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June 2013

Chronic fatigue syndrome

By Legal issues

Chronic Fatigue Syndrome and Social Security Disability

In response to the growing class of Social Security disability claimants diagnosed with chronic fatigue syndrome (CFS), the Social Security Administration (SSA) issued SSR 99-2p setting forth the SSA’s position on CFS. In general, both the SSA and the courts now recognize CFS as a medically determinable impairment, which can, in some cases, result in disability. The court decisions on this subject are mostly favorable to the claimants, providing the claimants are able to demonstrate that they suffer from CFS of such a severity that it satisfies the disability requirements. The following survey of cases does not include cases where the claimant was not diagnosed with CFS, but instead suffered from “fatigue.”

Tip

A diagnosis of CFS does not necessarily result in a disabling impairment. If you have fatigue on a frequent and chronic basis, develop the evidence regarding your functional limitations.

POMS

The POMS Guidelines were enacted by the SSA to assist the adjudicators in analyzing CFS cases. The pertinent POMS Guidelines are cited in many cases by the courts, and provide, in relevant part, as follows:

Chronic Fatigue Syndrome (CFS), previously known as Chronic Epstein-Barr Virus Syndrome, and also currently called Chronic Fatigue and Immune Dysfunction Syndrome, is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically.

CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of evidence, including the clinical course from onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process.

POMS § DI 24575.005 (1993).

Rulings

Social Security Ruling 99-2p recognizes that CFS may be a disabling impairment and sets forth the specific medical signs and laboratory findings which establish the existence of CFS. SSR 99-2p recognizes that “CFS is a systemic disorder consisting of a complex of symptoms that may vary in incidence, duration, and severity” and “is characterized in part by prolonged fatigue that lasts 6 months or more and that results in substantial reduction in previous levels of occupational, educational, social, or personal activities.” The Ruling follows the Centers for Disease Control (“CDC”) definition of CFS and specifically provides:

Under the CDC definition, the hallmark of CFS is the presence of clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset (i.e., has not been lifelong), cannot be explained by another physical or mental disorder, is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substantial reduction in previous levels of occupational, educational, social, or personal activities. Additionally, the current CDC definition of CFS requires the concurrence of 4 or more of the following symptoms, all of which must have persisted or recurred during 6 or more consecutive months of illness and must not have pre-dated the fatigue:

  • Self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities;
  • Sore throat;
  • Tender cervical or axillary lymph nodes;
  • Muscle pain;
  • Multi-joint pain without joint swelling or redness;
  • Headaches of a new type, pattern, or severity;
  • Unrefreshing sleep; and
  • Postexertional malaise lasting more than 24 hours.

Within these parameters, an individual with CFS can also exhibit a wide range of other manifestations, such as muscle weakness, swollen underarm (axillary) glands, sleep disturbances, visual difficulties (trouble focusing or severe photosensitivity), orthostatic intolerance (e.g., lightheadedness or increased fatigue with prolonged standing), other neurocognitive problems (e.g., difficulty comprehending and processing information), fainting, dizziness, and mental problems (e.g., depression, irritability, anxiety).

Case Law

First Circuit

In considering the nature of chronic fatigue syndrome, the First Circuit noted that chronic fatigue syndrome is diagnosed partially through a process of elimination and an “extended medical history of ‘nothing-wrong’ diagnoses” is not unusual for CFS patients. Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994). Due to the absence of definitive diagnostic tests, the failure of some doctors to state conclusive diagnoses does not constitute substantial evidence to support a finding that claimant did not suffer from the syndrome. Id.Given the uncontroverted medical evidence that the claimant suffered from CFS, the ALJ’s “blind reliance” on a lack of objective findings was wholly inconsistent with the POMS and other pertinent policy statements. Id. Even though the non-examining physicians’ notations suggested that the claimant’s fatigue did not significantly affect his functional capacity, the ALJ’s findings were not based on substantial evidence because “the subjective severity of a claimant’s fatigue associated with CFS is not something readily evaluated on an algid administrative record.” Id. at 19.

The absence of definitive laboratory findings is an insufficient basis for an ALJ to reject a diagnosis of CFS because “there is no ‘dipstick’ laboratory test for [CFS] . . . so the disease is not ‘per se excluded from coverage because it cannot be conclusively diagnosed in a laboratory setting.’” Hallgring v. Callahan, 975 F. Supp. 84, 89 (D. Mass. 1997), quoting Rose v. Shalala, 34 F.3d 13, 17 (1st Cir. 1994).The court in Hallgring noted that “there are no laboratory tests and no unequivocal physical findings that can be made to determine the presence of [CFS],” and that “[r]outine [laboratory] studies may be normal and are not required to satisfy the definition of [CFS].”Id. at 89-90. The court also stated that a claimant’s healthy appearance is not an adequate indicator of the severity of the illness and, in accordance with First Circuit instructions, “blind reliance on a lack of objective findings” is inappropriate for a finding of “not disabled.” Id. at 90, quoting Rose, 34 F.3d at 17.

