Fibromyalgia and Social Security Disability

The condition of fibromyalgia has received increasing attention in recent Social Security disability court decisions. The cases generally require the ALJ to evaluate carefully the effect of medically-documented fibromyalgia on a claimant’s ability to work. The following summary of cases includes only those cases where the issue of fibromyalgia was central to the court’s decision. Cases where the ALJ properly evaluated the claimant’s fibromyalgia condition or properly obtained vocational expert testimony as to the claimant’s residual functional capacity are not included in the summary. Detailed excerpts from several of the referenced cases are provided for the reader’s convenience and to facilitate understanding of the disabling nature of this disease.

Rulings

Social Security Ruling 99-2p

SSR 99-2p, pertaining to Chronic Fatigue Syndrome (“CFS”), recognizes the “considerable overlap” between the symptoms present in CFS and fibromyalgia. It explains that individuals with CFS who have tender points have a medically determinable impairment, and that claimants with impairments that fulfill the American College of Rheumatology criteria for Fibromyalgia (which includes a minimum number of tender points) may also fulfill the criteria for CFS. However, SSR 99-2p explains, even in cases where the claimant does not have the tender points sufficient to establish fibromyalgia, they will still be found to have a medically determinable impairment. Thus, in SSR 99-2p, SSA has clarified that fibromyalgia which is documented by tender points, as exists here, indeed, is a medically determinable impairment as defined in the regulations.

Social Security Ruling 96-3p

SSR 96-3p provides that symptoms, such as pain, fatigue, shortness of breath, weakness or nervousness, will not be found to affect an individual’s ability to do basic work activities unless the individual first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment and that the impairment could reasonably be expected to produce the alleged symptoms.

Social Security Ruling 96-7p

In evaluating pain, the ALJ must evaluate whether an underlying medically determinable physical or mental impairment could reasonably be expected to produce the individual’s pain or other symptoms. If there is no medically determinable physical or mental impairment, or if there is a medically determinable physical or mental impairment but the impairment could not reasonably be expected to produce the individual’s pain or other symptoms, the symptoms cannot be found to affect the individual’s ability to do basic work activities.

Case Law

First Circuit

The district court held that because the ALJ did not consider the potentially debilitating effects of fibromyalgia, he did not have before him all of the necessary evidence to fully and fairly evaluate whether the claimant was disabled. Weiler v. Shalala, 922 F. Supp. 689, 698 (D. Mass. 1996). Fibromyalgia has been recognized by the courts as being potentially disabling. Id.at n. 11.

In Lacroix, the claimant argued that the ALJ failed to properly credit her primary treating physician’s diagnosis of fibromyalgia because the ALJ focused on objective medical tests, which was inappropriate, because there are no objective medical tests for fibromyalgia. Lacroix v. Barnhart, 352 F. Supp.2d 100, 113 (D. Mass. 2005). The court declined to “go into detail regarding this argument,” accepting the Commissioner’s argument that the ALJ acknowledged that the claimant had fibromyalgia which was a “severe” impairment and considered this impairment to be the primary cause of the functional limitations that confined her to sedentary work. Id.

Second Circuit

In Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003), an ALJ rejected a treating physician’s opinion and found that a claimant who had fibromyalgia could perform sedentary work. Id. at 106. The Second Circuit held that the ALJ should have given controlling weight to the treating physician’s opinion about the claimant’s functional limitations. Id. “The fact that Dr. Helfand also relied on Green-Younger’s subjective complaints hardly undermines his opinion as to her functional limitations, as ‘[a] patient’s report of complaints, or history, is an essential diagnostic tool.'” Id. at 107, quoting Flanery v. Chater, 112 F.3d 346, 350 (8^th Cir. 1997). Further, the Second Circuit held that fibromyalgia must be evaluated taking into account the precise nature of fibromyalgia and the ALJ erroneously required objective findings not present in fibromyalgia to reject the claim of disability based on fibromyalgia. Id. at 108.

The term fibromyalgia is often interchangeably used with the terms fibromyositis or fibrositis. Lisa v. Secretary of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991).

