November 13, 2019

Do Disability Applicants Have to Prove Their Fibromyalgia Is “Real”?

Given the level of debate within the medical community about the nature and even the existence of fibromyalgia as a “real illness,” it’s not surprising that many people with fibromyalgia entertain significant doubts about applying for disability. It is true that many fibromyalgia patients, through careful and assertive pain management techniques and treatment protocols, can do most everything they used to do before the onset of their symptoms, and that includes working. However, for some fibromyalgia patients, pain levels are so significant that work is impossible. For those people, applying for Social Security Disability should be considered.

But even if the fibromyalgia sufferer is willing to file the application and go through that potentially lengthy process, it’s far from a certainty that the application process will result in approval. For this reason, many applicants entertain serious doubts about the process, including the fear that they’ll somehow be asked to prove that their pain is real.

And in some ways, they are right to be concerned. A successful disability claim — for any illness — does depend significantly on adequate medical documentation and proof of both the diagnosis and the disease’s impact on the applicant’s ability to work. For that reason, getting professional functional capacity evaluations tests and opinions is a crucial step in the disability application process.

Focusing on the actual limitations that fibromyalgia imposes on the  applicant means that the application process revolves around the true purpose of Social Security Disability: finding out whether the patient/applicant is capable of working, and to what extent. Coupled with sufficient medical evidence of the several facts we do know about fibromyalgia — that it appears to be a neural disorder, for instance, and that it is characterized by cortical or sub-cortical augmentation of pain processes — a thorough FCE can help support the disability applicant with objective, demonstrable proof of physical limitations.

What Constitutes a Losing Fibromyalgia Claim

We spend a lot of time on this site and others talking about the elements of a winning Social Security disability claim arising from fibromyalgia.   Because there are no objective tests currently available, Social Security judges have to rely on medical records and testimony from the claimant.

Successful claimants need treating doctors who fully support the claim.  The “classic” fibromyalgia treatment record is usually voluminous as the suffering patient goes from one doctor to another seeking relief.  The symptoms that the patient suffers also change over time.  A good record will contain discussions from either a primary care doctor or a pain doctor that explains how the claimant is seeking relief and that her symptoms are changing and resistant to treatment.

Less compelling cases, by contrast, usually contain a medical record that is conspicuous for what it does not say.  The treating doctor may talk about the claimant’s complaints and how those complaints do not seem consistent with any particular diagnosis.  Hints of drug seeking behavior may appear in the record.   The treating doctor will report the symptoms but make it clear that these symptoms are self reported, with nothing said about whether the doctor believes his patient.

Judges reading these records will “read between the lines” and will recognize that the doctor has come to the conclusion that his patient has multiple complaints but that no medical treatment of any type is going to help.  Judges often translate this resignation on the part of both the doctor and the patient as the dreaded “attitude of entitlement.”

I recently posted a case study on my Georgia Social Security disability web site describing a hearing in a fibro case I tried that the judge will likely deny.  My client is a pleasant person and she undoubtedly experiences fatigue and discomfort but the record in her case will not support a claim for disability.  Compare this case study to the case studies on this web site that describe winning cases.

Tips on Winning a Fibromyalgia Disability Case

The importance of work background in a fibromyalgia disability case

In a previous fibromyalgia disability case I tried in court, my client had a very insufficient work record. In addition, what was stated in her medical records about her condition did not match with what she claimed about her condition; she seemed to very much exaggerate her fibromyalgia pain during the hearing, but when the Judge reviewed the records, he could not find any evidence that she suffered from severe pain. This may not have been a deal breaker for her case, but combined with her lackluster work background, it was enough for her to lose the case. I sometimes feel that if a client has a strong work background and appears to want to work, then that client may have a better chance of winning even despite discrepancies in the medical record.

For example, I had a client once who had a managerial level position within her company and made over $100,000 at the time when her fibromyalgia took her out of work. Well, she won her case without even having to make too much of a compelling argument, since the Judge trying the case likely thought that a person who earns a good salary is less likely to want to stop working and earn a $2,000 Social Security pay check. Seems logical, right? In essence, I believe that this client’s work background helped her win her case even though her medical records weren’t all that comprehensive.

