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.
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.
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.
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 (8th 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 (9th Cir. 2000); Kelley v. Callahan, 133 F.3d 583, 585 n. 2 (8th Cir. 1998); Sarchet v. Chater,78 F.3d 305, 306 (7th Cir. 1996); Preston v. Sec. of Health and Human Servs., 854 F.2d 815, 818 (6th 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 (7th 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).
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.
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 (4th 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.
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).
In Preston v. Secretary of Health and Human Servs., 854 F.2d 815, 817 (6th 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.
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 (6th 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.
In 1996, in the seminole case of Sarchet v. Chater, 78 F.3d 305 (7th 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 (7th 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 (7th 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, “since fibromyalgia is not always (indeed not usually) disabling.” Id., citing Sarchet, 78 F.3d at 307.Based upon extensive evidence that the claimant could perform jobs that did not require much walking or standing, the court concluded that the ALJ had substantial evidence to find the claimant was not disabled from fibromyalgia or any other condition. Id. at 642.
In Alexander v. Barnhart, 287 F. Supp.2d 944 (E.D. Wis. 2003), the court first held that the ALJ erred in concluding that the claimant did not suffer from fibromyalgia as such a conclusion was reached in violation of the treating physician rule, was unsupported by any medical evidence, and was contradicted by the ALJ himself. Id. at 965. The court noted that the claimant’s treating physician opined that the claimant met the American College Rheumatology criteria for fibromyalgia and indicated the presence of multiple tender points. Id. at 963. Apparently, the ALJ reviewed the treatment records and concluded that these trigger points did not exist. However, it is “not the job of the lay ALJ to review the medical data and render his own diagnosis.” Id. As the ALJ is not an expert at diagnosing fibromyalgia, it was improper for him to conclude that the claimant did not display the necessary symptoms. Id. at 964. The ALJ cited no contrary medical evidence in reaching this conclusion and a review of the record reveals none. The court also held that the ALJ erred in rejecting the claimant’s testimony concerning her symptoms. When a claimant has fibromyalgia, it is inappropriate for an ALJ to reject her claims of pain because they are not verified by traditional medical tests. Id.
Fibromyalgia has been described as an “elusive and mysterious” disease that shares common features with chronic fatigue syndrome. Aidinovski v. Apfel, 27 F. Supp.2d 1097, 1099 (N.D. Ill. 1998), citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). In Aidinovski, the court rejected the ALJ’s reliance on medical opinions offered by a general practitioner and a pediatrician, which showed the claimant’s limitations to be far less than that opined by a rheumatologist, the “relevant specialist” qualified for diagnosing and evaluating fibromyalgia. Id. at 1105. The court further noted that, by definition, the claimant’s fibromyalgia diagnosis meant that in all likelihood her reports of pain and fatigue would seem out of proportion with the available objective evidence. Id. at 1103. Accordingly, the ALJ did not appear to have considered its peculiar characteristics at all in evaluating the claimant’s credibility, and therefore, absent proper consideration of the subjective nature of the symptoms of the illness, the ALJ’s credibility determination was inadequate. This was especially so since the ALJ did not discuss (1) why she rejected the evidence favorable to the claimant, and (2) how the uniquely subjective nature of the claimant’s illness factored into the analysis. Id.
In a fibromyalgia case, an Indiana district court observed that the “ALJ may have misunderstood the nature of fibromyalgia and how it correlates with Social Security’s rulings” in light of his focus on the “minimal” objective evidence. Liscano v. Barnhart, 230 F. Supp.2d 871, 884 (N.D. Ind. 2002). “Naturally, fibromyalgia patients may exhibit somewhat limited medical signs and findings since the disease must necessarily be evaluated based on subjective responses to testing, however, that does not mean there are no medical signs or findings supporting the Plaintiff’s allegations.” Id. In Liscano, the ALJ made no finding about whether the claimant’s “subjective symptoms (i.e., complaints of “all over pain” and fatigue) could be shown to be manifestations of fibromyalgia through medically acceptable clinical diagnostic techniques,” observing:
since the Plaintiff’s condition has been diagnosed based on perhaps the only diagnostic technique available, trigger point evaluations, and because subjective complaints of pain and fatigue are generally recognized as manifestations of fibromyalgia . . . the Plaintiff’s complaints may actually rise to the level of objective medical signs that support her claims.
Id. at 885 (citations omitted). The court also held that the ALJ erred in not soliciting the testimony of a vocational expert despite the fact that the claimant’s fibromyalgia “involved a number of serious nonexertional impairments.” Id. at 886-87. Finally, the ALJ improperly discounted opinions of the claimant’s treating rheumatologist, a noted fibromyalgia specialist, who noted the presence of trigger points, and ultimately determined that the claimant was severely limited in her ability to work, as well as another physician and improperly determined the claimant’s credibility. Id. at 888-90. See also Kilps v. Barnhart, 250 F. Supp.2d 1003, 1013 (E.D. Wis. 2003) (holding that the ALJ failed to supply good reasons for rejecting the opinions of the claimant’s treating source, as the purported lack of support from x-rays, MRI studies, CT scans, and laboratory tests was not probative of whether the record supported the doctor’s opinion regarding the limitations of a claimant who suffered from fibromyalgia).
