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Establishing medically determinable impairments.

Several disabling conditions, such as chronic fatigue syndrome and fibromyalgia, are often not supported by objective medical evidence, as required under the Social Security Act.

In 1984, Congress passed the Social Security Disability Benefits Reform Act (1984 amendments),(1) in part because of a lack of uniformity in the way federal courts were analyzing the evaluation of pain and other subjective complaints in disability cases. Today, inconsistency remains in how adjudicators and courts decide whether a medically determinable impairment exists--the preliminary step in evaluating subjective complaints. The problem stems from the widespread recognition of legitimate conditions that may be disabling but are frequently not supported by objective medical evidence.

The time has come for Congress to address this conflict. The legislature should either affirm its earlier position on the matter or develop an alternative statutory procedure for establishing a medically determinable impairment. In fact, when the 1984 amendments to the act were adopted, Congress expressed an intent to revisit this issue after a report by a special Commission on the Evaluation of Pain,(2) yet it has never done so.

To complicate matters, the applicable statutory provision--[sections] 223(d)(5)(A) of the Social Security Act--is no longer in force, because it was limited to cases decided before January 1, 1987. In the absence of congressional action on this issue, federal and state adjudicators and the courts must apply the law as written and require the proof mandated by the regulations.

A person may suffer from incapacitating pain or fatigue, but pain or fatigue is not the impairment itself. Instead, these subjective sensations are the effects or symptoms resulting from an impairment. A body of law and Social Security Administration (SSA) policy statements govern the establishment of medically determinable impairments and the evaluation of symptoms. This article examines this law and policy and addresses two physical impairments: chronic fatigue syndrome (CFS) and fibromyalgia syndrome.

Medical evidence requirement

The Social Security Act defines disability as an inability to engage in any substantial gainful activity due to a medically determinable impairment that can be expected to last at least a year or result in death.(3) Impairments must result from anatomical, physiological, or psychological abnormalities that can be demonstrated by accepted medical techniques.(4)

Section 423(d)(5)(A) of the act provides that an individual's statement about pain or other symptoms is not conclusive evidence of disability. There must be proof of an impairment as shown by "medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques." Although this section is technically no longer in effect, it still appears in the statutory codification, and decisions continue to be rendered under it.(5)

Social Security Ruling (SSR) 96-7p, which is based on the act and implementing regulations, reiterates the statutory caveat that an individual's statement is not enough to establish the existence of a physical or mental impairment.(6) The ruling mandates a two-step analysis.

First, there must be an underlying medically determinable impairment. Once an impairment has been established, "the adjudicator must evaluate the intensity, persistence, and limiting effects" of pain or other symptoms "to determine the extent to which the symptoms limit the individual's ability to do basic work activities."(7)

The legislative history has been construed to show that the statute demands objective medical evidence: "Indeed, the comments in the legislative record are unanimous in concluding that section 423(d)(5)(A) requires that a claimant's allegation of subjective pain ... be confirmed by objective medical evidence."(8)

The Circuit Courts of Appeal are fairly uniform in the requirement that there be objective evidence.(9) However, there are problems in how the courts apply the requirement of objective evidence (or what they do to get around it).

The problem with the law as it stands is that if it is applied literally it will not allow for an award of benefits for some truly disabling medical conditions for which objective medical evidence may be difficult to obtain. To find people who suffer from these conditions disabled, adjudicators are sometimes forced to ignore the law or bend it beyond acceptable limits. Two examples of such conditions include CFS and fibromyalgia.

Chronic fatigue syndrome

CFS is a systemic disorder consisting of a complex of signs and symptoms that may vary in duration and severity.(10) It is characterized by persistent unexplained fatigue and other symptoms, including low-grade fever, muscle pains, headaches, painful lymph nodes, and problems with memory and concentration.(11) Despite occasional "good days," many people with severe chronic fatigue syndrome do not have the energy and physical resources to work a full-time job consistently.

CFS is generally a diagnosis of exclusion. According to the Centers for Disease Control and Prevention (CDC), "In clinical practice, no tests can be recommended for the specific purpose of diagnosing chronic fatigue syndrome. Tests should be directed to confirming or excluding other possible clinical conditions."(12) Notwithstanding this fact, research on the syndrome has suggested that there are objective laboratory tests.(13)

To date, however, no widely accepted test can provide a definitive diagnosis. The CDC's definition, although suggesting that tests be used to exclude other causes, is strictly symptom-based.

