During our meeting, my client mentioned how frustrating it has been for her to wait over 2 years to get a hearing and she asked me if this type of delay was typical.  My initial response was that fibromyalgia cases were rarely approved at the administrative (initial application or reconsideration) levels because there is no "listing" for fibromyalgia and adjudicators at the State Agencies did not have the expertise or authority to issue early approvals.

After my client left, I thought more about my response – is it possible for a fibromyalgia claimant to get an early approval from a State Agency adjudicator?

I think that it is possible, but a claimant would need strong support from her treating physician.  As I have discussed before on these pages, there are several "theories" or arguments under which a claimant can win his/her case.  The Listing argument constitutes the most straightforward theory.  If your condition meets or equals a Listing, you have consistent and extensive medical treatment records, and your doctor will prepare a narrative or complete a form that tracks the listing, and you make the adjudicator aware that a listing is involved, you greatly improve your chances at an early approval.  Do not, by the way, assume that the adjudicator will recognize your case as a "listing level" case – you need to make that argument clearly when you submit your paperwork.

If there is no listing that describes your condition (such as fibromyalgia), you will need to argue for disability based on another theory.  If you are 50 years old or older with a physical impairment, a limited education and a limited work skill background, you should look at the "grid rules" to see if you can be found disabled based on the grids.  Grid based decisions do not call for judgment and State Agency adjudicators will issue favorable decisions in grid cases.  Here, too, you need to point out that your case is a "grid" case and identify the specific grid.

Fibromyalgia cases can fit within the grids, although my experience has been that most fibromyalgia patients are high acheiving, Type A individuals who often have too much education and work skills to fit neatly within the grids.

If you do not meet a listing or a grid, you're remaining argument will be a "functional capacity" argument.  It has been my experience that State Agency adjudicators do not often approve cases arising from functional capacity limitations because reaching a conclusion about a claimant's "residual functional capacity" is a legal decision that requires judgment and adjudicators are not given much authority to make quasi-judicial decisions.

However, if you submit a completed functional capacity evaluation from a treating  physician (or two, or three) along with treatment notes, along with a request that the adjudicator take that functional capacity evaluation to the non-examining State Agency medical consultant and/or the adjudicator's supervisor, there is a chance that your fibromyalgia case can be flagged for special review.

I hope you have picked up on a theme in what I have written about dealing with the State Agency adjudicators.  You cannot and should not assume that they will find a reason to approve your case.  You need to politely suggest a direction for their actions.  You need to lay out very clearly your argument for disability and you need to explain why a particular item of evidence is particularly relevant.  Finally, you need to realize that the State Agency adjudicators are overworked and underpaid and that they are given limited authority.  Do not hesitate to ask your adjudicator to take your file to a supervisor or to a medical or psychological consultant in the State Agency office.

Post from: Social Security Disability Blog

Is it Possible to Get an Early Favorable Decision in a Fibromyalgia Case?

Jonathan Ginsberg responds:  Darlene – good question.  At the initial and reconsideration stages, your claim will be reviewed by an Adjudicator who works for your State of residence under a contract with the Social Security Administration.  Adjudicators work hard, but they are not trained or paid to serve as judges.  They are equivalent to an insuarnce claims adjustor.

Multiple medical problems will make it difficult for an adjudicator to decide your claim favorably.  Therefore, I would suggest that you focus on one problem and try to find a doctor who will support your claim that this one serious problem rises to a listing level.  I would mention and include the other problems but I would focus on the one issue that seems most serious.

Note that fibromyalgia by definition is not a listing level problem because there is no listing for fibromyalgia.  Read more about the Social Security listings here.

If your case is denied at the initial and recon stages, and you go before a judge, you will most likely have a lawyer to help develop a strategy.  In my practice I tend to focus on one or two primary problems as I have found this approach works best.

Post from: Social Security Disability Blog

I Have Multiple Medical Problems – Should I Focus on All of Them? Just One?

