Fibromyalgia and Qualifying for Disability Benefits

•    You experience widespread pain, including pain in the neck, back or chest; AND
•   Tests and imaging used by your doctor to rule out other diseases such as lupus, hypothyroidism, or multiple sclerosis; AND
•   Either:
  
  •   Repeated occurrences of at least six symptoms of fibromyalgia. This includes mental fog, fatigue, poor sleep, IBS, depression or anxiety; OR
  •   At least 11 out of 18 positive tender points on physical examination. The positive tender points must be found on the left and right sides of the body and above and below the waist.

A claims examiner will review your medical records, focusing on your doctors’ notes and look for complaints of pain, fatigue, cognitive difficulties, and memory loss.

The further back your medical record shows evidence of fibromyalgia symptoms and treatment, the better. Social Security will want to see how long you’ve been treated for fibromyalgia, how well you function, what treatments and medications you’ve taken and your response, and how long your doctor expects your functional limitations to last.

You must also show how fibromyalgia prevents you from working at any job.

Ask your doctor to fill out a Residual Functional Capacity form (RFC), an assessment that evaluates your physical and mental capabilities. A person with fibromyalgia is typically limited in the following functions:

•    How long you can sit, stand, and walk during an 8-hour day
•   How much weight you can lift
•   Whether you can crouch, stoop, kneel and bend
•   How well you can focus and remember instructions
•   Whether you miss time at work each month

Social Security will use an RFC to determine if you are able to return to your old job or are able to do another job, so it’s important to document all your functional limitations.

•    Review your medical records yourself and make sure they include a diagnosis of fibromyalgia and any other medical conditions you are being treated for. Make sure your doctor has included comprehensive notes, knows you are applying for disability, and is willing to support your claim.
•   Get a referral from a specialist. Social Security will take your claim of fibromyalgia more seriously if you have a diagnosis from a doctor who treats bone or tissue conditions or disorders involving pain and fatigue. Avoid a diagnosis of fibromyalgia by a mental health professional as it will carry less weight with Social Security. Instead, any diagnosis of depression or anxiety should be separate.
•    Keep a journal of your symptoms and side effects so that Social Security can see your symptoms are real and have a pattern. It will be helpful if you can state how often you experience pain, fatigue, sleep disturbances, memory problems, or digestive issues and how many days you have to avoid certain activities.
•   Provide statements from your family, friends and co-workers regarding your fibromyalgia symptoms and limitations.

If you are 55 or older or have another medical condition you may get approval.

Social Security follows a set of rules to determine when the agency expects an applicant to learn a new job.

Applicants who are 55 or older often fall under a grid rule, which means they are not expected to learn a new job. For example, if you are 55 years old and can’t go back to your old job and lack the skills to learn a new job, Social Security will likely grant you disability benefits.

You may also be eligible for Social Security Disability benefits if you have another medical condition, such as high blood pressure.

One disorder alone may not meet the requirements of an impairment as stated in Social Security’s Blue Book, but if you have more than one medical condition, Social Security must consider how those combined health issues limit your ability to hold a job and perform necessary daily tasks.

Social Security also has basic financial requirements.

Additionally, you must satisfy some basic financial requirements before you are eligible for Social Security disability benefits.

You must: 1) have a disability that has lasted, or is expected to last 12 months; and 2) you must have worked in a job where you paid Social Security taxes long enough and recently enough; and 3) you must not earn more than Substantial Gainful Activity (SGA), which is $1,470 per month in 2023 for nonblind applicants and $2,460 per month for blind applicants.

What if I don’t qualify for SSDI?

If you don’t qualify for SSDI, you may be eligible for disability benefits through another Social Security program, such as Supplemental Security Income (SSI), or from a long-term disability insurance plan through your employer or a privately purchased policy.

SSI is a program that pays monthly benefits to people with limited income and resources who are disabled, blind, or age 65 or older. Instead of work credits, SSI is based on income and is financed by general funds of the U.S. Treasury.

I have long-term disability insurance – should I file a claim?

Yes, you should file a claim as soon as you become disabled.

Long-term disability insurance (LTD) coverage protects your income if you are unable to work due to illness or injury and is purchased as part of a group employment plan or privately through an insurance company. Policies pay between 50-60% of your salary and benefits continue until you return to work or for the number of years stated in the policy. Do not quit your job before you file a claim – LTD coverage is good only as long as you are employed. Be sure to check your policy’s definition of “disabled” as each policy will state the definition of “disabled” which is in use, and be aware that long-term disability insurance companies can require a claimant to also apply for SSDI.

How do I file for Social Security Disability benefits?

You can apply for Social Security Disability benefits online, over the phone, or in person at your local Social Security Administration office.

If your initial application is denied, don’t be discouraged; this is not uncommon and you will have the opportunity to appeal. There are four steps to the Social Security appeal process:

1.   File a Request for Reconsideration with the Social Security Administration to completely review the case.
2.   If you don’t agree with SSA’s response to your Request for Reconsideration, you can request a hearing before an Administrative Law Judge (ALJ). ALJs are attorneys who work for the Social Security Administration; they review SSDI and SSI cases and either uphold or overturn decisions to deny SSDI or SSI benefits. If you are not represented by an attorney at this point, now is the time to obtain legal counsel. This is a critical point in the process and will raise your chance for success.
3.   If an ALJ does not grant your claim, you can request that the Appeals Council review your case.
4.   Federal Court review. The final step in the appeal process is filing suit in U.S. District Court.

Do I need a disability attorney for SSDI or SSI?

If you have a fibromyalgia and cannot work, you may be eligible for Social Security Disability benefits, but applying for SSDI or SSI is a long process that can take several months to years.

Your chances for approval will increase significantly if you have legal representation. At each potential stage of the process, from the initial application stage, the reconsideration stage and the ALJ hearing stage, an attorney can assist you in completing the detailed forms and questionnaires required by Social Security, collecting and submitting relevant medical evidence, and preparing questionnaires for your doctors. At the ALJ hearing phase an attorney will not only assure that the evidence is complete, but can prepare you for questioning by the ALJ, prepare an argument on your behalf and question any doctors or vocational experts selected by the ALJ to testify at the hearing. At the Appeals Council and federal court level, a lawyer can present legal arguments to show your case was wrongfully denied. Fees charged by disability attorneys are regulated by federal law and are usually 25% of disability backpay you are owed. There are no out-of-pocket costs, and if you don’t win your case, you won’t be charged anything.

Do I need a disability attorney for a long-term disability insurance claim?

Whether you have a long-term disability insurance policy purchased through a private insurance broker or a group policy purchased with your employer, filing a claim for long-term insurance is a complex process.

The wording in LTD policies can be confusing and the laws and regulations which affect the two types of LTD insurance differ in their procedures for filing claims and appeals. An experienced LTD attorney with thorough knowledge of ERISA laws and regulations will avoid mistakes and increase your chance of success. An attorney will act on your behalf, completing your application and filing your claim in a timely manner. They can also negotiate a settlement or file an appeal for you. If it becomes necessary to file suit, an LTD attorney can prepare your case against an insurer. Most LTD attorneys handle cases on a contingency basis and charge approximately 25%-40% of a claimant’s past due benefits. You do not pay an attorney’s fee unless the attorney wins your case.

The attorneys at Bemis, Roach & Reed have wide experience in representing clients at all levels of the Social Security Disability process and in long-term disability insurance cases.