Fibromyalgia Case Study #3
Claimant: 54 year old female
Occupation: clerical, receptionist, inventory control clerk, tire builder (machine operator).
Education: high school + 1 semester college
Hearing Info: Claimant applied for benefits in July, 2004, alleging disability beginning in May, 2002. Hearing was held in June, 2008.
Case strategy: as I reviewed this file, I could not help but be struck by the similarity my client’s medical record had with other “classic” fibromyalgia claimants I had represented in the past. As I pointed out on the general case strategy section of this web site, fibromyalgia has gone from being a relatively unknown condition to a diagnosis that gets tossed around with impunity. In my mind, at least, a legitimate fibromyalgia patient as most of the following characteristics:
claimant is usually a female, usually in her late 30’s to mid-50’s
she is often a highly organized, type A personality
she has often over achieved at work – perhaps a clerical worker who, because of hard work and organizational skills, moved quickly up the corporate ladder to a position of trust and authority
she often does not have much formal education, or her education is less than what one might expect for an employee in her position
she keeps accurate records of medical treatment, frequently compiling a notebook that is tabbed and divided
she has gone to multiple specialists – rheumatologists, gastroenterologists, internists, neurologists, etc. – in an effort to secure some type of cure
her symptoms often include gastric upset, esophageal pain, balance issues, short term memory issues
she often experiences myofascial pain – with extreme sensitivity to the touch – even the pressure of a bed sheet can be too much
My client certainly had most, if not all of these issues. This is not to say that my client’s case was perfect. A couple of issues did pop up. First, my client had undergone multiple tests with the various doctors she had seen. She had undergone nerve conduction tests, MRI’s, CT scans, and a variety of other tests. All of these tests had come back negative. In addition, several of her treating doctors had referenced the terms somatization, which is a term that refers to a mental health condition in which a patient perceives symptoms from one or more medical conditions that do not exist.
Somotoform disorder is a recognized mental health condition that can support a claim for disability, but there was never really a firm somotoform disorder diagnosis – just hints that some of this may be going on. Somotoform disorder differs from fibromyalgia in that there are physical manifestations of disease in fibromyalgia patients. In many ways fibromyalgia can be almost like the body’s physical reaction to prolonged an intense stress. In my case, those physical manifestations were not as prominent as I would have hoped.
We had also been unable to obtain a functional capacity form from any of my client’s treating doctors. This happens sometimes, especially in smaller medical offices, and when I can’t get a form, it is easier for a judge to discount testimony. A helpful form that is filled out by a treating physician can go a long way to giving the judge little choice but to approve a case.
There was one other issue that I noted – my client was and is an avid computer user and she had maintained a web site about fibromyalgia and she had engaged in regular correspondence with other fibromyalgia sufferers. She had asked several of these friends to write letters to the judge on her behalf. I am actually not a big fan of this type of activity. Maintaining a web site and actively counseling others kind of looks like work-like activity. Would the judge conclude that if my client had the capacity to maintain a web site and to regularly write others, she might have the capacity to perform work activities?
The Hearing: prior to the hearing, I met with my client and I explained to her that the main issue in our case related to her capacity to perform work or work like activities. In other words, we were going to need to show that her functional capacity for work was so impaired by her medical conditions that she would not be a reliable employee in any type of job.
I recommended that we focus on four (4) main problem areas. I chose these areas because they each had significant vocational impact. The four areas were:
gastric and digestive issues, including chronic diarrhea and constipation, which would require frequent and unscheduled bathroom breaks
chronic fatigue – which would impact reliability
chronic neck and shoulder pain and myofacial pain
impaired concentration and memory
There were other areas of complaint, but I felt that these had garnered the most attention by treating doctors and my client could readily discuss each one.
The hearing commenced and the judge began by asking a number of questions. He was actually quite thorough in his questions and my client did a good job in referencing the four main problem areas we discussed.
When it came time for me to ask questions, I touched on each of the four areas, and I specifically asked detailed questions about the diarrhea and constipation and the bathroom usage, as I have won a number of cases on this issue alone.
After taking testimony, the judge then turned to the vocational expert to ask questions. I was not pleased that all of the judge’s questions referenced mild impairments and all of the questions resulted in answers from the VE that the hypothetical claimant could return to past work or other work.
Here is one of the judge’s questions: Assume we have a hypothetical person who is the same age as the claimant with the same education and work background. Assume further that this hypothetical person is limited to light work with the following conditions and limitations:
limited to occasional climbing, but no activity involving ladders, ropes or scaffolds
limited to occasional stooping
reaching, including overhead reaching would be limited to occasional
psychologically, our hypothetical person would have no limitations in understanding simple instructions, but would have mild limitations in understanding detailed instructions because of a mild limitation with attention and concentration
our hypothetical person would be limited to simple work or no more than a moderate level of detailed work that does not require prolonged periods of intense concentration
exposure to temperature extremes would be limited to occasional
there could be no work involving heavy or vibrating equipment, but she could stand vibration equivalent to what she might experience when riding in an automobile
she would need to avoid a noisy environment
Again, the VE’s response to this hypothetical and others like it was that jobs did exist within the limitations of the hypothetical question
I then asked a question that referenced the multiple bathroom breaks and several other impairments that I had brought out on direct – these questions yielded “no work” answers.
I do not yet have the decision. The medical evidence is what it is. I felt that my client was credible in her testimony and I think we focused on the right impairments. We will need to see, however, if the judge concludes that the evidence is consistent with the degree of limitation asserted by my client.
Update: the judge issued an unfavorable decision in this case. As I had feared, the judge felt that my client’s writing and advocacy were characteristics of a person who had the capacity to perform a simple job.