The definition requires that two criteria be met. First, there must be a clinically evaluated, unexplained persistent or relapsing chronic fatigue of new or definite onset, not substantially relieved by rest, that results in a significant reduction of the patient's activity level. Second, four or more additional symptoms must occur at the same time:

* substantial impairment of short-term memory or concentration;

* sore throat;

* tender lymph nodes;

* muscle pain;

* multijoint pain without swelling or redness;

* headaches of a new type, pattern, or severity;

* unrefreshing sleep; and

* post-exertional malaise lasting more than 24 hours.

Thus, under the CDC's criteria, a firm diagnosis can be made solely on the patient's subjective complaints, with no objective evidence needed to support the diagnosis. However, a Social Security disability claimant needs a medically determinable impairment shown by objective medical evidence. A review of some reported cases involving CFS is instructive on this issue.

In Sisco v. United States Department of Health & Human Services, the court, in reversing the administrative law judge's (ALJ) denial of benefits, chose to rewrite the law to justify its ultimate conclusion that the claimant was disabled.(14) The court held that the plain language of the Social Security Act "simply indicates that a claimant's disability must be diagnosed through the use of a technique, either clinical or laboratory, that has been accepted by the medical community."(15)

This reading of the act is simply erroneous. It obviates the need for objective evidence, supplanting it with the requirement that there need only be a legitimate diagnosis, using accepted diagnostic techniques, even if the diagnosis is based on symptoms alone.

A similar result is found in Rose v. Shalala.(16) There, the lack of objective evidence presented no roadblock to the court's conclusion that the claimant suffered from the syndrome. To get around the requirement of objective evidence, the court simply omitted any discussion of the issue. Instead, it relied on the CFS section of the SSA's Program Operations Manual System (POMS) as evidence that the agency considers the syndrome as a viable malady. But the POMS provision does not (nor could it) do away with the statutory and regulatory requirement that there be objective evidence.

Although SSA recognizes chronic fatigue syndrome as a valid disorder, its guidelines for health professionals state that "symptoms alone cannot be the basis for a finding of disability.... We must have reports documenting your objective clinical and laboratory findings."(17)

A recent district court case illustrates that a claimant can present a successful chronic fatigue syndrome claim, including adequate objective evidence.

In Hallgring v. Callahan, the administrative law judge found that, although the claimant suffered from some physical impairment, she could still perform a full range of sedentary work.(18) The claimant was then found to be "not disabled" as a consequence.

Hallgring differs from Sisco and Rose because, in addition to a diagnosis based on the Centers for Disease Control and Prevention criteria, there was objective evidence from the treating physician. This included laboratory findings of enlarged intestinal lymph nodes, a colon biopsy showing an abnormal increase in the number of cells, delayed sensitivities to a number of foods, and evidence of past varicella zoster virus infections--the virus that causes chicken pox and shingles.

In reversing the ALJ, it was important to the district court that the evidence concerning CFS was not contradicted. In addition to the physician's evidence, the claimant's attorney entered into evidence an 18-page "primer" on the syndrome written by several health professionals for the Massachusetts Chronic Fatigue Immune Deficiency Syndrome Association. This primer lists "objective" findings that may be observed during the physical exam of a patient, such as low-grade fever, pharyngeal inflammation, palpable lymph nodes, mild muscle atrophy, and an anemialike pallor.

In Hallgring, the district court found the ALJ's analysis defective: "The reliance by the ALJ on the absence of abnormal laboratory and physical findings in the claimant's medical history is misplaced."(19) If the judge concluded that there were no objective findings or laboratory test results, he should have found that there was no medically determinable impairment, the district court stated. Instead, the judge proceeded with the analysis, concluding that in spite of her impairments, the claimant could still perform sedentary work.

Although Hallgring was correct on the record before the court, this is not to suggest that the items of "objective" evidence cited by the court are in fact conclusive objective markers of chronic fatigue syndrome. But, because of the nature of disability hearings, it was up to the administrative law judge to essentially disprove the treating physician's opinion and the contents of the primer with contrary expert opinion or other competent evidence, and the record as reported by the district court shows no such attempt.