In Willoughby, the claimant argued that the ALJ improperly disregarded the medical evidence pertaining to her diagnosis of fibromyalgia and held that the ALJ’s decision that the claimant did not have fibromyalgia was based on legal error and was not supported by substantial evidence. Willoughby v. Comm’r of Soc. Sec., 332 F. Supp.2d 542, 546 (W.D.N.Y. 2004). The court cited to the numerous court decisions which “have recognized that evaluating the nature and severity of this condition in the context of social security disability review has proven to be difficult because of its elusive nature and the lack of objective tests that can conclusively confirm the existence of the disease. Id. at 546 n.3, citing Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9^th Cir. 2000); Kelley v. Callahan, 133 F.3d 583, 585 n. 2 (8^th Cir. 1998); Sarchet v. Chater, 78 F.3d 305, 306 (7^th Cir. 1996); Preston v. Sec. of Health and Human Servs., 854 F.2d 815, 818 (6^th Cir. 1988). “Nevertheless, despite the lack of objective medical screening devices, fibromyalgia is a potentially disabling impairment that can provide the basis for disability insurance and supplemental security income benefits in the appropriate case.” Id., citing Green-Younger, 335 F.3d at 108-109; Soto v. Barnhart, 242 F. Supp.2d 251, 256-57 (W.D.N.Y. 2003). The court also held that the ALJ improperly discounted the diagnosis of the claimant’s treating physician because it was not supported by objective medical findings. Id. at 547. The ALJ specifically reasoned that this physician failed to specify in her medical records the claimant’s specific “trigger points” which undermined the diagnosis. However, the court noted that this physician’s opinion was based, in part, on the report of a rheumatologist to whom she referred the claimant for her fibromyalgia symptoms, who found that the claimant had eleven out of eighteen tender points and experienced other symptoms consistent with the disease. However, the ALJ never addressed the rheumatologist’s report in his decision, nor explained why no weight was given to that “important evaluation.” Id. Finally, the court held that since the ALJ did not consider fibromyalgia as a medically determinable impairment and did not assess whether the degree of inactivity the claimant testified to was consistent with such a condition, the court remanded with directions to reconsider the claimant’s:

testimony and complaints of pain, fatigue, and limitations in daily activity in light of the diagnosis of fibromyalgia. In
this regard, the ALJ should not simply discount plaintiff’s credibility based on the fact that there are no lab results or other objective medical findings to support her testimony about her limitations. The ALJ must consider the fact that there is no clinical test that can identify fibromyalgia or determine its severity. In fact, as a number of courts have recognized, the absence of abnormal clinical signs and findings (such as swollen joints, limited ranges of motion, or weakened muscles) is consistent with a diagnosis of fibromyalgia.

Id. at 548-59, citing Green-Younger, 335 F.3d at 109; Gang v. Barnhart, No. 02-CV-3647, 2003 WL 22183423, *5-*6 (E.D.N.Y. Sept. 23, 2003); Sarchet, 78 F.3d at 307; Preston, 854 F.2d at 819; Soto, 242 F. Supp.2d at 256-57.

In a case where the claimant alleged that the ALJ either misunderstood or disregarded her diagnosis of fibromyalgia or CFS, the New York district court looked to the Seventh Circuit’s decision in Sarchet which discussed fibromyalgia, noting:

The principal symptoms are ‘pain all over,’ fatigue, disturbed sleep, stiffness, and . . . multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch. All these symptoms are easy to fake, although few applicants for disability benefits may yet be aware of the specific locations that if palpated will cause the patient who really has fibromyalgia to flinch . . . . Some people may have such a severe case of fibromyalgia as to be totally disabled from working, but most do not and the question is whether [the plaintiff] is one of the minority.

Coyle v. Apfel, 66 F. Supp.2d 368, 374-75 (N.D.N.Y. 1999), quoting Sarchet v. Chater, 78 F.3d 305, 306-07 (7^th Cir. 1996) (citation omitted). The court held that the claimant was never diagnosed with at least eleven trigger points that would indicate the presence of fibromyalgia, and even assuming that the evidence established this impairment, her condition was not so severe as to render her totally disabled. Id. at 375-76.

