Over the past several months I have represented fibromyalgia clients at disability hearings in Chicago, Seattle and Midland, Texas. Although the three clients lived far apart geographically, their cases had several things in common.
First, all three were found disabled by the administrative law judge. Second, in my opinion, all three had solid medical documentation of their fibromyalgia (chronic pain) and resulting symptoms. Third, all three had medical histories, which included treating physicians prescribing strong narcotic medications to control their chronic pain (they were also taking anti-depressants). Fourth, all three had histories of suffering from psychological disorders that resulted from their longstanding chronic pain.
So why am I telling you about them? Would you believe all three were approved based on their psychological disorder and not due to chronic pain? I found the basis of the judge’s decision to be surprising and disturbing. Why? Because a review of their medical records clearly showed their chronic pain was the primary reason they were unable to work.
In terms of how to win your disability case, several lessons must be learned from these cases. Before we discuss the lessons to be learned, it is important to understand that I believe fibromyalgia is a physically (and not psychological) based disorder and its resulting symptoms are very real and disabling. I base this opinion not only on medical research but also on my experiences with representing wonderful people throughout the United States. When I represent a client, their disability claim is based primarily on fibromyalgia unless the records clearly suggest otherwise.
Don’t ever apologize to anyone for your fibromyalgia or feel that you simply can’t win your case if that is your diagnosis. Every week, throughout the country my clients win their SSA disability cases with a diagnosis of fibromyalgia. Thus, it is clear SSA recognizes fibromyalgia as a legitimate disabling diagnosis, is the way it oftentimes evaluates these cases that concerns me.
With that said, when you file a claim for disability based on fibromyalgia, it is critical you understand how SSA is likely to approach your case.
Lesson #1: If your case is based on fibromyalgia, Social Security (SSA) may approach it as if you have primarily a psychological disorder
Although this sounds ridiculous to those whose understand fibromyalgia, I have seen this happen hundreds of times over the last several years. This is by no means a formal policy statement from SSA, it is merely my own observation. In SSA’s defense, it is important to understand that it has an obligation under federal law to evaluate whether a psychological disorder may be a reason (or the only reason) why you are unable to work.
The problem with SSA it often begins its evaluation of a fibromyalgia case from a psychological standpoint. Again, in SSA’s defense, in some cases it is apparent that a psychological disorder is the primary reason my client cannot work. Thus, SSA will usually take the easiest route to approving a case and does so using the psychological disorder rather than fibromyalgia.
When it uses this approach, SSA may be following what many in the medical community believes about fibromyalgia. Many doctors I have talked with have told me that when any patient has a chronic illness, depression or anxiety often follows. Over time, it becomes impossible to separate mind and body.
Indeed, the medical community in its lack of understanding about fibromyalgia further complicates the issue when a psychological diagnosis is made instead of or in tandem with a diagnosis of fibromyalgia, as if they are one in the same. The result is the fibromyalgia diagnosis seems to be thrown in for “good measure” rather than as the result of an examination or in accordance with the American College of Rheumatology criteria.
Most people with fibromyalgia politely remind everyone, including their doctors, that the “pain is in my body and not in my head, thank you very much!” And current medical research appears to indicate this is true. Unfortunately, the message that fibromyalgia is not getting out.
If SSA approaches fibromyalgia cases from a psychological standpoint, the reason may have to do “comfort level.” That is to say I believe SSA is more comfortable evaluating psychological diagnoses and their resulting work limitations.
Regardless, of how SSA approaches your case, you would be wise to assume it will evaluate whether a psychological disorder may be preventing you from work.
Lesson #2 Increase your odds of winning 1developing whether a psychological disorder is preventing you from working
Now that you know how SSA may evaluate your case, you can beat it to the punch!
First, it may surprise you to learn that a diagnosis of depression or anxiety has already made its way into your medical records. Second, you may currently be taking or have taken an anti-depressant or anti-anxiety medication in the past. If this is true, you should
inform SSA or a judge that you believe you are unable to work due to fibromyalgia and secondarily, a psychological disorder.
I believe it is critical for you to confront a potential psychological diagnosis in your case. Why? First, if you don’t, SSA or a judge most likely will do it for you with results you don’t like. Second, if you do have a psychological disorder with resulting work limitations, this will only help your case since SSA has to consider all work limitations. The more work limitations you have, both physical and psychological, the more likely you are to be found disabled. Third, if a psychological disorder has been ruled out by a psychiatrist or psychologist, your complaints of chronic pain, fatigue and cognitive problems will then based solely on your fibromyalgia and will be entirely credible. After a thorough psychological evaluation, SSA or a judge will not credibly be able to assert that your problems are all in your head.
The worst position for you to be in is one where SSA or a judge ignores your fibromyalgia and believes instead that you have a psychological disorder. A judge then decides that since you have never treated with a psychological professional, your depression or anxiety are not disabling. Because your physical or psychological problems are not severe, you claim is denied. When this scenario occurs, you won’t be in a position to defend your fibromyalgia claim because you have never had a psychological evaluation.
Lesson #3 Win your case anyway you can!
Although it angers me that some fibromyalgia cases are approved based on a psychological disorder, I am also a pragmatist. So are most of my clients. At the end of a long battle with SSA, you really want to win your case anyway you can. Having your claim denied and being broke does not help your family. If your claim is approved for what you believe to be the wrong diagnosis, address the issue when SSA reviews your claim several years down the line. For now, put the money in the bank and be thankful your battle is over.
Best of luck in your pursuit of disability benefits and remember never to quit!
Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged only if his client obtains benefits.
Mr. Davis invites your questions and inquiries regarding representation via telephone (602) 482-4300, or email: firstname.lastname@example.org.