A Wisconsin district court explained that the ALJ’s decision was not clear as to why he found that the claimant’s doctor visits were either intermittent or infrequent, which was one of the reasons he found that the claimant’s allegations were incredible. Dominguese v. Massanari, 172 F. Supp.2d 1087, 1096 (E.D. Wis. 2001). However, the record contained no medical evidence concerning how regularly or how often a patient experiencing plaintiff’s stated level of pain related to fibromyalgia and plaintiff’s other afflictions would be expected to see a doctor. In the absence of such evidence, the ALJ made his own independent medical determination about the appropriateness of doctor visits. This determination was not within the ALJ’s province to make. Additionally, the court noted that fibromyalgia sufferers should engage in a “comprehensive treatment course that includes pain management, exercise and referral to psychiatric sources,” and that the record indicated the claimant’s regimen involved most of these elements, including “regular medical treatment, pain management, and exercise.” Id. Therefore, to the extent the ALJ based his credibility finding on the claimant’s record of doctor visits, the court found that “his conclusion was not supported by substantial evidence and did not logically follow from the evidence.” Id.The court also noted that one of the bases for the ALJ’s rejection of the treating physician’s opinion was his determination that it was not well-supported by medically acceptable data and that the ALJ sought “hard evidence.” Id. at 1100. However, the court pointed out that the claimant’s primary alleged disabling condition was fibromyalgia, and that, in most cases, “there will be no objective evidence indicating [its] presence or severity.” Id. Therefore, “in light of the nature of the condition, the absence of hard evidence was not a ‘good’ or even logical reason for rejecting [the treating physician’s] opinion or for according it lesser weight.” Id.
In a case where a claimant suffered from fibromyalgia, the court held that the ALJ failed to “give good reasons” for her decision because she failed to explain how her findings could be squared with the contrary opinions of the claimant’s treating doctors, upon whose opinions she claimed to afford “significant weight.” Wates v. Barnhart, 274 F. Supp.2d 1024, 1035 (E.D. Wis. 2003). In fact, one physician opined that the claimant suffered from fatigue of sufficient severity to significantly interfere with a full-time work schedule and that the claimant would require breaks due to fatigue and would incur frequent work absences because of her fibromyalgia. Id. at 1034-35. The court also reversed and remanded for reconsideration of the credibility of the claimant’s testimony, noting, in part, that the the ALJ failed to cite to any medical support for her conclusion that the claimant’s doctor visits were “infrequent,” observing that “there was no evidence as to how often someone with plaintiff’s conditions should reasonably see her physician.” Id. at 1039-40, citing Dominguese v. Massanari, 172 F. Supp.2d 1087, 1096 (E.D. Wis. 2001).
In Gister, the ALJ ignored the objective evidence of fibromyalgia, which was shown by “clinically demonstrable evidence regarding trigger points.”Gister v. Massanari, 189 F. Supp.2d 930, 934 (E.D. Wis. 2001). The court held that the “ALJ’s conclusory analysis dismissing fibromyalgia” was not supported by substantial evidence and further, that “the ALJ’s beliefs about fibromyalgia colored his credibility determination.” Id. at 934-35. The court also held that the ALJ’s entire credibility analysis was “adversely affected by the ALJ’s attitude towards fibromyalgia” because his finding that the claimant’s physical illnesses were ungrounded in any clinical evidence ignored “the objective evidence of fibromyalgia, and the extent to which it could cause the [claimant’s] pain.” Id. at 936-37. The ALJ also erred in relying on the observations of a psychiatric medical expert as a basis to find that the claimant was not credible. Id. at 937. As fibromyalgia “‘is a rheumatic disease and the relevant specialist is a rheumatologist,’” the ALJ “cannot rely” on this opinion to rule out the pain caused by fibromyalgia, Id., quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).
The Eighth Circuit held that fibromyalgia, “which is pain in the fibrous connective tissue components of muscles, tendons, ligaments, and other white connective tissues, can be disabling” and “often leads to a distinct sleep derangement which often contributes to a general cycle of daytime fatigue and pain.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998),citing Cline v. Sullivan, 939 F.2d 560, 563, 567 (8th Cir. 1991). The court further described fibromyalgia as a “degenerative disease which results in symptoms such as achiness, stiffness, and chronic joint pain.” Id. at 590, citing Cline, 939 F.2d at 567; Stedman’s Medical Dictionary 222 (4th ed. 1976). In Kelley, the court held that in rejecting the treating physician’s 4-hour workday restriction, the ALJ wrongly assumed that physicians cannot opine as to the hours a claimant can work, stating that doctors regularly make such judgments which are not only allowed but encouraged. Id., citing Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995).