In Soto v. Barnhart, 242 F. Supp.2d 251 (W.D.N.Y. 2003), the court held that the ALJ’s finding that the claimant’s diagnoses of fibromyalgia and chronic pain syndrome were not well supported by objective medical evidence, and that the claimant had the RFC to perform light and sedentary work was not supported by substantial medical evidence and the ALJ improperly discounted the claimant’s subjective symptoms in making his determination. Id.at 254. Given the unavailability of clinical tests for fibromyalgia, an ALJ cannot reject a physician’s diagnosis of fibromyalgia on the grounds that it is not supported by objective medical findings. Id.at 254-55. Further, the ALJ improperly dismissed the many reports of the claimant’s treating physicians, who limited the claimant’s RFC to less than sedentary work. Id. at 255-56. These physicians clearly demonstrated the claimant’s long history of pain and opined that such pain supported the diagnoses of fibromyalgia and Chronic Pain Syndrome. Id. at 256. The court held that the opinions of the claimant’s treating physicians were entitled to controlling weight. Id. Finally, the ALJ’s rationale for discrediting the plaintiff’s subjective symptoms was totally unpersuasive. In fibromyalgia cases, the “credibility of a claimant’s testimony regarding her symptoms must take on substantially increased significance in the ALJ’s evaluation of the evidence.” Id. In cases where it is well documented that the claimant “has endured this pain for many years, and has as a result learned to tolerate such pain,” the court found the ALJ’s observation of no apparent signs of distress to be of very limited value. Id. at 257.

In Sanchez, an unrepresented claimant presented a hospital medical record containing one diagnosis of fibromyalgia, but which did not elaborate upon the claimant’s condition, and the ALJ advised the claimant that he would subpoena all of her records from the hospital and obtained a waiver from the claimant so that he could directly review the records. Sanchez v. Barnhart, 329 F. Supp.2d 445, 451 (S.D.N.Y. 2004). However, the hospital never responded to that subpoena and the ALJ did not notify the claimant that the hospital failed to respond nor did he follow up before issuing his decision. Id. The court remanded, holding that the ALJ failed to fulfill his duty to make “every reasonable effort” to obtain the medical reports, finding that “[t]he ALJ’s actions are particularly disconcerting considering the Second Circuit’s decisions noting the immense difficulties involved in making an objective medical diagnosis of fibromyalgia despite the disabling effect and unremitting pain the patient feels.” Id., citing Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003); Lisa v. Sec’y of Dep’t of Health & Human Services, 940 F.2d 40 (2d Cir. 1991). The court also held that the ALJ was obligated, “at a bare minimum,” to inform the claimant of the hospital’s failure to respond, and to allow her an opportunity to obtain the necessary information. Id.

In Aragon-Lemus v. Barnhart, 280 F. Supp. 2d 62 (W.D.N.Y. 2003), the court held that the ALJ erred in placing “great weight” on the opinion of an examining physician’s “incomplete report” in determining the claimant’s RFC because this report did not take into consideration the claimant’s subsequent diagnosis of fibromyalgia by her treating physician. Id. at 69. The ALJ’s credibility finding was also not supported by substantial evidence and the “consequence of this error is amplified where, as here, the claimant had fibromyalgia, an ailment which has been recognized as difficult to diagnose with tangible clinical evidence.”Id. at 70, citing Green-Younger v. Barnhart, 335 F.3d 99, 107-09 (2d Cir. 2003). See also Johnson v. Barnhart, 312 F. Supp.2d 415, 426 (W.D.N.Y. 2003) (holding that the ALJ’s determination that the claimant did not suffer from fibromyalgia was not supported by substantial evidence in the record and the ALJ erred in not clarifying the treating physician’s “suggested” diagnosis of fibromyalgia by contacting him to determine whether additional information on his fibromyalgia diagnosis was readily available).

Third Circuit

The Appeals Council’s finding that the pain suffered from a claimant with fibrositis was not credible was not based on substantial evidence. Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987).

In finding that the record supported the ALJ’s finding that the claimant’s fibromyalgia was not a severe impairment, the court cited: (1) the limited medical evidence concerning her fibromyalgia prior to expiration of her insured status and (2) the fact that a doctor did not report the nature or severity of the condition, and did not specify the effects it had on the claimant. Hirschfeld v. Apfel, 159 F. Supp.2d 802, 812 (E.D. Pa. 2001). Therefore, the court stated that the ALJ only had the claimant’s subjective complaints to rely upon in making his decision, and that it was within his discretion to find them not credible, as the claimant’s “account was contradictory and inconsistent with her daily activities.” Id.

