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How Are Fibromyalgia and Chronic Fatigue Syndrome Proved Disabling In Social Security Cases?

“Fibromyalgia, Chronic Fatigue Syndrome, and Objective Medical Evidence Requirements …”was the subject of a memorandum from Social Security Deputy Commissioner, Susan M. Daniels, Ph. D., (“the Deputy Commissioner”) to a Social Security administrative law judge (ALJ) in May 1998. This memo has been widely circulated.

The memo was in response to memoranda from the ALJ to the Deputy Commissioner, to an appeals judge and to the general counsel for Social Security. The ALJ asserted that fibromyalgia and chronic fatigue syndrome (CFS) are not “medically determinable impairments” under the Social Security Act and urged the Social Security Administration (SSA) to take a definitive position on this question.

The Deputy Commissioner responded that SSA had taken a position: that fibromyalgia and CFS can be medically determinable impairments under the statute.

She explained that a specific diagnosis is not necessary to prove a medically determinable impairment, especially where the medical community has not yet agreed on the diagnostic criteria. If there are anatomical, physiological or psychological abnormalities that can be objectively observed and reported apart from the claimant’s perceptions, a medically determinable impairment is shown even in the absence of a definitive diagnosis.

The “signs and the findings” required to prove the disability may include symptoms, when appropriately reported by a physician or psychologist in a clinical setting.

CFS is “clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset which cannot be explained by another diagnosed physical or mental disorder, or [by] the result of ongoing exertion” and which “is not substantially alleviated by rest and results in substantial reduction in previous levels of occupational, educational, social, or personal activities.” It is a systemic disorder whose symptoms and signs may vary in incidence, duration and severity.

Records reflecting ongoing medical assessment and treatment are needed to document objective physical and/or mental findings. SSA will recognize a medically determinable impairment if the records for at least six consecutive months show one or more of the following:

low-grade fever;

• palpably swollen and tender lymph nodes;

• nonexudative pharyngitis; and/or

• muscle wasting with no other direct cause identified.

While there are no specific laboratory findings that definitively document the presence of CFS, findings indicating chronic immune system activation, such as slight elevations in immune complexes, depressed natural killer cell activity or atypical lymphocytes, may also be included in the evidentiary record of individuals alleging CFS.

Some CFS sufferers report problems with short-term memory, comprehension, concentration, speech and/or calculation. Others may exhibit signs of mental or emotional disorders such as anxiety or depression. When documented by mental status examination and/or psychological testing, these findings mark the presence of a medically determinable impairment.

So, when your patient reports disabling fatigue, your thorough examination – at least looking for the signs noted above, scheduling follow-up visits to monitor persistence, referral (as needed) and comprehensive chart notes on your observations, even if a definitive diagnosis is not possible, will provide the medical documentation needed should this condition become so impairing as to force your patient to apply for Social Security disability benefits.

Your documentation is critical since symptoms alone cannot be the basis for finding a medically determinable impairment, which is necessary to prove disability under Social Security law.

The SSA recognizes fibromyalgia as medically determined if the tender points identified by the American College of Rheumatology (ACR) are documented.

The ACR defines fibromyalgia as “widespread pain in all four quadrants of the body for a minimum duration of 3 months … [in] at least 11 of the 18 specified tender points which cluster around the neck and shoulder, chest, hip, knee, and elbow regions.”

Other typical symptoms which may help prove fibromyalgia if clinically documented over time are irritable bowel syndrome, chronic headaches, temporomandibular joint dysfunction, sleep disorder, severe fatigue and cognitive dysfunction.

The Deputy Commissioner acknowledged that policies concerning the adjudication of claims involving impairments like fibromyalgia and CFS needed to be better explained and that policy guidelines were being drafted for that purpose.

We have noticed that fibromyalgia has been the subject of increasing numbers of articles in medical journals in recent years, including several by Robert M. Bennett, M.D., F.R.C.P., Professor of Medicine and Chairman, Division of Arthritis And Rheumatic Diseases, Oregon Health Sciences University.

Recently, a victim of CFS represented by our office had to appeal her Social Security claim all the way to the Federal District Court. There, the Federal judge not only ordered that she be declared disabled and awarded benefits, but also penalized the Commissioner of Social Security for unreasonably denying her claim. Our client’s medical record included the types of documentation described in the Deputy Commissioner’s memo.

The absence of definitive diagnostic criteria and the absence of the usual objective and observable findings make these conditions difficult and frustrating for physicians to identify. However, Social Security will evaluate these on an individual basis. Severe cases of fibromyalgia and CFS cannot just be rejected solely for lack of traditional objective findings.

We hope you find this summary useful as you record your observations, so your patients who qualify for Social Security disability may present the necessary medical documentation.

This article was prepared by Arthur W. Stevens III.

Posted in: Social Security Disability Lawyer Articles