In yet another fibromyalgia case, a client of mine had an excellent testimony which again focused on her past work and desire to keep working even though she couldn’t. In this particular case, the woman testified about her pain, her problem with adjusting to a great decrease in her monthly income after being forced out of work by her condition, and about her feelings of unimportance now that she no longer had a job. This great testimony helped her win the case.

So, in conclusion, if you are suffering from fibromyalgia and want to make the most of your case, focus on what work you have done, communicate that you wish you could still be working if you were healthy enough, and make the Judge understand that getting on Social Security is a necessary evil and not something you actually want. Then, your chances of winning at the hearing are that much better.

One last note: It always helps, of course, to have good medical records to back up your claim or what we call a functional capacity form that is filled out by your physician. If your physician is willing to assist, you will be that much more ahead of the game when it comes to winning your fibromyalgia disability claim.

Can a fibromyalgia disability case be won at the early stages of the claims process?

I am asked this question by fibromyalgia clients often, and the answer is yes, but there’s a big asterisk there. You see, to win your fibromyalgia disability case early on, you need to meet certain criteria which may be hard to achieve.

First of all, you will need to obtain strong support from your treating physician. You will have to submit solid medical records along with your claim for benefits, and these medical records must clearly show that you have a firm fibromyalgia diagnosis and that it interferes with your ability to perform work in major ways. Things like discussions of pain levels and extent of fatigue are the types of things that will need to be present in such records in order for you to even have a chance at winning early.

Another way of possibly winning early is if your condition meets a Listing – which is essentially the SSA’s definition of severe/disabling fibromyalgia. Anything that falls short of meeting that definition/description will fail to meet the listing. Here, again, your medical treatment records must be extensive and consistent. Also, a form completed by your physician which tracks the listing can help. Such a form, which is structured as an easy to read checkbox type of document, will ideally make the adjudicator reviewing your case recognize that your condition meets a listing. This will increase your chances at an early approval.

There is one final way to possibly win a fibromyalgia claim early, and that is to Meet a Grid Rule. Like meeting a listing, this may sound mysterious, but it’s really quite simple (especially if you are over the age of 50). Here’s an example: Let’s say that you don’t meet a listing. Well, you can still win if you have a physical impairment like fibromyalgia, you have limited work and educational history, and you are 50 years old or older. If you meet these criteria, consider taking a look at the “grid rules.” You may fall under a certain grid rule and therefore automatically qualify. The grid rules, however, can sometimes be difficult to understand, so that is why it is a great idea to talk to a disability attorney about winning disability benefits based on the grids.

State Agency adjudicators are known to issue positive decisions in grid cases. That’s why it is imperative that you stress that your case is a grid case and point out the specific grid. Like I said, an attorney can help.

Finally, it is also important to note that State Agency adjudicators are usually underpaid and overworked. They are often given very limited authority, and they are quick to deny cases, even if they are deserving. Consider asking the adjudicator to give your file to a medical consultant or even a supervisor in the State Agency office. That may be your last chance at winning your fibromyalgia disability case early.

Psychotherapy for Fibromyalgia and CFS

If you have a chronic illness such as fibromyalgia, you probably know that anxiety and depression will often develop secondary to your condition – thus making things worse for you. If you have fibromyalgia or another chronic condition like chronic fatigue syndrome, please know that psychiatrists, psychologists and other mental health workers are there to support you and prevent you from falling victim to worsening mental health conditions.

Of course, psychological help doesn’t “cure” or alleviate the symptoms associated with your chronic condition. However, it can make things immeasurably better for you, since you already have enough to deal with even without mental factors coming into play. If you suffer from fibromyalgia and chronic fatigue syndrome and think you may be developing mental health problems secondary to your condition, consider these questions:

  • Do you have problems with anxiety or depression?
  • Do you feel alone and have no one to talk to?
  • Do you wish your doctor took more time and showed more compassion during visits?
  • Could you use help managing your medications?
  • Is stress making your illness worse?
  • Could your coping skills be better?

