FIBROMYALGIA

If you search for fibromyalgia before 1981 you won't find it.  1981 is when Dr. Muhammad Yunus defined the disease and named it.  For years, it was considered by doctors to be a bogus disease.  Now, we know better.

Fibromyalgia is an incurable disease resulting in overactive nerve tissues.  It causes chronic pain in the muscles, joints and tendons along with fatigue and sleeplessness and often is associated with depression or anxiety.  Most patients describe a "brain fog" which makes concentration difficult.

If you suffer from fibromyalgia and need to file a Social Security disability claim, I want to share some things that may help you.

First, Social Security requires that fibromyalgia be diagnosed using the diagnostic criteria of the American College of Rheumatology, using either the 1990 rules or the 2010 rules. The best trained doctor to diagnose and evaluate fibromyalgia is a rheumatologist.  A rheumatologist will be given more weight than a family doctor when your case comes before Social Security.  There are many medical conditions that mimic the symptoms of fibromyalgia.  Your doctor must rule out these other diseases in order to make a definite diagnosis.  You must convince Social Security that you have a "medically determinable impairment" or MDI.  Only your doctor can do this.

Second, you must prove that fibromyalgia symptoms interfere with your ability to perform basic work related activities.  Try to get the rheumatologist to provide you with a written "residual functional capacity" (RFC).  Simply defined, this is a statement about the maximum that you can do when it comes to functions like sitting, standing, walking, bending, lifting, etc.*  There is a neat form that Social Security likes to use for this.  It's called a "Medical Source Statement," or Form HA-1151. My firm uses a specialized form tailored specifically to symptoms of fibromyalgia.

Third, Social Security will want to see that you are following prescribed treatment to try to get better.  It's important to take the medications prescribed by your doctor.  If you experience side effects with a medication that prevents you from taking it, talk to your doctor about other medicine that you may try.  Failure to follow treatment may cause problems with a Social Security claim.

Social Security's 2012 Ruling on Fibromyalgia 
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HELP WHILE YOU WAIT ON SOCIAL SECURITY

"I need help.  I've filed for Social Security disability months ago.  How can I survive until my case gets settled?"

Unfortunately, it can take months or years to get Social Security disability benefits.  There are some agencies that may be able to help you while you wait on Social Security.  Here are some avenues to explore:
 
FOOD STAMPS:  Contact your county's Department of Human Resources.  In Limestone County it's located at 1007 W. Market Street, Athens, AL 35611.  Phone (256) 216-6380. Website: 
http://dhr.alabama.gov/counties/county_results.aspx?id=Limestone


Mortgage Payments:  Contact "Hardest Hit Alabama" at www.hardesthitalabama.com  or call 1-877-497-8182.

LOW COST MEDICAL CARE (DOCTORS): Click on the link below for a list of low cost clinics to find one near you.

http://www.needymeds.org/free_clinics.taf?_function=list&state=al

UTILITY BILLS OR OTHER NEEDS:   Dial 211 on your phone and tell the operator the type of assistance you need.

HELP WITH SOCIAL SECURITY DISABIILTY:  Contact the Forsythe Firm in Huntsville at (256) 799-0297 or (256) 431-1599. 

The Forsythe Firm is a professional legal firm specializing in Social Security disability and nothing else.  We offer you a FREE consultation and we will never charge for our services until you have been approved and qualified for past due benefits from Social Security.  At that point, Social Security will simply deduct our fee from your back pay.  Call us today if we can be of help.

MOST IMPORTANT ASPECT OF A HEARING

A great many things will be reviewed at your Social Security disability hearing.  These include your age, education, past work and medical conditions.  Of all these factors, I think the most crucial is the medical record.

Here's what I look for in the medical record:
 
1).  Is it complete?  Does the judge have records from all of your treating sources, such as doctors, hospitals, clinics, counselors--and in some cases--school records?

2)  Are medical records current?  Do they include your most recent doctor's visits, hospital admission, ER visit, etc.?

3).  Are there objective tests, such as an MRI, CT Scan, X-ray, etc. which clearly show the nature and severity of your impairment?

4)  Is there opinion evidence from your doctor?  This would be a letter or form from the doctor stating what your specific restrictions and limitations are and how they would affect the ability to do work-related activities.

5).  Is the medical record consistent with the symptoms you report?

Finally, I need to make the claimant aware of what's expected of him or her during the hearing.  What type of questions will be asked?  What is the best approach to answering questions?  What are some of the pitfalls to avoid?  Is the judge likely to have concerns from reading the medical records?  

Our goal at the hearing is to give the judge, as decision maker, a clear and understandable picture of why the claimant is disabled.  We want to answer any concerns or questions the judge may have.  Having attended hundreds of hearings helps me to prepare for a smooth hearing.  Hopefully, I can help eliminate some of the tension or anxiety the claimant may have when walking into the hearing.

WILL MY HEARING BE HELD HERE IN ATHENS?

Social Security judges hold hearings all over North Alabama.  If you live in Athens or Limestone County, there are 3 possible locations where your hearing may be held.

Florence, AL is the ODAR office or hearing office.  The hearing could be held there.

There is also an office in Huntsville where hearings are scheduled. 

Finally, if your case gets assigned to the Franklin,TN hearing office (which some from our area do) - then your hearing will be held in Decatur, AL.  

So, chances are your hearing will be either in Florence, Huntsville or Decatur.  You will receive a letter telling you the date, time and location of your hearing well in advance.  Plan to arrive at least 30 minutes before the hearing is scheduled to start.  (If the judge gets ahead of schedule, your hearing may begin early).

