For
years, fibromyalgia was a “diagnosis of exclusion.” Doctors seemed to diagnose fibromyalgia when
everything else was ruled out but there didn’t seem to be any objective
evidence for fibromyalgia. There still
are no laboratory tests for diagnosing fibromyalgia. Because of a lack of objective medical
evidence (all you had was the doctor’s opinion), proving disability was
extremely difficult. I don’t know of an
attorney or claimant who won a disability case when fibromyalgia was the only
alleged impairment. Social Security
seemed to pretty much ignore the illness or silently categorize it as a mythical
disease for which they were unwilling to pay disability benefits.
Things
changed a bit in July 2012 with Social Security Ruling 12-2p, which recognizes
fibromyalgia as a legitimate and medically determinable illness. It recognizes that there are now objective
methods that doctors can use for a diagnosis, rather than just excluding all
other diseases.
There
are actually two different sets of diagnostic criteria from the American
College of Rheumatology (ACR): The first
set of criteria came out in 1990, the second in 2010. The 1990 criteria required the presence of
tender points. However, the updated
criteria (2010) do not require the identification of any tender points.
Who
must diagnose fibromyalgia under Social Security’s rules? A licensed physician (doctor of medicine,
doctor of osteopath) must make the diagnosis of fibromyalgia. These are what
Social Security considers “acceptable medical sources.” It cannot be diagnosed by a nurse practitioner,
or chiropractor. (Social Security has
recently declared that licensed Physician’s Assistants are acceptable medical
sources. Moreover, the treatment record
must support the diagnosis of fibromyalgia. The record must contain evidence of
generalized widespread pain for a minimum of three months and that other causes
have been ruled out (e.g., blood tests to rule out lupus, rheumatoid arthritis,
etc.).
I
still see professionals who believe that there must always be a finding of 11
tender points before a fibromyalgia diagnosis is considered legitimate. This is using the old (1990) criteria; but as
I have pointed out, the 2010 criteria do not require tender points if all the
other criteria are met. In most cases,
though, tender points will be present.
How does fibromyalgia factor into
the 5 step disability evaluation process?
At
Step 2 of the sequential evaluation process, Social Security may consider
fibromyalgia as a “medically determinable impairment.” This doesn’t win any benefits, but gets the
claimant past Step 2 so the claim doesn’t die at this step. Thanks to SSR 12-2(p).
It
is next to impossible to argue that fibromyalgia is disabling because it
prevents the performance of exertional work related activities (standing, walking,
carrying, lifting, pushing or pulling).
So, we must argue that it is disabling due to non-exertional
activities: fatigue, inability to
concentrate, time off task, or lack of persistence and pace—that is, lost
productivity). The question is: How do we prove that to a Social Security
disability judge?
We
need the treating physician to provide a written opinion about how the symptoms
of fibromyalgia restricts non-exertional work related abilities. I use a form called a Medical Source
Statement. Some people call the form a
Residual Functional Capacity (RFC) form.
By any name, it’s the same thing.
CAUTION: Letters from your doctor
usually don’t work so well. The reason
is that our form covers all of the bases.
But a letter your doctor sits down and writes himself simply will not
hit all the very specific areas we need to prove the case to a skeptical
judge.
Do
the Opinions of All Doctors Carry the Same Weight?
Technically,
the answer to that is “yes” since Social Security changed their rules on March
27, 2017. However, I still find that the
following doctors will usually have more weight in their opinions IF their
treatment notes supports the opinions given in their Medical Source Statement
or RFC form.
·
A doctor who has treated you for months or
years for fibromyalgia
·
A doctor who is a specialist, preferably a
rheumatologist
·
A doctor who has had ample opportunity to
observe how fibromyalgia has affected your ability to function (mentally as
well as physically)
IS IT STILL DIFFICULT TO
WIN DISABILITY BASED ON FIBROMYALGIA ALONE?
Yes,
it is. The very fact that we can’t
usually prove that this disease severely restricts exertional functioning makes
it difficult. We may not be able to prove
that fibromyalgia severely restricts standing, walking, lifting, carrying,
pushing or pulling. So, Social Security
will come down to Step 5 (the final step) of their evaluation process and
conclude that even a person with fibromyalgia can perform some jobs, usually at the light or sedentary exertion levels. This is enough to deny the claim and
especially so if the claimant is below age 50.
IN SUMMARY
If
I tackle a fibromyalgia case where there are no other impairments, I need the
treating physician to provide me with a Medical Source Statement that opines a
severe restriction in one or more of the following:
·
Inability to concentrate or focus for up to
2 hrs. at a time or 8 hrs. per workday.
·
Off task due to pain or fatigue more than
10 percent of an 8-hr. workday
·
Need for extra rest breaks beyond the ones
customarily provided at work
·
Likelihood that the claimant would be
absent more than 2 days per month
This
would be a good piece of medical evidence; however, it still does not guarantee
a win because judges are not required to accept the doctor’s opinion at face
value. But it forms our best chance.
Let
me conclude by saying that I have absolutely no doubt that fibromyalgia can be
a disabling disease. I have seen it
first hand in members of my own family.
But with a disability claim before the federal government, it isn’t what
you know or believe, it’s what you can prove.
_______________
Charles W. Forsythe
The Forsythe Firm
Huntsville, AL
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