August 2020 – Barnes Disability Advocates

FIBROMYALGIA

Social Security (“SSA”) defines fibromyalgia as a complex medical condition that is characterized by widespread pain in the joints, muscles, tendons, or soft tissues that has lasted for at least three months. In Social Security Ruling 12-2p, SSA explains what evidence is needed to establish a medically determinable impairment of fibromyalgia and how fibromyalgia will be evaluated. SSA will be looking for sufficient objective evidence to support a finding that your fibromyalgia, or your fibromyalgia in combination with any other impairments prevents you from performing substantial gainful activity. Substantial gainful activity is the ability to work full-time, generally 8 hours a day, five days a week.

How do I show fibromyalgia is a medically determinable impairment?

SSA will only find fibromyalgia is a medically determinable impairment if it has been diagnosed by a physician. However, they will not rely on a diagnosis alone. Your diagnosis must be accompanied by specific evidence. There are two different criteria that SSA will consider in determining if a fibromyalgia diagnosis is supported by the evidence. Your evidence should either meet the 1990 ACR Criteria for Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria; you do not need to meet both.

1990 ACR Criteria for Classification of Fibromyalgia.

A history of widespread pain that has persisted for at least three months.
At least 11 positive tender points on physical examination. Your provider should do a tender point test or refer you to someone who can.
Evidence that other impairments that could cause your symptoms were excluded. This may include imaging such as x-rays or MRI that are not consistent with your level of pain or laboratory testing ruling out issues such as thyroid function or rheumatoid factor.

2010 ACR Preliminary Diagnostic Criteria.

A history of widespread pain.
Repeated episodes of six or more fibromyalgia symptoms. The most common symptoms and signs are fatigue, waking unrefreshed, memory or other cognitive problems, depression, anxiety, or irritable bowel syndrome. However, other conditions recognized as often co-occurring with fibromyalgia include interstitial cystitis, irritable bladder disorder, TMJ, migraines, gastric reflux, and restless leg syndrome.
Evidence that other disorders that could cause these symptoms were excluded. Any testing you have had done, is important, even if results were negative. Social Security wants to make sure that diseases like multiple sclerosis, lupus, and rheumatoid arthritis are not the cause of your symptoms.

SSA will look at whether your medical provider has performed a physical exam and reviewed your medical history. They will evaluate whether your medical provider’s treatment notes are consistent with the diagnosis of fibromyalgia and consistent with any work-related limitations.

What kind of documentation will SSA be looking for?

Objective medical evidence will be most important. This will be your diagnosis of fibromyalgia, any testing and any observations from your medical provider supporting this diagnosis and its impact on your ability to function. These findings should cover the time period from the 12-months before your onset date or application date forward. SSA will be looking for consistent and supportable findings.
Evidence from non-medical sources can be helpful. This may be evidence from friends, family members, former employers, or clergy. This kind of evidence cannot be used to establish a diagnosis of fibromyalgia, but can help SSA determine the severity of your fibromyalgia and how it impacts your ability to function.
Your report of symptoms will also be evaluated. It is important that your report of symptoms is consistent with the objective medical evidence and supported by the other evidence in the record.

What can I do now?

If fibromyalgia is part of your disability claim, we need to have a current diagnosis. Some people have had fibromyalgia for years before they file a claim. Many times, the diagnosis accompanied by the appropriate tender point testing or other observations and signs discussed above are not part of the current medical record. It is very important for you to have an updated diagnosis in the file accompanied by testing or other objective findings. This testing should include tests to exclude other conditions that could cause your fibromyalgia symptoms. It is not enough that your provider simply notes “fibromyalgia” in your record. This must be accompanied by appropriate testing, observations, and report of symptoms such as pain, fatigue, sleep issues, brain fog, or depression. Start talking to your provider now to create a consistent, supportable record.

2) In addition to having a supported diagnosis in the file, be sure you communicate with your provider how fibromyalgia affects you and limits your ability to perform work-related functions. The better you communicate to your provider the specific limitations you experience due to fibromyalgia, the more consistent the record will be. Common issues you should discuss with your medical provider include:

– Pain interfering with your ability to sit, stand, walk, or lift.

– Pain limiting your ability to kneel, crouch, crawl, stoop, climb, or use your upper extremities.

– Sleep issues that cause fatigue or the need to take breaks or naps during the day.