Fibromyalgia

Fibromyalgia is one of the most common rheumatic syndromes in ambulatory general medicine. It shares many features with chronic fatigue syndrome, except that musculoskeletal pain dominates in fibromyalgia, and lassitude dominates in CFS.(20) Fibromyalgia is sometimes also called fibrositis, but this name is inaccurate because the suffix "-itis" means inflammation, which is not present in the condition absent some other pathological process.(21)

The fibromyalgia diagnosis is somewhat controversial. Much research has been done on the condition, and articles continue to encourage health professionals to recognize it as a possible diagnosis in appropriate circumstances.(22)

However, some commentators are now questioning the usefulness of this condition as a diagnosis and wondering if labeling a patient as "sick" with fibromyalgia does more harm than good.(23)

Many studies suggest that certain abnormalities may be present in fibromyalgia patients. These include altered central nervous system processing of pain stimuli (demonstrated by reduced cerebral blood flow and decreased levels of certain brain chemicals), low levels of certain hormones, and altered sleep physiology shown on electroencephalogram (EEG) testing.(24)

Currently, no objective findings or lab tests for fibromyalgia are commonly accepted in the medical community. Despite the results of several studies, it seems that the research still has a way to go before the medical community at large will accept one or more laboratory or imaging tests as diagnostically determinative.

The most widely accepted criteria for the diagnosis of fibromyalgia are the American College of Rheumatology (ACR) 1990 Criteria for the Classification of Fibromyalgia. There are two criteria: a history of widespread pain, as defined in the criteria, and pain in 11 of 18 tender point sites when pressed or "palpated" by a physician. The criteria state that for a tender point to be considered "positive," the patient must say the palpation was painful.

Importantly, the "tender points" of the ACR criteria are not objective signs.(25) One of the authors of the criteria has called the points a "notoriously unreliable and manipulable exercise."(26)

Common sense alone dictates that if a physician touches a person's body and the person tells the physician that it hurts, this is a subjective response by the patient. Even a wince or a jerk in response to palpation can be feigned.

The author has found no published decisions that specifically analyze the "tender points." Some courts simply assume that the tender points are objective or that a mere diagnosis of fibromyalgia is all that is needed to find a medically determinable impairment.

One recent case, without examining exactly what a tender point is, indicated that the points are "objective." In Willis v. Callahan, the court found that the claimant's physician "examined trigger (sic) points that are not widely published in medical literature and are not `known by the average doctor not specializing in this area, let alone the non-medically trained patient.'"(27)

This assertion, that the tender points are secret, implying that a typical patient could not feign this condition, is fallacious. Anyone with a computer and Internet access can go to the American College of Rheumatology's Web site or another medical Web site to find the location of the 18 tender points.

Although the Fourth Circuit in Craig v. Chater did not specifically address whether the tender points are "objective" signs, by strong implication this court would find that they are not.(28) The Craig decision states that the ALJ cited the notes of the claimant's doctor, which said the claimant was "tender all over with pain to palpation in all muscle groups." Despite this finding on repeated occasions, the Fourth Circuit held that the physician's opinion was a conclusory one based on the claimant's subjective complaints of pain. Craig had argued that the fact that the doctor "observed Craig [when she complained about the pain] transforms his observation into `clinical evidence.'"(29)

In rejecting this argument, the court found that if it were true, it would obviate any notion of objective clinical medical evidence. As the court noted, "There is nothing objective about a doctor saying, without more, `I observe the patient telling me she was in pain.'"(30) It is clear that, at least in the Fourth Circuit, tenderness or pain on palpation--the precise definition of a tender point--is not objective evidence.

In a recent case, Kelley v. Callahan, the ALJ found that the claimant suffered from severe impairments, including a history of lupus, fibromyalgia, chest discomfort, and a need to wear a brace on her left foot.(31) One patent problem with this finding is the reference to chest "discomfort." Discomfort, usually synonymous with pain, is a symptom. However, before an administrative law judge evaluates a symptom, he or she is supposed to associate it with a specific impairment.

Interestingly, the Kelley court also failed to explain how the evidence in the case could be considered objective. The court stated, "Here, Kelley's treating physicians' diagnoses are amply supported by clinical data. Kelley's principal diagnosis at present is fibromyalgia and that diagnosis is clinically supported by the trigger point injections." These injections, using an anesthetic like lidocaine and sometimes used in conjunction with a steroid, are a palliative measure employed to relieve focal tenderness.(32) The decision does not discuss how trigger point injections constitute an objective sign.

