Fibromyalgia and Social Security Disability Claims
Author – Austin McGreal
Austin McGreal is an attorney practicing exclusively in the area of Social Security disability law in Illinois, Indiana, Michigan, and Wisconsin. More information regarding Mr. McGreal and his firm can be found at McGrealDisabilityLaw.com.
The material and information contained on these pages and any linked pages are intended to provide general information only and not legal advice. You should always consult with an experienced Social Security disability attorney before relying upon information provided here.
Fibromyalgia is one of the most common conditions cited by individuals filing for Social Security disability benefits who are unable to work. However, due to the nature of the condition, the lack of laboratory tests, and subjective symptoms, it has been one of the most difficult conditions to fit into social security’s evidentiary criteria for disability. Prior to 2012, disability claims based on Fibromyalgia were generally treated with distrust. Many Social Security Administrative Law Judges (ALJs) were highly skeptical of the individual’s claims, at least to the severity that would rise to the thresholds required by Social Security. As with all Social Security disability claims, the individual must prove:
The condition is a “medically determinable” impairment;
The condition is “severe;”
The condition has lasted, or is expected to last at least 12 months; and
The condition results in an inability to perform full time work at the exertion level applicable to the individual’s age and specific work background.
The problem was further complicated by differing diagnostic criteria developed by the American College of Rheumatology in 1990 and 2010. Under the 1990 criteria, diagnosis required widespread pain that existed for at least three months, and a physician finding of at least 11 of the known 18 positive tender points involving the application of 9 pounds of pressure on physical examination. In addition, other potential diagnoses needed to be ruled out. In 2010, the new diagnostic criteria required widespread pain, repeated manifestations of at least six Fibromyalgia symptoms, such as fatigue , cognitive or memory problem, unrefreshed sleep, depression, anxiety, or irritable bowel disorder and evidence that other possible disorders were ruled out.
Obviously, the criteria developed by the College of Rheumatology was not very instructive to a skeptical disability ALJ. Consequently, disability claims based solely on Fibromyalgia were difficult to prove to Social Security standards. In an atmosphere where many of the disability ALJs were already predisposed to deny any claims that were not fully supported by “objective” evidence, fibromyalgia claims were widely denied.
In 2012, Social Security finally acknowledged fibromyalgia to be a medically determinable impairment that could be the basis of disability. In that year, Social Security Ruling 12-2p was enacted to provide guidance on how Social Security would develop evidence to establish that a person has a medically determinable impairment of fibromyalgia, and how they would evaluate the elements of the impairment. The Ruling appeared to provide a much needed level of consistency with regard to the handling and disposition of disability claims across the country. But the devil was in the details.
The 2012 Ruling provides two sets of criteria for diagnosing fibromyalgia, which are generally based on the 1990 and 2010 criteria set forth by the American College of Rheumatology. The criteria are obviously not new, and most ALJs are well aware of the variety of symptoms related to fibromyalgia. The Ruling, however, specifically allows ALJs to require more thorough documentation from the treating physicians. This means more careful and thorough communication between the doctors and patients is necessary.
The ruling emphasizes the need for a strong longitudinal history of the record. Therefore, the more consistent the descriptions of the symptoms, and the more consistent the treatment, the more credibility will be given to the medical records. Social Security will usually give close scrutiny to the records for the 12 months preceding the claim of disability.
Although the Ruling gave some guidance for evidence needed for a fibromyalgia diagnosis, it was not particularly helpful to the individual claimant for at least two reasons. First, the diagnosis is not the critical factor in Social Security disability claims. Instead, the focus is on whether or not the claimant can prove that his or her symptoms are of sufficient severity that they render the claimant incapable of sustaining any full-time work. This does not mean whether the individual can perform his or her past work, whether the individual could get a job, or even whether there are any jobs available in the individual’s area. The claimant must prove that he or she is rendered incapable of performing the function by function tasks that are required for basic work on the full-time basis. In other words, the Ruling did little to define the process of measuring severity or functional limitations.
Social Ruling 12-2p eliminated the doubt about whether fibromyalgia could be a severe medical impairment that can render an individual disabled under Social Security rules. But as a practical matter, there has been little change in the way fibromyalgia cases are handled in the real world of Social Security disability.
Even the diagnostic process articulated in the Ruing leaves gaping holes for an ALJ with a negative predisposition (and there are many of them) to find that the claimant has not met his or her burden of proof. In fact, it provided evidentiary requirements that tend to be very difficult to prove in the best of cases. For instance, in reality, no doctor documents “9 pounds of force” in tender point testing. There is no guidance of the frequency that the symptoms must be documented. Also, what if other co-morbid conditions do exist? There is no guidance for assigning a source to each of the symptoms. Further, the Ruling does not change the burden upon the claimant to prove the severity of the symptoms and the how those symptoms make it impossible for the claimant to sustain full-time work.
In sum, it remains critically important that all treating physician records are fully developed, and carefully reviewed for consistency. Do not assume that because your physician knows about your symptoms they will be documented. While ALJs will consider other evidence, the written medical records remain the primary focus for documentation. In addition, the ALJ is usually not interested in the statements of the claimant who is seeking benefits. The remaining burden involves a significant amount of evidentiary development from friends, neighbors, clergy, and/or past employers. This reinforces the essential need for Daily Living Questionnaires or Residual Functional Capacity Questionnaires that should be developed by an experienced attorney, and tailored to the individual’s specific symptoms. Social Security claims based on fibromyalgia continue to be among the most challenging to prove.
Austin McGreal is an attorney practicing exclusively in the area of Social Security disability law in Illinois, Indiana, Michigan, and Wisconsin. More information regarding Mr. McGreal and his firm can be found at McGrealDisabilityLaw.com.
The material and information contained on these pages and any linked pages are intended to provide general information only and not legal advice. You should always consult with an experienced Social Security disability attorney before relying upon information provided here.
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