– Difficulty focusing, concentrating, or remembering due to brain fog or other mental issues such as depression.

– Any limitations you have in performing your activities of daily living due to your fibromyalgia.

– Let your provider know if you have good days and bad days. This is not uncommon with fibromyalgia. If you have bad days regularly make sure to discuss your activity level on these days with your doctor. Also discuss with your medical provider if there are activities that make your symptoms worse. Not everyone has the same symptoms and limitations due to fibromyalgia. It is important that your specific experience with fibromyalgia is discussed with your medical provider.

Stay compliant with medication and treatment. If you are not willing to take medications or otherwise comply with your provider’s recommended treatment for your fibromyalgia, please let us know why. A failure to follow through with recommended treatment can be seen as an indication that your fibromyalgia is not as severe as you say. We want to make sure SSA understands your specific situation.

If possible, undergo any testing recommended by your provider. As discussed above, SSA will be looking to see if your pain is actually due to other conditions. Always let us know if you are unable to undergo any recommended testing due to issues such as finances.

Remember, fibromyalgia is an impairment that affects each individual differently. Not everyone will have the same symptoms or limitations. It is important for us to help SSA understand the specific way you are affected by fibromyalgia.

SSR-2p – Obesity

Obesity is an impairment that can contribute to disability in a variety of ways depending on the individual and the specific impairments. While obesity alone may be a severe impairment, it also often makes other conditions worse. Examples of this include increased pain and mobility issues with degenerative joint disease or degenerative disc disease. Obesity may make it more difficult to control blood sugar in those with Type II diabetes. Obesity can impact mental impairments. The increased body size with obesity can also make breathing difficulties worse. The Social Security Administration (“SSA”) must consider a claimant’s obesity if it causes or contributes to an inability to work. In 2019, SSA issued Social Security Ruling 19-2p (“Ruling) to clarify how obesity should be evaluated.

How does SSA define obesity?

Obesity is a complex disorder that results from a number of factors including environment, genetics, and behavior. Health care providers will generally diagnose obesity based on your medical history, physical exams, and your body mass index (“BMI”). BMI is a calculation based on your weight and height. In the medical community, a BMI of 30.0 or higher is considered obese. However, as discussed further below, SSA does not just look at a specific weight or BMI to determine if your obesity contributes to your disability.

What kinds of impairments are associated with obesity?

Impairments that are associated with obesity include, but are not limited to:

Endocrine disorders, such as Type II diabetes mellitus
Disease of the heart and blood vessels, such as high blood pressure or heart attacks
Respiratory impairments, such as sleep apnea or asthma
Osteoarthritis
Mental impairments, such as depression or anxiety
Cancers of the esophagus, pancreas, colon, rectum, kidney, endometrium, ovaries, gallbladder, breast, or liver.

How do I show obesity is a medically determinable impairment?

SSA must determine if obesity is a medically determinable impairment. This means the record must contain objective evidence from an acceptable medical source about your height and weight. It is not enough to have a diagnosis of obesity, the record must contain findings from an acceptable medical source such as height and weight, measured waist size, and BMI measurements over time. It is important that your medical provider consistently tracks these kinds of findings as SSA will look at these measurements over time to determine if obesity is a medically determinable impairment. SSA does not rely on a specific BMI, but looks at the entire case record to determine if obesity is a medically determinable impairment.

How do I show obesity is a severe?

If SSA determines that obesity is a medically determinable impairment, then they evaluate the severity of this impairment. It will be important that your medical records reflect any symptoms associated with your obesity such as fatigue or pain that can affect your ability to function. It is important that the record demonstrate that your obesity, either by itself or in combination with other impairments, significantly limits your ability to perform basic work activities. Examples of ways obesity may impact functioning include limitations in sitting, standing, walking, and lifting, climbing, balancing, stooping, kneeling, or crouching. It increases stress on weight bearing joints. It can also affect a person’s ability to use their hands and fingers in manipulating objects or decrease tolerance to heat and humidity.

Again, no specific weight or BMI establishes that obesity is “severe”. SSA will do an individualized evaluation of the effect of obesity on a person’s functioning. Therefore, consistent and supportable evidence of your weight, BMI, and any related symptoms over time will be key in SSA’s evaluation of your claim.

What can I do right now?