Moreover, there is an important distinction between the "tender points" of fibromyalgia and the "trigger points" of the myofascial pain syndrome, a condition frequently confused with fibromyalgia. The trigger points of the myofascial pain syndrome purport to be an objective sign because the examiner is supposed to be able to feel a taut band of muscle with a cordlike texture.(33)

In Koenig v. Chater, the ALJ found that the claimant suffered from fibromyalgia and was limited as a consequence.(34) He used the "lack of objective medical evidence" as a factor in determining how much credibility to accord the claimant. If there was a lack of objective evidence, he should have found no medically determinable impairment.

A recent Appeals Council decision demonstrates similar error.(35) Although the unpublished decision is scant on the facts, it does show another example of overlooking the need for objective evidence:
 The record shows this diagnosis was noted by several examining physicians
 in connection with the claimant's allegations of joint and muscle pain.
 Although, as noted by the administrative law judge, there were no objective
 findings to demonstrate a basis for such complaints, fibromyalgia should be
 acknowledged and assessed on the basis of the limitations emanating
 therefrom, rather than on the diagnosis itself.(36)


Interestingly, the Appeals Council did not cite to any authority that permits such an approach. If there was no objective evidence, then the administrative law judge was correct to find that there was no medically determinable impairment.

ALJs and other adjudicators must be wary of misplaced and unsupported opinions. For example, is a single blood test abnormality sufficient as the only piece of objective evidence to establish CFS or fibromyalgia? It does not appear to be. What exactly would be sufficient evidence is not clear. But it should be clear that without something to contradict questionable evidence, an adjudicator may be stuck with an unreliable opinion.

Time for change?

Should Congress amend the Social Security Act to allow claimants to recover when they have a firm diagnosis but no objective evidence of a medically determinable impairment? The problem with removing the objective evidence requirement is the "potential for manipulation because outward manifestations of pain can easily be contrived by a calculating claimant."(37)

Although one could try to craft some safeguards into a new standard--such as requiring a recognized diagnosis, a lengthy record of the claimant's treatment, a treating physician's opinion of a trustworthy patient, or no cost effective or viable means to obtain objective evidence--the resulting standard could be difficult to structure and would add confusion to an area that has engendered a significant amount of litigation. For example, by whom must the diagnosis be recognized? How lengthy must the record be?

As demonstrated by Hallgring, even though the CDC's criteria for diagnosis of chronic fatigue syndrome do not require any objective evidence, there may be objective signs and laboratory abnormalities that can help a claimant establish a medically determinable impairment. Moreover, the current research efforts into conditions like fibromyalgia and CFS may yet produce definitive laboratory tests and/or objective signs.

Adjudicators at all levels must remember that their function is to follow the law. Although the objective evidence requirement may be a harsh rule, it appears necessary. Absent such a requirement it would be difficult, and perhaps impossible, to meaningfully compare cases.

Attorneys must protect their clients' rights. If the record is poorly developed, such as where a physician provides cryptic or illegible notes, the physician should be asked to record any abnormal findings in later notes or an explanatory letter. The failure of an attorney to secure this evidence could result in a denial of benefits where a favorable decision could have been obtained with proper development.

Notes

(1.) Pub. L. No. 98-460, 98 Stat. 1794 (1994) (codified as amended in scattered sections of 42 U.S.C.).

(2.) S. REP. NO. 98-466, 24 (1984).

(3.) 42 U.S.C. [sections] 423(d)(1)(A) (1994); see also 42 U.S.C. [sections] 1382c(2)(3)(A)(1994).

(4.) 42 U.S.C. [subsections] 423(d)(3), 1614(a)(3)(C) (1994).

(5.) See, e.g., Craig v. Chater, 76 F.3d 585, 593 (4th Cir. 1996).

(6.) 61 Fed. Reg. 34,483 (1996).

(7.) Id. at 33,485.

(8.) Bates v. Sullivan, 894 F.2d 1059, 1066 (9th Cir. 1990) (Wright, C.J., concurring), overruled in part by Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc). In Bunnell, the Ninth Circuit specifically disapproved of the concurring opinion's requirement in Bates that the objective evidence corroborate the severity of the pain. However, it affirmed the requirement that the impairment be established by objective medical evidence.

