Can disability be proven by pain symptoms alone or is “objective” medical evidence required?
A recent federal court ruling from Maryland, Krysztofiak v. Boston Mutual Life Insurance Co., 2019 WL 6528609 (D. Md., Dec. 4, 2019), offers instructive guidance in answering that question. In the Maryland case, Dana Krysztofiak, a registered nurse, had to quit working due to psoriatic arthritis and fibromyalgia.
Her ensuing claim for disability benefits was initially approved. However, a few months later, the plaintiff’s benefits were terminated after her treating doctor reported improvement in her psoriatic arthritis even though the fibromyalgia symptoms remained uncontrolled.
As part of the claim process, the insurer had Krysztofiak undergo a functional capacity evaluation, however, the overall favorable results were challenged because Krysztofiak refused to participate in certain activities and the examiner noted a lack of effort as to her performance of other activities.
Boston Mutual also had the plaintiff undergo an examination which found no objective limitations even though Krysztofiak’s treating doctor clinically confirmed the fibromyalgia diagnosis and reported the plaintiff was limited in her ability to perform activities of daily living.
Despite the court’s application of a deferential standard of review, the plaintiff won. The court focused on the following observation:
“Throughout both its briefing and the [a]dministrative [r]ecord, [d]efendant returns again and again to its most pointed refrain: because Ms. Krysztofiak cannot provide ‘objective’ evidence of the disabling effects of her fibromyalgia, [d]efendant did not abuse its discretion by denying her benefits.
“As will be seen, [d]efendant has misinterpreted the law of this circuit and operated — seemingly at each stage of its review of Ms. Krysztofiak’s claim — under the mistaken assumption that ‘objective evidence’ of a disability is a hard and fast requirement.”
The court was particularly critical of the doctor the insurance company hired because his opinion was that fibromyalgia could never be found disabling under the policy. Although a subsequent reviewing doctor acknowledged the fibromyalgia diagnosis, he, too, seemed unwilling to accept that fibromyalgia could be disabling despite the 4th U.S. Circuit Court of Appeals’ conclusion in DuPerry v. Life Insurance Company of North America, 632 F.3d 860, 869 (4th Cir. 2011), that fibromyalgia could result in disability based on a positive trigger point test and consistent symptom reports.
The court also cited Kennedy v. Lilly Extended Disability Plan, 856 F.3d 1136, 1137 (7th Cir. 2017) (collecting sources), which noted that “[t]here used to be considerable skepticism that fibromyalgia was a real disease. No more.”
Hence, the court concluded:
“Put simply, no ‘objective evidence’ exists to prove that the rheumatic disease known as fibromyalgia exists. Yet the subjective complaints of fibromyalgia sufferers are sufficiently consistent and numerous to provide the medical community with ‘objectively satisfactory’ evidence that fibromyalgia is very real.
“On the individual level: [A] patient will never be able to prove through objective evidence that she has fibromyalgia, but the subjective responses to tests — specifically the ‘tender points’ test — may be ‘objectively satisfactory’ to physicians seeking to diagnose fibromyalgia.”
The court observed that the evidence presented was comparable to the evidence in DuPerry and the court found the conclusion reached in that case applied to this matter as well. The court also cited a second 7th Circuit ruling, which found:
“The gravest problem with [the doctor’s] report is the weight he places on the difference between subjective and objective evidence of pain. Pain often and in the case of fibromyalgia cannot be detected by laboratory tests. The disease itself can be diagnosed more or less objectively by the 18-point test (although a canny patient could pretend to be feeling pain when palpated in the 18 locations — but remember that the accuracy of the diagnosis of Hawkins fibromyalgia is not questioned), but the amount of pain and fatigue that a particular case of it produces cannot be.” Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914 (7th Cir. 2003).
The court also dismissed the functional capacity evaluation findings the defendant relied on, pointing out the finding concluded the claimant’s presentation was consistent and that her need for “positional changes on both days (sit to supine), which would make it difficult for claimant to perform modified or light duty work.”
Based on that finding, the court remarked, “It is unclear how [d]efendant could read the above statements and argue in good faith that ‘it was reasonable for the defendant to rely on the FCE to conclude that claimant was not disabled.’” Although the defendant argued the reliability of the functional capacity test, the court disagreed, citing Lamanna v. Special Agents Mutual Benefits Association, 546 F.Supp.2d 261, 296 (W.D. Pa. 2008), which found:
“[T]ests of strength such as a function capacity evaluation (FCE) can neither prove nor disprove claims of disabling pain, nor do they necessarily present a true picture in cases involving fibromyalgia where the symptoms are known to wax and wane, thereby causing test results potentially to be unrealistic measures of a person’s ability to work on a regular, long-term basis.”
The court also cited other rulings that had come to the same conclusion: Brown v. Continental Casualty Co., 348 F.Supp.2d 358, 367–368 (E.D. Pa. 2004), and Dorsey v. Provident Life & Accident Insurance Co., 167 F.Supp.2d 846, 856 (E.D. Pa. 2001) (“an FCE is a highly questionable tool for determining whether a fibromyalgia patient is disabled.”). Thus, the court ruled for the plaintiff.
This decision establishes that objective musculoskeletal or neurologic deficits need not be present to prevail in a claim for disability benefits involving fibromyalgia. Once the diagnosis is confirmed, the consistency of symptom complaints over time is enough to sustain the claim.
The court’s discussion of the FCE results was particularly instructive since it is often the case that functional capacity evaluations can produce misleading results in fibromyalgia cases due to the nature of the disease.
While functional capacity evaluations may be useful to an extent in assessing neuromuscular conditions, such testing has limited utility in evaluating employability for claimants with fibromyalgia.
— I represented the plaintiff in the Kennedy v. Eli Lilly case cited above.
This article was initially published in the Chicago Daily Law Bulletin.