Fibromyalgia is a medical condition characterized by widespread pain in a patient’s muscles, ligaments and tendons. It is also characterized by fatigue and multiple tender trigger points throughout the body. See http://www.mayoclinic.com/health/fibromyalgia. Fibromyalgia occurs in approximately 2 percent of the population of the United States and affects women more than men. It is usually not linked to any triggering event; however, symptoms often begin after a physical or emotional trauma. Common trigger point areas are in the back of the head, between the shoulder blades, top of the shoulders, front sides of the neck, upper chest, outer elbows, upper hips, sides of hips and knees.

There are no objective tests that are used to diagnose Fibromyalgia. Indeed, Fibromyalgia, by its very nature, does not show up on diagnostic testing (medical tests and laboratory signs). The Social Security Administration uses this lack of objective evidence as a means to deny the Claimant’s disability claim. Fortunately, many United States District Courts have addressed the issue of Fibromyalgia and Social Security Applications.

In every claim for Social Security Disability benefits, the Social Security Commissioner employs a five step sequential evaluation. 20 C.F.R. §416.920. The five steps are as follows:  

1. Whether the claimant is engaged in substantial gainful activity;

2. Whether the claimant has a severe impairment;

3. Whether the claimant’s impairment meets or equals an impairment listed by the Secretary of Health and Human Services as creating a presumption of disability;

4. Whether the claimant can return to his past relevant employment; and  

5. Based upon the claimant’s age, education and work experience, can the applicant make an adjustment to another type of work.

Many Administrative Law Judges (ALJs) deny a Claimant who is suffering from Fibromyalgia on the second part of the five part sequential evaluation. The second part of the five part sequential evaluation is "whether the Claimant has a severe impairment." 20 C.F.R. §416.920. A "severe impairment" is an impairment that significantly limits the Claimant’s ability to do basic work activities. 20 C.F.R. §416.920 (5)(c). An impairment may be found to be "non-severe" only when the evidence of record establishes a "slight abnormality" that has "no more than a minimal effect on an individual’s ability to work." SSR 85-28.

The Third Circuit Court of Appeals provided the standard for reviewing a severe impairment in Newell v. Commissioner Social Security Administration, 347 F.3d 541 (3d Cir. 2003). In Newell, the Third Circuit ruled that the severe impairment requirement is a de minimus screening device to dispose of groundless claims. Id. at 546. "An impairment or combination of impairments can be found ‘not severe’ only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have ‘no more than a minimal effect on an individual’s ability to work.’" Id. Only those claimants with slight abnormalities that do not significantly limit any "basic work activity" can be denied benefits at step two. Newell at 546 citing Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287 (1987) (O’Connor, J., concurring).

In fact, the Social Security Administration has admonished ALJs to refrain from denying applicants at step two when it promulgated SSR 85-28. Bowen at 2300. SSR 85-28 provides, "[g]reat care should be exercised in applying the "not severe impairment" concept. If an Adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual’s ability to do basic work activities, the sequential evaluation process should not end with the "not severe" evaluation step. Rather, it should be continued." Id. Social Security Rulings do not

have the force of law; however, once published, they are binding on all components of the Social Security Administration. Walton v. Halter, 243 F.3d 703, 708 (3d Cir. 2001). Nevertheless, ALJs continue to deny benefits for Claimants who suffer from Fibromyalgia by finding such impairments to be non-severe.

The U.S. District Court for the Southern District of Alabama addressed this issue in Jiles v. Astrue, 2008 WL 2225780 (S.D. AL 2008). In Jiles, the Plaintiff was alleging disability as a result of various conditions including Fibromyalgia. Id. at 81. The ALJ denied the Plaintiff’s claim for disability benefits and, in doing so, determined that the Plaintiff’s Fibromyalgia was not a severe impairment. Id. Ultimately, the District Court remanded the claim back to the Social Security Administration because the substantial evidence did not support the ALJ’s finding that the Claimant’s Fibromyalgia was a non-severe impairment. Id. at 6.

The Court further noted that Fibromyalgia is not a condition that is diagnosed through objective tests. The Court cited an Eleventh Circuit decision which recognized that Fibromyalgia "often lacks medical or laboratory signs, and is generally diagnosed mostly on an individual’s description of symptoms." See Moore v. Barnhart, 405 F.3d 1208, 1211 (11^th Cir. 2005). The hallmark of Fibromyalgia is "a lack of objective evidence." Jiles, at 4 quoting Moore, supra. "Fibromyalgia is a clinical syndrome defined by chronic widespread muscular pain, fatigue and tenderness....Pain and tenderness are defining characteristics of Fibromyalgia....there are no laboratory or other diagnostic tests for Fibromyalgia, so it must be diagnosed on patient symptoms." Wuerth v. Astrue, 2008 WL 680211, 5 n.7 (M.D. Fla. 2008).

Thus, there are numerous decisions that support the conclusion that ALJs cannot just summarily deny Claimant’s who suffer from Fibromyalgia based upon the argument that there is a lack of objective evidence. However, Claimants who do suffer from Fibromyalgia and intend to use this condition to support a claim for disability must be very aggressive and provide information from a treating physcian to support their subjective complaints. We strongly recommend obtaining an RFC (residual functional capacity) from the treating physician in order to provide more support for the Claimant’s subjective complaints. The ALJ may still deny the claims, but the Claimant’s chances of obtaining disability benefits will be greatly enhanced.

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