fibromyalgia & disability

Discussion in 'General Health & Wellness' started by lindy1, Aug 12, 2009.

  1. lindy1

    lindy1 New Member

    HELP !!! Has anyone out there been successful in getting disability for fibro ? I'm hearing that it's almost impossible because it's not a disease that can be readily tested. I can't work any more, the pain and stiffness is so bad and I need help. Can anyone give me some input on the disability process? I've got Binder & Binder working it but I'm not hearing anything from them. Any response will be appreciated !
  2. TwoCatDoctors

    TwoCatDoctors New Member

    I'm on the disabililty board and I'll answer here for you. I also suggest you ask on the Fibro board too as they may have some things for you to do that are for Fibro claiments only.

    I used to check on the Travers Law board that is mostly lawyers and SSA people and some retired SSA judges. They told of a ALJ that would not approve any claimant alleging Fibro as an ailment unless they had a 14 point test from a Rheumatologist--not from a regular doctor but only from a Rhemumatologist. The lawyers were debating whether this was legal and it came down to the SSA judges being able to set requirements that they individually wanted to see in their courtroom. Fibro is a tough case because it is harder to prove than most ailments.

    Be sure you are seeing a rheumatologist and that the Rheumy states in writing that you have Fibro and that Fibro makes you unable to work at ANY JOB--NOT JUST THE JOB YOU USED TO DO, BUT THAT YOU CAN'T DO ANY JOB NOW. I was on a very involved SSD board but when MSN closed on their boards they moved it and it hasn't reopened back to full status and doesn't accept posts.

    Also know that claimants falsely believe that SSA will get all your medicals records and prove your case for you--WRONG. We saw many cases where out of 10 doctors, they only got records from 3 or 4 doctors and then denied the claimant. So you have to actively get records from all your doctors to submit to SSA, make sure that all your doctors are stating you are fully disabled and unable to work at any job, and don't rely on SSA to get your records or update your records--you have to do that. SSA is not there to prove your case for you--you must do it yourself at the earliest stage to try to get your approval for benefits. Good luck.

    All your doctors should fill our and sign and you should fill the below form with SSD

    ----------------------------------

    RESIDUAL FUNCTIONAL CAPACITY QUESTIONNAIRE

    Patient Name: ______________________________________________________
    Address: __________________________________________________________
    City:_____________________________ State: __________________________ Zip Code: _______________________
    Phone Number:___________________________________________
    Social Security Number: ___________________________________

    Dear Doctor,

    Please complete the following items based on your clinical evaluation of the claimant and other testing results. Any items that you do not believe you can answer should be marked as (Not Answerable).
    Note: In terms of an 8 hour workday:
    Occasionally = 0% to33% (1-2 HRS)
    Frequently = 34% to 66% (3-5 HRS)
    Continuously = 67% to 100% (6-8 HRS)

    I. In an 8 hour workday, claimant can: (Circle full capacity for each activity)

    ____ Not Answerable

    A. Sit – Number of hours - 0, 1, 2, 3, 4, 5, 6, 7, 8

    B. Stand - Number of hours - 0, 1, 2, 3, 4, 5, 6, 7, 8

    C. Walk - Number of hours - 0, 1, 2, 3, 4, 5, 6, 7, 8

    D. Work - Number of hours - 0, 1, 2, 3, 4, 5, 6, 7, 8

    Limitations due to: __________________________________________________________________

    II. Claimant can lift: (Please check one)

    ____ Not Answerable

    Never Occasionally Frequently Continuously
    A. Up to 10 lbs (___) (___) (___) (___)
    B. 11 - 20 lbs (___) (___) (___) (___)
    C. 21 - 50 lbs (___) (___) (___) (___)
    D. 51 - 100 lbs (___) (___) (___) (___)

    Limitations due to: __________________________________________________________________

    III. Claimant can carry: (Please check one)

    ____ Not Answerable

    Never Occasionally Frequently Continuously
    A. Up to 10 lbs (___) (___) (___) (___)
    B. 11 - 20 lbs (___) (___) (___) (___)
    C. 21 - 50 lbs (___) (___) (___) (___)
    D. 51 - 100 lbs (___) (___) (___) (___)