In Garza, the claimant argued that the ALJ erred by not listing fibromyalgia as a severe impairment. Garza v. Barnhart, 397 F.3d 1087, 1089 (8th Cir. 2005). The Eighth Circuit agreed that the ALJ misunderstood fibromyalgia and that this misunderstanding affected the ALJ’s RFC findings, and her hypothetical question posed to the VE.Id. But see Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004) (affirming the ALJ’s decision, in part, based on its finding that the ALJ’s credibility finding was supported by the fact that no “trigger points were not identified to support her claimed fibromyalgia”); Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (holding that the record supported the ALJ’s determination that the claimant’s subjective complaints of disabling pain were not credible to the extent alleged, noting that the claimant had undergone 75 trigger point injections over a 2-year period for her fibromyalgia and stated that the injections relieved the pain and made the “knots go down”).
In a fibromyalgia case, the Eighth Circuit held that the reasons given by the ALJ for discrediting the claimant’s testimony were unsupported by the record. Brosnahan v. Barnhart, 336 F.3d 671, 677 (8th Cir. 2003). Regarding the “degree of medical treatment required,” the ALJ did not specify the physician’s reports and findings upon which he relied, and the claimant received treatments recommended by the American College of Rheumatology (ACR) for fibromyalgia. Regarding the ALJ’s finding that the claimant had made inconsistent statements about her pain and ability to walk and lift, the Eighth Circuit found that the statements reflected her attempt to describe the variability of her symptoms. The lack of any need for surgery, another reason cited by the ALJ, was also not a reason to discredit the claimant as the ACR does not recommend surgery for fibromyalgia. Regarding missed doctor appointments, another reason cited by the ALJ, the claimant testified that she missed these appointments only because of the very symptoms for which she sought benefits, namely, she felt too weak and ill to dress. Id. The Eighth Circuit also held that the claimant’s testimony and reports were supported by objective medical evidence of fibromyalgia – consistent trigger-point findings – and by her consistent complaints during her relatively freque
nt physicians’ visits of variable and unpredictable pain, stiffness, fatigue, and inability to function. Id. at 677-78. Finally, the court reiterated that fibromyalgia can be disabling because of its potential for sleep derangement and resulting daytime fatigue and pain, and the VE testified that a claimant who could not perform reliably on a full-time basis because of pain and fatigue could not work. Id. at 678.
In Forehand v. Barnhart, 364 F.3d 984 (8th Cir. 2004), the court found that the claimant has “long exhibited symptoms consistent with fibromyalgia, such as sleep deprivation, fatigue, and pain.” Id. at 987. The court noted that fibromyalgia is a chronic condition which is usually diagnosed after eliminating other conditions and there are no confirming diagnostic tests. Id., citing Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir. 2003). In Forehand, the court noted that it appeared that the ALJ gave little weight to the consistent diagnosis of fibromyalgia or its debilitating effect on the claimant and erred in not crediting the opinion of the claimant’s physician. The court reiterated that the Eighth Circuit has “long recognized that fibromyalgia has the potential to be disabling.” Id., citing Broshahan. The court also held that the ALJ’s credibility finding was either unsupported by the record or unpersuasive on the issue of whether the claimant’s allegations of limitation were true, stating:
The medical reports of many treating physicians amply support her allegations of pain and limitation. The fact that she does not use assistive devices to walk is simply no reason to reject her claims of pain, particularly in light of medical reports that support her complaints of trouble with walking and standing. As to her mental state, tests administered by . . . a consultive psychologist, indicate that Forehand has significant memory and concentration difficulties, and suffers from depression. While Forehand may not have sought specific psychiatric treatment, she did consistently seek treatment from physicians for her mental health . . . .
Id. at 987-88.
The Eighth Circuit noted in Hatcher v. Barnhart, 368 F.3d 1045 (8th Cir. 2004) that the facts of this case are remarkably similar to Cox v. Barnhart, 345 F.3d 606 (8th Cir. 2003), noting that, as in Cox: (1) the claimant sought disability benefits on the basis of fibromyalgia and costochondritis; (2) the ALJ disregarded the opinion of the claimant’s treating physician and instead relied on the opinion of the same one-time medical examiner on whose opinion the ALJ relied in this case; and (3) the opinion of the medical examiner could not constitute substantial evidence supporting the ALJ’s decision. Id. at 1046-47. As the ALJ’s decision and district court decision were rendered prior to the decision in Cox, the court remanded for further proceedings and consideration of Cox. Id. at 1047. See Cox v. Barnhart, 345 F.3d 606, 608 (8th Cir. 2003) (holding that the ALJ improperly discounted treating physician’s opinion in determining that the claimant, who suffered from fibromyalgia and costochondritis was not disabled).