Fourth Circuit

In Gavigan v. Barnhart, 261 F. Supp.2d 334 (D. Md. 2003), a case where the claimant suffered from fibromyalgia and a back disorder, the court held that the ALJ’s credibility analysis did not comport with the required two-step process for assessing the credibility of a claimant’s subjective complaints of pain
as set forth in Craig v. Chater, 76 F.3d 585, 594 (4^th Cir. 1996). Id. at 338. First, the ALJ did not address step one, which is whether the objective medical evidence shows the existence of a medical impairment which could reasonably be expected to produce the actual pain in the amount and degree alleged by the claimant. Id. at 339-40. The court concluded that the “the need for a clear, cogent step one analysis is heightened because plaintiff suffers from fibromyalgia, a disease that poses particular challenges to credibility analyses due to the limited available objective medical evidence.” Id. at 340. On remand, the ALJ should determine whether the claimant’s fibromyalgia could reasonably be expected to cause her pain and “should discuss the symptoms associated with fibromyalgia (particularly pain) and explain what pain could reasonably be expected from the disease.” Id. at 341. Second, as the ALJ did not adequately address step two, which requires consideration of the various actors set forth at 20 C.F.R. § 416.929, the court was unable to conclude that substantial evidence supported the ALJ’s decision. Id. at 341-42. In basing his step two analysis solely on the objective medical evidence, “the ALJ may have improperly required plaintiff to show objective medical evidence of the pain itself,” which is particularly inappropriate in a fibromyalgia case, where symptoms are subjective and there are no laboratory or radiographic tests. Id. at 342. The court noted that the ALJ pointed to x-rays and an MRI as inconsistent with the claimant’s pain, yet “unremarkable MRI and x-ray results do not support the ALJ’s conclusion that plaintiff’s alleged pain is inconsistent with the objective medical evidence.” Id.

Fifth Circuit

While remanding the case on other grounds, a Texas district court held that the ALJ did not err in not considering the claimant’s alleged tinnitus and fibromyalgia as there was no evidence that these conditions would limit the claimant’s ability to perform a limited range of sedentary work.Brown v. Barnhart, 285 F. Supp.2d 919, 935-36 (S.D. Tex. 2003).

Sixth Circuit

In Preston v. Secretary of Health and Human Servs., 854 F.2d 815, 817 (6^th Cir. 1988) (per curiam), the Sixth Circuit stated that:

[F]ibrositis 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 — a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. There are no objective tests which can conclusively confirm the disease; rather it is a process of diagnosis by exclusion and testing of certain ‘focal tender points’ on the body for acute tenderness which is characteristic in fibrositis patients. The medical literature also indicates that fibrositis patients may also have psychological disorders. The disease commonly strikes between the ages of 35 and 60 and affects women nine times more than men.

Id.

An Ohio district court held that the ALJ’s reasons for not giving controlling weight to the opinion of the claimant’s treating physician were inconsistent with the legal standards applicable for determining the weight to be given to treating physicians’ opinions in fibromyalgia cases and lacked the support of substantial evidence. Swain v. Commissioner of Soc. Sec., 297 F. Supp.2d 986, 993 (N.D. Ohio 2003). In so holding, the court noted that due to the nature of fibromyalgia and its manifestations, the pain analysis is difficult as: (1) there is almost never medical evidence confirming the severity of the alleged pain; and (2) the analysis of whether the medical condition is of such severity that the alleged pain can reasonably be expected to occur, in most cases, consists of diagnostic findings confirming the severity of the impairment and the opinion of a physician as to limitations that pain caused by such severity will impose. Id. at 990. “Since the presence and severity of fibromyalgia cannot be confirmed by diagnostic testing, the physician’s opinion must necessarily depend upon an assessment of the patient’s subjective complaints.” Id. On remand, the ALJ was also directed to reconsider the claimant’s credibility, noting that the ALJ placed undue emphasis on the lack of objective evidence. Id. at 994.