Second Circuit

A New York district court noted that CFS is “a disease which, while not specifically addressed in the Listings, may produce symptoms which ‘significantly impair [a] claimant’s ability to perform even sedentary work . . . .’” Fragale v. Chater, 916 F. Supp. 249, 253 (S.D.N.Y. 1996), quoting Rose v. Shalala, 34 F.3d 13, 17 (1st Cir. 1994). When presented with documented allegations of symptoms which are consistent with the symptomology for evaluating CFS, the Commissioner cannot rely on the ALJ’s rejection of the claimant’s testimony based on the mere absence of objective evidence. Id. at 254-55. The Commissioner’s decision in such cases should “reflect a recognition of the increased significance to be given the claimant’s credibility in assessing residual functional capacity.” Id. at 254. In Fragale, the ALJ mischaracterized the claimant’s daily activities and failed to properly resolve inconsistencies as required under the regulations, policies and case law. Id. at 255. The ALJ further erred in rejecting the claimant’s testimony based on a lack of medical diagnoses or objective findings. Id.

The Commissioner’s policy is further reflected in professional criteria for the evaluation and study of CFS, developed by the International Chronic Fatigue Syndrome Study Group. Schaffer v. Apfel, 992 F. Supp. 233, 236 (W.D.N.Y. 1997).This group recommended CFS classification if, after other diagnostic options have been excluded through a series of clinical examinations and testing, the claimant reports persistent or relapsing fatigue for six or more consecutive months with:

  1. impaired memory or concentration;
  2. sore throat;
  3. tender cervical or axillary lymph nodes;
  4. muscle pain;
  5. multi-joint pain;
  6. new headaches;
  7. unrefreshing sleep; and
  8. post-exertion malaise.

Id., citing Fudka, Straus, Hickie, Sharpe, Dobbins and Komaroff, The Chronic Fatigue Syndrome: A Comprehensive Approach to Its Definition and Study, Annals of Internal Medicine, Vol. 121, No. 12, pp. 953-59 (Dec. 15, 1994); Fragale v. Chater, 916 F. Supp.249, 255 (W.D.N.Y. 1996).In Schaffer, the court held that CFS is recognized by the SSA as a disease which, while not precisely addressed in the listings, may produce symptoms which “significantly impair [a] claimant’s ability to perform even sedentary work . . . .” Id. at 237, citing Rose v. Shalala, 34 F.3d 13, 16-17 (1st Cir. 1994); Sisco v. U.S. Dept. of Health & Human Servs., 10 F.3d 739 (10th Cir. 1993); Fragale at 253-54; Thaete v. Sec’y of Health & Human Servs., 804 F. Supp. 914 (E.D. Mich. 1992).

Where the claimant suffered from chronic fatigue syndrome, the court held that an ALJ may not reject the opinions of treating physicians solely because they are based on a claimant’s subjective complaints rather than specific medical signs or laboratory findings. Bischof v. Apfel, 65 F. Supp.2d 140, 146 (E.D.N.Y. 1999). An ALJ also may not find that a claimant’s testimony regarding chronic fatigue syndrome lacks credibility solely because it is unsupported by objective medical findings. Id., citing Fragale v. Chater, 916 F. Supp. 249, 253-54 (W.D.N.Y. 1996); Reddick v. Chater, 157 F.3d 715, 723-24 (9th Cir. 1998); Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d 739, 743 (10th Cir. 1993). In Bischof, the ALJ rejected the treating physician’s assessments of the claimant’s functional capacity, finding them unsupported by “detailed, clinical, diagnostic evidence.” Id.The court noted that every doctor who examined the claimant reported that she complained of a similar collection of symptoms, including unexplained dizziness, fatigue, muscle and joint pain, low grade fever and inability to concentrate, which was consistent with the Commissioner’s policies for evaluating CFS. Id., citing Program Operations Manual at §§ DI 24515.007 (1997); SSR 99-2p. Additionally, at least three Epstein-Barr blood tests yielded positive results, and elevated levels of Epstein-Barr antibodies are among the few laboratory results that might support a diagnosis of CFS as set forth in SSR 99-2p. While a wide variety of clinical tests performed over several years could detect nothing wrong, “‘an extended medical history of ‘nothing-wrong’ diagnoses is not unusual for a patient [with Chronic Fatigue Syndrome].’” Id., quoting Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994). The court held that the ALJ acted without substantial evidence, and in contravention of the Commissioner’s policy regarding CFS and the treating physician rule in incorrectly discounting the claimant’s testimony on the ground that it was unsupported by specific objective evidence and in viewing the lack of objective medical indicators as undermining the treating physicians’ views regarding the severity of the claimant’s symptoms and her capacity to work. Id. at 147.