WILL SOCIAL SECURITY ACCEPT EVIDENCE FROM A D.O. OR ONLY AN M.D.?

There are fundamentally two types of medical degrees that doctors may get. One is the traditional Doctor of Medicine (MD) degree.  The other is Doctor of Osteopathic Medicine (DO).  

The training required for the MD and DO degrees are very similar.  According to the Mayo Clinic, the doctor of osteopathic medicine (DO) may have some training on manual manipulation, such as spinal adjustments or accupuncture, in addition to the traditional medical training.

Social Security regulations recognize both doctors equally as "acceptable medical sources."  20 CFR 404.1513

The regulation has recently been revised to include licensed physician's assistants as "acceptable medical sources."  However, nurse practitioners are not considered acceptable medical sources by Social Security as of this writing.

With many people now getting their medical care from non-traditional providers, it is important to know how seeing someone other than an MD or DO may affect evidence for a potential Social Security disability claim.

THINGS THAT "WON'T FLY" IN A SOCIAL SECURITY HEARING

"Some things fly like a lead balloon."  When you know something just won't fly, it's best not to leave the ground with it.

Here are some statements that won't fly at a Social Security disability hearing.  I've given a brief explanation of why they don't fly.

1).  "The only job I can get is a minimum wage job and I simply can't live on minimum wage."  Why it won't fly?  This has absolutely nothing to do with being disabled.  How much a job pays has nothing to do with Social Security disability.  It is largely a vocational problem. The problem might be solved by job training or education but Social Security will not award disability benefits on this basis.

2).  "Everything was going well until one day my boss laid me off (or fired me, or something like that).  Since then, I've never been able to work."  Why it won't fly?  Here, the claimant doesn't even claim to be disabled.  There is no medical issue. There is no disability issue.

3).  "I used to drive a truck, and loved my job, but now my sugar is so high that I can't pass my CDL test and so I can't work."  Why it won't fly?  It leaves open the possibility that you could do several other jobs.  Also, Social Security does not consider the inability to get a license or certification to be a disability.  If a lawyer can't get a license to practice law, it doesn't mean that he is disabled.  It might be effective to argue that diabetes makes you so sick that you can't drive a truck, but I'd leave out the CDL argument.

4). "Several employers whom I asked for a job told me that because of my physical condition I would be a liability to the company and they would not hire me."  Why it won't fly?  Several reasons.  First, employers are not allowed to decide whether or not you are disabled.  Second, your argument is that no one will hire you, not that you are legally disabled.  Third, the argument is more of a legal argument than a medial argument supported by medical evidence).  

5). "I haven't been to a doctor in 5 years because I don't have any medical insurance.  Even so, I just know that I'm not able to work."  Why it won't fly?  It's really an unfortunate position to be in, and lots of folks are in this situation. And this person may really be disabled. However, a disability decision must be based on objective medical evidence. If there is none, the case just can't be approved.  Perhaps this claimant should try to be seen at a community medical clinic which has reduced fees or even a free clinic.

6).    "All of my medical care has been from a nurse practitioner, chiropractor, counselor or nutritional expert.  I think that care is as good as any and should be good enough for Social Security."  Why it won't fly?  In today's society, many people do get medical care from someone other than a medical doctor (MD) or doctor of osteopathic medicine (DO).  However, Social Security regulations are very strict about what they call "acceptable medical sources."  While there are some exceptions, generally Social Security requires medical evidence from an MD or DO to establish that you have a severe medical condition.  Recently, physician's assistants have been added to the list of "acceptable medical sources."  As of now, nurse practitioners and chiropractors are not on that list.  It is simply not a question of whether your care is good or not, it is a matter of what Social Security regulations recognize.

7).  "Uncle Ned got on disability when he was 19, never worked a day in his life and is as healthy as an army horse."  Why it won't fly?  Several reasons, the first of which is, Uncle Ned's case is not under consideration.  The second is, it has nothing to do with why the claimant can't work.  Perhaps the biggest reason, it will irritate the judge.

THE "LEGAL THEORY" OF YOUR CASE

I was with a client in a disability hearing before an administrative law judge last week.  Five minutes into the hearing, the judge asked, "Mr. Forsythe, what is the legal theory of this case?"

I responded:  "Judge, the claimant has 3 severe impairments, the combination of which has caused him to be unable to sustain work for the last two years.  You will find evidence of these impairments and their limitations in Exhibits 2F, page 10; 6F, pages 8-17, and in 9F, pages 79, 90 and 112.  In addition, considering the claimant's age, education and past work experience, a finding of disability is directed by Medical-Vocational Guideline 201.01."

The judge seemed satisfied that I had given him the facts he needed to approve the claim.

After we left the hearing, my client said to me:  "I'm glad I didn't have to answer that question."

The truth is, every Social Security disability claim rises or falls on the legal theory of the case.  If you don't know what your legal theory is, you don't need to be handling a hearing.

Many times, judges believe the claimant is disabled.  However, they must justify their decision legally.  The "legal theory" is simply the body of facts that support a finding of disability based on the federal rules and regulations that govern Social Security.  It isn't enough just to convince the judge that you are disabled.  You have to tell him where the regulations permit that conclusion.
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Need help with a Social Security disability claim or appeal?  Contact the firm that has been successfully handling disability cases for years.  Call the Forsythe Firm for a free consultation or case evaluation.  (256) 799-0297 or (256) 431-1599.