August 20, 2019

Fibromyalgia Case Study 2

Background

The claimant was a 4o-year-old female with a high school diploma, 1 year of college coursework, and a degree from cosmetology school. Prior to stopping working, my client had worked as an administrative assistant for several years, then as a cosmetologist cutting hair for the year prior to onset. After March 2006, when she stopped working due to her medical condition, my client unsuccessfully attempted to return to work 4 different times – attempting jobs as a retail clerk and as an pharmaceutical technician. Her jobs were classified by the vocational witness at the hearing as:

  • secretarial – sedentary, skilled
  • cosmetologist – light, skilled
  • pharmaceutical technician – light, low-end semi-skilled

She applied for benefits in February 2007 alleging disability beginning in March 2006. She was 36 years old at the time of onset. The hearing was held in Atlanta in June 2009.

Medical Background

My client generally fit the profile of the fibromyalgia claimant that I often see – that being a “type A” female who experienced pain and discomfort at various places in her body. In her late 30’s at the time of onset, she was slightly younger than my typical fibromyalgia client but not by a significant amount. I felt that her four unsuccessful work attempts were good indicators of her desire to return to work and her motivation to do so.

Her complaints included allegations of:

  • pain in the neck and upper back
  • numbness in the toes
  • pain and “charley horse” sensations in her calves and arms
  • fatigue
  • body weariness
  • constipation and abdominal pain
  • pain in the hands (possible carpal tunnel)
  • memory loss and “fibro fog”
  • migraine headaches also associated with high blood pressure

The hearing

The judge in this case was a relatively new judge but one before whom I had appeared. He is a very pleasant person and a very methodical judge. He opened the hearing by introducing himself, the hearing reporter and the vocational witness. He asked me the usual preliminary questions, then swore in the claimant and vocational witness. He asked me for a brief opening statement, which I provided, offering generally the same information noted above.

The judge then began asking a lot of questions about details of my client’s abilities – and her physical abilities in particular:

  • how far could she walk
  • how much could she lift
  • issues with the use of her hands

The judge was very deliberate in his questioning – he must have taken over 45 minutes with these questions. At one point I noticed that the vocational witness had drifted off to sleep. To be fair, the hearing was after lunch at 1:00 and the hearing room was warm.

When it was my turn to ask questions, I focused on big picture issues:

  • if you were describing fibromyalgia to someone who had never heard of it, what would you say?
  • when your pain is at its worst, what is it like and what do you do for relief?
  • what type of side effects do you have from your medications?
  • why did you try to return to work 4 different times? what happened with each attempt?

My goal here was to paint a picture – I wanted to show that my client was a hardworking person who was motivated to work. As I suspected, her testimony was much more effective with the open-ended questions. She described fibromyalgia as an unseen entity that wrestled with her every day. She spoke of the overwhelming fatigue that came over her and would not allow for any activity. She described the “fibro fog” that muddled her thoughts and left her unable to focus and concentrate.

After taking testimony, the judge then turned to the vocational witness to ask questions.

Hypothetical 1: Assume an individual limited to light work, but no climbing, steps or ladders. No driving, unprotected heights, extremes of heat and cold and any work would have to be unskilled.

Answer: no past work (as it is all skilled or semi-skilled) but she could perform the following:

  • ticket taker
  • office helper
  • clothing machine tender operator

Hypothetical 2: Assume #1 but add: low stress jobs only, only occasional decision making, occasional changes in job duties, no production demands

Answer: unskilled jobs noted above still possible

Hypothetical 3: Assume #2 and add: occasional balancing

Answer: unskilled jobs noted above still possible

Hypothetical 4: Assume #3 and add: no continuous repetitive motion with the hands

Answer: unskilled jobs noted above still possible

Hypothetical 5: Assume #4 and add: no ability to maintain focus, attention and concentration for 1/3 of workday

Answer: no jobs available

Analysis

This case will turn on whether the judge has concluded that my client’s attention and concentration has been so impaired by pain and fibro fog that she would not be able to focus for 1/3 of the workday (hypothetical question # 5). In my view all of the other questions were somewhat unnecessary. I think that to analyze fibromyalgia you need to see it as a “forest” problem rather than a “trees” problem. Either the claimant is credible or she is not, and the medical record is either consistent with her allegations or it is not.

Here, most of the medical record discussion about fibromyalgia came from a family physician as opposed to a rheumatologist or pain management specialist. I am beginning to notice a trend in the way Social Security judges review fibromyalgia cases.

Years ago, fibromyalgia was known as a “kitchen sink” diagnosis – in other words, if the patient had unexplained pain, and objective testing did not reveal any specific cause, the patient was diagnosed with fibromyalgia. I don’t think that this approach works any more.

Instead, Social Security judges are now looking for documentation from medical providers that references the diagnostic criteria for fibromyalgia as set forth by the American College of Rheumatologists (ACR). As you will see from reading materials linked above, the medical community is attempting to fine tune the definition of fibromyalgia. Social Security judges are sensing this trend and will be less likely to accept a casual fibromyalgia diagnosis from a physician who does not consider the ACR diagnostic criteria.

This is one of those cases where I honestly have no idea which way our judge is leaning. We will find out later this summer.