Maine Social Security Disability Lawyer

Interstitial Cystitis and Social Security Disability

I have a claim coming up for a hearing where one of the claimant's impairments is interstitial cystitis (IC). IC is a chronic bladder disorder characterized by pelvic pain. IC occurs ten times more frequently in women than men, and is often associated with other impairments, such as fibromyalgia.

In my research for this case, I was a little surprised to find Social Security Ruling 02-02p, which addresses interstitial cystitis in the context of a Social Security disability claim.

The Ruling states in part:

many people with IC have chronic pelvic pain, which can affect the ability to focus and sustain attention on the task at hand. ... In assessing RFC, we must consider all of the individual's symptoms in deciding how such symptoms may affect functional capacities.

An assessment also should be made of the effect IC has upon the individual's ability to perform routine movement and necessary physical activity within the work environment. Individuals with IC may have problems with the ability to sustain a function over time.

As explained in SSR 96-8p ("Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims"), our RFC assessments must consider an individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. In cases involving IC, fatigue may affect the individual's physical and mental ability to sustain work activity.

Read the entire Ruling if you have a claim involving interstitial cystitis. And remember, Social Security must consider your combination of impairments when deciding your claim.

Chronic Fatigue Syndrome

Chronic Fatigue Syndrome is a basis for Social Security disability, and Social Security Ruling 99-2p sets forth the policy for evaluating disability claims involving chronic fatigue syndrome.

One of the problems with chronic fatigue syndrome is that no one really knows what causes it. However, the New York Times has a fascinating article today, entitled Is a Virus the Cause of Fatigue Syndrome? 

It is definitely worth reading, and while your on the New York Times site, check out the health quide for chronic fatigue syndrome.

Fatigue and Social Security Disability

Fatigue is a frequently encountered symptom in Social Security disability claims. Fatigue can be a component of many conditions, including fibromyalgia and Lyme disease. Fatigue is often secondary to conditions involving chronic pain, because it is exhausting to be in pain all the time. Fatigue can also be secondary to severe depression. And of course, there is chronic fatigue syndrome.

Fatigue can certainly be a disabling symptom, and a record of your fatigue and its effects can help to establish your disability claim. However, your fatigue must be documented to strengthen your claim. Unfortunately, fatigue is often not well documented in the medical record. 

So consider keeping a journal. And tell your doctor about your fatigue, and how it limits your ability to function. Ideally, your treating physician will complete a medical source statement setting forth your functional limitations, including those due to fatigue. That is the best evidence of all.

Autism and Social Security Disability

Autism is certainly a basis for a Social Security disability claim, and there is a listed impairment for "Autistic disorder and other pervasive developmental issues" See Adult Listing 12.10 and Childhood Listing 112.10.

Typically we see autism as the basis for a childhood disability claim. However, we also see it quite a bit with a 19 year old claimant as the basis for a Social Security disability or an Adult Child Disability claim.

Every autistic child exhibits different symptoms and has a different place on the autism spectrum. These cases can take some time to see where your client fits.

Here is the adult listing:

12.10 Autistic disorder and other pervasive developmental disorders: Characterized by qualitative deficits in the development of reciprocal social interaction, in the development of verbal and nonverbal communication skills, and in imaginative activity. Often, there is a markedly restricted repertoire of activities and interests, which frequently are stereotyped and repetitive.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied.

A. Medically documented findings of the following:

1. For autistic disorder, all of the following:

a. Qualitative deficits in reciprocal social interaction; and

b. Qualitative deficits in verbal and nonverbal communication and in imaginative activity; and

c. Markedly restricted repertoire of activities and interests;

... AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration.

Overall, the "B" Criteria of listing 12.10 are a natural fit for an autistic claimant. Common symptoms of autism include restricted daily activities, difficulty in social functioning, and difficulty with concentration, persistence or pace. If the criteria of part A are met, in most cases part B will also be met, because the two parts are describing and measuring the same areas of functioning.

The autism listing differs in this respect from the other mental disorder listings where the disorder is defined in part A and the severity is measured in part B. Usually the two parts are largely unrelated. See, for example, listing 12.06 for anxiety. But with the autism listing, both the A and B criteria describe the same general areas of functioning.

Of course, it is quite possible for a mildly autistic person not to meet the "B" criteria. But this natural fit between the A & B criteria of the autism listing makes the listing much more likely to be met.

 

The First Circuit and Fibromyalgia

The First Circuit has a new memorandum decision which discusses fibromyalgia symptoms in the context of a Social Security disability claim.