A Missouri district court reversed and remanded a fibromyalgia case, describing this impairment as follows:
Fibromyalgia (or fibrositis) consists of a constellation of symptoms associated with few physical findings and essentially normal laboratory tests.The disease primarily affects women. Its cause is unknown. The main complaints include joint and muscle pain and stiffness, easy fatigability, and difficulty with sleep. The symptoms usually appear insidiously, although some patients may recall a precipitating physical or emotional event.There is usually a significant degree of functional impairment with inability to work or difficulty with chores at home.
Brown v. Apfel, 996 F. Supp. 922, 934 n.3 (W.D. Mo. 1998), citing Robert E. Rakel, M.D., Textbook of Family Practice 1035 (5th ed. W.B. Saunders Company).
In Haines v. Apfel, 986 F. Supp. 1212 (S.D. Iowa 1997), the court stated that “fibromyalgia is not a diagnosis of exclusion,” and “[a]lthough the symptoms are subjective, there is a test upon which, when done properly by a rheumatologist, a diagnosis can be based.” Id. at 1214, citing Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996). The court also criticized the ALJ’s comments at the hearing regarding fibromyalgia and the fact that it is diagnosed from symptoms and cannot be explained objectively. Since the court found that neither the claimant’s fibromyalgia nor depression were properly developed, the court remanded the case with instructions to “arrange for consultative examinations by a rheumatologist and a psychiatrist, unless [the claimant] is already being treated by doctors in these specialties, so that proper diagnoses can be obtained.” Id.
Despite the fact that the record contained the diagnosis of fibromyalgia, which corroborated the claimant’s complaints of pain, depression, and bowel problems, the ALJ failed to address this diagnosis in his decision. Daniel v. Massanari, 167 F. Supp.2d 1090, 1093 (D. Neb. 2001). The court found this to be “perplexing,” given the fact that there was “little or no evidence” of record that directly contradicted this diagnosis and, as a result, was unable to “evaluate the strength or weakness of the ALJ’s decision.” Id. On remand, the court directed the ALJ to: (1) address the claimant’s allegation of disabling depression, noting that the depression complaint was “interwoven with the fibromyalgia issue”; (2) address the claimant’s gastroenteritis or similar complaints, noting that a relationship between the fibromyalgia and the claimant’s intestinal problems was not uncommon; and (3) directly address the treating physician’s opinions regarding the fibromyalgia issue. Id.
Where the ALJ found that the claimant suffered from fibromyalgia and depression, the court held that the ALJ erred in finding that she was able to perform a wide range of sedentary work, in finding that her testimony was not credible, and in disregarding the testimony of the VE that the claimant was unable to perform sedentary work. High v. Apfel, 46 F. Supp.2d 961, 963 (W.D. Mo. 1999). The court also held that the ALJ’s determination that the claimant’s subjective complaints of disability were not credible was not supported by substantial evidence in the record as a whole. Finally, the court concluded that, based upon the testimony of the VE and the claimant’s credible statements concerning her inability to stay awake during the day, there was no work that the claimant could perform. Thus, the court reversed and remanded for an award of benefits. Id. at 976.
In Hinders, the Commissioner sought a remand to give the ALJ the opportunity to further evaluate the claimant’s impairments and allegations of fibromyalgia and chronic fatigue syndrome and the claimant argued that the evidence supported a reversal with an award of benefits and that “further proceedings will only delay the receipt of benefits to which Plaintiff is entitled.” Hinders v. Barnhart, 349 F. Supp.2d 1218, 1219 (S.D. Iowa 2004). The court evaluated the evidence of record and remanded for an award of benefits as “further proceedings will only lead to one outcome, namely that Plaintiff is disabled and entitled to the benefits for which she applied.” Id. at 1226.
A claimant who suffered from fibromyalgia appealed the district court’s decision remanding the case for further administrative proceedings instead of an immediate award of benefits.
Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). The Ninth Circuit reversed and remanded to the district court with instructions to remand to the Commissioner for an award of benefits, finding that there were no outstanding issues that must be resolved and it was clear from the record that the claimant was entitled to benefits. Id. The Ninth Circuit found that the ALJ erred in discounting the opinions of the claimant’s treating physicians, relying on his disbelief of the claimant’s testimony regarding her symptoms as well as his misunderstanding of fibromyalgia, stating:
The ALJ erred by ‘effectively requir[ing] “objective” evidence for a disease that eludes such measurement.’ Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (reversing and remanding for an award of benefits where the claimant was disabled by fibromyalgia). Every rheumatologist who treated Benecke . . . diagnosed her with fibromyalgia. Benecke consistently reported severe fibromyalgia symptoms both before and after diagnosis, and much of her medical record substantially pre-dates her disability application. Sheer disbelief is no substitute for substantial evidence.
Id. at 594. The court further observed that the opinion of each rheumatologist is given greater weight than those of the other physicians and that “[r]heumatology is the relevant specialty for fibromyalgia.” Id. at 594 n.4, citing 20 C.F.R. § 404.1527(d)(5); Jordan v. Northrop Grumman Corp., 370 F.3d 869, 873 (9th Cir. 2004). “Specialized knowledge may be particularly important with respect to a disease such as fibromyalgia that is poorly understood within much of the medical community.” Id.
