Yesterday, I met with a fibromyalgia disability client in a pre-hearing session. A hearing is scheduled in my client’s case in about 10 days and I met with my client and her husband to discuss what I call the “theory of our case” so my client would have a clear idea about what we were trying to prove. In addition I use the pre-hearing meeting to practice questions and answers so that my client can avoid easily correctable mistakes.
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.
Jon,
This post is similar to my disability case. I have severe, chronic pain in my neck, back, and tailbone. While I have multiple medical problems the pain is what is keeping from being able to “function”. I have two functional capacity forms completed, one physical, that describes in detail the physical medical conditions I have, and the other is a mental health FCE completed by my psychiatrist, describing the cognitive disorder/major depression from traumatic brain injuries/cerebral aneurysm in the past.
I received notification from Social Security, Office of Disabiliry that was written to my attorney. In it asks for medical records that are up to date. It stated that if possible my case can be decided fully favorable without a hearing. (Which I think is possible).There is enough evidence in my opinion, but as I read this fibromyalgia case post, it makes me wonder if there is.
I am trying to let my attorney handle everything and have submitted ongoing medical records as I see different doctors. In the back of my mind I am worried that even though I think there is ample evidence I am worried that I will end up waiting even longer and then find out they denied benefits. Both of my doctors have signed a form stating that I am totally and permanently disabled and we have submitted them as well. Do you have any suggestions or do you think I should not worry and see how it all turns out? Thank you in advance.
Donna
I have severe, chronic pain in my neck. While I have multiple medical problems the pain is what is keeping from being able to “function”.I received notification from Social Security, Office of Disabiliry that was written to my attorney.Do you have any suggestions or do you think I should not worry and see how it all turns out? Thank you in advance.
I recieved a letter from my disability claim saying fully favorable in favor of me, So i was told I won my case after waitning four years, it”s been two weeks an I haven”t heard any more can u tell me what to expect now. How long will it take for me to actually start getting my check”s? I would really apperciate it.
Hello,
I am very unsure of what to do. It seems like there is no one that can help you when your in this waiting stage. I first filed for disability May 05. The administrative law judge denied my benefits although admitting I had sever impairments and could not return to my job in medical billing. Federal court remanded my case for further proceedings regarding my limitations from my condition. Through out my case the magistrate judge found the attorney law judge did not have substantial evidence to support his denial. The evidence supported me. I believe my case should have been remanded for benefits paid, I believe this was an abuse of discretion. I go to a new hearing on January 27th 2009 with a new administrative law judge and the vocational expert forget he has a case that morning and don’t show up, so then I go to another hearing on April 9th 2009. I have heard nothing. We are totally broke and about to loose our home. Any help we have tried to get they say husband makes too much money. That’s real funny when we are about to loose our home and have our electric shut off. I was told the first judge only denied my case because of my age. I will be 32 in June and it’s not like I want to live like this. I have fibromyalgia, bone spurs, bulging disc, and arthritis in my back and neck. My rheumatologist I have been seeing since 2005 and see him every single month totally supports me and he also specializes in fibromyalgia. We have never been rich, but lived comfortable. The last 2 years we have struggled to keep from drowning. The medication I take on top of the every day stress and the pain I am constantly in is driving me insane. When I am in a store the pain gets so bad I break out in a drenching wet sweat and my neck breaks out with red blotches all over it. What little energy I have is totally drained out of me. I feel like everyone is staring at me like I am some kind of freak. I hate this and hate dealing with it. I would give anything to have my life back. I feel like I am alone and no one knows or cares what I am going through. My husband tries but he is under so much stress with working and trying to pick up my slack at home and he also take care of his mom’s home since his dad passed away in 2000. Growing up I never dreamed my life would be so hard and complicated. I had plans to go to college when my kids were in school full time. That was one of the reasons I had them while I was young. I never dreamed something would take over my life like this has. Most of the time I feel like I am in a bad dream and can’t wake up. Thank you for your time. If you have any advice you would like to tell me about I would really appreciate it.
Thanks so much, Tamela
@Tamela Cole: Hi Tamara. I am going through the same situation except I do not have a husband and I am a single mother not recieving child support and will be homeless soon if I don’t win my appeal hearing I had on November 30th. Can you tell me if you won?
I pray that all of those in need of benefits receive them asap. I received my approval letter today. (Process took about 9 mos which is reasonable.) I didn’t need an attorney, and I had to meet all my deadlines (paperwork) and communicate with my case worker when necessary. The paperwork though enormous must be filled out correctly and completely. Get someone to help you if you feel you need the help. Answer everything truthfully!! Testing will be set up if deemed necessary. Don’t beleive it wont be approved the first time….Mine was…ask questions think positive!
@keepblevin:
Congratulations on your approval and receiving benefits in 9 months- that is amazing! I hope you dont mind if I ask you some questions.
A) Did you have an Attorney? B) How did you answer the following questions; 1)500 words on your medical condition 2) 500 words on how your medical condition limits your ability to work 3) How does pain, fatigue, depression and other symptoms limit your ability to work. 4)Why are you unable to work.
I have done my homework but I am anxious about answering everything correctly so that I do get approved on the first time around. Anything you can do to help me I would truly appreciate it. Thank you in advance for any help that you can offer…