Early in my career, I used to warn potential clients that fibromyalgia was a “diagnosis of exclusion.”Many physicians seemed to be making the diagnosis of fibromyalgia, when everything else was ruled out.There did not seem to be actual objective evidence of fibromyalgia, just an inability to diagnose anything else.Proving disability in these cases was bound to be difficult due to the lack of objective medical evidence. The Social Security Administration also picked up on the lack of standards in making the diagnosis of fibromyalgia and seemingly never granted disability on that diagnosis alone.
In July 2012, the Social Security Administration issued a new ruling with regards to the evaluation of fibromyalgia.(See SSR 12-2p).This ruling recognizes that the diagnosis of fibromyalgia is no longer just a diagnosis of exclusion, is medically accepted, and has objective measures.The ruling’s primary purpose is to provide guidance as to determining whether fibromyalgia is a medically determinable impairment (MDI). If you look at my prior posts, you will see that I have not spent any time on whether a medical condition is a MDI.That is because in most instances, it is a non-issue.The question of whether the claimant has a MDI is actually a prerequisite to the five step sequential evaluation process.(See 5 Step Disability Evaluation Process).The fact that this ruling focuses on whether fibromyalgia is a MDI shows you just how difficult it still is to claim disability based on fibromyalgia alone.
Is the claimant’s allegation of fibromyalgia a medically determinable impairment (MDI)?
A licensed physician (medical or osteopathic) must make the diagnosis of fibromyalgia.Thus, it cannot be made by a nurse practitioner, physician’s assistant or chiropractor.Moreover, the treatment notes must support the diagnosis of fibromyalgia.The notes must contain evidence of generalized widespread pain for a minimum of three months.The treatment notes must also reflect that other causes have been ruled out (e.g., blood tests to rule out lupus, rheumatoid arthritis, etc.).Assuming that the treatment notes contain everything mentioned above, they also must contain evidence of either:
- eleven positive tender points,or
- repeated manifestations of at least six of these symptoms:fatigue, cognitive problems, memory problems (i.e. fibro fog), waking unrefreshed, depression, anxiety, irritable bowel syndrome.
How does fibromyalgia factor into the 5 step disability evaluation process?
So once fibromyalgia has been accepted as a MDI, the disability claim can be evaluated.(See 5 Step Disability Evaluation Process).In step two, the SSA will determine whether the fibromyalgia is a “severe” medical impairment. So long as the fibromyalgia causes more than a minimal impact on a claimant’s ability to do basic work activities, it will be considered to be “severe.”Most claimants do not have difficulty at this step.
The third step is to determine if the medical impairment meets or equals one of the Listings of Impairment. Fibromyalgia is not a listed impairment.A claimant alleging fibromyalgia alone cannot win at step three of the analysis.
In order to determine if a claimant can perform their past work or any other work (steps four and five), the SSA will determine the claimant’s residual functional capacity (i.e., what the claimant can still do, despite their medical impairment). This is where the SSA will use the medical evidence and testimony from the claimant to determine to what extent the fibromyalgia affects the claimant’s ability to work.
How do you prove inability to work in fibromyalgia claims?
In my experience, the reason why my clients with fibromyalgia cannot work is because of the “non-exertional limitations.”(See What Are Non-Exertional Limitations?).We don’t win because of the claimant’s reduced ability to lift heavy things.We win these claims based on the loss of productivity associated with fatigue, the affects of pain on the ability to work at a consistent and reliable pace, and cognitive problems (i.e., fibro fog).
The proper medical evidence is crucial in proving the severity of these non-exertional limitations. First, the medical records from the weekly or monthly doctor’s visits must consistently describe such symptoms.Second, the medical records containing this information must document that these problems have been present over a sufficiently long period of time — a minimum of three months, best case scenario at least twelve months.Finally, the treating physician who made the MDI-sufficient diagnoses of fibromyalgia needs to be willing to provide their written opinions as to these non-exertional limitations and how they affect the claimant’s ability to work.
By David Galinis