Social Security disability cases based on fibromyalgia alone are generally difficult to win, and are always easier to win if other impairments are involved. Regardless of whether you are applying for disability based solely on fibromyalgia or alleges several impairments, in a case involving fibromyalgia, you must have the diagnosis in your records. It is always better that this diagnosis is made by a Rheumatologist. If your primary care physician or mental health provider diagnoses you with fibromyalgia, try to get referred to a Rheumatologist for confirmation of the diagnosis, as the specialists’ opinion will carry more weight.

Social Security doesn’t have a disability listing for the condition known as fibromyalgia (Social Security’s disability listings provide the approval criteria for a number of different impairments, ranging from amputations to seizure disorder), but the Social Security Administration (SSA) recently published a ruling giving guidance to disability claims examiners and administrative law judges (ALJs) on how to assess fibromyalgia cases. Even with this new guidance for evaluating Fibromyalgia, many claimants will continue to be denied benefits. If you are denied benefits, you shouldn’t give up, but should pursue your disability claim through the appeals process.

Why is proving disability due to Fibromyalgia so difficult? Social Security evaluates your claim using a 5 step sequential evaluation. In the first step, you must show you have a medically determinable impairment that has prevented or will prevent you from working for at least 12 months. A medically determinable impairment cannot be established on the basis of symptoms alone. Traditionally, a claim for fibromyalgia alone was given little weight due to the subjective nature of the condition, meaning there were no definitive diagnostic tests to confirm the diagnosis, and thus denials were based upon an individual not proving they had a medically determinable impairment. This is why it is important to have a specialist diagnose your condition.

To address this issue, Social Security issued Ruling SSR 12-2p, effective in July 2012, explains when fibromyalgia should be found as a medically determinable impairment (MDI). The ruling directs claims examiners and judges to rely on criteria issued by the American College of Rheumatology (ACR), to determine whether an individual has fibromyalgia, and thus, have a medically determinable impairment. There are two alternatives in ACR criteria that can be used in determining whether you have fibromyalgia; either one will suffice.

The ACR requires the following for a diagnosis of fibromyalgia:

• Evidence of chronic widespread pain, including pain in the back, neck, or chest
• Evidence that shows your doctor ruled out other diseases that could cause the same symptoms (the symptoms of fibromyalgia often overlap with those of lupus, hypothyroidism, and multiple sclerosis), such as lab tests and examination notes, and

One of the following:

• Tender point sites in at least 11 of 18 tender point areas of the body, with tender points occurring on both sides of the body and both above and below the waist. A list of the tender points can be viewed in the SSA’s recent ruling on fibromyalgia. In testing tender points, your doctor should apply the approximate amount of pressure needed to blanch his or her own thumbnail. Or,
• Repeated manifestations of six or more fibromyalgia symptoms, signs, or conditions that often occur with FM, particularly fatigue, non-restorative sleep, cognitive or memory problems (“fibro fog”), depression, anxiety, or irritable bowel syndrome (IBS). Other possible symptoms include headache, muscle weakness, abdominal pain, Raynaud’s Phenomenon, seizures, and dizziness.

How does SSA consider subjective complaints to be taken as “medical signs” in the case of fibromyalgia? When a symptom is an abnormality that can be documented by clinical diagnostic techniques that have been accepted by the medical profession, such as found in the definition established by the ACR, the SSA allows this as sufficient evidence. It will be important for your doctor to provide how your impairment affects your ability to function, the treatments that you have received and the effect on your symptoms.

Once you have established you have a medically determinable impairment, your claim will the proceed to be evaluated through the remaining steps of the sequential evaluation.

Whether you are suffering from fibromyalgia or other illnesses or injuries that prevent you from working, you should contact an attorney familiar with Social Security claims to discuss your particular circumstances.

Kimberly Slimbaugh
Partner

Email: kslimbaugh@mcvlaw.com

Phone: 315-471-1664

Kimberly Slimbaugh has been practicing law since 1992 and is a current partner at Meggesto, Crossett & Valerino, LLP.  In addition to the New York State Bar, she was admitted to the Massachusetts State Bar in 1992.  She is a member of the National Association of Social Security Representatives and regularly attends its national conferences.

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.