Where the claimant suffered from fibromyalgia, the court found that the ALJ did not provide sufficient reasons for rejecting the claimant’s pain testimony because he improperly relied upon the lack of objective medical evidence. Svatos v. Apfel, 44 F. Supp.2d 1113, 1119 (D. Or. 1999). Because the ALJ failed to articulate adequate reasons, the claimant’s testimony was credited as a matter of law. The ALJ also failed to provide sufficient reasons for rejecting uncontradicted treating physicians’ testimony that the claimant suffered from disabling chronic fatigue syndrome. Id.
The ALJ’s implied determination that the claimant did not suffer from fibromyalgia was not supported by substantial evidence. Powell v. Chater, 959 F. Supp. 1238 (C.D. Cal. 1997). There is no conflict between the diagnosis of chronic fatigue syndrome and the diagnosis of fibromyalgia, especially since chronic fatigue syndrome and fibromyalgia share a number of common features. Id.
In Willis v. Callahan, 979 F. Supp. 1299 (D. Or. 1997), the ALJ rejected the claimant’s testimony regarding the symptoms resulting from her fibromyalgia based on a finding that she failed to produce “objective evidence” of an impairment which could “reasonably be expected to produce pain and fatigue.” Id. at 1306. The ALJ further stated that “to prove that impairments are disabling there must be laboratory or clinical evidence in addition to subjective complaints.” Id. The court held that this was not “a clear and convincing reason for discrediting Willis’ testimony as to the degree of her pain or fatigue,” noting that her treating physician used clinical means to diagnose her symptoms as fibromyalgia. Id.
A Washington district court determined that since the Commissioner did not meet his burden of showing that there were specific DOT jobs existing which would adjust to the claimant’s disabilities of fibromyalgia and organic brain dysfunction, she was entitled to benefits. LaPierre v. Callahan, 982 F. Supp. 789, 794 (W.D. Wash. 1997).
As the claimant suffered from joint disease or fibromyalgia, chronic fatigue, migraines or chronic headaches, depression, and reflux disorder, the ALJ was required to assess the combined impact of these impairments to determine the effect, if any, they had on the claimant’s ability to perform work-related activities and his failure to do so required reversal. Langley v. Barnhart, 373 F.3d 1116, 1124 (10th Cir. 2004).
“‘Fibromyalgia is defined as a syndrome of pain in the fibrous tissues, muscles, tendons, ligaments, etc.’” Anderson v. Apfel, 100 F. Supp.2d 1278, 1286 (D. Kan. 2000), quoting Duncan v. Apfel, 156 F.3d 1243, 1998 WL 544353 at *2 (10th Cir. Aug. 26, 1988) (Table) (citing the Merck Manual of Diagnosis & Therapy at 1369 (Robert Berkow & Andrew J. Fletcher, eds., (16th ed. 1992)). “‘The symptoms of fibromyalgia are entirely subjective, and there are no laboratory tests to identify its presence or severity.’” Id., quoting Ward v. Apfel, 65 F. Supp.2d 1208, 1213 (D. Kan. 1999) (citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). “‘Because fibromyalgia, . . . is diagnosed by ruling out other diseases through medical testing, . . . negative test results or the absence of an objective medical test to diagnose the condition cannot support a conclusion that claimant does not suffer from a potentially disabling condition.’” Id., quotingLantow v. Chater, 98 F.3d 1349, 1996 WL 576012, at *1 (10th Cir. Oct. 8, 1996) (Table). Regarding the claimant’s need to lie down after physical activity, the court cited to a recent Tenth Circuit case, stating:
Next, the ALJ stated that plaintiff’s claim that she must lie down several times during the day because of pain is unsupported. However, ‘[t]he pain [of fibromyalgia] is aggravated by strain or overuse,’ The Merck Manual of Diagnosis & Therapy, at 1370, and is accompanied by symptoms such as poor sleep and fatigue. See Id. Plaintiff’s problems with sleep disturbances and fatigue are documented. (Citation omitted). Therefore, it is not apparent what evidence supports the ALJ’s finding that she need not lie down periodically during the day.
Id. at 1290, quoting Duncan v. Apfel, 156 F.3d 1243, 1998 WL 544353, at *2 (10th Cir. Aug. 26, 1998). In Anderson, the court noted that the record established that the claimant suffered from poor sleep and fatigue, and there was no record evidence to support the ALJ’s finding that the claimant did not need to lie down three to four times a day. Id. at 1290. Thus, the court held that given the nature of fibromyalgia and fatigue, the claimant’s symptoms, and the medical evidence that supported those findings to the extent possible, the ALJ erred when he discredited the claimant’s pain testimony due to a lack of objective medical evidence. Id., citing Baca v. Apfel, 2000 WL 357268 at *1 (9th Cir. Apr. 6, 2000).
