Social Security issues fibromyalgia policy
August 22, 2012
By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of Daley, DeBofsky & Bryant. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law.
Fibromyalgia is one of the most difficult medical conditions for disability evaluators to assess. As the 7th U.S. Circuit Court of Appeals explained in Sarchet v. Chater, a Social Security disability case, fibromyalgia is a common, but elusive and mysterious disease, much like chronic fatigue syndrome, with which it shares a number of features ... Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective.
There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness and - the only symptom that discriminates between it and other diseases of a rheumatic character - multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch. ... 78 F.3d 305, 306 (7th Cir. 1996).
In addition to Sarchet, the 7th Circuit has issued two other key rulings involving fibromyalgia. In Hawkins v. First Union Corporation Long Term Disability Plan, 326 F.3d 914 (7th Cir. 2003), the court reiterated that while the majority of individuals suffering from fibromyalgia are able to continue working, many can not. And in Weitzenkamp v. Unum Life Insurance Company of America, 661 F.3d 323 (7th Cir. 2011), fibromyalgia was recognized as objectively verifiable and, therefore, not a self-reported condition falling within an insurance policy limitation.
Hoping to clarify the standards for adjudicating disability claims due to fibromyalgia, the Social Security Administration issued a specific policy guidance relating to that disorder - Social Security Ruling, SSR 12-2p; Titles II and XVI: Evaluation of Fibromyalgia, 77 FR 43640 (July 25, 2012).
The ruling begins by discussing the nature of fibromyalgia (FM) and the requirements of when FM is considered a "medically determinable impairment" (MDI), pointing out that a diagnosis alone is not the equivalent of a disability and that "[a]s with any claim for disability benefits, before we find that a person with an MDI of FM is disabled, we must ensure there is sufficient objective evidence to support a finding that the person's impairment(s) so limits the person's functional abilities that it precludes him or her from performing any substantial gainful activity."
The ruling explains that for FM to be deemed a MDI, the diagnosis must be made by a physician and the records need to document the doctor reviewed the patient's medical history and conducted an appropriate physical examination. Social Security also places great emphasis on the doctor's longitudinal documentation of the condition.
Both the 1990 and 2010 diagnostic criteria developed by the American College of Rheumatology are applied. Under the 1990 criteria, a patient must have a history of widespread pain that has persisted at least three months and must also demonstrate at least 11 out of 18 known positive tender points on physical examination involving the application of approximately 9 pounds of pressure. Other potential diagnoses must also be ruled out.
Under the 2010 criteria, the physician must document a history of widespread pain, repeated manifestations of six or more FM symptoms, signs or co-occurring conditions, especially fatigue, cognitive or memory problems, unrefreshing sleep, depression, anxiety or irritable bowel disorder and evidence that diagnoses of other potential disorders were excluded.
Social Security seeks both medical evidence from at least the 12-month period prior to the date of application, as well as evidence from other sources such as psychologists and even non-medical sources who can describe the claimant's ability to function day-to-day and over time. Examples of such sources include neighbors, friends, relatives and clergy, past employers, rehabilitation counselors and teachers. If the available evidence is inadequate, though, the Social Security Administration will seek a medical examination, however, because the ruling recognizes that FM may vary in severity, the examiner must be given access to longitudinal information about the claimant.
The ruling cites a number of authorities:
- National Center for Biotechnology Information, U.S. National Library of Medicine, Fibromyalgia, ncbi.nlm.nih.gov/pubmedhealth/PMH0001463;
- Frederick Wolfe et al., "The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia: Report of the Multicenter Criteria Committee, 33 Arthritis and Rheumatism" 160 (1990), available at rheumatology.org/practice/clinical/classification/fibromyalgia1990_Criteria_for_Classification_Fibro.pdf;
- Frederick Wolfe et al., " The American College of Rheumatology Preliminary Diagnostic Criteria for Fibromyalgia and Measurement of Symptom Severity," 62 Arthritis Care and Research 600 (2010), available at rheumatology.org/practice/clinical/classification/fibromyalgia/2010_ Preliminary_Diagnostic_Criteria.pdf
The information contained in Social Security Ruling 12-2p is exceptionally instructive in helping adjudicators focus on evaluating disability claims due to fibromyalgia. The emphasis on historical and longitudinal information is especially important and the recognition of the episodic nature of fibromyalgia offers a caution against snapshot evaluations.
Indeed, Brown v. Continental Casualty Co., 348 F. Supp. 2d 358 (E.D.Pa. 2004) is representative of a number of rulings that warn of the limitations of the use of functional capacity evaluations in assessing fibromyalgia since that examination is a "one time test ... [that] cannot hope to present a true picture of an illness characterized by variable symptoms."
With the guidance offered by Social Security Rule 12-2p, fairer, more objective and more accurate disability evaluations in disability claims based on fibromyalgia may now be achieved.