1. SSA finally acknowledges FM to be a medically determinable impairment that can be the basis of disability;
2. Guidelines are established for treating physicians to follow to document the diagnosis;
3. The Ruling does not materially change the system already in place to determine the severity of the symptoms from FM when determining total disability. It does remind decision-makers of the value of non-medical observations.
4. The clinical charts of the treating medical specialists are still the primary source of evidence.
Disability Law Refresher:
The overview of the Social Security Disability process contained in our website article Social Security Disability and Fibromyalgia still provides a good summary of the law, process and development of proof and will not be repeated here.
In summary, the issue in SSDI/SSI claims is rarely the diagnosis — the focus instead is on whether the Claimant can “prove” that his/her symptoms are so severe that it is impossible for them to sustain any full-time work activity. The issue, in most cases, is not whether you can perform your prior work, or whether you can get a job, or whether you would be hired for a job. SSA is deciding whether you have proven that you cannot function at basic work tasks on a full-time basis.
“Proof” in these cases is generally not the statements of the Claimant who seeks the benefits. SSA looks for medical signs and symptoms indicating the severity of impact of the disease on the ability to function. Because there are virtually no objective signs or proof of pain and fatigue, FM cases can be more difficult to prove.
SSR 12-2p — Proving The Diagnosis
The Ruling provides two means of proving the diagnosis of Fibromyalgia. Both are dependent upon the content of your treating physician’s medical charts. Both focus on tests established by the American College of Rheumatology (ACR). The alternatives for proving diagnosis are:
- A. Proof of 1990 ACR Criteria, including all three of the following:
- 1. History of widespread pain in all four quadrants of the body (both left and right, above and below the waist) along with a history of spinal pain, which has persisted for at least 3 months at varying levels of intensity: and,
- 2. At least 11 positive tender points found bilaterally, and above and below the waist. The physician must document the positive tender point findings and indicate use of approximately 9 pounds of force;
- 3. Medical exclusion of other disorders that could cause these symptoms.
- B. Proof of 2010 ACR Preliminary Diagnostic Criteria, including all three of the following:
- 1. History of widespread pain as noted above;
- 2. Repeated evidence of 6 or more FM symptoms, or co-occurring conditions. Some examples include:
- a. Fatigue
- b. Cognitive or memory problems (the Ruling uses the phrase “fibro fog”)
- c. Unrefreshing sleep
- d. Depression
- e. Anxiety
- f. Irritable Bowel Syndrome
- g. Muscle weakness
- h. Headaches
- i. Cognitive problems
- j. Reynaud’s phenomenon
- k. Bladder issues
- 3. Medical exclusion of other disorders that could cause these symptoms.
These criteria are not new or surprising. In hearings most ALJs are aware of the variety of symptoms related to FM. The Ruling, though, may cause ALJs to require more careful documentation from the treating physicians. This means more careful and thorough communication between patients and doctors. Our article on this issue on our website is particularly useful: Doctors/Patient Relationships and the Struggle With Disability.
Some diagnostic issues do arise from this Ruling. In reality no doctor documents “9 pounds of force” in tender point testing. How critical will ALJs treat that requirement? How many tests will be enough? How often do these symptoms have to be noted to satisfy SSA? Also, what if other co-morbid conditions do exist — will that mean SSA will not consider FM problems in their decision? The answer to these issues will probably vary from Judge to Judge and be fact specific to each case. Our recommendation to our clients will remain the mantra of : “Every symptom; Every doctor; Every visit.”
SSR 12-2p — Proof Of Symptoms And Disability
This Ruling reinforces the idea of a “longitudinal” review of the records. Generally the more consistent the treatment, and the more consistent the descriptions of the symptoms, the more credibility will be given to the medical charts. Generally SSA will look at records for the 12 months prior to the date of application, although that can vary with the facts of the application.
Adjudicators and ALJs will have to consider medical charts first, but then also other sources including counselors, neighbors, clergy, past employers, relatives and friends. This reinforces our general advice that the Daily Living Questionnaires sent out at the beginning of a claim can be critical and we prefer that experienced representatives review those answers before they are given to the adjudicators.
In reality, however, those statements are generally not used to support a claim unless the decision-maker is already leaning toward approving the application. However, those statements can be damaging if they indicate more functional capabilities than truly exist.
The Ruling does acknowledge repeatedly that FM symptoms and signs may vary in severity over time. This is a helpful observation. Adjudicators and ALJs are reminded to review “all relevant evidence in the case record.” The point is made, however, that SSA can rely upon a one-time consultative examination if a FM applicant has no other probative records. Those one-time consultative examinations rarely reveal much to support FM claims.
The Ruling does note that symptoms such as pain and fatigue may preclude the ability to do even unskilled work. However, the challenge remains that there are no medical tests that can prove the existence of pain or fatigue, and, more important, no test that measures the severity of these symptoms. These symptoms must be clearly and consistently noted in the treatment records to be considered credible by an ALJ.
Therefore, it cannot be restated often enough: the critical evidence in any disability application are the treating records of the treating specialist. We expect SSA will still give greater weight to treating rheumatologists and pain specialists in FM cases. The decision-makers will read every note from every treating source. Make sure you are communicating your symptoms at every visit. Do not assume that because the doctor “knows” about your symptoms that they are being documented. If your limitations and problems are not in the medical charts it will still be difficult to persuade SSA of their severity. While SSA will have to consider other evidence, they will still primarily focus on the medical documentation.
SSR 12-2p eliminates any last vestige of doubt about the existence of Fibromyalgia as a severe medical problem which can cause a patient to be totally disabled under the Social Security Act. We can expect some debate over how the diagnostic criteria get applied by adjudicators and ALJs. The Ruling does not change the burden upon the Claimant to still prove the severity of the symptoms and how those symptoms make sustained work impossible. However, simply the acknowledgement of the disease and its potential impact on the lives of people suffering from this condition is an important event for FM patients.
Jeffrey Rabin has been an attorney since 1980 and has been representing Social Security Disability clients since 1981. He is the principal of Jeffrey A. Rabin & Associates, Ltd., a Chicago based firm focused on representation of Social Security Disability Claimants. If you have any questions regarding this article, or Ruling 12-2p, or want further information, do not hesitate to visit our website: www.RabinSSlaw.com or to call Jeff Rabin or his staff at 847-299-0008, toll free 888-529-0600. Jeff’s email is jeff@RabinSSlaw.com.