A Kansas district court held that the record showed that the ALJ failed to follow the recognized law in evaluating the medical opinions concerning fibromyalgia and further ignored uncontroverted medical evidence regarding the severity of the claimant’s symptoms. Priest v. Barnhart, 302 F. Supp.2d 1205, 1213 (D. Kan. 2004). The court reiterated its prior decision in Anderson v. Apfel, 100 F. Supp.2d 1278, 1286 (D. Kan. 2000) in which it summarized what other courts had said about fibromyalgia as a possible disabling condition.Id. The court also referenced the Eighth Circuit’s decision in Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir. 2003) discussing fibromyalgia. Id. at 1213-14. The court considered these decisions and concluded that the ALJ’s finding “that the diagnosis of fibromyalgia cannot be medically determined” was not supported by substantial evidence. Id. at 1214. “The ALJ reveals his fundamental misunderstanding of fibromyalgia in asserting that there must be objective documentation of this condition (other than the plaintiff’s complaints) before there is a medically determinable impairment.” Id. Finally, the court held that the ALJ committed legal error when he discredited the claimant’s testimony for lack of objective medical evidence and remanded with instructions for the ALJ to “consider all of the Luna factors for evaluating pain testimony in light of the diagnosis of fibromyalgia and the entire record.” Id. at 1216.
A Kansas district court confirmed that the claimant’s symptoms of fibromyalgia were supported by the record in that “[t]he principal symptoms of [fibromyalgia] are ‘pain all over,’ fatigue, disturbed sleep, stiffness, and. . . multiple tender spots . . .,’” not the symptoms specified by the ALJ which were not documented in the record. Biri v. Apfel, 4 F. Supp.2d 1276, 1279 (D. Kan. 1998), citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The diagnosis of fibromyalgia “is not inconsistent with a diagnosis of [chronic fatigue syndrome].”Vogt v. Chater, 958 F. Supp. 537, 547 n.5 (D. Kan. 1997).
In Ward v. Apfel, 65 F. Supp.2d 1208 (D. Kan. 1999), the court held that the ALJ’s finding that the claimant who suffered from fibromyalgia was not credible was not supported by the record. Id. at 1214. The court reasoned that there were no legitimate reasons to discredit her testimony, there was no suggestion of exaggeration or malingering by her doctors, and her testimony was supported by her treating physician, psychiatrist, and husband. Id. at 1215.
In Hendrix, the court first rejected the claimant’s argument that the ALJ failed to properly consider the combination of her impairments of chronic fatigue syndrome, fibromyalgia, and migraine headaches in determining that these severe impairments, alone or in combination, did not meet or equal a listing. Hendrix v. Barnhart, 313 F. Supp.2d 1222, 1229-30 (D. Utah 2004). In finding this challenge “without merit” the court explained that the ALJ acknowledged the medical evidence that the claimant was diagnosed with multiple impairments, including CFS and fibromyalgia, and that such impairments were severe; these impairments were also considered, alone and in combination, by the ALJ when assessing the claimant’s RFC; and the claimant failed to meet her burden of establishing disability under the Listings as she “failed to present medical findings evidencing her condition or conditions were equal in severity to all the criteria for the one most similar listed impairment” as such determination requires “medical judgment.” Id. at 1230-31. However, the court held that the ALJ erred at step five, given the VE’s testimony that a hypothetical person like the claimant with chronic absenteeism due to fatigue, pain and headache would be unable to work at any job and reversed and remanded for an award of benefits. Id. at 1231-32.
In a fibromyalgia case, an Oklahoma district court reversed and remanded, finding that the ALJ improperly evaluated the opinion of the claimant’s treating physician, improperly substituted his own medical opinion, and failed to provide specific and legitimate reasons for discounting a physician’s physical assessment. Green v. Barnhart, 262 F. Supp.2d 1271, 1280 (N.D. Okla. 2003).
Following the ALJ’s decision, the claimant submitted new evidence to the Appeals Council which documented that she suffered from fibromyalgia, and had all eighteen tender points required for a diagnosis of this impairment. Lloyd v. Halter, 161 F. Supp.2d 1211, 1218 (D. Kan. 2001). The court thus surmised that it was highly likely that the pain alleged by the claimant resulted from fibromyalgia, in that “fibromyalgia does not require a traumatic onset.” Id., citingSarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The court concluded that the evidence was material and non-cumulative, stating:
The fact that plaintiff has been diagnosed with fibromyalgia, which can cause the disabling pain described by plaintiff, would likely change the ALJ’s credibility determination as to plaintiff’s subjective complaints, such as her ability to stand and sit due to back and shoulder pain. Therefore, the court finds this case is appropriate to reverse and remand. On remand, the Commissioner is to determine plaintiff’s credibility in light of the diagnosis of fibromyalgia.