Social Security judges are often cynical since every person they see claims to be disabled.  For this reason, some Social Security judges have decided that fibromyalgia is not a real condition and they will deny fibromyalgia claims based on the absence of objective evidence in the form of diagnostic reports like MRI's, CT scans and x-rays and the absence of organ damage.

Recently a fibromyalgia claimant in Cleveland, Ohio appealed a denial and won at the federal district court level.  You can read this opinion – Rogers v. Commissioner of Social Security, 486 F.3d 234 (6th Cir. 2007).  This decision is interesting at several levels.  First, look at the amount of time involved in appeals.  The claimant first applied for SSI benefits on May 21, 1998.   A hearing was held in December, 1999 and she was denied by the ALJ in January, 2000.  The claimant appealed to the Appeals Council and won – the case was sent back to the same judge for a second hearing.

The second hearing was held on November 15, 2002.  On November 23, 2003 (a full year after the hearing) the ALJ again denied the case on the grounds that there was no objective evidence to support the fibromyalgia claim. 

The claimant appealed to Appeals Council again, but was denied.  She then appealed to the district court where the ALJ's decision was affirmed by a federal Magistrate Judge on August 30, 2005.  The claimant then appealed to the 6th Circuit Court of Appeals.

The 6th Circuit decision was issued on May 24, 2007 reversing the ALJ and remanding back to the ALJ level for yet another hearing, but with guidance that the claimant's fibromyalgia complaints ought to be given credence, despite the absence of objective evidence.  Presumably Ms. Rogers has or will have a third hearing soon – perhaps after 10 years she will get her SSI.

The Rogers case can serve as a useful blueprint for lawyers and claimants who face judges who are unable or unwilling to recognize the functional limitations caused by fibromyalgia.  When reading this decision I was struck by the overwhelming nature of the evidence that supported Ms. Rogers' claim.  She had extensive medical records from treating doctors.  She had functional capacity forms completed by treating doctors.  The symptoms she described are entirely consistent with fibromyalgia.  Yet, she was denied because the judge could not see any problems on an x-ray.

Hopefully, you will not face a 10 year battle in an effort to prove that your fibromyalgia is real.  Hopefully an understanding of why some judges deny these cases and a reference to cases like the Rogers case will help you avoid delay and get your benefits at your initial hearing.

Post from: Social Security Disability Blog

Fibromyalgia Argument Accepted by Court of Appeals After 10 Years of Appeals

–Sue

Jonathan Ginsberg responds: Sue, thanks for your question.  It sounds like you have been through quite a bit.  I believe that Social Security will consider your homeopathic treatment as "non-standard."  As such, an administrative law judge may assign the homeopathic osteopath's reports less value.

Social Security has extensive rules about how judges are supposed to evaulate evidence – how much weight should the judge give a particular medical report.  For example, the reports and conclusions of a treating physician are to be given more weight than the conclusions of a doctor that you saw one time.  This is why, by the way, that I encourage my clients with no insurance and limited financial resources to see a doctor regularly, even if "regularly" means once a year.  That on-going relationship can help move that doctor into the category of "regular treating physician."

Non-standard practitioners are given very little weight by Social Security.  Chiropratctors, for example, are considered non-standard medical providers.  That is not to say that your chiropractor's records will not be read and considered part of your record.  However, a judge will not base his decision on the records and conclusions of a chiropractor.

You will face the same issues with a homeopathic practitioner.  If there are records in your file from an accepted source (like a medical doctor), those records will be accepted over the conclusions of your osteopath.  Furthermore, you may find that some judges are outright hostile towards homeopathy and they could find that you are being non-compliant with recommended treatment.

My purpose here is not to rail against homeopathy or chiropractic.  I just want you to understand that at this point Social Security does recognize the legitimacy of these types of treatment and that you could jeopardize your case if you base it on this type of non-traditional care.  So, if possible, maintain your contact with and treatment by more traditional health care providers.

Post from: Social Security Disability Blog

Will Social Security Accept Records and Conclusions of a Homeopathic Provider?