Make sure your provider is consistently taking note of your weight, BMI, and/or waist size. While you will be asked some of this information in the documents you fill out for SSA, they will evaluate obesity based on the findings of a medical provider, not from self-reported measurements.
Communicate with your provider as to any functional limitations you feel your obesity causes or any impairments it exacerbates. As noted above, this includes issues such as pain and fatigue. It is important that any impairment due to obesity is noted in your medical records.
Please be compliant with medication and treatment. If you are not willing to take medications or otherwise comply with your provider’s recommended treatment for your obesity, please let us know why. Medications and surgeries that are sometimes recommended for weight loss may not work for you. We want to make sure SSA understands your specific situation.

Remember, obesity does not impact everyone in the same way. It is important for us to help SSA understand the specific way your obesity contributes to your impairments or your work-related limitations.

SSR-19-4p – Headaches including Migraines

Headaches can be very debilitating and even prevent a person from working full-time. As debilitating as headaches can be, it is difficult to prove to the Social Security Administration (“SSA”) that they make you disabled because there is no way to objectively measure how severe your headaches are or even that you have them. In 2019, SSA issued Social Security Ruling 19-4p (“Ruling) to clarify how headaches should be evaluated.

What kind of headaches does this Ruling apply to?

First, the Ruling applies to primary headache disorders. Primary headache disorders are migraines, tension headaches, or trigeminal neuralgia. They are called primary headache disorders because there is no underlying disease or injury causing the headache. There are also secondary headaches disorders. A secondary headache disorder is a headache that is the symptom of another condition like a neck injury or sinus issues. If you have a secondary headache disorder, this Ruling still provides some guidance, but they are not the main focus of this Ruling. It is also possible to have both primary and secondary headaches.

How can I show a diagnosis of a primary headache disorder?

For SSA to consider your headaches a primary headache disorder, they must be diagnosed by a medical provider who has reviewed your medical and headache history. This should include a review of your specific headache symptoms. Your provider may perform a physical and neurological examination. Often with headache disorders, testing such as an MRI or a CT scan of the head is done to see if your headaches are the result of another condition. Even if these tests are negative, they are still important because they rule out other causes for your headaches. The Ruling makes clear that positive imaging is not necessary to diagnose a primary headache disorder. It is important that the treatment notes from your provider are consistent with a primary headache disorder, so they should contain not only your report of symptoms, but any pain behaviors your medical provider may have observed such as difficulty concentrating, need for a dark room, neck stiffness, or tremors. Also, while not required, your case will be stronger if you headaches are evaluated and treated by a specialist such as a neurologist.

How can I show the severity of a primary headache disorder?

Your medical records need to document any symptoms such as difficulty concentrating, light sensitivity, sound sensitivity, or nausea that accompany your headaches. SSA will also want to understand how often you have headaches, how long they last, and how they affect your ability to perform work-related limitations. Particularly with headaches, work-related limitations may include absences from work, difficulty maintaining a schedule, or difficulty focusing and concentrating. We also need to understand if you have sensitivities to noise or light that may make it difficult to work in some environments. It is important that you discuss any limitations related to your headaches not only in your statements to SSA, but also in discussions with your medial provider. A headache journal that documents all of this information can be very helpful, especially if it is shared with your doctor.

When describing your headaches to SSA it is important to discuss issues such as headache frequency, accompanying symptoms, and how long it takes you to recover from a headache. SSA also wants to know what medications you have tried or are currently using for your headaches. Treatment notes should show if these medications are effective or not. They should also show if you have any side-effects from the medications. SSA will consider if your headaches improve with medication or if there are reasons you cannot use medications or follow-through with recommended treatment. Consistency and supportability between your reported headache symptoms and the medical evidence will be key in SSA’s evaluation of your claim.

What can I do right now?

Keep a headache diary. This allows you to help the Agency understand how often you experience headaches, what kind of symptoms your headaches cause, and how long it takes you to recover. A headache diary allows you to also document any activities you had to miss due to your headaches.
Communicate with your provider as to the frequency and severity of your headaches. As is discussed above, SSA will not simply take your word for the frequency and severity of your headaches. They also want to see this reflected in the medical record. Make your doctor aware of not only the frequency of your headaches, but also your accompanying symptoms, and any reactions to medications.
Stay compliant with medication and treatment. If you are not willing to take medications or otherwise comply with your provider’s recommended treatment for your headaches, please let us know why. A failure to follow through with recommended treatment can be seen as an indication that your headaches are not as severe as you say. We want to make sure SSA understands your specific situation.
If possible, undergo any testing recommended by your provider. As discussed above, SSA will be looking to see if your headaches are actually due to other conditions. Always let us know if you are unable to undergo any recommended testing due to issues such as finances.