    Limitations due to: __________________________________________________________________



    RESIDUAL FUNCTIONAL CAPACITY QUESTIONNARE – Page 2

    IV. Claimant can tolerate: (Please check one in each row)

    ____ Not Answerable

    Not at all Occasionally Frequently Continuously
    A. Exposure to unprotected heights (___) (___) (___) (___)
    B. Being around moving machinery (___) (___) (___) (___)
    C. Exposure to marked temperature changes (___) (___) (___) (___)
    D. Driving automotive equipment (___) (___) (___) (___)
    E. Exposure to dust, fumes & gases (___) (___) (___) (___)
    F. Exposure to noise (___) (___) (___) (___)
    G. Other ________________________________

    Limitations due to: __________________________________________________________________


    V. Claimant can use hands for repetitive action such as: (Please check one in each row)

    ____ Not Answerable

    Simple Grasping
    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No

    Pushing
    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No

    Pulling
    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No

    Fine Manipulation
    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No

    Limitations due to: __________________________________________________________________


    VI. Claimant can use feet for repetitive movements as in operating foot controls: (Please check one in each row)

    ____ Not Answerable

    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No
    C. Both (__) Yes (___) No

    Limitation due to: __________________________________________________________________




    RESIDUAL FUNCTIONAL CAPACITY QUESTIONNARE – Page 3

    VII. Is there evidence of any disorder that would limit in any way repetitive hand action involving: (Please check one in each row)

    ____ Not Answerable

    Simple Grasping
    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No

    Pushing
    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No

    Pulling
    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No

    Fine Manipulation
    A. Right (__) Yes (___) No
    B. Left (__) Yes (___) No

    Limitation due to: __________________________________________________________________


    VIII. Claimant is able to: (Please check one in each row)

    ____ Not Answerable

    Never Occasionally Frequently Continuously
    A. Bend (___) (___) (___) (___)

    B. Squat (___) (___) (___) (___)

    C. Crawl (___) (___) (___) (___)

    D. Climb (___) (___) (___) (___)

    E. Reach above (___) (___) (___) (___)

    F. Stoop (___) (___) (___) (___)

    G. Crouch (___) (___) (___) (___)

    H. Kneel (___) (___) (___) (___)

    Limitations due to: __________________________________________________________________


    IX. Objective signs of pain: (Please check all that apply)

    ____ Not Answerable

    (___) Redness (___) Joint deformity (___) Spinal deformity (___) X-ray (___) Muscle spasm

    (___) Other (specify) __________________________________________________________________


    RESIDUAL FUNCTIONAL CAPACITY QUESTIONNARE – Page 4

    X. Pain is: (Please check all that apply)

    ____ Not Answerable

    (___) Mild (would constitute an awareness but causing no handicap in the performance of the particular activity, would be considered as non ratable permanent disability).

    (___) Slight (could be tolerated but would cause some handicap in the performance of the activity precipitating pain).

    (___) Moderate (could be tolerated but would cause marked handicap in the performance of the activity precipitating pain).

    (___) Severe (would preclude the activity precipitating the pain).

    Remarks: __________________________________________________________________
    __________________________________________________________________
    __________________________________________________________________
    __________________________________________________________________
    __________________________________________________________________


    _______________________________________________________________
    Physician Name (Printed)

    _______________________________________________________________
    Signature of Physician

    ______________________________
    Date


    Make a copy of the questionnaire for each of your doctors – get them to fill it out and offer to help them with it. Also compose a letter of your own answering all the questions yourself in your own words. Make copies for yourself of this and all the doctor’s letters and then submit everything to Social Security as well.

    Answer in terms of your worst days, not your good days. Use word processing rather than trying to answer in the spaces provided. Restate the question, with the section and number of the question, and then give your answer. Explain that you are using the computer because it is easier for you.

