In 1996, the Seventh Circuit held that, the ALJ misunderstood the disease of fibromyalgia and improperly found the claimant's credibility to be undermined. Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The Court observed that the principal symptoms of fibromyalgia are "pain all over," fatigue, disturbed sleep, stiffness, and the only symptom that discriminates between it and other diseases of a rheumatic character multiple aching spots. Id. at 307.
The Tenth Circuit stated that, "the mysterious nature of this disease and the ALJ's lack of familiarity with it....impacted his decisions concerning the assessment of [the claimant's] credibility." Stephens v. Chater, No. 954110RDR, 1996 WL 304527 (D. Kan. June 4, 1996). The Stephens case epitomizes the difficulty in the evaluation of the disability claim where fibromyaglia is at issue. Often, because of the "mystery" of the disease the claimant's credibility may wrongfully come into question.
As a result of ALJ decisions evaluating claimants' credibility rather than fibromyalgia, recent rulings are now requiring a comprehensive assessment of medically documented fibromyalgia symptomology. Owen v. Chater, 913 F. Supp. 1413, 1419 (D. Kan. 1995); Social Security Ruling 967p. To dispel the "mystery" of the disease two circuits have aligned fibromyalgia with the well recognized disease of chronic fatigue syndrome (hereinafter "CFS"). The Eleventh Circuit held that, fibromyalgia is "not inconsistent with a diagnosis of [CFS]." 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). The Ninth Circuit held that, a diagnosis of CFS and fibromyalgia may exist simultaneously, especially since they both share a number of common features. Powell v. Chater, 959 F. Supp. 1238 (C.D. Cal. 1997).
The advocate should keep in mind that 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. The medical literature indicates that fibromyaglia patient's may have psychological disorders, the disease commonly strikes between the ages of 35 and 60 and it affects women nine times more than men. See, Preston v. Secretary of Health and Human Services, 854 F.2d 815, 818 (6th Cir. 1988).
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( 3 / 504 )In the past, most of the articles written about the Social Security Administration (SSA) have been about what is wrong with the agency and its programs. In the spirit of positive thinking the following are important programs and tools that the practitioner should be aware of and utilize when tackling a Social Security dilemma.
The SSA has a well planned out and user friendly website in English and Spanish at www.SSA.gov . The website is packed full of important information and answers to the most frequently asked questions. This site contains a multitude of pamphlets and publications on every aspect of Social Security benefits which are easily searchable by keywords and subject matter. A great benefit to the practitioner is the online library of Social Security Rulings and most recent updates. Also a downloadable PIA calculator is available for the estimated benefit calculations. Most recently, the SSA allows an online request for an individual's earnings report and benefit estimate statement.
In SSA's push to be more user friendly the agency has launched the largest customized mailing by a Federal agency. The SSA is currently sending an annual Social Security Statement to125 million workers. The 4-page statement is designed to make workers aware of their retirement, disability and survivors' benefits. The statement will also provide workers an easy way to determine whether their earnings are accurately posted on their Social Security records.
A recent Gallup poll showed that individuals who have received a Social Security Statement from the SSA have a greater understanding of their benefits than those who did not receive a statement. Those who have received a statement are more likely to know that (1) the amount of benefits depends on how much they earned; (2) Social Security pays benefits to workers who become disabled; (3) Social Security provides benefits to dependents of workers who die; and (4) Social Security was designed only to provide part of total retirement income. This increased awareness and documentation will also help the Social Security practitioner more accurately assess the client's potential benefit recovery.
The need for more accurate and timely information is being addressed via SSA Commissioner Apfel's Short-Term Initiative Program to improve the 800 number telephone service. This initiative, which is dependent upon enactment of the President's budget, will improve customer service by increasing the SSA national 800 number call answering capacity. The program will also provide employees in the Program Service Centers (PSC) more time to spend on pending workloads which include requests for recomputations of benefits and activities related to the distribution and collection of benefits that have been paid incorrectly. Currently, these areas have delays in excess of 90 to 180 days.
In the spirit of positive thinking and an eye towards user friendly programs the SSA has made a step in the right direction. Just think what could be done if we could get the Social Security Administration to---------leap?
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