physicians, and even the ALJ (Administrative Law Judge) assigned to your case can understand what you experience each day and how your pain limits your functioning.
Your ability to effectively describe your pain to your doctors is also important. This is because their reports and records will be evaluated by the SSA. I have seen many medical records where during an office visit, a client replied only by saying “Fine” after being asked by the doctor “How are you doing?” In such cases, the client’s chart might reflect something like: “Patient stated that she is doing fine today.” The word “fine” does not win a social security disability case. In fact, some adjudicators will often seize on something like this to justify denying a claim. Choose your words cautiously – even while at the doctor – especially if your words relate to describing how you are feeling.
Tips on how to effectively describe your pain
As mentioned above, fellow blogger Tomasz Stasiuk has written on this topic as well and has offered some great tips on how to effectively describe pain in a disability case. Because his tips are so useful, I am republishing them here (with minor additions) for your convenience. The following are some guidelines suggested by Tomasz Stasiuk to help claimants be able to effectively describe their pain.
Nature of the pain: What is the pain like? Is it sharp or dull? Is the pain aching, shooting or throbbing? Does the pain burn? Is it a constant ache that progresses to spasms as it evolves? On a scale from one-to-ten, how does your pain rate?
Location: Where is the pain physically located on your body?
Frequency and Duration: It is painful all the time or just some of the time? How long does the pain last? Do you feel better in the morning? Alternatively, does it start bad in the morning and continue to worsen until you go to bed?
Triggers: What events trigger your pain, if any? Do events such as walking result in pain? Does looking at a computer screen for an extended period of time result in migraine headaches?
Effects of pain: Does the pain affect how much you can lift? Does the pain affect your ability to interact with your children or spouse? How long can you sit, stand or walk? Does your pain affect your ability to read any type of written correspondence, whether it be a book or letter?
Effects of medications: Do your medicines help? Does the pill or injections relieve all of the pain or just some of the pain? What do the medications help with? What pain does the medication not relieve?
Keeping a journal of your symptoms and pain may be useful
Again, pain must be described in other words than by just saying “I hurt.” As noted in earlier posts, keep a journal handy and write down your daily symptoms and experiences with pain. Something like: “A day in the life of X (your name).” It does not have to be in some fancy, formal writing style. Notes jotted down are just fine. Be sure to include things such as pain level, daily limitations, and medicines taken (and side effects). It can be hard to remember on your own how you feel each day. The disability process is long and enduring. Do yourself a favor and start journaling today.
Is it Possible to Get an Early Favorable Decision in a Fibromyalgia Case?
Yesterday, I met with a fibromyalgia disability client in a pre-hearing session. A hearing is scheduled in my client’s case in about 10 days and I met with my client and her husband to discuss what I call the “theory of our case” so my client would have a clear idea about what we were trying to prove. In addition I use the pre-hearing meeting to practice questions and answers so that my client can avoid easily correctable mistakes.
During our meeting, my client mentioned how frustrating it has been for her to wait over 2 years to get a hearing and she asked me if this type of delay was typical. My initial response was that fibromyalgia cases were rarely approved at the administrative (initial application or reconsideration) levels because there is no “listing” for fibromyalgia and adjudicators at the State Agencies did not have the expertise or authority to issue early approvals.
After my client left, I thought more about my response – is it possible for a fibromyalgia claimant to get an early approval from a State Agency adjudicator?
I think that it is possible, but a claimant would need strong support from her treating physician. As I have discussed before on these pages, there are several “theories” or arguments under which a claimant can win his/her case. The Listing argument constitutes the most straightforward theory. If your condition meets or equals a Listing, you have consistent and extensive medical treatment records, and your doctor will prepare a narrative or complete a form that tracks the listing, and you make the adjudicator aware that a listing is involved, you greatly improve your chances at an early approval. Do not, by the way, assume that the adjudicator will recognize your case as a “listing level” case – you need to make that argument clearly when you submit your paperwork.