    It is easier, because you can copy and paste, for one thing, since several forms have similar questions! And if, as is likely for unlisted impairments, you are denied on initial claim, you will be very happy you have the answers already typed, needing only an update, for your recon and hearing, if it gets to that stage. Remember not to say how you have adapted, but what functions you have lost. Ask for help on this - it is easy for us to forget how we have worked around our problems.

    For each section, give specific examples of what you can't do. Don't give your adaptation, but what you can't do. Here are some examples, to give you some ideas for describing the facts in your own case:
    Do not say "I must sit to prepare meals."
    Do say: "I can no longer stand at the kitchen counter to prepare meals."

    Do say: "I can no longer make cookies."
    Do not say: " I bake cake because it is easier than making cookies."

    Do not say: "I shop for myself."
    Do say: " I buy only a few items at a time. I can't carry a lot of bags, and, more important, I can't put away a lot of groceries when I get home. I can't spend a lot of time in the store, either, so I make short trips for just a few things at a time."

    Do not say: "I do laundry."
    Do say: " I can do only one load of laundry at a time, although I used to do all my laundry at once. I cannot put away the clean clothes the same day as I do the laundry. That is now a task for another day. I no longer keep up with the laundry, since I have to wait for a day I feel up to the task, and those good days are not necessarily when I need
    clean clothes."

    Do not say: "I make my own meals."
    Do say: " I no longer make complete meals and no longer invite guests for dinner. I eat simpler foods so that I don't need to spend as much time preparing meals. Sometimes, I need to rest before I can finish making something to eat. Occasionally, I have fallen asleep and not gone back to eat what I was preparing. I lose track of what I was doing
    very easily and have often forgotten that I put water up to boil."

    The answer to "do you watch TV" is NOT yes. The answer is something like this: I can no longer watch shows as long as an hour because I can no longer maintain attention that long. Even when I try to watch what used to be favorite shows, I now fall asleep, or else, if I manage to stay awake, I lose track of the plot. Loud commercials bother me physically now, exacerbating my pain.

    Another advantage of using word processing is that you should give specific examples of your loss of functioning, not just the answers to the questions as written. The spaces the forms have for answers are ok for yes or no answers, but you need to explain why you can't work!
  3. nonamiller

    nonamiller New Member

    I've been on SSD since March of 2008. I had no trouble. Expect to be turned down once. Have plenty of doctor documentation and testing and care notes. PT, tests, hospitialization, meds any and all treatments you have had or are currantly doing. Be out of work for 6 months. Being out on company disablity helps too, if you have it. Document everything. Keep copies of it all. Give a copy to your lawyers. They're a good team. Best wishes, and it can be done. I'm proof.

    Nona
  4. galadyb

    galadyb New Member

    I am in the same boat as u Lindy, I've been denied several times but they say its cause I haven't enough work credit's altho I have worked off and on since I was 15 & I'm 51 now...they didn't even look at my medical history, they went by work history 1st before even giving my medical history any consideration... I'm NOT able to work either so I am living with my son with NOTHING coming in money wise.... I think the government is messed up badly!!! Good luck with your claim sweetie...
    GaLadyB
  5. Libora1050

    Libora1050 New Member

    I got my disability based on my Fibromyalgia. I had Binder and Binder as well, but switched to a local attorney here in the Albany, NY area, Ed Ryan. He was much more approachable and responsive. I also wrote to my senators and asked them to intervene on my behalf to the S.S. Administration in Baltimore MD. I was suffering and waiting over 2 years to here something and to get a court date. My letter pushed things along quickly and Ed Ryan was a real gem. Good luck. Anna
  6. Angeldrd