Remember not everyone experiences headaches the same way or has the same symptoms, it is important for us to help SSA understand the specific way you are affected by your headaches. SSR 19-4p, helps clarify how a disability claim that includes headaches should be evaluated.

How to Avoid the Common Workers’ Compensation Pitfalls

If you are applying for workers’ compensation, there are some important things you should know. Because workers’ compensation is an insurance program, your employer will often try to pay as little as possible when you file a claim. But if you are careful about following the rules, you’ll be able to avoid the common pitfalls associated with workers’ compensation while receiving all the benefits you deserve.

Notify Your Employer Immediately

One of the most common mistakes employees make when filing a workers’ compensation claim is being denied your benefits because you didn’t make a claim in time. The typical filing period is 30 days from the date of your injury, but it’s better to notify your employer of your injury as soon as possible. If you inform them verbally, make sure to give them a written notice as well.

In most cases, you’ll be given a form and required to fill it out. If your employer doesn’t give you this form, take initiative by typing up the date, time, and details of your injury.

Visit an Approved Doctor

According to workers’ compensation law, your employer or their insurance provider is allowed to choose the doctor who treats your injury after you file a claim. In order for your claim to go through, you must visit this doctor for treatment. This doctor’s reports and assessments will be important information for your claim.

If you don’t visit this appointed doctor, your employer or their insurance provider may dismiss your claim. You can see your own doctor as well, but this must be in addition to visiting the doctor they choose. If for some reason you are uncomfortable visiting the assigned doctor, you are allowed to ask the workers’ comp. insurance carrier for permission to see another doctor.

Be Honest

It is crucial that you are open and honest about your injury when you visit the appointed doctor. Don’t exaggerate your condition, but don’t hide it either. Make sure to explain the whole truth behind your accident, injuries, recovery, and setbacks. Providing false information or withholding true information from your doctor can cause your claim to be denied.

Return to Work at the Right Time

Many employees are anxious to return to work, so they skimp on following their doctor’s treatment plan. While this behavior might be tempting, it can cause your claim to be denied because your workers’ comp claim administrator can decide you’re not trying, or that you’re faking your injury.

To avoid this pitfall, make sure to obey your treatment plan to the very letter: go to all appointments, do your physical therapy, and follow any other instructions your doctor gives you.

Remember that you have a right to your medical safety. If you and your doctor disagree about your treatment, or on your timeline for returning back to work, you are allowed to appeal to the Worker’s Compensation Commission.

Get a Second Opinion

Although you are required to visit the doctor assigned to you by your employer, you can (and should) get a second opinion on your treatment. If your own doctor’s treatment plan varies significantly from the insurance company’s doctor, you should notify the Worker’s Compensation Commission. A disagreement such as this could impact your claim statement.

When your health, safety, and livelihood are on the line, it’s worth the time and effort it takes to go get a second professional opinion about your injury.

Work with a Trusted Legal Professional

Unfortunately, complications often arise when you file a workers’ compensation claim. Your claim may be denied, your employer could deny that your injury is work-related, or your company might claim you’re not an employee. You could be accused of faking your injury, or your paperwork could slip through the cracks. You may have requirements that seem unreasonable placed on you in order to qualify. You may run into other complications as well.

If you feel your claim was wrongly denied, you should stand up for yourself and fight the committee’s decision. In order to avoid having to pay out of pocket for your treatment, you should work with a trusted legal professional who can help you receive your benefits and be treated fairly. It can be difficult to go through this process all on your own. Surround yourself with a support network who can speak on your behalf and be a strong advocate for you. Going it alone can be a costly mistake.

Even though all the rules surrounding workers’ compensation can seem complicated and overwhelming, it’s important to do the work to obey them. Doing your due diligence when it comes to all the paperwork and doctor’s appointments will pay off when you’re able to receive the benefits you deserve. Make sure to keep copies of all your medical records and compensation applications. Work with trusted professionals when necessary and be open about communicating with your employer. And above all, take care of yourself and your body.