In Johnson v. Astrue, Docket No. 08-2489 (1st Cir. 7/21/2009), the Court heard an appeal of an ALJ's denial of disability benefits. The ALJ in her decision discounted the opinion of Dr. Ali, the treating rheumatologist. The First Circuit panel looked at the reasons offered by the ALJ, and found each of them to be unpersuasive. Here is an excerpt from the First Circuit's opinion:

This leaves what appears to be the ALJ’s primary reason for giving little weight to Dr. Ali’s limited RFC assessment -- i.e., that such limitations were “of necessity based on the claimant’s subjective allegations as the doctor’s examinations of the claimant were, with the exception of the presence of tender points, relatively benign.” Trans. at 27. Dr. Ali’s “need” to rely on claimant’s subjective allegations, however, was not the result of some defect in the scope or nature of his examinations nor was it even a shortcoming. Rather, “a patient's report of complaints, or history, is an essential diagnostic tool” in fibromyalgia cases, and a treating physician’s reliance on such complaints “hardly undermines his opinion as to [the patient’s] functional limitations.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (internal punctuation and citation omitted). Further, since trigger points are the only “objective” signs of fibromyalgia, the ALJ “effectively [was] requiring objective evidence beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines,” and this, we think, was error. See id. at 106-07

The ALJ's decision also discredited the claimant's allegations of severe chronic pain. On this issue, the First Circuit panel had quite emphatic language:

Second, once the ALJ accepted the diagnosis of fibromyalgia, she also “had no choice but to conclude that the claimant suffer[ed] from the symptoms usually associated with [such condition], unless there was substantial evidence in the record to support a finding that claimant did not endure a particular symptom or symptoms.” See Rose, 34 F.3d at 18 (emphasis added). The primary symptom of fibromyalgia, of course, is chronic widespread pain, and the Commissioner points to no instances in which any of claimant’s physicians ever discredited her complaints of such pain. Given this, we do not think that the ALJ’s decision to discredit claimant was supported by substantial evidence.

This is good stuff. It is an important acknowledgment of fibromyalgia's unique signs and symptoms, and how that uniqueness affects the analysis in a Social Security disability claim. It would be great if the First Circuit were to change its mind and designate this case for publication.

Kudos to Rhode Island attorney James Gannon for a great job on the First Circuit appeal. Hat tip to Portand attorney Murrough O'Brien for giving me a heads up on this very recent case. 

Lastly, the First Circuit's recent opinions are now available by RSS. Who knew?

Fibromyalgia and Social Security Disability

Fibromyalgia is a medically determinable impairment, and can therefore provide a basis for a Social Security dsability claim.

However, many patients report that their doctors do not take fibromyalgia seriously. This was the topic of a recent fibromyalgia article in the Sacramento Bee, a California newspaper. Here is an excerpt:

Controversy swirls even as new FDA-approved medications have shown promise and recent brain imaging research has shown central nervous system changes in those afflicted. ...

It is this array of symptoms not linked to specific cause and effect – as opposed to how rheumatoid arthritis can ravage a patient's joints – that keeps skeptics in mainstream medicine from validating fibromyalgia as a legitimate disease.

Where, exactly, is this deep muscular aching? What's the cause of that nebulous numbness and dizziness? Why won't painkillers help? Where are the lab tests that can prove it exists?

Those are the questions that still dog fibromyalgia patients.

"They make you think you're a hypochondriac or something," says Jennifer Filbeck, 36, a former restaurant manager from Fairfield who's been unable to work since 2006. "Doctors treat you like you're crazy."

Not crazy per se, critics of the existence of fibromyalgia claim. Their argument: These people suffer from psychological conditions that manifest themselves in vague and hard-to-define physical maladies.

That article could have been written about patients in Maine and New Hampshire, not just California. It is surprising to me how different treating physicians have widely disparate views regarding fibromyalgia.

Nevertheless, for Social Security disability, what matters is not the cause so much as your functional limitations. If you are unable to work due to your medically determinable impairment, you are disabled. Period. Providing evidence establishing those functional limitations is the crux of a Social Security disability case.

Hat tip to @gachman for bringing the article to my attention.

It's Not the Diagnosis, It's the Severity

When talking with Social Security disability claimants, I often hear a statement like "I can't work because I have been diagnosed with bipolar disorder" (or degenerative disc disease, or fibromyalgia). The claimant makes the statement like the matter is settled. The reasoning seems to be: since there is a doctor's diagnosis of my impairment, my disability claim should be granted.

Unfortunately, that reasoning is not at all correct. It is not the diagnosis of the impairment but the severity of the impairment that matters in a Social Security disability claim. And I explain this to clients every day.