In Runyon v. Apfel, 100 F. Supp.2d 447 (E.D. Mich. 1999), the court held that the ALJ erred in not accepting the opinion of the claimant’s treating physician that he was disabled due to his fibromyalgia and that his complaints of pain were consistent with this opinion. Id. at 450. In so holding, the court rejected the Commissioner’s argument that the physician failed to substantiate his opinion with objective medical findings, and his findings were inconsistent with the predominantly normal objective medical findings of other physicians, noting that while these reasons “might be a valid basis for discounting an opinion in most cases, fibromyalgia is different” as in fibromyalgia cases, “‘physical examinations will usually yield normal results in a full range of motion, no joint swelling as well as normal muscle strength and neurological reactions’” Id., quoting Preston v. Sec’y of Health & Human Servs., 854 F.2d 815, 817-818 (6^th Cir. 1988). The court observed that “[w]ith fibromyalgia claimants, the disability determination is more necessarily complicated because normal clinical test results do not necessarily suggest the absence of a disability.” Id. In light of the difficulty of supporting an opinion with clinical findings in fibromyalgia cases, it is unlikely that a treating physician’s opinion will be entitled to controlling weight. Thus, these opinions must be analyzed on the various factors set forth in 20 C.F.R. § 404.1527. After weighing these factors, the court found that the treating physician’s opinion was “entitled to deference, and the clinical findings and opinions of the other physicians do not represent substantial evidence.” Id.

In Gaffney v. Commissioner of Social Security, 277 F. Supp.2d 733 (E.D. Mich. 2003), the court held that the ALJ’s finding that the claimant was not disabled as a result of chronic fatigue syndrome and fibromyalgia was not supported by substantial evidence as the evidence documented a clinical correlation for the claimant’s complaints of chronic fatigue and muscle weakness, and that the de minimis step two burden was easily met. Id. at 738.

In a fibromyalgia case, an Ohio district court noted that the ALJ must carefully consider the claimant’s statements about pain and reach a conclusion about the credibility of those statements in deciding disability and that this “consideration takes on paramount importance in a fibromyalgia case because the symptoms of that impairment are entirely subjective.” Wines v. Commissioner of Soc. Sec., 268 F. Supp.2d 954, 960 (N.D. Ohio 2003). In this case, the ALJ’s articulation of his reasons for finding her less than credible was inadequate as his specific discussion of credibility did not contain a detailed analysis of the claimant’s daily activities and repeatedly referenced the lack of objective medical evidence, while the lack of such objective medical evidence is typical in a fibromyalgia case. Id.

Seventh Circuit

In 1996, in the seminole case of Sarchet v. Chater, 78 F.3d 305 (7^th Cir. 1996), the Seventh Circuit described fibromyalgia in terms relative to Social Security disability claims as follows:

[Fibromyalgia’s] cause or causes are unknown, there is no cure,
and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are ‘pain all over,’ fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character — multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch. All these symptoms are easy to fake, although few applicants for disability benefits may yet be aware of the specific locations that if palpated will cause the patient who really has fibromyalgia to flinch. There is no serious doubt that [the claimant] is afflicted with the disease but it is difficult to determine the severity of her condition because of the unavailability of objective clinical tests. Some people may have such a severe case of fibromyalgia as to be totally disabled from working, Michael Doherty & Adrian Jones, Fibromyalgia Syndrome (ABC of Rheumatology), 310 British Med. J. 386 (1995); Preston v. Secretary of Health & Human Services, 854 F.2d 815, 818 (6th Cir. 1988) (per curiam), but most do not and the question is whether [the claimant] is one of the minority.

Id. at 306-07. The Seventh Circuit further found, in a detailed analysis, that the ALJ’s opinion demonstrated a “pervasive misunderstanding” of fibromyalgia. Id.

The Seventh Circuit also described fibromyalgia as “‘a syndrome involving chronic widespread and diffuse pain throughout the entire body, frequently associated with fatigue, stiffness, skin tenderness, and fragmented sleep.’” Estok v. Apfel, 152 F.3d 636, 638 (7^th Cir. 1998), quoting Robert M. Bennett, “The Fibromyalgia Syndrome,” Textbook of Rheumatology 511, 511-14. The court did not dispute that fibromyalgia is very difficult to diagnose, as no objective medical tests reveal its presence, but also noted that it can be completely disabling. Id., citing Sarchet v. Chater, 78 F.3d 305, 307 (7^th Cir. 1996). However, the court pointed out that it is not enough for the claimant to receive a diagnosis of fibromyalgia with an onset date prior to the expiration of the insured period, “sinc