Id. at 1218-19.
In Glenn, the ALJ pointed to the lack of objective medical evidence to support the claimant’s claims. Glenn v. Apfel, 102 F. Supp. 2d 1252, 1259 (D. Kan. 2000). However, fibromyalgia symptoms are subjective pain all over, fatigue, disturbed sleep, and stiffness, for which there are no objective clinical tests to determine severity. Id.,citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The court also noted that the claimant had all eighteen tender spots common to fibromyalgia. Id., citing Sarchet, The court also confirmed that there are no clinical tests to identify its existence or severity, noting that courts have recognized that the pain suffered by fibromyalgia patients can be disabling. Id. at 1258, citing Sarchet v. Chater, 78 F.3d at 309; Cline v. Sullivan, 939 F.2d 560 (8th Cir. 1991); Ward v. Apfel, 65 F. Supp.2d 1208 (D. Kan. 1999); Biri v. Apfel, 4 F. Supp.2d 1276 (D. Kan. 1998).
In Ward v. Apfel, 65 F. Supp.2d 1208 (D. Kan. 1999), the court held that the ALJ’s finding that the claimant who suffered from fibromyalgia was not credible was not supported by the record. Id. at 1214. The court reasoned that there were no legitimate reasons to discredit her testimony, there was no suggestion of exaggeration or malingering by her doctors, and her testimony was supported by her treating physician, psychiatrist, and husband. Id. at 1215.
The diagnosis of fibromyalgia is not inconsistent with a diagnosis of chronic fatigue syndrome. Vogt v. Chater, 958 F. Supp. 537, 547 n. 5 (D. Kan. 1997).
A diagnosis of fibromyalgia does not automatically mean that a claim of disabling pain must be accepted. Koenig v. Chater, 936 F. Supp. 776, 784 (D. Kan. 1996), citing Tsarelka v. Secretary of Health & Human Servs., 842 F.2d 529, 534 (1st Cir. 1988) (noting that the mere presence of a fibrositis condition did not entitle the claimant to benefits). See also Moses v. Barnhart, 321 F. Supp.2d 1224, 1229 (D. Kan. 2004) (affirming the ALJ’s rejection of the diagnosis of fibromyalgia, noting that the mere fact that the claimant was diagnosed with fibromyalgia did not mean she was disabled, and the physician who diagnosed fibromyalgia never opined that this impairment caused limitations in her ability to work).
Fibromyalgia is an impairment which causes pain. Owen v. Chater, 913 F. Supp. 1413, 1419 (D. Kan. 1995).
In Moore, the Eleventh Circuit reaffirmed its unpublished decision inStewart v. Apfel, No. 99-6132, 245 F.3d 793 (Table), 2000 WL 33125958, 2000 U.S. App. LEXIS 33214 (11th Cir. Dec. 20, 2000), noting that inStewart:
we reviewed medical research on fibromyalgia, which often lacks medical or laboratory signs, and is generally diagnosed mostly on a individual’s described symptoms. Because the impairment’s hallmark is thus a lack of objective evidence, we reversed an ALJ’s determination that a fibromyalgia claimant’s testimony was incredible based on the lack of objective evidence documenting the impairment.
Moore v. Barnhart, 405 F.
3d 1208, 1211 (11th Cir. 2005), citing Stewart, 2000 U.S. App. LEXIS 33214, at *9, n. 4. The Eleventh Circuit further noted that in Stewart, it stated that a “treating physician’s testimony can be particularly valuable in fibromyalgia cases, where objective evidence is often absent.” Id. at 1212, citing Stewart, 2000 U.S. App. LEXIS 33214 at *9. In Moore, the Eleventh Circuit distinguished Stewart, and held that the “absence of laboratory evidence was not the basis for the ALJ’s own negative credibility determination” but, rather, relied on the inconsistencies between the claimant’s descriptions of her diverse daily activities and her claims of infirmity. Id. Since the ALJ provided a detailed factual basis for his credibility determination, which “did not turn on the lack of objective evidence documenting fibromyalgia, Stewart is unavailing to Moore.”Id.
In Phillips, the Eleventh Circuit noted that the although the ALJ found that the claimant suffered from Sjögren’s syndrome and fibromyalgia, and that these impairments were “severe,” the ALJ did not specifically determine whether the claimant’s exertional limitations prohibited her from performing a full range or unlimited types of work at the sedentary level. Phillips v. Barnhart, 357 F.3d 1232, 1243 (11th Cir. 2004). As the ALJ “must address and resolve this issue in the first instance before relying on the Grids,” the Eleventh Circuit remanded with directions that the ALJ consider whether the claimant’s exertional limitations affect her ability to perform a full range or unlimited types of sedentary work. Id.