The diagnosis is just the beginning. A good beginning to be sure, since the diagnosis satisfies the medically determinable requirement in a Social Security disability claim. But the important thing is the severity of your impairment. How much does it affect your functionality? How does it affect your ability to work? These are the important questions in a Social Security disability case.

What is missing from almost every denied Social Security disability claim is evidence establishing a claimant's functional limitations. A medical diagnosis alone does not establish any functional limitations. And unfortunately, a patient's medical records usually have little information regarding functional limitations (medical records are created and maintained for medical providers to track a patient's medical care, not to establish disability).

So remember, it's not the diagnosis but the severity of the impairment that matters. And a Social Security disability lawyer spends a great deal of time trying to obtain evidence - often a medical source statement - that will establish a claimant's functional limitations.

Anxiety and Social Security Disability

Severe anxiety can certainly provide a basis for Social Security disability. Anxiety is among the SSA's listed impairments - please see listing 12.06.

I had a hearing last week for a claimant suffering from severe anxiety with agoraphobia. This claimant has been basically housebound by anxiety, and leaves the house only for doctor appointments. Her husband does the food shopping. She buys her clothes online. It was quite clear from her hearing testimony that anxiety was severely limiting all aspects of her life, and employment was not a realistic possibility. Further, I was able to obtain a medical source statement from her treating psychiatrist that assessed severe limitations. The judge found that the claimant met listing 12.06, and issued a bench decision granting the disability claim.

For more information about anxiety and social security disability, there is a link on the sidebar of this site (in the Important Topics section) to the Claimants with Mental Impairments page, which discusses the issues involved with Social Security disability claims involving anxiety and other mental health conditions.

If you are wondering if your anxiety or other mental health condition is severe enough to receive disability benefits (and you live in Maine or New Hampshire), ask for a free Social Security claim evaluation.

Lyme Disease and Social Security Disability

Lyme disease can certainly provide the basis for a successful Social Security disability claim. However, it can be a long road.

I saw a recent news story regarding a Connecticut man suffering from chronic Lyme disease, who is also struggling to have his Social Security disability claim granted. His story is all too common.

Chronic lyme disease often involves headaches, chronic fatigue and pain. In addition, for this gentlemenan in Connecticut, bright light hurts his eyes; loud noises bother him; his joints hurt him constantly.

There is no specific Social Security listing for Lyme disease. A Lyme disease disability claim is evaluated under Listing 14.09D Inflammatory Arthritis, which is not a precise fit. That means, as a practical matter, a Lyme disease claim will usually proceed to steps 4 and 5 of Social Security's sequential evaluation process. Further, claims involving chronic pain can be difficult for DDS to evaluate, so this gentlemen may have to wait for a hearing on his disability claim. 

This is the timely topic, because the ticks that carry Lyme disease reappear this time of year. If you have Lyme disease or suspect that you do, you need a Lyme-literate primary care physician, and an infectious disease specialist who handles Lyme cases. Likewise, for your Social Security disability claim, retain a Social Security specialist.

GAF Score

Severe depression or anxiety is often a component of a Social Security disability claim. For claims involving mental health, the Global Assessment of Functioning score assessed by your mental health provider can provide a convenient benchmark for the administrative law judge.

The GAF scale is Axis V of the multiaxial assessment used by mental health clinicians. The GAF score offers a snapshot of a patient's functioning at that time. Although the GAF score does not correlate directly to the severity requirements Social Security's mental disorders listings, it still offers a convenient distillation of a clinician's progress notes.

In general, for claimants who have primarily mental impairments, I like to see a GAF score below 50. When a GAF score is in the range of 35-45, I always point it out to the judge in my hearing memorandum. For example, if the treating psychologist assessed a GAF score of 45, I note that a score from 41-50 equates with "Serious symptoms OR any serious impairment in social, occupational, or school functioning." In such a case, the GAF score provides compelling, contemporaneous evidence of the severity of a claimant's mental health problems.

A GAF score of 55, on the other hand, doesn't help that much. A score from 51-60 corresponds with "Moderate symptoms OR any moderate difficulty in social, occupational, or school functioning." Moderate symptoms do not make for a successful Social Security disability claim. In such cases, I highlight the other evidence in the record that better demontrates the severity of the claimant's impairments.

A GAF score of 65, which I see from time to time, is actually evidence that your mental health is not dramatically affecting your occupational functioning. Mild symptoms and some difficulty in social or occupational functioning are not likely to result in a favorable disability determination, without other medical evidence of severe work-related limitations.

