The Functional Capacity Strategy
What arguments do Social Security disability lawyers use to win cases for clients afflicted with fibromyalgia? In my practice I find that most fibro cases lend themselves to functional capacity arguments. Another argument – the “grid rules” argument can also work but functional capacity is far more common.
What do we mean by “functional capacity?” Stated simply, you will need to demonstrate to the judge that your capacity to perform even a simple, entry-level, low stress job has been so diminished by the frequency and duration of your fibromyalgia symptoms, and by the side effects of medications used, that you would not be a reliable worker.
Social Security judges will try to arrive at a conclusion regarding your “residual functional capacity” or RFC. “Residual” is defined as “that which remains or is left over,” so your RFC may be defined as whatever capacity for work that remains after taking into account your symptoms and the side effects of medications.
When I prepare for a hearing, I will work with my client to identify the specific activity or mental health limitations that exist. Often fibromyalgia patients experience myofascial pain and deep body pain at various trigger points at various places on their body. They may experience balance issues, digestive problems as well as focus and concentration issues (“fibro fog”).
Since there is no X-ray or MRI that can positively identify fibromyalgia, I will rely on notes from treating doctors that document on-going and consistent complaints of pain, discomfort and poor attention and concentration. I will identify exertional limitations (limitations on sitting, standing, walking, etc.) as well as non-exertional limitations (pain, discomfort).
The Functional Capacity Checklist for Fibromyalgia
I often create a functional capacity checklist that I can present to one or more treating doctors. The checklist helps the doctor by allowing him to quickly identify symptoms as well as specific activity and concentration limitations. Judges like functional capacity checklists because these forms help translate often complex medical histories into work activity limitations – which is the language that Social Security speaks. Most judges will assign a great deal of weight to the opinion of a treating doctor who has seen you for an extended period of time. The RFC form uses the work capacity language that judges are concerned with and speaks to job performance and reliability – the main issues in your case.
You should understand that it does you no good to tell a judge “I have pain all the time and I can’t sit very long, stand very long or do much of anything during the day.” Instead, you want to explain to the judge that you can sit for no more than 10 minutes before you need a 3 to 7 minute break, that you can stand and walk for no more than 10 minutes, and for a total of 1 hour during the day, that at least 3 times a week you experience bouts of diarrhea that require you to take as many as 10 unscheduled restroom breaks lasting up to 15 minutes at a time.
Specific limitations can be considered in light of the minimum demands of simple, entry-level work and that is exactly how Social Security judges decide disability cases. Social Security defines “disability” as the inability to engage in substantial gainful activity – you need to show that fibromyalgia has left you unreliable in terms of your capacity to perform even a simple job.
A thoughtfully drafted RFC form prepared by your lawyer can go a long way to success in your disability claim.
If your fibromyalgia symptoms leave you unable to find or keep a job, you may have a viable Social Security disability claim. We invite you to complete the free case evaluation form on this website. If Jonathan cannot help you, he will be happy to make a qualified referral to an attorney who handles disability cases near where you live.