If the answer is “yes” to a lot of these, psychotherapy should definitely be considered. If the answer was “no” to all or most of them, it’s probably not something that’s needed.

In Social Security Disability claims, attorneys will often claim disability on the basis of both physical problems (like fibromyalgia) and mental problems that develop secondary to the physical conditions. If indeed you or your attorney are taking such a route when trying to win benefits, it is highly beneficial to have psychotherapy records in your disability case file. When the Judge evaluates your claim for depression secondary to fibromyalgia but doesn’t see any supporting psychotherapy documents, he/she may be more likely to deny your claim.

So seeking out mental health treatment isn’t only a good idea for your own health and well-being, it can also be beneficial toward winning your claim for disability benefits.

Changes and Choices Impacting Your Fibromyalgia Disability Claim

As you probably know, filing a Social Security disability claim based on fibromyalgia is just the first step in what can be a long process.  Whether you are filing on your own or have representation, it is pretty unlikely that your personal and financial situation or even your medical condition will look exactly the same at the beginning, middle, and end of this process.  Some changes are inevitable, and some are the intended or unintended product of decisions made over time.  Since it is not always obvious that a particular change or decision could impact your claim, I make sure that clients understand their claim, the arguments and evidence we are presenting, and the importance of keeping each other up to date on any changes that might affect our chances of success.  In cases involving fibromyalgia, it can be especially important to have a detailed account of your symptoms and how they interfere with daily functions, especially your ability to work.

For the most part, the Social Security Administration gets information on your eligibility and medical condition when you apply for benefits.  While it is difficult to outline all possible changes and decisions that could have a positive or negative impact on fibromyalgia disability claims, it is worthwhile to examine some of the more common or impactful issues for disability claims in general.  Some are obvious; others are not.  If you are uncertain of whether a change or decision in your life might hurt or help your disability claim, I would be happy to discuss it with you.

The following is a list of changes to your financial situation that should be discussed with your lawyer:

  • You receive help through any Public Assistance Program (e.g., Medicaid, Food Stamps, Cash Assistance);
  • You go back to work (part time, full time, temporary, etc.)
  • You begin to receive (or cease receiving) payments from a recurring source such as unemployment, workers’ compensation, short-term or long-term disability, retirement fund, or Social Security;
  • Your spouse loses his or her job or receives payments from the sources mentioned above;
  • You file for bankruptcy, or face losing your home to foreclosure or eviction;
  • You are involved in another legal proceeding, either as a plaintiff or as a defendant

You should also inform your lawyer of any of the following “personal” changes:

  • You get married or divorced;
  • You have or adopt a child;
  • You start (or leave) school or vocational training;
  • You are arrested, charged with a crime, or a warrant is issued for your arrest;
  • You fail to pay (or no longer receive) child support;
  • You move or change your address or telephone number

Clearly, if your doctor releases you back to work, it is going to be relevant to your disability claim.  You should also be aware of additional medical and treatment decisions or changes that should be discussed with your lawyer:

  • You begin treatment with any new healthcare providers;
  • You are diagnosed with any new medical conditions or are treated for additional symptoms;
  • You have had or are scheduled for surgery;
  • You are hospitalized or treated in an emergency room;
  • You are involved in an accident, experience a new injury, or aggravate an existing injury;
  • You stop receiving treatment for your condition, or your treatment changes;
  • Your treatment is terminated by any of your doctors for any reason;
  • You are using illegal drugs (including non-prescribed prescription medications);
  • You begin to use or abuse alcohol

For disability claims involving fibromyalgia, it is especially important that I have complete and updated medical information so that the Social Security Administration has an opportunity to review a complete and accurate medical profile before making a decision.  In addition to the more obvious changes discussed above, disability claimants with fibromyalgia will need to provide evidence proving that their condition prevents them from working.  The symptoms of fibromyalgia vary from patient to patient and, often, over time.  Consider keeping a diary of how you feel each day, what you did and/or tried to do, whether you were too tired to complete normal tasks, and note any exacerbations following over-exertion.  When you see a physician, make sure that he or she actually includes all of your symptoms and the specific ways your illness limits your life in the notes included in your medical record.

