Case study – Sometimes it is necessary to go all the way to Federal Court
Sometimes it takes longer than it should for Social Security to recognize someone’s disability. In fact, it sometimes feels like claims are being denied or drawn out just so claimants become discouraged and give up. Don’t give up! The following case illustrates why.
Our client came to us in late 2017. She had already filed an application and was initially denied benefits at both the initial and reconsideration levels. She had been disabled since November 2013 but did not file her application for benefits until 2016. Because her “date last insured’ expired in 2018, we had to prove that her disability started before December 2018 and that it continued to the present for her to receive ongoing benefits. You must prove disability while still insured and you earn your insured status by working and paying your FICA taxes out of your pay checks.
In her 50’s throughout, our client had mainly worked in offices during her career. She had a lot of debilitating health problems though the worst was pain due to fibromyalgia. She also had some orthopedic issues, was overweight who never helps, and understandably experienced severe anxiety and depression. Our client primarily treated with a rheumatologist, the best specialist for fibromyalgia. The treatment and support she had from her rheumatologist were crucial, as we shall see.
Fibromyalgia is often misunderstood. It is marked by chronic diffuse widespread aching stiffness of the muscles and soft tissues. To date, the causes are unknown, and there is no cure. The biggest issue with fibromyalgia disability cases is that the symptoms of fibromyalgia cannot be verified by any specific test. For example, you cannot see fibromyalgia on an x-ray or MRI. No blood test establishes that a person has fibromyalgia. Doctors cannot do a biopsy, look under a microscope, and say this person has fibromyalgia. This makes proving a disability case challenging. Disability judges are accustomed to looking at “positive” tests to help them establish that a condition exists. They are trained to make sure that a medical condition is well documented by “objective” medical evidence. With fibromyalgia, there are no objective tests which can conclusively confirm the disease. They diagnose this condition by elimination—if it isn’t this or that and all the symptoms are consistent with fibro, they can be confident in their diagnosis.
To attempt to resolve the fact that no clear objective tests exist to evaluate the condition, Social Security issued a “Social Security Ruling,” that is supposed to help adjudicators (judges), do the evaluation. The ruling, SSR 12 – 2P, advises that “we cannot rely on the physicians diagnosis alone”. Instead, the adjudicator(judge) should evaluate the case under the “1990 ACR(American College of Rheumatology) criteria for the classification of fibromyalgia” or the “2010 ACR preliminary diagnostic criteria”. To determine if the criteria are met, the judge is supposed to scour the record to see if the diagnostic criteria outlined in those reports are present. Unfortunately, rheumatologists, experts in the field, are generally more concerned about treating your symptoms and trying to provide you with relief and sometimes do not document all “criteria” that are present in their notes when treating you. Or the expert may note the presence of the criteria but not in a way easily recognized by a judge that does not have the same training. For example, a rheumatologist may do an examination and determine that you have fibromyalgia but not document in the treatment notes every positive trigger point that he found. They may not note them all at each visit. Remember that doctors know their patients and the notes are reminders to them of unexpected things found at that exam as much as writing down the obvious. Or they may make a notation that is difficult to read or understand. As a result, even an unbiased judge can conclude that fibromyalgia is not established under the criteria based on their lay person analysis of the medical treatment notes. The analysis can also be muddied by the symptoms caused by unrelated conditions. In this case, our client’s medical condition was further complicated by the fact that she also suffered from osteoarthritis which made it difficult to tease out which of her symptoms were caused by the fibromyalgia and which were caused by the arthritis. Both can be very painful.
In order to cover any gaps in the record we asked the doctor to fill out the Binder and Binder fibromyalgia questionnaire that we developed. There, the doctor could clearly reference the clinical basis for his diagnosis so that it was unambiguous and consistent with the criteria used by Social Security. We also asked the doctor to comment on how the claimant’s symptoms interfered with her functional ability. So for our client, her rheumatologist documented that our client had at least 14 positive tender points and had chronic fluctuating pain throughout her neck, chest, shoulders, arms, legs and back. The treating doctor also noted that his patient suffered from difficulty thinking “fibro fog”, poor memory, headaches, nausea, and numbness and tingling and pain. He then concluded that these symptoms were so debilitating that it would prevent her from doing the minimum sitting, standing and walking that would allow work. Besides getting the support of her rheumatologist we were also able to get opinions from the claimant’s physician’s assistant. The physician’s assistant also concluded that the claimants medical condition would not permit her to do the minimal requirements of a full-time sit down job.
Unfortunately, despite having this important material from a specialist and a physician’s assistant—and remember both had the benefit of seeing our client over an extended period of time–the administrative law judge (ALJ) who presided at the hearing concluded that she could in fact perform a sit down job. The judge relied on opinions from doctors that never even saw the claimant. The judge also cited to physical findings in the record in support of denying disability. The citing of these physical findings demonstrates the failure of the judge to understand the condition. This denial of benefits by the administrative law judge after a hearing was certainly disheartening. And unfortunately, it is not unusual particularly in hard to document cases like fibromyalgia. We appealed this denial to Social Security’s “Appeals Council”. Again, the case was denied.
Most claimants give up at this point if they have not given up earlier. We would not allow that, and we persuaded the claimant to file a civil action in federal court to ask a United States District Court judge to review the decision. We do not do this on every case, many representatives don’t do it at all, but we felt this case was so strong, and the injustice so egregious, that we encouraged the claimant to keep fighting in federal court. After filing a summons and complaint and then filing our arguments in a document called a “brief” (though they rarely are), the United States attorney’s office agreed with our argument that the judge failed to do a proper analysis of the treating doctors opinion and he agreed that the case should be sent back to the Social Security Administration for a new hearing. The District Court Judge adopted our understanding (called a stipulation) and ordered the case sent back.
The Social Security Administration reviewed the case again as a result of the federal court decision and ultimately awarded the claimant the benefits that she deserved. It took longer than it should have, but by continuing to fight we managed to convince the administration that the claimant was not only currently disabled, but had been disabled all the way back to November 2013.
Don’t give up! Often, Social Security does not properly review all the evidence when making its decision. Individuals make these decisions, and sometimes they come to the wrong conclusion, either as a result of a lack of familiarity with a particular condition, a failure to understand the significance of notes in the treatment record, and sometimes because of bias that is either conscious or unconscious. If you have a strong case, keep fighting. We can help!
Some conditions are not well understood. Understand that some conditions like fibromyalgia are complex and the rules involved in evaluating them can be confusing. One would think that Social Security would rely on the opinions of the treating expert as to how your condition affects you. Unfortunately, that is not generally the case. Judges review so many different types of cases that they come to believe themselves medical experts in determining what is going on with people physically and emotionally. As a result, they will sometimes review a record and believe that they understand the medical signs and symptoms better than the treating doctor. I don’t believe that this is usually done to purposely hurt anyone. I believe it is just cynicism and hubris. In this case however, because we were able to get the medical records and the doctor amplified his earlier opinion to address the issues that Social Security must evaluate.
Representation Matters: Binder and Binder is experienced in handling both routine and complex cases. We will zealously represent you even if it means fighting all the way to federal court. Social Security rules can be complicated and confusing but we have represented thousands of claimants over the years and we know the rules. Experience matters. Contact us for a free consultation.Free SSD Evaluation