In Coyle v. Apfel, 66 F. Supp.2d 368 (N.D.N.Y. 1999), the court held that the claimant did not exhibit the requisite symptoms of chronic fatigue syndrome for six or more consecutive months as she only complained of sleep disturbance or stiffness one time and was never diagnosed with at least eleven trigger points that would indicate the presence of fibromyalgia. Id. at 375. Further, even assuming that the evidence did establish one of these conditions, her condition was not so severe as to render her totally disabled. Id. at 375-76.

Third Circuit

In Canals, the claimant sought disability benefits based on her chronic Epstein-Bar Virus Syndrome (EBS), Chronic Fatigue Syndrome (CFS), and other conditions. Canales v. Barnhart, 308 F. Supp.2d 523, 524 (E.D. Pa. 2004). This case was the subject of a prior federal court as well as a prior remand from the Appeals Council. Id.at 525. The court reversed and remanded for an award of benefits for the closed period at issue, holding that the ALJ did not adequately discuss all seven regulatory factors in evaluating the claimant’s subjective complaints of pain; failed to analyze the credibility of the third party witnesses; and did not pose hypothetical questions to the vocational expert. Id. at 528.

Fourth Circuit

Although the Fourth Circuit noted that Social Security Ruling 99-2p definitively states that CFS can be a medically determinable impairment when accompanied by appropriate medical evidence, it found that the claimant had not demonstrated medical signs or laboratory findings documenting her illness for six consecutive months. Mastro v. Apfel, 270 F.3d 171, 176, 177 (4th Cir. 2001). While no specific etiology or pathology has yet been established for CFS, the Fourth Circuit held that:

to support an award of benefits, the medical signs must fall within the listed physical symptoms or be consistent with medically accepted clinical practice and the other evidence in the record. Furthermore, these symptoms must have been clinically documented over a period of at least six consecutive months. In the present case, we conclude the ALJ properly took such issues into consideration in coming to his conclusion that Ms. Mastro did not establish an entitlement to benefits.

Id. at 177. The Fourth Circuit further found that the ALJ applied the correct legal standard in finding that the claimant’s CFS was not equivalent to a listed impairment as the record did not reveal the detailed record contemplated for a medical diagnosis based on symptoms, but instead disclosed a “hodgepodge of medical observations and treatments with annual gaps showing no progression in the claimant’s treatment.” Id. at 179.

Sixth Circuit

The Sixth Circuit held that the ALJ’s finding that the claimant who suffered from Epstein-Barr virus and CFS was capable of either returning to her previous work or engaging in other work was not based on substantial evidence. Cohen v. Sec’y of Dept. of Health and Human Servs., 964 F.2d 524, 531-32 (6th Cir. 1992). Even though the claimant attempted to continue her ballroom dancing, enrolled as a part-time law student, passed her final exam, and participated in a national support group for persons suffering from Epstein-Barr virus, her activities did not discredit her testimony, but were examples of her efforts to maintain a semblance of a normal life. Id. at 531.

The Sixth Circuit held that the ALJ’s determination that the claimant was not disabled by CFS was supported by substantial evidence. Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001). In so finding, the court noted that although evidence showed that the claimant suffered from CFS, the medical evidence and evidence of the claimant’s activities was conflicting as to how these ailments affected the claimant; there were conflicting opinions from the claimant’s own treating physicians as to how her impairments affected her and what limitations she had; and thus, it was reasonable for the ALJ to rely upon the testimony of the non-examining medical expert physicians to conclude that the medical evidence did not support the limitations that the claimant allegedly suffered from. The court also noted that Buxton was “not like most other CFS cases, in that Buxton here is not arguing that the ALJ failed to consider her exertional limitations, such as fatigue, etc.” Id. In Gaffney, the court held that the ALJ and the Magistrate Judge failed to apply, or even make reference to, SSR 99-2p and that had the proper analysis been conducted, the evidence documented a clinical correlation for the claimant’s complaints of chronic fatigue and muscle weakness, and that the de minimis step two burden was easily met. Gaffney v. Commissioner of Social Security, 277 F. Supp.2d 733, 738 (E.D. Mich. 2003). Accordingly, the ALJ’s finding that the claimant was not disabled as result of chronic fatigue syndrome and fibromyalgia was not supported by substantial evidence. Id.

