TBA Law Blog

Posted by: Christy Gibson on Aug 16, 2012

On July 25, 2012, the Social Security Administration published SSR 12-2p. 77 Fed. Reg. 43640-43644. The Ruling which applies to all levels of SS adjudication concerns fibromyalgia. The Ruling formerly recognizes fibromyalgia as a medically determinable impairment (MDI) As is the case with other medically determinable impairments, a physician must diagnose but then functional assessments by other treating professionals can be considered.  The ruling recognizes that persons suffering from fibromyalgia have good and bad days so that occasionally they function as normal. This does not preclude disability.  The ruling emphasizes the importance of longitudinal and treating records.  Disabling severity can be established by diagnosis, pain and either 11 out of 18 possible tender points on a person’s body as established by the American College of Rheumatology in 1990 or 6 or more co-existing conditions including but not limited to fatigue and cognitive impairments sometimes called fibro fog. The latter list comes from the American College of Rheumatologists also.  The ruling points out that there is no listing for fibromyalgia but that the illness could equal a listing. In my experience, ALJs are very reluctant to find equivalence in the absence of a medical expert. The same ALJs rarely, if ever, voluntarily call a Medical Expert.  Another possible shortcoming of the ruling is   emphasis on somewhat onerous documentation of the various requirements by the treating provider.  I urge everyone to read this ruling and exchange thought s about it. .

On July, the Congressional Budget Office published a report concerning the growth in the SS disability rolls.  It appears that the growth in rolls has largely been in the age cohort of 45 and older.  Thus the aging of the Baby Boomers  who have reached our disability prone years  provides a temporary bump in the awards.   Another cause of the increase in awards is the increase of women in the paid work force during the last 40 years.   I suggest the whole study for further reading.

On the same day as the Fibromyalgia ruling, SSA published in the Federal Register, a final regulation about expedited residual functional assessment at Step 5 of the sequential analysis. 77 Fed. Reg. 43492-43497; 20 CFR 150 (h).  It looks rather like the Texas two-step to me.  Apparently, adjudicators can skip step 4, analysis of past relevant work, if the person can be found  “not disabled” at step 5.  If the person is likely to be disabled at step 5, then SSA steps back to consideration of past relevant work at Step 4.  Please read this one for yourself and share your thoughts as well.