    Angeldrd New Member

    Hi Lindy,
    I have fibro plus a bunch of other things, and it took me 4 years to get disability. Alot of doctors don't believe fibro is real. If Binder and Binder aren't working closely with you on it, drop them! I made that mistake with Morgan, Colling and Gilbert. They did absolutely nothing to help me, and my case dragged on for years. I ended up getting a wonderful woman through the local legal aid, and she worked her ass off for me.
    Most times they Social Security denies you the first time around. I don't know why, other than to just weed out the people who are serious. Saying you have fibro or back problems are like red flags to them...it's like the automatically suspect you're faking. Make sure you document everything! Keep a pain and drug diary as proof to how often and to what scale your pain is and how it limits your life. Even get letters from those in your life, testifying to how your disability affects you and them.
    Supposedly psych claims are the easiest to get disability. Going to a psychologist might help your claim, if they can say your fibro is hurting you emotionally.
    Just keep your head up and keep fighting. You'll get there eventually.
  7. cowens

    cowens New Member

    I also have fibromyalgia AND am on Disability. It was a long process, about a year and a half.
    Try going to Allsup.com. They have a 98% success rate. I am not sure of the fees they may charget, but beleive they probably take a portion of the back pay when you are approved.

    I was on short term and then long term disability, through Standard Insurance, which was covered by my previous employer.

    I applied for SSDI on my own and was denied 3 times and so I thought that was it, but Standard Insurance advised my to through Allsup. (www.allsup.com) I had 2 phone conversations with them. One was an introduction and the other was answering all the SSDI questions I had already answered and submitted to Social Security. On the initial request for SSDI, that Allsup submitted, I was approved.

    When I recived my lump sum of back pay, Standard took back the money they had payed me and they must have paid Allsup.

    Here is a section from Allsup's website on determining Fibromyalgia. http://www.allsup.com/about-ssdi/ssdi-guidelines-by-disability/fibromyalgia.aspx

    I hope this helps.

    Wishing you pain free days,

    Carolin
  8. JLH

    JLH New Member

    I was successful in getting SSDI on my first application back in 2000; however, I got it for multiple health problems such as a bad heart, diabetes, lupus, severe arthritis, severe back problems, plus the fibro and some other stuff.

    I would ask around and see how many people you can find who were happy with Binder & Binder, though. My sister tried them and they were awful. She would have never gotten her disability if she depended on them. You might want to find someone local who has a good reputation with getting disability for people.

    Listed below is an itemized list of different problems that people with fibro experience. They all don't suffer from each symptom, but you can review it and see which ones you do. You might want to work them in your application on how your illness affects you.


    GENERAL
    ____ Fatigue, made worse by physical exertion or stress
    ____ Activity level decreased to less than 50% of pre-illness activity level
    ____ Recurrent flu-like illness
    ____ Sore throat
    ____ Hoarseness
    ____ Tender or swollen lymph nodes (glands), especially in neck and underarms
    ____ Shortness of breath (air hunger) with little or no exertion
    ____ Frequent sighing
    ____ Tremor or trembling
    ____ Severe nasal allergies (new allergies or worsening of previous allergies)
    ____ Cough
    ____ Night sweats
    ____ Low-grade fevers
    ____ Feeling cold often
    ____ Feeling hot often
    ____ Cold extremities (hands and feet)
    ____ Low body temperature (below 97.6)
    ____ Low blood pressure (below 110/70)
    ____ Heart palpitations
    ____ Dryness of eyes and/or mouth
    ____ Increased thirst
    ____ Symptoms worsened by temperature changes
    ____ Symptoms worsened by air travel
    ____ Symptoms worsened by stress


    PAIN
    ____ Headache
    ____ Tender points or trigger points
    ____ Muscle pain
    ____ Muscle twitching
    ____ Muscle weakness
    ____ Paralysis or severe weakness of an arm or leg
    ____ Joint pain
    ____ TMJ syndrome
    ____ Chest pain


    GENERAL NEUROLOGICAL
    ____ Lightheadedness; feeling "spaced out"
    ____ Inability to think clearly ("brain fog")
    ____ Seizures
    ____ Seizure-like episodes
    ____ Syncope (fainting) or blackouts
    ____ Sensation that you might faint
    ____ Vertigo or dizziness
    ____ Numbness or tingling sensations
    ____ Tinnitus (ringing in one or both ears)
    ____ Photophobia (sensitivity to light)
    ____ Noise intolerance