In a fibromyalgia case, a Florida district court held that the ALJ erred by failing to properly evaluate the opinion of the claimant’s treating rheumatologist, and that his finding that this doctor’s opinion “is not consistent with the evidence of record as a whole, including the doctor’s own examination findings,” was “too general to permit meaningful judicial review in this case.” Morrison v. Barnhart, 278 F. Supp.2d 1331, 1336 (M.D. Fla. 2003). The court observed that rheumatologists “may be better qualified to determine the effects of fibromyalgia because not all doctors are trained to recognize this disorder.” Id. at 1335-36, citing Stewart v. Apfel, 2000 U.S. App. LEXIS 33214 at *8 (11th Cir. Dec. 20, 2000) (unpub.); Burroughs v. Massanari, 156 F. Supp.2d 1350, 1367 (N.D. Ga 2001); 20 C.F.R. § 404.1527(d)(5). The court directed that on remand, the ALJ is to reevaluate the opinion of the claimant’s treating rheumatologist and identify specifically what evidence of record “as a whole” was inconsistent and which of the physician’s “own examination findings were inconsistent with his opinion.” Id. at 1337. See also Bruet v. Barnhart, 313 F. Supp.2d 1338, 1346 (M.D. Fla. 2004) (noting that rheumatologists “may be better qualified to determine the effects of fibromyalgia because not all doctors are trained to recognize this disorder” and as the opinion of the claimant’s treating rheumatologist (as well as her treating physician) are “especially important,” the ALJ erred by failing to properly evaluate these opinions).
In Burroughs v. Massanari, 156 F. Supp.2d 1350 (N.D. Ga. 2001), the court was not able to “discern any relevance” to the ALJ’s reliance on the absence of joint swelling in a disability claim based on fibromyalgia. Id. at 1366, citing Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (stating that “[s]ince swelling of the joints is not a symptom of fibromyalgia, its absence is no more indicative that the patient’s fibromyalgia is not disabling than the absence of headache is an indication that a patient’s prostate cancer is not advanced”). The court also found that the opinion of the claimant’s treating physician was not contradicted by the opinion of a consulting physician, as found by the ALJ, and further, that as a specialist in rheumatology, he was “better qualified” to diagnose fibromyalgia and to determine its effects on an individual. Id. at 1367.
An Alabama district court noted that “[f]ibromyalgia presents unique problems in the context of Social Security cases” which have been recognized by the courts. Bennett v. Barnhart, 288 F. Supp.2d 1246, 1249 (N.D. Ala. 2003), citing Sarchet v. Chater, 78 F.3d 305 (7th Cir. 1996) and Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). However, despite its “illusive nature,” the presence of fibromyalgia can be objectively verified by the presence of “tender areas,” or “trigger points,” which are well defined and cause pain upon palpation. Id., citing Sarchet. Additionally, the court noted that clinical support for a diagnosis of fibromyalgia may be present if “injections of pain medication to the trigger points are prescribed.” Id., citingKelley, 133 F.2d at 589. The court also stated that “fibromyalgia if properly diagnosed satisfies the pain standard.” Id. In Bennett, one of the reasons cited by the ALJ for refusing to credit the claimant’s pain testimony was the fact that none of the claimant’s physicians recommended surgery, “which would indicate the claimant’s condition is not as severe as alleged.” Id. at 1251. The court found it “particularly troubling” that the ALJ relied on the lack of a surgical recommendation despite finding that the claimant suffered from fibromyalgia and myofascial pain syndrome, “neither of which is amenable to surgical treatment.”Id. See also Harrison v. Barnhart, 346 F. Supp.2d 1188, 1193 (N.D. Ala. 2004) (holding that the ALJ erred in concluding that there must be objective evidence in a fibromyalgia case, as there are no objective clinical tests to determine the severity of fibromyalgia, noting that the ALJ failed to note findings of trigger points, which is indicative of fibromyalgia); White v. Barnhart, 336 F. Supp.2d 1183, 1189 & 1189 n. 15 (N.D. Ala. 2004) (holding that the ALJ failed to properly evaluate Plaintiff’s fibromyalgia which was diagnosed by her treating physicians and holding that the ALJ erred in failing to find the claimant’s fibromyalgia to be a severe impairment and in failing to explain why he was not crediting the diagnosis).
The court held that the ALJ’s reasons for rejecting the opinion of the claimant’s treating physician met the “good cause” requirement as the record was devoid of clinical findings which supported the conclusion that the claimant suffered from fibromyalgia. Daughtry v. Barnhart, 347 F. Supp.2d 1135, 1140 (M.D. Ala. 2004). The court also rejected the claimant’s argument that the ALJ failed to properly credit her subjective allegations of pain from fibromyalgia because of the lack of any objective medical evidence to support the existence of the alleged medical condition. Id. at 1141.
Fibromyalgia is a condition which is “‘not inconsistent with a diagnosis of [chronic fatigue syndrome].’” Sabo v. Chater, 955 F. Supp. 1456, 1462 (M.D. Fla. 1996), quoting Fragale v. Chater, 916 F. Supp. 249, 254 (W.D.N.Y. 1996).