I find that lawyers and clients have varying preferences on how, and how often, informational updates are communicated, so you may want to agree on an efficient and reliable system that works for everyone on your team.

Winning a Fibromyalgia Disability Case (Part 2)

There is a perception that Social Security disability cases based on fibromyalgia are difficult to win.  It is not surprising that some judges have a problem acknowledging a medical syndrome that cannot be detected by a blood test and that can have a wide range of generalized symptoms.  Until fairly recently, in fact, physicians did not have a way to specifically “code” a fibromyalgia diagnosis on insurance claim forms, and there were no medications approved by the FDA to treat it.  Every once in a while, you will find a judge who does not believe that fibromyalgia exists.  But even these non-believers will still approve your case if you can show that your symptoms are chronic and severe, that you have sought medical treatment, and that your condition prevents you from performing any kind of work at all.

In fibromyalgia cases, there is no “one size fits all” strategy – just as the condition’s symptom cluster can impact each individual differently, each case must focus on the individual claimant’s symptoms and their impact on function.  Over the years, I have won favorable decisions for many fibromyalgia Social Security claimants.  In one case, the Judge called a psychiatrist as an expert witness.  The Judge granted benefits on the ground that my client’s “fibro fog” was equivalent to a chronic state of anxiety – a psychiatric condition.

A short time later, I represented another fibromyalgia client before another Judge in the same hearing office – this Judge awarded benefits (correctly, I believe) on the basis of a combined impairment.  This is significant in that it demonstrates the potential importance of convincing the judge to recognize the combined effect of fibromyalgia’s impact on the claimant’s physical and mental condition, and the potential that the combined effect is sufficiently disabling.

Within a few months, another client with fibromyalgia sought disability benefits due to severe, chronic pain associated with fibromyalgia.  In this case, a different judge granted disability benefits based on the determination that the client’s condition was equivalent in impact to severe arthritis.

I recently wrote about the recent exciting news for fibromyalgia sufferers – identification of a potential viral cause or precipitator for the condition.  As increased research on causes and treatments emerge, I expect that it will eventually become quite rare to encounter a judge who is completely resistant to considering a fibromyalgia basis for disability.  In the meantime, though, even if judges don’t understand the condition, many will honor the opinion of your treating physician, especially if you have a long and continuous treatment record (the legal term for a thorough medical history is a “longitudinal treatment record”).

Winning a Fibromyalgia Disability Case (Part 1)

In a fibromyalgia disability case, you need to prove one thing – that you are not able to work. If you remember nothing else about Social Security disability, you should remember that your capacity for performing work is the only thing that matters to a Social Security judge.  Your underlying medical condition – fibromyalgia, chronic fatigue syndrome, or any other medical problem, is only important to the Social Security Judge if your symptoms limit you from performing a job 8 hours a day, 5 days a week.

In most cases, the judge’s decision really boils down to a judgment call about whether you could hold down a simple, sit-down type of job that requires no training; that allows you to sit, stand, and adjust your position; and that is not production oriented.  In fact, in most hearings, the Judge will call a ‘vocational expert’ to testify about work you have done in the past and about simple, minimally demanding jobs that exist in the national economy.

As a claimant’s lawyer, my job is to identify medical records that suggest work limitations.  In many cases this means I need to review all of the medical records, then create a functional capacity checklist that includes both the limitations associated with your fibromyalgia case and the impairment categories used in Social Security cases.

We then ask your doctor to complete the checklist for submission to the Judge.  We do not ask the doctor to decide if you are ‘disabled’ – that is a legal decision for the Judge.  Instead, we ask your doctor to help ‘translate’ medical conclusions into specific work limitations.

Many fibromyalgia patients get used to living with their symptoms and fail to mention all of them to their doctors or to the judge.  It may be helpful to use a calendar to keep diary notes about how you feel, what symptoms you experience each day, and the impact on your performance.  Make lists.  Ask for your spouse’s or children’s observations.

If you are considering or currently pursuing a disability case based on fibromyalgia, I invite you to get a free evaluation of your case by filling out the simple online form on the right side of this page.