    EQUILIBRIUM/PERCEPTION
    ____ Feeling spatially disoriented
    ____ Dysequilibrium (balance difficulty)
    ____ Staggering gait (clumsy walking; bumping into things)
    ____ Dropping things frequently
    ____ Difficulty judging distances (e.g. when driving; placing objects on surfaces)
    ____ "Not quite seeing" what you are looking at


    SLEEP
    ____ Hypersomnia (excessive sleeping)
    ____ Sleep disturbance: unrefreshing or non-restorative sleep
    ____ Sleep disturbance: difficulty falling asleep
    ____ Sleep disturbance: difficulty staying asleep (frequent awakenings)
    ____ Sleep disturbance: vivid or disturbing dreams or nightmares
    ____ Altered sleep/wake schedule (alertness/energy best late at night)


    MOOD/EMOTIONS
    ____ Depressed mood
    ____ Suicidal thoughts
    ____ Suicide attempts
    ____ Feeling worthless
    ____ Frequent crying
    ____ Feeling helpless and/or hopeless
    ____ Inability to enjoy previously enjoyed activities
    ____ Increased appetite
    ____ Decreased appetite
    ____ Anxiety or fear when there is no obvious cause
    ____ Panic attacks
    ____ Irritability; overreaction
    ____ Rage attacks: anger outbursts with little or no cause
    ____ Abrupt, unpredictable mood swings
    ____ Phobias (irrational fears)
    ____ Personality changes


    EYES AND VISION
    ____ Eye pain
    ____ Changes in visual acuity (frequent changes in ability to see well)
    ____ Difficulty with accommodation (switching focus from one thing to another)
    ____ Blind spots in vision


    SENSITIVITIES
    ____ Sensitivities to medications (unable to tolerate "normal" dosage)
    ____ Sensitivities to odors (e.g., cleaning products, exhaust fumes, colognes, hair sprays)
    ____ Sensitivities to foods
    ____ Alcohol intolerance
    ____ Alteration of taste, smell, and/or hearing


    UROGENITAL
    ____ Frequent urination
    ____ Painful urination or bladder pain
    ____ Prostate pain
    ____ Impotence
    ____ Endometriosis
    ____ Worsening of premenstrual syndrome (PMS)
    ____ Decreased libido (sex drive)


    GASTROINTESTINAL
    ____ Stomach ache; abdominal cramps
    ____ Nausea
    ____ Vomiting
    ____ Esophageal reflux (heartburn)
    ____ Frequent diarrhea
    ____ Frequent constipation
    ____ Bloating; intestinal gas
    ____ Decreased appetite
    ____ Increased appetite
    ____ Food cravings
    ____ Weight gain (____ lbs)
    ____ Weight loss (____ lbs)


    SKIN
    ____ Rashes or sores
    ____ Eczema or psoriasis


    OTHER
    ____ Hair loss
    ____ Mitral valve prolapse
    ____ Cancer
    ____ Dental problems
    ____ Periodontal (gum) disease
    ____ Aphthous ulcers (canker sores)


    COGNITIVE
    ____ Difficulty with simple calculations (e.g., balancing checkbook)
    ____ Word-finding difficulty
    ____ Using the wrong word
    ____ Difficulty expressing ideas in words
    ____ Difficulty moving your mouth to speak
    ____ Slowed speech
    ____ Stuttering; stammering
    ____ Impaired ability to concentrate
    ____ Easily distracted during a task
    ____ Difficulty paying attention
    ____ Difficulty following a conversation when background noise is present
    ____ Losing your train of thought in the middle of a sentence
    ____ Difficulty putting tasks or things in proper sequence
    ____ Losing track in the middle of a task (remembering what to do next)
    ____ Difficulty with short-term memory
    ____ Difficulty with long-term memory
    ____ Forgetting how to do routine things
    ____ Difficulty understanding what you read
    ____ Switching left and right
    ____ Transposition (reversal) of numbers, words and/or letters when you speak
    ____ Transposition (reversal) of numbers, words and/or letters when you write
    ____ Difficulty remembering names of objects
    ____ Difficulty remembering names of people
    ____ Difficulty recognizing faces
    ____ Difficulty following simple written instructions
    ____ Difficulty following complicated written instructions
    ____ Difficulty following simple oral (spoken) instructions
    ____ Difficulty following complicated oral (spoken) instructions
    ____ Poor judgment
    ____ Difficulty making decisions
    ____ Difficulty integrating information (putting ideas together to form a complete picture or concept)
    ____ Difficulty following directions while driving
    ____ Becoming lost in familiar locations when driving
    ____ Feeling too disoriented to drive


