“Can I win Social Security disability benefits if my disability arises from fibromyalgia?” Every week I receive calls from potential clients, usually women in their mid to late 40’s, who are struggling with the symptoms of this frustrating condition.
My clients tell me their struggles with fibromyalgia presents a daily challenge. Sometimes they wake up feeling good, and can experience an almost normal day. More often, however, they will experience joint pain, myofascial pain, balance issues, digestive issues, debilitating fatigue and “fibro fog” that makes it difficult to focus and concentrate.
Moreover, the pain they experience frequently moves around their bodies. Sometimes it localizes in the hips, and other times the knees, shoulders, neck or ankles. Medicine may take the edge off but rarely provides total relief.
Commonalities Among Fibromyalgia Patients
I see other patterns with my fibromyalgia clients. Most are high achieving, Type A women who have always been very hard workers. When they are no longer able to work, they pour their energy into searching for a relief. It is not uncommon for my clients to maintain neatly tabbed and color coded notebooks containing medical records as they go from doctor to doctor searching for relief.
None of my fibromyalgia clients wants to pursue disability and almost all miss the challenge of working, the socialization and the sense of accomplishment for a job well done.
Often, when they end up in my office they have tried every other alternative – part time work, working from home, even volunteering – just to stay busy and to avoid the label of being “disabled.”
I have represented nurses, accountants, sales people, project managers, teachers, executives, convention planners and high achieving women in many other fields of endeavor.
I do occasionally speak with a male fibromyalgia sufferer, but I have never won a disability case for a man with this condition.
What Does it Take to Win a Fibromyalgia Case in a Social Security Disability Hearing?
So what exactly does it take to win a fibromyalgia case before a Social Security disability judge?
I think at a minimum you will need extensive treatment records from specialists. Support from your family doctor won’t be enough. Judges expect to see treatment records from a rheumatologist and possibly a pain medicine doctor.
Judges expect that your record will document full compliance with all treatment recommendations – often including (painful) physical therapy, water exercise, and medication management.
I have also found that judges respond to functional capacity evaluation forms completed by a treating rheumatologist. These FCE forms, which are usually about 7 or 8 pages, identify specific activity limitations and reliability problems. I do not ask the doctor to decide if my client is “disabled” – that is a decision for the judge. But if the doctor can focus on problems that would impact job activity function and reliability, that can be very helpful.
I have won a lot of cases on the strength of a functional capacity form that indicates that my client would not be able to get through an 8 hour workday without lying down for 15 to 30 minutes, or that my client would be likely to miss 2 or more days per month.
Social Security defines “disability” in terms of how a claimant’s medical problems prevent that person from performing a simple, entry level job, so projected reliability and capacity to perform simple job functions 8 hours a day, 5 days a week is very relevant.
Fibromyalgia Claims Remain Difficult to Win
Even with solid medical support, however, proving that you cannot work because of fibromyalgia remains an uphill battle in the Social Security disability world.
Years ago, when physicians first began learning about fibromyalgia, it became a diagnosis of choice when a medical professional was trying to treat a woman whose lab reports were normal, but who suffered chronic pain and fatigue.
Initially, disability judges were receptive to this diagnosis but over time it became overused, especially by family doctors who did not know else to label what their clients were experiencing.
No doubt there was overuse of the fibromyalgia and chronic fatigue diagnoses and Social Security became concerned about the potential for abuse when a person was applying for disability benefits but there were no objective signs documenting their impairment.
In response, Social Security released Ruling 12-2p in July 2012. This ruling identified specific diagnostic criteria that had to be met for a judge to approve a case based on fibromyalgia. In my view, this ruling is overly demanding and more often than not judges have used it to deny claims more often than they have used it to approve claims.
Example of How a Judge Denied a Legitimate Claim
Here is the relevant paragraph from a recent denial I received in the case of a 50 year old woman with a high school education and a stellar work history that often involved working two jobs at the same time. She has undergone surgery on her knee and her shoulder, received numerous joint injections, tried multiple medications, experienced migraines and extensive myofascial pain.
This claimant was denied at her hearing, which I appealed to the Appeals Council. The Appeals Council remanded back to the administrative law judge for a second hearing, after which she was denied again.
In my view the judge relied on an overly strict interpretation of Ruling 12-2p to deny this claim. Here is what the judge said with my annotations:
The claimant had a non-medically determinable impairment of fibromyalgia [JCG: fibromyalgia cannot be imaged on an MRI so it is, by definition “non-medically determinable”]. However, the claimant did not have evidence that satisfied the requirements of SSR 12-2p. Fibromyalgia is a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least three months [JCG: this definition comes from the Ruling which uses the American College of Rheumatology’s working definition]. For fibromyalgia to be a medically determinable impairment, it must be established by appropriate medical evidence. A physician’s diagnosis alone cannot be relied upon [JCG: Social Security will not accept a doctor’s diagnosis without extensive (and expensive) long term treatment]. The evidence of record must document that the physician reviewed the medical history, and conducted a physical exam. Additionally, the undersigned must determine if the symptoms have improved, worsened, or remained stable and establish the physician’s assessment over time of the claimant’s physical strength and functional abilities [JCG: this is where a functional capacity evaluation can be persuasive]. To determine the claimant has fibromyalgia, three criteria are required. First the claimant must have a history of widespread pain in all quadrants of the body and axial skeletal pain, which has persisted for at least three months [JCG: most of my fibromyalgia clients report that their pain moves around their bodies and does not persist in the same location for 3 consecutive months]. Second, the claimant must have at least eleven positive tender points on physical examination or satisfy other listed criteria. Finally, evidence that other disorders could cause the symptoms or signs must be excluded. [JCG: Note that Ruling 12-2p says nothing about the fibro fog, crushing fatigue, depression and anxiety that most fibromyalgia claimants experience – the ruling only asks for a physical exam]. The claimant does not have anatomical, physiological, or psychological abnormalities that were shown by medically acceptable clinical or laboratory diagnostic techniques for fibromyalgia as required by SSR 12-2p.
As you can see Ruling 12-2p gives disability judges a fairly easy justification to deny a fibromyalgia claim since the demand of the listing don’t really line up with the reality of this condition. In my view, this Ruling is so demanding that every fibromyalgia case could be denied.
When Would a Judge Approve a Fibro Claim?
In my experience, disability judges approve fibromyalgia claims if they find you believable and sympathetic. I find that judges will give more deference to claimants with long work histories, and especially those who had established careers that they would not logically want to leave.
Further, your chances of success will increase if you seek treatment with a rheumatologist who references the American College of Rheumatology’s definition of fibromyalgia and who will complete a functional capacity form for you.
There is a certain arbitrariness to Social Security decision making in general (if you look at the approval rates within any hearing office you will see that some judges approve 20% of claims while others approve 70%), but this is especially true when a judge is trying to identify work capacity limitations that arise from a diagnosis that cannot be imaged or identified in any lab test.
Hopefully at some point there will be an objective test that can confirm the existence of fibromyalgia but until that point, this is what you can expect if you pursue Social Security disability benefits for this condition.