If there is no listing that describes your condition (such as fibromyalgia), you will need to argue for disability based on another theory. If you are 50 years old or older with a physical impairment, a limited education and a limited work skill background, you should look at the “grid rules” to see if you can be found disabled based on the grids. Grid based decisions do not call for judgment and State Agency adjudicators will issue favorable decisions in grid cases. Here, too, you need to point out that your case is a “grid” case and identify the specific grid.
Fibromyalgia cases can fit within the grids, although my experience has been that most fibromyalgia patients are high acheiving, Type A individuals who often have too much education and work skills to fit neatly within the grids.
If you do not meet a listing or a grid, you’re remaining argument will be a “functional capacity” argument. It has been my experience that State Agency adjudicators do not often approve cases arising from functional capacity limitations because reaching a conclusion about a claimant’s “residual functional capacity” is a legal decision that requires judgment and adjudicators are not given much authority to make quasi-judicial decisions.
However, if you submit a completed functional capacity evaluation from a treating physician (or two, or three) along with treatment notes, along with a request that the adjudicator take that functional capacity evaluation to the non-examining State Agency medical consultant and/or the adjudicator’s supervisor, there is a chance that your fibromyalgia case can be flagged for special review.
I hope you have picked up on a theme in what I have written about dealing with the State Agency adjudicators. You cannot and should not assume that they will find a reason to approve your case. You need to politely suggest a direction for their actions. You need to lay out very clearly your argument for disability and you need to explain why a particular item of evidence is particularly relevant. Finally, you need to realize that the State Agency adjudicators are overworked and underpaid and that they are given limited authority. Do not hesitate to ask your adjudicator to take your file to a supervisor or to a medical or psychological consultant in the State Agency office.
I Have Multiple Medical Problems – Should I Focus on All of Them? Just One?
I have more than one disability, should I focus just one or provide info on all to help my case? Fibromyalgia, heart problems, sleep apnea and extreme fatigue, and bi-polar depression.
–Darlene
Jonathan Ginsberg responds: Darlene – good question. At the initial and reconsideration stages, your claim will be reviewed by an Adjudicator who works for your State of residence under a contract with the Social Security Administration. Adjudicators work hard, but they are not trained or paid to serve as judges. They are equivalent to an insuarnce claims adjustor.
Multiple medical problems will make it difficult for an adjudicator to decide your claim favorably. Therefore, I would suggest that you focus on one problem and try to find a doctor who will support your claim that this one serious problem rises to a listing level. I would mention and include the other problems but I would focus on the one issue that seems most serious.
Note that fibromyalgia by definition is not a listing level problem because there is no listing for fibromyalgia. Read more about the Social Security listings here.
If your case is denied at the initial and recon stages, and you go before a judge, you will most likely have a lawyer to help develop a strategy. In my practice I tend to focus on one or two primary problems as I have found this approach works best.
Fibromyalgia Argument Accepted by Court of Appeals After 10 Years of Appeals
Despite a general acceptance in the medical literature that fibromyalgia is a real illness that can be disabling, there are still judges out there who refuse to accept that this chronic pain condition exists. There are no "objective" tests that can be run for fibromyalgia – its existence can be inferred by symptoms such as generalized body pain, tender points, poor sleep, fatigue, digestive issues, balance problems, anxiety and depression.
Social Security judges are often cynical since every person they see claims to be disabled. For this reason, some Social Security judges have decided that fibromyalgia is not a real condition and they will deny fibromyalgia claims based on the absence of objective evidence in the form of diagnostic reports like MRI’s, CT scans and x-rays and the absence of organ damage.
Recently a fibromyalgia claimant in Cleveland, Ohio appealed a denial and won at the federal district court level. You can read this opinion – Rogers v. Commissioner of Social Security, 486 F.3d 234 (6th Cir. 2007). This decision is interesting at several levels. First, look at the amount of time involved in appeals. The claimant first applied for SSI benefits on May 21, 1998. A hearing was held in December, 1999 and she was denied by the ALJ in January, 2000. The claimant appealed to the Appeals Council and won – the case was sent back to the same judge for a second hearing.
The second hearing was held on November 15, 2002. On November 23, 2003 (a full year after the hearing) the ALJ again denied the case on the grounds that there was no objective evidence to support the fibromyalgia claim.
