August 20, 2019

The Functional Capacity Strategy

What arguments do Social Security disability lawyers use to win cases for clients afflicted with fibromyalgia?  Most of the time, the best argument to use when you appear before an administrative law judge is called the “functional capacity” argument.

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 legal 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 you prepare for your hearing, you should talk with your lawyer about identifying the specific physical or mental activity 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”).  These symptoms, if frequent enough and if intrusive enough, would make it impossible for you to get through a workday without excessive breaks or the need to lie down.   If you can convince the judge that you would not be reliable and/or productive, you will likely win.

The Functional Capacity Checklist for Fibromyalgia

Experienced attorneys often create a functional capacity checklist that they 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 find these functional capacity checklists very helpful 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 functional capacity 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.    After completing this form an experienced disability lawyer in your area will contact you by phone or email (your preference).