Establishing social security disability (SSD) based on fibromyalgia syndrome (FMS) is both challenging and satisfying. It is challenging because the Social Security Administration has yet to propose any criteria under which FMS can be measured. It is rewarding because each time I establish social security disability for an individual with FMS, I feel that I have made a difference by surmounting tremendous obstacles. Sometimes it seems that it is nothing short of a miracle. In reality it is nothing short of hard work, extensive gathering of medical records, preparing reports and persuasive legal arguments.

It is important to understand that social security is the most difficult disability system yet devised in this country. Individuals who are on SSD have been thoroughly vetted. They have been held to the highest standards created for measuring disability. SSD is, "the inability to perform any substantial gainful activity because of a medically determinable condition." That means that an individual who seeks social security cannot be working. Disability benefits will not be paid merely on an individual's request: There is no self certification. There must be corroborative, significant medical evidence available to support the contention that an individual cannot work. For the purposes of the social security system, the inquiry is not merely whether an individual can perform their last work-but whether or not they can perform any other work. This is frequently a difficult concept for my clients to grasp. SSD is not paid because of a general feeling that "no one will hire me."

The Administration (Department of Health and Human Services) meets its burden and legally denies disability by establishing that there are other jobs which the individual can perform. The government need not act as an employment agency but only to allege that the individual has the residual functional capacity to meet the demands of that employment. Residual functional capacity is the ability to sit, stand, lift, carry and walk. It also includes the non-exertional capacity of reasoning, comprehending instructions, and acting appropriately with co-workers and supervisors. An individual with full blown FMS will have significant limitations in both exertional and non-exertional categories. However, whether or not there is a medically determinable impairment depends on who asks and who replies.

One obstacle surrounding FMS is that it isn't recognized by social security as an impairment. Another problem appears to be that FMS is at the edges of turf war between medical specialists-not altogether dissimilar from the range wars of the American frontier. FMS has been claimed by rheumatologists who are willing to perform the necessary tests, provide treatment, analysis and narrative reporting. However, it has been my experience that many doctors (aka, "FMS Foes") have been slow to recognize FMS as a discreet impairment or any impairment at all. My limited experience suggests that these skeptics are more comfortable with a diagnosis that can rest on positive x-ray findings, or positive blood tests. Reading of the numerous medical charts in preparation for hearings suggests to me that some physicians have yet to embrace the diagnosis of FMS and would rather ascribe the numerous body wide complaints as hysteria, change of life, or some other psychogenic disorder.

The classic descriptions of FMS can be recorded and presented by any caregiver who is familiar with the diagnostic criteria and willing to make the diagnosis. Ultimately, to be successful in establishing disability based on FMS, it is imperative that the diagnosis be without reservation and that the manifestations of the syndrome be significant, chronic and overwhelming.

It is the challenge and difficulty of developing a non-standard disability like FMS that is particularly rewarding. The Preston case is the strongest precedent I have found (.Preston vs. Secretary 854 F 2d 815 [6th CIR 1988]). The Court wrote, "standard clinical tests to detect neurological and orthopaedic disease of little use except to exclude other diseases. Fibrositis (FMS) causes severe musculoskeletal pain which is accompanied by stiffness and fatigue due to sleep disturbances. In stark contrast to the unremitting pain of which fibrositis patients complain, physical examinations will usually yield normal results - full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions...there are no objective tests which conclusively confirm the disease; rather it is a process of diagnosis by exclusion and tests for certain focal tender points...the disease commonly strikes between ages 35 and 60 and affects women 9 times more than men." (For case reprint information, see page 11 .)

Clients frequently ask whether or not to present their claim for social security disability as a mosaic of FMS and every other medical condition which they have: Carpal tunnel, hemorrhoids, mild depression or bunions. It is, in my opinion, better to approach FMS head on. To argue a mosaic is to concede weakness in the diagnosis of FMS. It is to invite the Administrative Law Judge to look elsewhere. It is to invite disaster. The Administrative Law Judge need not pay a claim if he doubts the credibility of a witness, if the medical evidence is weak, if there is a conflict within the medical record or if there is other evidence which suggests a basis for not granting disability. Experience suggests that the more narrow the focus, the better the prospects are for prevailing. Be prepared to speak to the ratio of good days to bad days. That provides insight into the debilitating nature of the syndrome. A clear description of pain is important in understanding why a claimant can't do his/her past work or any other work. It is unwise to exaggerate. If the pain level fluctuates, tell the truth. Never, never testify "sometimes." That word is not part of the disability lexicon. "Sometimes" means that most other times it is not so. Try to see yourself from the outside--how do you spend your day? Be aware of exertional and non-exertional factors. Ask yourself, "How can I explain to a stranger the relationship of sitting to standing to laying down?" Never confront a judge or attorney with "it's in the medical record; you find it!"

If there is anything to be gained it should be the confidence that it is possible to establish disability for FMS patients. In addition, the most effective way of establishing disability is based upon clear and consistent medical reporting by a practitioner who is knowledgeable and sympathetic, and by truthful testimony. By focusing on FMS symptoms and not dissipating your energy at the time of hearing upon a mosaic of other problems, qualifications for SSD may be established.

FILING FOR SOCIAL SECURITY DISABILITY
by Joshua Potter, Esq. Attorney
Pasadena, California
July 1994, Fibromyalgia Network, Pages 8 & 9

EMPLOYMENT ADVICE Adjustments: Seek good health care management. Avoid drawing attention to your health problems  (leave "sharing" for group meetings). Walk/move 2-5 minutes each hour to keep muscles from "gelling". Learn quick relaxation/pain relieving techniques. Take it easy during breaks and lunch hour. Use vacation days to rest. Try to accept your new limitations. Concessions: Switch to flex or part-time (less pay/benefits). Request changes to work environment; you may first want to check the ADA   Law by calling the EEO office at (800) 669-3362. Go to work even when you don't feel up to it. Problems: Working leaves little time for family/social life. Employer and co-worker harassment forces some patients to work "under cover" with their FHS/CFS. Some say, "The hardest part about working is the invisible suffering."

TIPS ON FILING FOR SSD Common Stumbling Blocks: FMS/CFS diagnosis does not imply "disabled". Routine tests usually fail to demonstrate loss of function. Judge may try to re-adjust date of disability. Advice From Patients: If initially turned down, get a lawyer and appeal. Explain all reasons why you cannot do your job or any other job. Explain "roller coaster" effects (good days and bad days). Define physical limitations   (standing, sitting, walking, arm movement, endurance, etc.). Describe impact on mental status and family/social life. Be prepared to describe a "typical day". Demonstrate that you have tried everything--treatments, job changes,   attended support group/counseling sessions. Statements by physician(s), employer, friends. Communicate the best you can, don't hold back and believe in yourself.

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