Friday, August 13, 2010


State agencies frequently deny fibromyalgia claimants’ initial applications for Social Security Disability (“SSD”) benefits due to a lack of “objective” evidence. However, there is no diagnostic or laboratory test for fibromyalgia, and the law prohibits the Social Security Administration (the “SSA”) from requiring a fibromyalgia claimant to produce objective evidence to establish entitlement to SSD benefits.

I represent a 43 year old former DHL employee who stopped working because of her fibromyalgia. The SSA granted my on-the-record (“OTR”) request today asking that the claimant’s disability application be approved without a hearing. The State agency had denied the application on the grounds that the “only abnormal finding was increased bilateral crepitus. Muscle strength is full and symmetric. Normal muscle tone without any atrophy or abnormal movements.” The State agency did exactly what the law held cannot be done.

New York Courts recognize that physical examinations of fibromyalgia patients “will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. Hence, the absence of swelling joints or other orthopedic and neurologic deficits is no more indicative that the patient's fibromyalgia is not disabling than the absence of a headache is an indication that a patient's prostate cancer is not advanced.”

My OTR argued that the State agency improperly denied the claimant’s application for a lack of objective medical abnormalities. I explained that the treating rheumatologist’s disability assessment was based on the claimant’s meeting the American College of Rheumatology’s tender point criteria for fibromyalgia, and the doctor’s opinion regarding the severity of those tender points.

The SSA agreed that the State agency’s basis for rejecting the treating rheumatologist’s disability opinion was unfounded. Consequently, the claimant’s SSD application was approved without needing to await a hearing

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