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Social Security Disability Blog

How Does The Social Security Administration Evaluate Disability Claims Based On Fibromyalgia?

Monday, August 26, 2013

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

Liver Disease, Alcoholism & Social Security Disability

Thursday, May 24, 2012

The most common forms of liver disease I see in my disability practice are liver cancer, hepatitis, cirrhosis, and alcoholic liver disease. All of these medical conditions can be severe enough to prevent a person from working. This post describes the most common types of liver disease and how they may be used as a basis for social security disability benefits.

Liver Cancer

Assuming they are not working, a person diagnosed with liver cancer should apply for social security disability benefits. The Social Security Administration (SSA) has promulgated regulations that provide for the expedited evaluation of claimants diagnosed with liver cancer. Liver cancer is one of over 100 medical conditions on this “compassionate allowance” list. Not only should the claim be handled quickly, but the claimant should be granted benefits so long as the diagnosis is clear in the medical records.

Hepatitis

A diagnosis of hepatitis means that the liver has become inflamed. The cause is usually a virus (hepatitis A, B, C) although it can be caused other ways, including alcohol consumption. Most of the claimants I have represented with hepatitis generally complain of intense fatigue and weakness. Some have also complained of loss of appetite, jaundice, and being prone to sickness.

If you recall, there are two primary ways to prove disability. (See 5 Step Disability Evaluation Process). One way is to prove that your condition meets the medical criteria as defined in the Listing of Impairments. The other way is to prove that your medical condition creates symptoms which prevent you from being able to work.

Most of the claimants with hepatitis in my practice have not been able to meet the Listing of Impairments for liver disease. Instead we usually prove that the claimant is unable to work because of a decrease in productivity. The argument is that overwhelming fatigue will lead to frequent absences from work and will also impair productivity while at work. If the productivity is decreased by 20% or more, then the worker would not be able to sustain gainful employment.

Some claimant’s may also be disabled due to the treatment for hepatitis. The treatment regimen usually involves being medicated with interferon and ribavirin for 12 months. The side affects of the medications (think chemotherapy type side effects) during those 12 months are usually much worse than the actual symptoms of the hepatitis. During those 12 months of treatment it is often easy to prove disability. The problem is that the impairment must last at least 12 months, so a successful course of treatment may end a claim for social security disability benefits.

Cirrhosis

Cirrhosis occurs when the liver tissues die and are replaced by fibrous tissues. Cirrhosis can be caused by many things including chronic hepatitis and alcohol use. The symptoms include fatigue, malaise, weakness, nausea, loss of appetite, jaundice and altered mental status (e.g., when the liver function is severely impaired, the person can appear to be intoxicated).

Claimants with cirrhosis can often meet the Listing of Impairments criteria. This can often result in decisions without the need for multiple appeals or hearings. To meet the listing criteria, a claimant must either be awaiting a liver transplant and/or be diagnosed as having “end stage liver disease.” Whether one has end stage liver disease involves the results of lab results measuring creatinine and bilirubin levels. The precise levels and the computations can be found in the Listing.

For claimants who don’t meet these listings, all is not lost. The symptoms associated with cirrhosis are usually more severe than those claimants with hepatitis alone. The symptoms will often be severe enough to decrease productivity enough to prevent all work.

Alcoholic Liver Disease

Over-consumption of alcohol can cause both hepatitis and cirrhosis. It can lead to all the conditions and symptoms described above. Can a claimant who suffers from both liver disease and alcoholism obtain social security disability benefits?

SSA rules provide that if substance use/abuse is material to the finding of disability, then the claimant is not entitled to disability benefits. This might lead you to the conclusion that those with alcohol induced liver failure cannot be granted disability benefits. This is not the case. If the reason for the disability is a poorly functioning liver (as a result of any cause) then the claimant is entitled to disability benefits. If the reason for the disability is alcoholism, the claimant is not entitled to disability.

Let me illustrate. If the person’s productivity has been reduced because they are frequently late and/or absent due to the abuse of alcohol, then they are not considered disabled. Frequent benders cannot be the basis of disability. In this case, alcoholism is “material to the finding of disability.” However, if the alcohol abuse has caused a condition, like cirrhosis, which by itself causes the decrease in productivity – the claimant is entitled to the disability benefits. In the latter case, the use of alcohol is not “material” to the disability.

By David Galinis

What Are Non-Exertional Limitations?

