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Fibromyalgia SSR Issued

September 11, 2012

On July 25, 2012, the Social Security Administration (SSA) issued Social Security Ruling (SSR) 12-2p: Titles II and XVI: Evaluation of Fibromyalgia. 77 Fed. Reg. 43640 (July 25, 2012).  The new SSR became effective immediately. It provides guidance on how to develop evidence to establish that a claimant has fibromyalgia (FM), and how it is evaluated in disability claims and continuing disability reviews.

FM is characterized by widespread pain in the joints, muscles, tendons, or nearby soft tissues that persists for at least three months. To find a medically determinable impairment (MDI) of FM, the ruling requires there be sufficient objective evidence to support a finding that the person’s impairment(s) so limit the person’s functional abilities that it precludes him or her from performing any substantial gainful activity. Such evidence can be provided, generally, from an acceptable medical source, i.e., a licensed physician (a medical or osteopathic doctor).  A physician’s diagnosis alone, however, is not sufficient. The evidence must show that the physician reviewed the person’s medical history and conducted a physical exam. The treatment notes must be consistent with a diagnosis of FM, and must track the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia, or the 2010 ACR Preliminary Diagnostic Criteria.

Under the 1990 criteria, there are three elements for a diagnosis for FM, all of which must be met.  First, there must be a history of widespread pain in all four quadrants of the body (right, left, above waist, below waist) for at least three months.  Second, the individual must have at least 11 tender points (out of 18 located on each side of the body).  To test the tender points, the physician must apply an amount of force that would “blanch the thumbnail.”  If the person experiences any pain, it qualifies as a positive tender point. Finally, evidence that other disorders that could cause the symptoms or signs must be excluded.

Under the 2010 criteria, there are also three elements, all of which must be met.  First, there must be a history of widespread pain (same as 1990 criteria). Second, there must be repeated manifestations of six or more FM symptoms, signs, or co-occurring conditions, with special consideration given to fatigue,  cognitive or memory problems, waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.  The “signs” may be found in Table No. 4 in the 2010 report, and include those listed, among others such as vomiting, ulcers, seizures, dry eyes, etc. Finally, evidence of other disorders that could explain the symptoms must be excluded.

With respect to appropriate documentation, the ruling states that longitudinal records reflecting ongoing medical evaluation and treatment from acceptable medical sources are especially helpful.  Evidence for the 12-month period before the date of application is generally required.  Evidence from “other” acceptable medical sources may be requested, as well as evidence from medical sources that are not “acceptable medical sources.”  Evidence from non-medical sources is also helpful (e.g., statements from neighbors, friends, or relatives regarding the individual’s ability to function day-to-day and over time).

If evidence is insufficient, SSA will try to resolve the problem, either by re-contacting the treating or other sources for the missing information, requesting additional existing records, asking the person or others for more information, or by making a decision with the information it already has.

A consultative examination (CE) may also be purchased by the SSA to determine if a person has an MDI of FM (or to assess the severity and functional effects of an MDI of FM or other impairment), but not solely to determine if a person has FM in addition to another MDI that could account for his or her symptoms.  SSA may rely on this report even if the examiner did not have access to longitudinal evidence if it is determined that the CE is the most probative evidence of record.  The SSR notes, however, the  importance of longitudinal information given the variability of symptoms over time.  It acknowledges that signs and symptoms may vary and “may even be   absent on some days.”

To assess a person’s statements about her symptoms and functional limitations, a two-step process is used. First, there must be medical signs and findings that show the person has an MDI that could be expected to produce the pain or other symptoms alleged. Second, SSA will evaluate the intensity and persistence of the person’s pain or any other symptoms and determine the extent to which the symptoms limit the person’s capacity for work.  If the evidence does not substantiate the statements, SSA will consider all of the evidence in the case record.

Finally, SSA will find a person disabled based on an MDI of FM by using the five-step sequential evaluation process (i.e., is the person doing substantial gainful activity?  Is the MDI severe?  Does the impairment meet or equal a listing?  Is the person capable of doing any past relevant work?  Does any other work exist in significant numbers in the national economy?).  The SSR reminds adjudicators that widespread pain and other symptoms associated with FM may result in both exertional and nonexertional limitations, and refers to SSR 85-15 regarding using the Medical-Vocational Guidelines at Step five of the sequential evaluation as a framework.

SSR 12-2p should prove helpful to claimants, if for no other reason than it recognizes FM as a legitimate basis for disability - something that not all ALJs have been willing to accept to date, despite reminders otherwise from the federal courts.  See, e.g., Green-Younger v. Barnhart, 335 F3. 3d 99 (2d Cir. 2003). Prior to the issuance of this ruling, the only guidance SSA had provided was in a footnote to SSR 99-2p on Chronic Fatigue Syndrome.

Many thanks to Roman Griffith, an attorney intern at the Empire Justice Center, for his summary of SSR 12-2p.

To date, by the way, there is no SSR 12-1p!

 





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