(9.) See Gallagher v. Schweiker, 697 F.2d 82 (2d Cir. 1983); Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); Craig, 76 F.3d 585, 589; Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992); Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984); Bunnell, 947 F.3d 341; Gossett v. Bowen, 862 F.2d 802, 806 (10th Cir. 1988); Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).

(10.) Hallgring v. Callahan, 975 F. Supp. 84, 90 (D. Mass. 1997) (quoting SSA PROGRAM OPERATIONS MANUAL SYSTEM [sections] DI 24515.075 (May 1997)).

(11.) Id.

(12.) CDC Revised Case Definition (abr. version, n.d.).

(13.) CURRENT MEDICAL DIAGNOSIS & TREATMENT 29 (Lawrence M. Tierney Jr. et al. eds., 37th ed. 1998); Susan C. Houde & Renee K. Kampfe-Leacher, Chronic Fatigue Syndrome: An Update for Clinicians in Primary Care, NURSE PRAC., July 1997, at 30.

(14.) 10 F.3d 739 (10th Cir. 1993).

(15.) Id. at 744.

(16.) 34 F.3d 13 (1st Cir. 1994).

(17.) PROVIDING MEDICAL EVIDENCE TO THE SOCIAL SECURITY ADMINISTRATION FOR INDIVIDUALS WITH CHRONIC FATIGUE SYNDROME: A GUIDE FOR HEALTH PROFESSIONALS (Social Sec. Admin. Pub. No. 64-063, Feb. 1996).

(18.) 975 F. Supp. 84.

(19.) Id. at 89.

(20.) CURRENT MEDICAL DIAGNOSIS & TREATMENT, supra note 13, at 787.

(21.) Richard B. Gremillion, Fibromyalgia: Recognizing and Treating an Elusive Syndrome, 26 PHYSICIAN & SPORTSMEDICINE 55, 56 (1998).

(22.) See, e.g., id.; S.M. Marlowe, Calming the Fire of Fibromyalgia, 6 ADVANCE NURSE PRAC. 51 (1998).

(23.) See, e.g., Growing Fibromyalgia Crisis: Is the Syndrome an Expensive Medical Mistake? 12 BACK LETTER 121 (1997); see Milton L. Cohen & John L. Quinter, Fibromyalgia Syndrome and Disability: A Failed Construct Fails Those in Pain, 168 MED. J. AUSTRL. 402 (1998).

(24.) See, e.g., Stanley R. Pillemer et al., The Neuroscience and Endocrinology of Fibromyalgia, 40 ARTHRITIS & RHEUMATISM 1928 (1997).

(25.) Nortin A. Hadler, Fibromyalgia, Chronic Fatigue, and Other Iatrogenic Diagnostic Algorithms, 102 POSTGRADUATE MED. 161, 172 (1997); see also Thomas Bohr, Problems with Myofascial Pain Syndrome and Fibromyalgia Syndrome, 46 NEUROLOGY 593, 593-94 (1996).

(26.) Frederick Wolfe, The Fibromyalgia Problem, 24 J. RHEUMATOLOGY 1247, 1249 (1997).

(27.) 979 F. Supp. 1299, 1303 (D. Or. 1997).

(28.) 76 F.3d 585 (4th Cir. 1996).

(29.) Id. at 590 n.2.

(30.) Id. at 590.

(31.) 133 F.3d 583, 588 (8th Cir. 1998).

(32.) Linda M. Auleciems, Myofascial Pain Syndrome: A Multidisciplinary Approach, NURSE PRAC., Apr. 1995, at 18, 26-27. The reliability of trigger point injections has been questioned. See Bohr, supra note 25, at 596.

(33.) THE MERCK MANUAL 1369-70, 1408 (16th ed. 1992).

(34.) 936 F. Supp. 776, 784 (D. Kan. 1996).

(35.) The name and case number for this case cannot be provided because of privacy concerns. However, the author has a redacted copy of the case, obtained from the National Organization of Social Security Claimants Representatives.

(36.) Appeals Council decision, at 1.

(37.) Cline v. Sullivan, 939 F.2d 560, 568 (8th Cir. 1991).

Kevin F. Foley is a federal administrative law judge assigned to the Social Security Administration's Charlotte, North Carolina, hearing office. This article was written in his private capacity. No official support or endorsement by SSA is intended or should be inferred. This article also may not necessarily reflect ATLA's position.
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Date:Apr 1, 1999
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