    I hope this helps some.
  9. JLH

    JLH New Member

    This is legal references that have been used for applying for SSDI/SSI.


    ESTABLISHING DISABILITY STATUS IN FM AND CFS


    42 U.S.C. § 423(d)4 defines “disability as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months... For purposes of this subsection, a “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

    To emphasize the importance of signs and findings in the disability determination, 42 U.S.C. § 423(d)(5)(A) provides that “[a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings,5 established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities.”
    The Social Security Administration interpretation of the statute contained in SSR-96-4p reinforces this instruction. Although the Act and SSR 96-4p provide that a “symptom” is not a “medically determinable physical or mental impairment,” footnote #2 of SSR 96-4p describes the following circumstances under which what otherwise might be considered to be a “symptom” is really a medical “sign”:

    20 CFR 404.1528, 404.1529, 416.928, and 416.929 provide that symptoms, such as pain, fatigue, shortness of breath, weakness or nervousness, are an individual’s own perception or description of the impact of his or her physical or mental impairment. However, when any of these manifestations is an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques, it represents a medical “sign” rather than a “symptom.”

    SSR 96-2p completes the proof with the following definition of the statutory term of art, “medically acceptable”:

    Medically acceptable. This term means that the clinical and laboratory diagnostic techniques that the medical source uses are in accordance with the medical standards that are generally accepted within the medical community as the appropriate techniques to establish the existence and severity of an impairment.


    The medical standards that are generally accepted within the medical community as the appropriate techniques for establishing the existence and severity of fibromyalgia and chronic fatigue syndrome are detailed in various medical publications. See, for example, Wolfe, F. et. al.: The American College Of Rheumatology 1990 Criteria For The Classification Of Fibromyalgia: Report Of The Multicenter Criteria Committee. Arthritis & Rheumatology (1990) 33:160-72. See also the December 1994 revised working case definition of CFS established by the Centers for Disease Control: Fukuda, et.al. “The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study,” Annals of Internal Medicine, (1994) 121:953-59.

    In a claim involving allegations of disability based in whole or in part on FM or CFS, it is the responsibility of the claimant’s representative to ensure that the claimant’s treating and/or examining physicians are aware of, and employ, the techniques for establishing the existence and severity of fibromyalgia and chronic fatigue syndrome as set out in the above-referenced medical articles and SSR 99-2p.

    NINTH CIRCUIT PRECEDENTS

    The Ninth circuit is the highest federal Court in the western states and its holdings control federal court decisions in Arizona. In Day v. Weinberger, 522 F.2d 1154 (9th Cir. 1975), the Ninth Circuit addressed the fact that disability may be proved by medically-acceptable clinical techniques.
    , “in concluding that Day was not disabled, as “disability” is defined in 42 U.S.C. § 423(d), the Hearing Examiner relied on three other factors. First, he noted that none of Day’s medical experts had been able, through the use of objective diagnostic techniques, to identify specific cause for Day’s alleged pain. Second, the examiner noted that during Day’s appearance at the hearing, she did not exhibit the physical manifestations of prolonged pain that are listed in a leading medical textbook. Finally, the examiner relied on his own observations of Day at the hearing and certain of Day’s own testimony in concluding that she remained capable of doing light work.