Go to the Claimants with Mental Impairments page to learn about the issues involved with Social Security disability claims involving depression, anxiety and other mental health conditions.

If you are wondering if your mental health condition is severe enough to receive disability benefits (and you live in Maine or New Hampshire), ask for a free Social Security claim evaluation.

Medically Determinable Impairment

 

Social Security requires a medically determinable physical or mental impairment as the basis for a finding of disability. The "medically determinable" language is part of the definition of disability in the Social Security Act itself. See 42 U.S.C. 423(d)(1)(A).

A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms. Please see 20 C.F.R. 404.1508. Signs, symptoms and laboratory findings are defined by regulation. Also, Social Security Ruling 96-4p discusses this requirement, and is a good starting place for research on the issue.

The point of the requirement for a medically determinable impairment (MDI) is to ensure there is a valid basis for your claim, and for the functional limitations you are asserting.

Some illnesses are problematic in the MDI department, however. Social Security has had to clarify that the MDI requirement is met for certain illnesses. For example, Social Security has declared that chronic fatigue syndrome, post-polio sydrome and fibromyalgia all satisfy the requirement for a medically determinable impairment. As a result, these impairments can medically support a determination of Social Security disability.

Post Polio Sequelae and Social Security Disability

Post-polio sequelae (also called post polio syndrome or PPS) are often disabling symptoms that occur in many polio survivors much later in life, about 35 years after the poliovirus attack. The symptoms may include overwhelming fatigue, muscle weakness, chronic muscle and joint pain, sleep disorders, as well as difficulty swallowing and breathing.

You can learn more about PPS by reading The Post-Polio Syndrome Fact Sheet.

Post polio sequelae constitute a medically determinable impairment, and certainly can provide the basis for a finding of Social Security disability. See Social Security Ruling 03-1p.

Very serious PPS symptoms may meet medical listing 11.11 at step 3 of the sequential evaluation process. More often however, the cumulative and interactive effects of all of the individual's impairments, including PPS symptoms, will be assessed in determining that claimant's residual functional capacity.

Tens of thousands of people in the United States suffer from post polio sequelae. I was unaware of how serious a condition it can be until recently, when I spoke with a prospective client on the phone, and did some research.

Go to a Specialist

Colorado Springs disability lawyer Tomasz Satasiuk has published an article on his Colorado Social Security Law blog entitled Should I see a specialist when applying for Social Security Disability?

Tomasz and I agree that the answer is: YES!

Depending upon your impairment, a specialist's opinion can be very important both for your medical care and for your Social Security disability claim.

Three particular situations come to mind:

1. If you suffer from fibromyalgia, it is very important to get that fibromyalgia diagnosis from a rheumatologist. The American College of Rheumatology sets forth the diagnostic criteria for fibromyalgia. There is a world a difference between a rheumatologist's diagnosis of fibromyalgia and your primary care doctor's diagnosis of a "fibromyalgia-like syndrome."
2. If you have Lyme disease, you should see an infectious disease specialist who specializes in Lyme disease. Such expertise is very important both for your medical care and for your disability claim.
3. If you suffer from a mental impairment (such as anxiety, depression or bipolar disorder), it is very helpful to have a psychiatrist or psychologist involved in your medical care. In my view, if your family doctor is the only one treating your severe anxiety and depression, you will have problems with your Social Security disability claim.

That's just three situations that come up over and over again in my practice. There are certainly others.

In addition to more focused medical care for you, a specialist's opinion is given greater weight by the SSA. See 20 C.F.R. 404.1527(d)(5).

Keep a Journal

From time to time I ask my clients to keep a journal, to keep track of their "good days" and "bad days" over a period of several months. For certain impairments, such a fibromyalgia, such a journal can be very helpful.

There is no listed impairment for fibromyalgia. So the case has to be decided at steps 4 and 5 of the sequential evaluation process. Furthermore, fibromyalgia does not fit well into the Social Security RFC analysis, because on a given day, a claimant may be able to do all the requirements of light work. The next day, however, the same claimant may be unable to get out of bed due to pain secondary to fibromyalgia.

The most likely route to a favorable decision for such a Social Security disability claim is that the administrative law judge determines that for several days each month you will be unable to work due to your fibromyalgia. As a result, the judge rightfully concludes that you are unable to maintain employment, and should be awarded Social Security disability benefits. You can help the judge make this determination by keeping a journal, so that you have an accurate record of how many "bad days" you have each month due to your fibromyalgia.

A journal can be helpful for claims based on other impairments, including chronic fatigue syndrome, chronic pain, depression and anxiety.