Tips for Winning a Fibromyalgia Disability Case

by Jonathan Ginsberg, Attorney - Atlanta, Georgia

In a disability case, you need to prove one thing - that you are not able to work. If you remember nothing else about Social Security disability, remember that your capacity for performing work is the only thing that matters to a Social Security judge.

Your ability to perform an easy job - the main issue

Your underlying medical condition - fibromyalgia or any other medical problem, is only important to the Social Security Judge if your symptoms limit you from performing a job 8 hours a day, five days a week. Thus, for example, I have won cases in the Atlanta hearing offices in which my client’s medical problem was a moderate, functional heart defect, but in this client’s case, her anxiety about her condition was so severe that she could not concentrate at work. Similarly, I have seen judges deny cases in which a claimant had three herniated discs, but was able to function in a minimally demanding job because of an unusually high pain threshold.

In most cases, the judge’s decision really boils down to his/her decision about whether you could hold down a simple, sit down type of job that requires no training, that allows you to sit, stand and adjust your position and is not production oriented.

In fact, in most hearings, the Judge will call a “vocational expert” to testify about work you have done in the past and about simple, minimally demanding jobs that exist in the national economy.

Comprehensive Medical Records - a key to winning

Your lawyer's job is to identify medical records that identify specific work limitations.  Experienced lawyers review the medical records, then create a functional capacity checklist that includes the limitations associated with your particular case and the impairment categories used in Social Security cases.  After your doctor completes and signs this checklist, you now have an excellent piece of evidence that serves to "translate" your fibromyalgia diagnosis into very specific work limitations.  If the form is completed correctly, the work limitations will be so limiting that the judge and the vocational witness will conclude that there are no jobs you can do.

What is the Judge thinking?

There is a perception that Social Security disability cases based on fibromyalgia are difficult to win. It is true that some judges have a problem acknowledging a medical syndrome (not a “disease”) that cannot be detected by a blood test and that can have a wide range of symptoms. Click here for the clinical definition of fibromyalgia as set forth by the American College of Rheumatology.  In 2006, most Social Security judges recognize that fibromyalgia is a real condition and that in some cases it can be so disabling that affected claimants cannot perform any type of work at all.  Every once in a while, you will find a judge who does not believe that fibromyalgia exists.  But even these non-believers will still approve your case if you can show that your symptoms are chronic and severe.

Attorney Jonathan Ginsberg of Atlanta, Georgia has won fully favorable hearing decisions for many fibromyalgia Social Security claimants.  Jonathan reports that within the last few years, he represented a fibromyalgia client before a Judge who called a psychiatrist as an expert witness. The Judge granted benefits on the ground that Jonathan's client’s “fibro fog” was equivalent to a chronic state of anxiety - a psychiatric condition. 

Jonathan states that just two weeks later, he argued a different fibromyalgia case before another Judge in the same hearing office - this Judge awarded benefits (correctly in Jonathan's opinion) on the basis of a combined impairment - recognizing the combined effect of fibromyalgia’s impact on the claimant’s physical and mental condition. 

Within just a few months of these two decisions, a third Judge in this same hearing office granted another case on the basis that Jonathan's client’s condition was equivalent to an orthopedic condition - severe arthritis.

Jonathan states that obviously, he is most interested in winning cases for his clients regardless of the rationale for the favorable hearing decisions.  He also believes that judges in bigger cities like Atlanta are probably more likely to see fibromyalgia patients supported by knowledgeable physicians and long treatment histories.

Fortunately, even if judges don’t understand the condition, many will honor the opinion of your treating physician, especially if you have a long and continuous treatment record (the legal term for a thorough medical history is a “longitudinal treatment record”).

Focus on all of your symptoms

Experienced lawyers suggest that you focus on fibromyalgia symptoms other than just generalized body pain. Remember, judges see claimants every day complaining of “pain all over.” These cases are not fibromyalgia, but pains caused by arthritis, obesity, poor nutrition, mild diabetes, etc. Judges are people, and they tend to discount complaints they here again and again. As you may know, fibromyalgia often produces other identifiable symptoms, including loss of balance, digestive problems, irritable bowel syndrome, slurred speech, vision problems, depression, swelling, memory loss, cognitive loss, fatigue, sleeplessness, etc.

Many fibromyalgia patients get used to living with these symptoms and fail to mention all of them to their doctors or to the judge. One technique you can use involves using a calendar to keep diary notes about how you feel and what symptoms you experience each day. Make lists. Ask for your spouse’s or children’s observations. Judges may not want to grant your case based on overall body pain, but may feel more comfortable focusing on your digestive or balance problems. Make the judge’s (and your lawyer’s) job easy!

You might find it helpful to read a Judge’s decision in a fibromyalgia case. Attorney Jonathan Ginsberg provided us with the favorable hearing decisions involving a 38 year old woman with an extensive job background who suffers from fibromyalgia as well as numerous gastrointestinal and other complications. Note that the Judge focuses on the claimant's work history and that she is very credible because she has been seeking a medical solution to her problem. This file is in Adobe pdf format. Click to read this favorable fibromyalgia decision from the Atlanta, Georgia Office of Hearings & Appeals.

Deciding on a start-date for your disability

Many deserving fibromyalgia clients were ambitious and hardworking in their careers and jobs. Subconsciously or otherwise, many Judges realize that few claimants would trade the money and job satisfaction of a challenging career for the fixed income offered by Social Security disability. You may therefore wish to include in your testimony statements about what you did before you stopped work, how you tried to hang on, even while fighting increasing levels of pain and fatigue, and how you would greatly prefer their former way of life.

You may also be able to “push back” the starting date for your benefit payments if your last few weeks or months of work were not in the nature of “competitive employment.” For example, if your boss allowed extra absences or changed your job description, the judge may find that you did not engage in competitive work activity. Similarly, if you previously applied for benefits, received a denial, then tried unsuccessfully to return to work, you may be eligible for months or years of past due benefits. Issue related to amending your onset date are beyond the scope of this article, but should be evaluated.

About Jonathan Ginsberg - Jonathan is a practicing Social Security attorney in Atlanta, Georgia, and he is the publisher of two "how to" Social Security help books - the Disability Answer Guide (how to fill out adult Social Security disability forms) and the Child SSI Guide (how to fill out child Social Security disability forms).  His comments and opinions about "Tips for Winning a Fibromyalgia Case" should not be considered legal advice as every Social Security disability case is different and depends on your individual case information. 

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