    The first two factors upon which the examiner relied provide little, if any, support for his ultimate conclusion. Disability may be proved by medically-acceptable clinical diagnoses, as well as by objective laboratory findings. 42 U.S.C. § 423(d)(3); see Stark v. Weinberger, 497 F.2d 1092, 1097 (7th Cir., 1974); Flake v. Gardner, 399 F.2d 532, 540-41 (9th Cir., 1968). And the Hearing Examiner, who was not qualified as a medical expert, should not have gone outside the record to medical textbooks for the purpose of making his own exploration and assessment as to claimant’s physical condition. Williams v. Richardson, 458 F.2d 991, 992 (5th Cir. 1972).”

    For three cases within the Ninth Circuit addressing FM and CFS see Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998); Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991); and Irwin v. Shalala, 840 F.Supp. 751 (D.Or. 1993).

    In May 11 1998 Deputy Commissioner for Disability and Income Security Programs, Susan Daniels, wrote a memoranda to an ALJ who argued that the symptoms of FM should not be considered medically acceptable clinical and laboratory diagnostic techniques in support of the claimant’s application for disability determination:

    “Your letter states that fibromyalgia and CFS do not constitute medically determinable impairments within the meaning of section 223(d)(3) of the Social Security Act because there are no acceptable medical criteria by which these impairments can be diagnosed…. However, SSA has taken a definitive position that fibromyalgia and CFS can constitute medically determinable impairments within the meaning of the statute. As you noted in your letter, CFS was discussed in the process unification training in 1996-1997...This position is consistent with the instructions in Program Operations Manual System (POMS) DI 24515.075, Disability Digest No. 93-5, and Social Security Rulings (SSRs) 96-3p, 96-4p, and 96-7p, issued on July 2, 1996, which detail our policies as to how symptoms affect determinations of the presence of a medically determinable impairment, impairment severity, and the ability to engage in sustained work activity.

    Establishing the existence of a medically determinable impairment does not necessarily require that the claimant or the medical evidence establish a specific diagnosis. This is especially true when the medical community has not reached agreement on a single set of diagnostic criteria. ..Your argument based on the Rulings seems to misinterpret the explanation in Footnote 2 to SSR 96-4p, which explains our longstanding policy, consistent with 20 CFR §§ 404.1528(b) and 416.928(b), that some symptoms, when appropriately reported by a physician or psychologist in a clinical setting, can also be considered “signs” because sometimes these observations constitute “medically acceptable clinical diagnostic techniques.” This is true for mental impairments in general and for such widely recognizable disorders as migraine headaches”

    CONCLUSION

    FM and CFS are “real diseases" which lead to disability. The key to winning in front an ALJ is to have the physician meticulously follow the guidelines established by the American College Of Rheumatology 1990 Criteria For The Classification Of Fibromyalgia: Report Of The Multicenter Criteria Committee. Arthritis & Rheumatology (1990) 33:160-72. Thorough notes and commitment of the treating physician to assist the claimant in her quest for disability determination are of paramount importance.
  10. JLH

    JLH New Member

    Tips for Winning a Fibromyalgia Disability Case
    by Jonathan Ginsberg, Attorney - Atlanta, Georgia

    In a disability case, you need to prove one thing - that you are not able to work. If you remember nothing else about Social Security disability, remember that your capacity for performing work is the only thing that matters to a Social Security judge.

    Your ability to perform an easy job - the main issue

    Your underlying medical condition - fibromyalgia 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, five days a week. Thus, for example, I have won cases in the Atlanta hearing offices in which my client’s medical problem was a moderate, functional heart defect, but in this client’s case, her anxiety about her condition was so severe that she could not concentrate at work. Similarly, I have seen judges deny cases in which a claimant had three herniated discs, but was able to function in a minimally demanding job because of an unusually high pain threshold.
    In most cases, the judge’s decision really boils down to his/her decision 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 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.


    Comprehensive Medical Records - a key to winning

    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 particular case and the impairment categories used in Social Security cases. We then ask your doctor to complete the checklist for submission to the Judge. Note that 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” his medical conclusions into specific work limitations.


    What is the Judge thinking?