Friday, December 09, 2011

More often than not, it is my client’s non-exertional limitations that win their case. In prior posts I have described SSA’s analysis of disability cases using exertional limitations. (See What Are “Exertional Levels” and Why are They Important in a Social Security Disability Case?). Exertional limitations are limitations on the ability to sit, stand, walk, lift, push and pull. Any other limitations are called non-exertional limitations. The following table describes some common impairments and associated non-exertional limitations:

Impairment Non-Exertional Limitations
Crohn’s disease Frequent trips to the bathroom and the necessity of having a bathroom readily available
Carpal Tunnel Syndrome Difficulty grasping, handling or fingering (due to numbness)
Fibromyalgia Difficulty maintaining attention or concentration (due to pain or fatigue)
Peripheral Edema Necessity to elevate legs
Bipolar Disorder Difficulty performing activities within a schedule, maintaining regular attendance, and being punctual

The presence of non-exertional limitations is very important because it forces the SSA to change the way it evaluates disability. If the claimant only has exertional limitations, the SSA can use a portion of the law called the Medical Vocational Guidelines (“Grids”) to decide the case. Using the Grids, a 45 year old literate claimant that has exertional limitations restricting them to sedentary work would automatically be found not disabled. Add in a non-exertional impairment and the Grids, by themselves, cannot be used to decide the case. For example, let’s assume that, in addition to the exertional limitations, the claimant has the following non-exertional limitation: difficulty maintaining attention or concentration due to pain and/or the side affects of narcotic pain medication. While the SSA would use the Grids to begin its analysis, the SSA would need expert testimony from a vocational expert as to the affects of the non-exertional limitations on the ability to perform sedentary work. The Grids by themselves could not be used to make a decision.

Whether the non-exertional limitations are enough to win the day depends on a couple factors. First, do the claimant’s medical records document the level of pain and/or side affects from the medications? Do the treating doctors indicate that the pain and/or side affects affect the ability to concentrate? Second, is the claimant believable? Non-exertional limitations, like the effect of pain on the ability to concentrate, are inherently subjective. Thus, whether the judge finds the claimant’s testimony to be credible is of supreme importance.

By David Galinis

What Are “Exertional Levels” And Why Are They Important In A Social Security Disability Case?

Wednesday, November 23, 2011

The amount of exertion (or effort) required in a particular job is a key component in the Social Security Administration’s (SSA’s) analysis of every disabilityclaim. The SSA classifies each job by how much exertion is required. For example, work that requires very little effort or exertion is considered to be “sedentary.” While, at the other end of the spectrum, jobs which require extreme exertion are classified as “heavy.”

The following illustrates what I consider to be the most important differences between the different exertional levels:

  • Sedentary work involves no lifting of anything heavier than 10 pounds. It also is mainly performed sitting with up to 2 hours during the day of standing or walking around.
  • Light work requires a little more exertion. These jobs involve lifting of up to 20 pounds and the majority of the day is usually spent standing or walking.
  • Medium jobs can involve lifting up to 50 pounds. Workers in these jobs are usually on their feet almost all of the day and are also expected to be able to frequently bend or stoop.

There is really no point in discussing heavy work. If the claimant could perform heavy work it would be extremely difficult to prove disability.

The exertional levels are used in three different steps in the disability evaluation process: determining residual functional capacity, evaluating whether the claimant can perform their past work, and, if not, whether they can perform some other type of work.

Residual Functional Capacity

The very first step in determining whether someone is “disabled’ is to determine what level of exertion they can still perform, despite their disabilities. This is referred to as their residual functioning capacity (RFC). Can the claimant still perform sedentary work? Light work? Medium work?

Past Work

Once the RFC is determined, the next step is to determine whether this RFC would preclude them from performing their past relevant work. So let’s say SSA has determined that a claimant has a RFC to do sedentary work. SSA will then examine the jobs the claimant has had for the last 15 years. In this review, the SSA will classify those jobs by their exertional levels. (For example, if the claimant had performed construction work for the last 15 years the exertional level would be heavy.) If any of the past work was performed at the sedentary exertional level, the SSA will most likely deny the claim because the claimant can return to their past work. If the past relevant work was all more than sedentary, the evaluation of the claim continues.

Other Work

So once the SSA has established that the claimant cannot perform their past work, the question then becomes would the claimant be able to work at another job given their sedentary RFC. This analysis focuses on the claimant’s age, education and work experience, with age being by far the most important factor. (See Age: A Crucial Factor in Your Social Security Disability Case). For a claimant with the RFC for sedentary work, the determinative factor is usually age:

  • If the claimant is over 50, then it will be presumed that he or she will not be able to transition to this new exertional level unless the claimant has special skills through work experiences or education that would allow for employment at that level.
  • If the claimant is under 50, it will be presumed that regardless of education or work experience, the claimant is young enough to learn the skills necessary for sedentary work.

The analysis is similar if the claimant’s RFC is determined to be either light or medium. Disability in both of those situations, though, becomes more difficult to prove.

One final note regarding exertional levels. The analysis above only applies to the claimant’s exertional (effort-based) limitations. These are limitations in the ability to lift, sit, stand, and make various postural movements. In most cases there are also non-exertional limitations - such as the affect of pain on the ability to concentrate while at work. For more on these non-exertional limitations see What Are Non-Exertional Limitations?

By David Galinis

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