In 2012 the social security administrative issued a new Social Security Ruling (SSR) on the evaluation of fibromyalgia in social security disability cases. SSRs are considered by the Social Security Administration as authoritative “policy interpretations of the law and regulations” in social security disability assessment. This new SSR has been for the past 5 years the touchstone for social security disability decision makers, including Administrative Law Judges, when presented with claimants alleging disability based on fibromyalgia.

For the past 25 years I have limited by practice to social security disablity claims in North and East Texas, and I have handled and won many fibromyalgia-based claims. But fibromyalgia cases have not been easy to win. There has been widespread skeptism in the medical community as to whether Fibromyalgia is a legitmate and distinct disease, and that skeptism has carried over to the social security administration. SSR 12-02p is the first specific directive from social security on the assessment of a fibromyalgia based social security disability claim.

Prior to SSR 12-02p, SSR 96-7p had long established a 2 prong-test for determining whether a given medical condition (fibromyalgia or otherwise) is disabling. First, the illness giving rise to the disability must be a “medically determinable impairment” (MDI). Second, this MDI could “reasonably be expected” to produce the pain or other symptoms alleged as documented by medication findings.

Determining disability based upon fibromylagia under the 2-prong test of SSR 96-7p has been a problem because by definition fibromyalgia has no specific medical tests or radiographic studies to either support or undermine a claim of disability due to fibromyalgia symptoms. By way of illustration, let’s compare a disability claim based upon fibromyalgia to one based upon back pain. The back pain sufferer will most assuredly have radiographic studies such as X-Rays, MRIs or CT scans.  These reports reflect the severity of the problems.  Typical MRI reports may read “severe stenosis” (narrowing) of the spinal canal”, or “mild degenerative disc disease”.  We can argue about whether those findings correlate to the degree of disability based upon a back impairment, but they do provide the decision maker with some help in determining severity. What are the “medical signs and findings” to support disability based upon fibromyalgia?

I often hear fibromyalgia suffers in Dallas and North Texas say that they have heard social security “doesn’t believe in fibromyalgia”, and have been hopeful that SSR 12-02p changes that.  SSR 12-02p makes it clear that a proper fibromyalgia diagnosis is a “medically determinable impairment”.  Many in the fibromyalgia community have celebrated the fact that SSR 12-2p  makes it clear that a fibromyalgia diagnosis is legitimate.  This means more claims for fibromyalgia are going to be approved under SSR 12-02p, right?  Not exactly.

The typical ALJ denial for a fibromyalgia case before SSR 12-02P can be summarized a(as if the ALJ was speaking directly) can be summarized as follows:

“I believe your Fibromyalgia is a “medically determinable impairment” but I don’t believe it “could reasonably be expected” to produce the symptoms you claim”

My experience has consistently been that fibromyalgia claims are not denied based upon a finding that fibromyalgia is not a “medically determinable impairment” (which is the equivalent of not “believing” in fibromyalgia), but rather are denied on the second prong of the test: that the limitations and symptoms keeping the claimant from working could not “reasonably be expected” to result from the disease.  So what guidance does SSR 12-02p provide for determining what types of “signs and finding” support a disabling fibromyalgia case? Unfortunately, none. To put is simply, SSR 12-02p fails to address the problem at the second prong of SSR 96-7p – that of determining whether there are “signs and findings” to support the degree of limitation.

So what wins a fibromyalgia disability claim under SSR 12-0p? The same as under SSR 26-3p: specialist medical care (read rheumatologist), consistent references in the medical record to severe symptoms, limited activity, and a credible client.  And the help of an experienced social security disability lawyer.  In Dallas Fort Worth Texas, that’s me!

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stanley@disabilityapproved.com

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