Attorneys who represent Social Security disability claimants may find the recent decision of the 4th Circuit Court of Appeals in Hultz v. Bisignano dealing with fibromyalgia in particular and subjective symptoms in general of interest. It’s a reversal awarding benefits so you know it’s a strong opinion. You don’t see many of these at the District Court level much less Court of Appeals.
I took a quick look at that 40 page decision, which centers on what it considered defects in evaluating fibromyalgia. Yet I don’t see even one mention or citation to Social Security Ruling 12–2p, which describes in detail SSA’s policies for evaluating fibromyalgia.
ReplyDeleteThat suggests to me that not only did the court(s) ignore it, but possibly the ALJ decision did as well, and presumably the OGC attorneys arguing the case too. Maybe throw in the claimant’s attorney on top of that. Unless I’ve missed something that’s a really hard to believe level of legal incompetence. SSA put the ruling out specifically because of the difficulty of evaluating fibromyalgia. It goes into detail as to what to look for and evaluate. And all the lawyers involved in handling the case, on all sides, including the Circuit Court, ignored it??
A rep should file a class action suit against SSA for improperly denying disability claims filed on line. Procedures, timelines and proper documentation is not being followed. I know an ADM in an office that deleted a bunch just to make their numbers look good before an AD visit. This is more common than people want to admit.
ReplyDeleteIf you know an ADM who deleted applications, then don't just vaguely post about it here... Blow the whistle.
DeleteSeems like this case is 2 updates behind on how SSA evaluates opinion evidence? Did I read a reference to controlling weight? Given the numerous changes in SSA policy since this ALJ decision, I’m not sure how much “weight” to afford this opinion.
ReplyDelete7:21,
ReplyDeleteThe court applied the treating physician rule because it was still in effect when the application was filed. That's not the problem. The problem is that the court ignored SSR 12-2p and followed its Arakas decision. Arakas cited SSR 12-2p, but cherry picked only the part that refers to symptoms waxing and waning. The court didn't address the SSR's reference to still needing objective evidence of limitations once fibromyalgia is diagnosed.
Obviously, this decision is great for fibromyalgia claimants. It also conflicts with SSA policy and law in other circuits, making it impossible for ALJs to write a policy-compliant decision without an acquiescence ruling in place.