The claimant appealed to Appeals Council again, but was denied. She then appealed to the district court where the ALJ’s decision was affirmed by a federal Magistrate Judge on August 30, 2005. The claimant then appealed to the 6th Circuit Court of Appeals.
The 6th Circuit decision was issued on May 24, 2007 reversing the ALJ and remanding back to the ALJ level for yet another hearing, but with guidance that the claimant’s fibromyalgia complaints ought to be given credence, despite the absence of objective evidence. Presumably Ms. Rogers has or will have a third hearing soon – perhaps after 10 years she will get her SSI.
The Rogers case can serve as a useful blueprint for lawyers and claimants who face judges who are unable or unwilling to recognize the functional limitations caused by fibromyalgia. When reading this decision I was struck by the overwhelming nature of the evidence that supported Ms. Rogers’ claim. She had extensive medical records from treating doctors. She had functional capacity forms completed by treating doctors. The symptoms she described are entirely consistent with fibromyalgia. Yet, she was denied because the judge could not see any problems on an x-ray.
Hopefully, you will not face a 10 year battle in an effort to prove that your fibromyalgia is real. Hopefully an understanding of why some judges deny these cases and a reference to cases like the Rogers case will help you avoid delay and get your benefits at your initial hearing.
Will Social Security Accept Records and Conclusions of a Homeopathic Provider?
I have been suffering from Hypertension, muliple pain syndromes (Fibromyalgia, Multi-Lateral Cervical Stenosis, Degenerative Disk Disease, Femoral and Ulnar neuropathies, Migraines, Sciatica, Bursitus, Osteoarthritis) and Clinical (including SAD) Depression. I went through to a Depression Group and saw a Psychotherapist AND a 9-week Chronic Pain Management Course through my HMO last year. I’ve been on LOADS of drugs, 5 Steroid Epidural injections/year and had so many bad drug reactions I went off a large number of them. Over the past 3 months I have suffered 7 deaths of folks close to me and the Depression, which I thought might have lifted came roaring back. I’m hypersensitive to all these drugs, which make me worse, so 3 mos. ago decided to try Osteopathy and Homeopathy. It’s helped, but the Depression/Anxiety got so bad I decided to return to Prozac. The Osteopath can’t treat me on that drug so I stopped and am trying a homeopathic treatment. QUESTION: I still take pharmacueticals for many things (pain, sleep, Hypertension, etc.), but am taking LOTS of homeopathic remedies now. Will the SSD Administration honor my Doctor of Osteopathy’s report on my Depression and Pain syndromes? I am resuming traditional Psychotherapy and Group concurrently. I don’t want to give up this last hope to feel better, but need the finanancial assistance offered folks like me. Thanks so much!
–Sue
Jonathan Ginsberg responds: Sue, thanks for your question. It sounds like you have been through quite a bit. I believe that Social Security will consider your homeopathic treatment as "non-standard." As such, an administrative law judge may assign the homeopathic osteopath’s reports less value.
Social Security has extensive rules about how judges are supposed to evaulate evidence – how much weight should the judge give a particular medical report. For example, the reports and conclusions of a treating physician are to be given more weight than the conclusions of a doctor that you saw one time. This is why, by the way, that I encourage my clients with no insurance and limited financial resources to see a doctor regularly, even if "regularly" means once a year. That on-going relationship can help move that doctor into the category of "regular treating physician."
Non-standard practitioners are given very little weight by Social Security. Chiropratctors, for example, are considered non-standard medical providers. That is not to say that your chiropractor’s records will not be read and considered part of your record. However, a judge will not base his decision on the records and conclusions of a chiropractor.
You will face the same issues with a homeopathic practitioner. If there are records in your file from an accepted source (like a medical doctor), those records will be accepted over the conclusions of your osteopath. Furthermore, you may find that some judges are outright hostile towards homeopathy and they could find that you are being non-compliant with recommended treatment.
My purpose here is not to rail against homeopathy or chiropractic. I just want you to understand that at this point Social Security does recognize the legitimacy of these types of treatment and that you could jeopardize your case if you base it on this type of non-traditional care. So, if possible, maintain your contact with and treatment by more traditional health care providers.