Case Strategy for Disability
Claims Based on Fibromyalgia
If your disability claim is based on Fibromyalgia, then there some factors you should keep in mind as you pursue your claim. First of all, be aware that the number of fibromyalgia claims has risen dramatically. Ten years ago, most judges had never heard of fibromyalgia, and any Social security Disability attorney usually had to educate the Judge about what it was. Along with the increasing number of claims also comes an increasing overuse of the fibromyalgia diagnosis. Unfortunately, this overuse results in a distrust or cynicism on the part of the Judges.
A second thing to jeep in mind is that fibromyalgia does not necessarily lend itself to objective testing. Meaning that you may have fibromyalgia, but many of your medical tests may have come out relatively normal. Judges are very skeptical about a condition in which most of the medical record reflects your self-reporting of your symptoms. Fibromyalgia is a very subjective experience for its sufferers and there is often a lack of good objective medical evidence to back up the diagnosis.
Despite all that, there are some common features in winning fibromyalgia cases. Some of these commonalities include the following:
- claimants are typically females 35-50 years old
- most claimants are Type A personalities
- often the claimants are high achievers and have been successful in their careers
- many fibromyalgia claimants have been to multiple doctors and have tried lots of different medications, therapies, and cures
- often the fibromyalgia claimant suffered some major trauma many years prior to developing the illness
There is no listing for fibromyalgia, so your claim is based on your ability to argue that your condition has rendered you unable to work.
Can You Work?
The main thing you need to prove in to win your fibromyalgia case is that you are not able to work. Always remember that your inability to perform work is the only thing that truly matters to a Social Security judge in a fibromyalgia case.
So the judge’s decision really depends on whether he/she thinks you could perform an easy, sit down job that doesn’t require rigorous training, that allows you to sit, stand and adjust your position, and that is not production oriented. Sometimes 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. The VE usually testifies as to whether he/she thinks you could perform any of such jobs (keeping your illness/impairments in mind).
Comprehensive Medical Records – a key to winning
My job as a claimant’s lawyer is to recognize medical records that contain work limitations. My job entails reviewing all of your medical records, then developing a functional capacity checklist that includes both the limitations related to your individual case and the impairment categories used in Social Security cases.
We then ask your physician to fill out the checklist for submission to the Judge. Keep in mind that we do not ask the physician whether or not you are “disabled” – that is a legal decision for the Judge. We ask your physician to help “translate” his medical conclusions into precise work limitations.
What do Judges think of FM cases?
Social Security disability cases based on Fibromyalgia are generally considered more difficult to win. It is true… some judges have a problem acknowledging a medical syndrome (not an actual disease) that cannot be identified by a blood test and that can have a wide variety of symptoms. On the other hand, my experience has been that a claimant can get creative in offering a Judge a strong theory of their disability.
Recently, I represented a fibromyalgia client before a Judge who called on a psychiatrist as an expert witness. The Judge approved benefits on the ground that my client’s “fibro fog” was comparable to a chronic state of anxiety – a psychiatric condition.
A couple of weeks later, I tried a different fibromyalgia case before another Judge in the exact hearing office. This Judge approved benefits on the basis of a combined impairment – identifying the joint effect of fibromyalgia on my client’s physical and mental condition. However, a third Judge in this same hearing office approved another case on the basis that my client’s condition was comparable to an orthopedic condition such as severe arthritis.
Judges in large metro areas like Atlanta are more than likely to see fibromyalgia patients supported by knowledgeable physicians and long treatment histories. The good news is, even if judges don’t recognize a health problem, many will honor the opinion of your treating doctor, especially if you have a long and constant treatment record (often referred to as “longitudinal treatment record”).
Focus on all of your symptoms
It is important to focus on fibromyalgia symptoms instead of just general body pain. Keep in mind, judges see claimants daily who complain about “pain all over.” These cases are not fibromyalgia. The pains are caused by arthritis, obesity, poor nutrition, mild diabetes, and much more. Judges are just human, and they usually discount complaints they hear constantly. As you are probably aware, fibromyalgia often creates other noticeable symptoms, including loss of balance, digestive problems, irritable bowel syndrome, slurred speech, vision problems, depression, swelling, memory loss, cognitive loss, fatigue, sleeplessness, and more.
Most fibromyalgia patients often get used to living with these symptoms and do not mention all of them to their physicians or to the judge. One method I recommend to my clients is to use a calendar and keep track of how you feel and what symptoms you experience daily. Then separate them into lists. Then ask for your spouse’s or children’s observations. It has been my experience that some judges may not want to approve your case based on overall body pain – they may feel more content on focusing on your digestive or balance problems. Make the judge’s (and your lawyer’s) job a whole lot easier by keeping track of all your symptoms!
Determining the start-date for your disability
Some of my fibromyalgia clients were motivated and hardworking in their jobs and careers. Many Judges realize that most claimants would trade the money and job satisfaction of a challenging career for the fixed income offered by Social Security disability. I encourage my clients to testify about what they did before they were unable to work, how they tried to continue working, even in extreme levels of pain and fatigue, and how they would love to have their former way of life back.
In addition, you may be able to “push back” the starting date for your benefit payments if your last few weeks of work were not in the nature of “competitive employment.” For instance, if your employer allowed you to take off extra days or changed your job description, the judge may find that you did not perform competitive work activity. Also, if you applied for benefits before and where denied, then tried unsuccessfully to go back to work, you may be entitled for months or years of past due benefits. Issues related to modifying your onset date are beyond the scope of this article, but should be evaluated.