The district court held that the ALJ improperly discounted the credibility of the claimant suffering from CFS, and failed to include the claimant’s CFS symptoms in the hypothetical question posed to the VE. Reed v. Secretary of Health and Human Servs., 804 F. Supp. 923-24 (E.D. Mich. 1992).

Seventh Circuit

In McCraw v. Apfel, 87 F. Supp.2d 845 (N.D. Ind. 1999), the Commissioner argued that the ALJ properly rejected the opinion of the claimant’s treating physician that he was disabled due to Chronic Fatigue Syndrome because this opinion was based nearly exclusively on the claimant’s subjective complaints, which the ALJ found were not credible. Id. at 854. The court held that the treating physician did not necessarily rely on the claimant’s subjective complaints in finding that he was disabled, noting that CFS has specific symptoms, of which the claimant repeatedly complained, and the record documented certain positive laboratory findings of positive EBV test and an abnormal MRI scan of the brain, which, as set forth in SSR 99-2p, are factors that help establish the existence of CFS. Id. at 856. Since the ALJ did not give any reasons why the laboratory findings did not constitute substantial medical evidence about the claimant’s condition, or why he concluded that the treating physician based his opinion on the claimant’s subjective complaints, the court held that the ALJ failed to properly explain his rejection of this opinion. Id., citing Micus v. Bowen, 979 F.2d 602, 609 (7th Cir. 1992).

Although the ALJ found that the claimant had CFS, he erroneously concluded that the lack of any objective medical evidence to substantiate her symptoms or functional limitations demonstrated that she had the residual functional capacity to perform her past work and any number of sedentary jobs in the economy. Opgenorth v. Shalala, 897 F. Supp. 1199, 1203 (E.D. Wis. 1995). The ALJ’s initial finding that the claimant suffered from CFS required him to conclude that she suffered from the symptoms usually associated with CFS unless there was substantial evidence in the record to support a determination that she did not endure such symptoms. Id. Because the uncontroverted evidence demonstrated that over a course of four years, the claimant complained of and was treated for persistent fatigue, headaches, muscle weakness and a number of other symptoms consistent with CFS, the record did not contain any meaningful evidence to support a finding that the claimant was not suffering from the symptoms of CFS. Id.

A district court in Indiana found that the failure of the claimant’s physician to state a conclusive diagnosis did not support a conclusion that the claimant did not suffer from CFS, as a diagnosis of CFS is achieved partially through a process of elimination, as was done in the instant case. Olson v. Apfel, 17 F. Supp.2d 783, 790 (N.D. Ill. 1998), citing Rose v. Shalala, 34 F.3d 13, 16-18 (1st Cir. 1944); Sisco v. U.S. Dept. of Health & Human Servs., 10 F.3d 739, 744-45 (10th Cir. 1993).The court noted further that “the Commissioner’s own policy statement recognizes the inherent difficulties faced by adjudicators in assessing CFS allegations.” Id.

The ALJ’s decision to accord more weight to three doctors than to one doctor who admitted (1) that claimant’s chronic fatigue was of “unclear etiology” and (2) that previous finding by another doctor of chronic fatigue was a rather nebulous diagnosis, without discernible physical findings or positive tests to validate the diagnosis, was supported by the record. Halbrook v. Chater, 925 F. Supp. 563, 575 (N.D. Ill. 1996).

Eighth Circuit

“Since CFS is commonly diagnosed on a symptomatic basis, rather than by the application of objective medical testing, the subjective representations of a claimant take on special significance, as do the corresponding credibility assessments of the ALJ.” Dornack v. Apfel, 49 F. Supp.2d 1129, 1140 (D. Minn. 1999). In Dornack, the court held that based on a less than fully developed record, the ALJ discounted the claimant’s subjective complaints on a less than competent basis. Id. at 1142. The court specifically held that “the elusive etiology of CFS requires the development of a Record that allows a thorough assessment of the Plaintiff’s physical and mental capabilities.” Id. Because the ALJ’s assessment of the treating physician’s opinion was premised upon his disbelief of the claimant’s subjective symptoms, the court held that this analysis was also flawed. Id. at 1144. The court concluded:

In sum, we part company with the ALJ’s analysis at the point where the ALJ implicitly treats CFS as a simple diagnostic phenomenon whose cause can be identified with some ease. As have Courts before us, we find that ‘[t]he ALJ’s failure to acknowledge the POMS guidelines may be emblematic of the reluctance to acknowledge CFS that appears to underlie his decision.’ . . . Here, the ALJ accepted the diagnosis of CFS by both Dr. Kind, and by Dr. Sandvick, . . . and yet the ALJ does not appear to employ a “totality of evidence” approach — preferring, instead, to tag the Plaintiff’s chronic fatigue to some perceived need for dependency. The cause and effect of the Plaintiff’s fatigability is not resolvable on any simplistic plane . . . .

