Improper Insistence on “Objective Evidence” to Prove Fibromyalgia

The O’Ryan Law Firm has represented numerous clients suffering from fibromyalgia in the disability claims process. Usually, the client contacts our office after their disability claim has been denied and all too often the insurance company or claims administrator has denied the claim because there is “insufficient objective medical evidence” to support the claim. It is improper for your disability insurance company to insist that you produce objective medical evidence to prove that you have fibromyalgia because it is impossible to supply the insurance company with objective evidence that doesn’t exist.

Fibromyalgia is a disease the Seventh Circuit has characterized as “common, but elusive and mysterious.” Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996). In an evaluating fibromyalgia in the context of a disability claim, the court in Sarchet described the disease as:

Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are “pain all over,” fatigue, disturbed sleep, stiffness, and–the only symptom that discriminates between it and other diseases of a rheumatic character–multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.

According to the American College of Rheumatology:

Fibromyalgia is a chronic health problem that causes pain all over the body and other symptoms. Other symptoms that patients most often have are:

• Tenderness to touch or pressure affecting joints and muscles • Fatigue • Sleep problems (waking up unrefreshed)
• Problems with memory or thinking clearly
Some patients also may have:

• Depression or anxiety • Migraine or tension headaches • Digestive problems: irritable bowel syndrome (commonly IBS) or gastroesophageal reflux disease (often referred to as GERD)

• Irritable or overactive bladder • Pelvic pain • Temporomandibular disorder–often called TMJ (a set of symptoms including face or jaw pain, jaw clicking and ringing in the ears)

Symptoms of fibromyalgia and related problems can vary in intensity, and will wax and wane over time. Stress often worsens the symptoms.

The American College of Rheumatology provides the following criteria for evaluating of fibromyalgia:
Criteria Needed for a Fibromyalgia Diagnosis
1. Pain and symptoms over the past week, based on the total of:

Number of painful areas out of 18 parts of the body Plus level of severity of these symptoms:
• Fatigue • Waking unrefreshed • Cognitive (memory or thought) problems Plus number of other general physical symptoms 2. Symptoms lasting at least three months at a similar level 3. No other health problem that would explain the pain and other symptoms.

In Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914 (7th Cir. 2003), the plaintiff, who suffered from fibromyalgia, filed a lawsuit after his disability claim was denied by his employer. The employer denied the claim in part upon the report of a record reviewing physician who found that restrictions were not supported by objective evidence. The Seventh Circuit took issue with this, given the subjective nature of fibromyalgia, and held that the record reviewing physician’s insistence on “objective evidence” is a “grave problem” because “fibromyalgia could never be found to be totally disabling” if objective evidence were a necessity to proving the claim. See also Holmstrom, 615 F.3d at 769-772 (“[w]e have rejected as arbitrary an administrator’s requirement that a claimant prove her condition with objective data where no definitive objective test exists for the condition or its severity”); Leger v. Tribune Co. Long Term Disability Benefit Plan, 557 F.3d 823, 834 (7th Cir. 2009) (complaints of pain cannot be dismissed out of hand because they are subjective). “For conditions as subjective and variable as fibromyalgia and rheumatoid arthritis, direct contact with the patient over a period of time would provide a more thorough opportunity to assess her credibility regarding level of pain and the true pattern of her abilities.” Williams v. United of Omaha Life Ins. Co., 2013 WL 5519525, *12 (N.D. Ala. Sept. 30, 2013). In Williams, the court gave great weight to the opinion of the plaintiff’s rheumatologist, who had the opportunity to treat the plaintiff over a period of time, to note the patterns of the plaintiff’s disease, and who has a “valuable perspective” on the severity of the plaintiff’s condition.

If you are suffering from fibromyalgia and your disability claim has been denied please contact the O’Ryan Law Firm at (855) 778-5055 to find out your options in pursuing your disability benefits.