    There is a perception that Social Security disability cases based on fibromyalgia are difficult to win. It is true that some judges have a problem acknowledging a medical syndrome (not a “disease”) that cannot be detected by a blood test and that can have a wide range of symptoms. Click here for the clinical definition of fibromyalgia as set forth by the American College of Rheumatology. Nevertheless, my experience has been that you can get creative in offering a Judge a theory of disability.

    Not too long ago, for example, I represented a fibromyalgia client before a Judge who 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. Two weeks later, I tried a different fibromyalgia case before another Judge in the same hearing office - this Judge awarded benefits (correctly in my opinion) on the basis of a combined impairment - recognizing the combined effect of fibromyalgia’s impact on my client’s physical and mental condition. Yet a third Judge in this same hearing office granted another case on the basis that my client’s condition was equivalent to an orthopedic condition - severe arthritis.

    Obviously, I am most interested in winning cases for my clients, although I do find it interesting that some judges must really struggle to find a legal basis to award benefits. Further, I think it is fair to say that judges in big cities like Atlanta are probably more likely to see fibromyalgia patients supported by knowledgeable physicians and long treatment histories.
    Fortunately, 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”).


    Focus on all of your symptoms

    I find that it is important to focus on fibromyalgia symptoms other than just generalized body pain. Remember, judges see claimants every day complaining of “pain all over.” These cases are not fibromyalgia, but pains caused by arthritis, obesity, poor nutrition, mild diabetes, etc. Judges are people, and they tend to discount complaints they here again and again. As you may know, fibromyalgia often produces other identifiable symptoms, including loss of balance, digestive problems, irritable bowel syndrome, slurred speech, vision problems, depression, swelling, memory loss, cognitive loss, fatigue, sleeplessness, etc.

    Many fibromyalgia patients get used to living with these symptoms and fail to mention all of them to their doctors or to the judge. One technique I recommend to my clients is to obtain a calendar and keep diary notes about how you feel and what symptoms you experience each day. Make lists. Ask for your spouse’s or children’s observations. It has been my experience that judges may not want to grant your case based on overall body pain, but may feel more comfortable focusing on your digestive or balance problems. Make the judge’s (and your lawyer’s) job easy!

    You might find it helpful to read a Judge’s decision in a fibromyalgia case. This case involved a 38 year old woman with an extensive job background who suffers from fibromyalgia as well as numerous gastrointestinal and other complications. Note that the Judge focuses on my client’s work history and that she is very credible because she has been seeking a medical solution to her problem. This file is in Adobe pdf format. Click here to read two of my recent favorable fibromyalgia decisions.


    Deciding on a start-date for your disability

    I also have found that many of my fibromyalgia clients were ambitious and hardworking in their careers and jobs. Subconsciously or otherwise, many Judges realize that few claimants would trade the money and job satisfaction of a challenging career for the fixed income offered by Social Security disability. I therefore usually encourage my clients to testify about what they did before they stopped work, how they tried to hang on, even while fighting increasing levels of pain and fatigue, and how they would greatly prefer their former way of life.

    You may also be able to “push back” the starting date for your benefit payments if your last few weeks or months of work were not in the nature of “competitive employment.” For example, if your boss allowed extra absences or changed your job description, the judge may find that you did not engage in competitive work activity. Similarly, if you previously applied for benefits, received a denial, then tried unsuccessfully to return to work, you may be eligible for months or years of past due benefits. Issue related to amending your onset date are beyond the scope of this article, but should be evaluated.


    About Jonathan Ginsberg - Jonathan is a practicing Social Security attorney in Atlanta, Georgia, and he is the publisher of two "how to" Social Security help books - the Disability Answer Guide (how to fill out adult Social Security disability forms) and the Child SSI Guide (how to fill out child Social Security disability forms). His comments and opinions about "Tips for Winning a Fibromyalgia Case" should not be considered legal advice as every Social Security disability case is different and depends on your individual case information.
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  11. TwoCatDoctors

    TwoCatDoctors New Member

    I never realized until a while ago that the Fibro board has a good thread at the top on SSD and please read it from beginning to end. It would be very valuable to you.