Id. at 1145, citing Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). On remand, the court recommended the employment of a medical advisor who could integrate the clinical findings of the various medical providers with the claimant’s subjective complaints. Id.

In Hinders, the Commissioner sought a remand to give the ALJ the opportunity to further evaluate the claimant’s impairments and allegations of fibromyalgia and chronic fatigue syndrome and the claimant argued that the evidence supported a reversal with an award of benefits. Hinders v. Barnhart, 349 F. Supp.2d 1218, 1219 (S.D. Iowa 2004). The court evaluated the evidenced of record and remanded for an award of benefits as “further proceedings will only lead to one outcome, namely that Plaintiff is disabled and entitled to the benefits for which she applied.” Id. at 1226.

Ninth Circuit

In Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), the Ninth Circuit held that the claimant’s description of her activities, “punctuated with rest,” were fully consistent with CFS which is “characterized by periods of exacerbation and remission.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), citing Cohen v. Sec’y of Dept. of Health & Human Servs., 964 F.2d 524, 530 (6th Cir. 1992).The court further found that in finding that the claimant had the RFC to perform her past work, the ALJ ignored “the key symptom of CFS, which is persistent fatigue.” Id. at 724. The Ninth Circuit further held that the ALJ’s findings regarding the claimant’s credibility and her CFS symptoms were not adequate to rebut five other doctors who agreed with the CFS diagnosis, none of whom provided any evidence countering a CFS diagnosis. Id. at 723. The court pointed out that the ALJ’s reference to a consulting examiner’s general comment about “the facility with which CFS symptoms can be exaggerated,” was not sufficient to discount the claimant’s credibility, nor could it provide supportive evidence of malingering. Id. Additionally, the court held that the ALJ’s rejection of treating physicians’ opinions because they were based on the subjective complaints of the claimant was “ill-suited to this CFS case,” stating:

The ALJ’s reasoning runs counter to the CDC’s published framework for evaluating and diagnosing CFS. Chronic fatigue is defined as “self-reported persistent or relapsing fatigue lasting six or more consecutive months.”Centers for Disease Control, The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 Annals of Internal Medicine 954 (1994).Although CFS is accompanied by symptoms such as body aches, low-grade fevers, memory problems, headaches, and extended flu-like symptoms, which Claimant manifested, the presence of persistent fatigue is necessarily self-reported.

Id. at 725-26. The Ninth Circuit also found that the ALJ’s focus on the claimant’s pain medication and treatment was “misplaced” and inconsistent with the CDC’s declaration that “no definitive treatment for CFS exists,” and that “even more salient” was the ALJ’s failure to consider the POMS guidelines concerning CFS. Id. at 727. As it was clear from the record that the claimant was entitled to benefits, the Ninth Circuit reversed and remanded for an award of benefits, Id. at 728-29.

When the claimant’s testimony regarding her functional abilities was properly credited, coupled with her treating physician’s diagnosis of CFS, the ALJ’s implicit determination that the claimant did not suffer from the severe impairments of chronic fatigue syndrome and fibromyalgia was not supported by substantial evidence. Powell v. Chater, 959 F. Supp. 1238, 1243 (C.D. Cal. 1997). The slightly differing diagnoses of her treating physicians of fibromyalgia and CFS do not provide a specific and legitimate reason for the ALJ to reject either physician’s diagnoses. Id. at 1244.

Where the claimant alleged disability due to fibromyalgia and chronic fatigue syndrome, the court found that the ALJ did not provide sufficient reasons for rejecting the claimant’s pain testimony. Svatos v. Apfel, 44 F. Supp.2d 1113, 1119 (D. Or. 1999). Specifically, the ALJ improperly relied upon “inconclusive medical tests that failed to show ‘objective medical evidence’ regarding her condition.”Id. The court noted that the challenge with CFS cases is that it is a “‘diagnosis of exclusion or ruling out other possible illnesses.’” Id., citing Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998). In Svatos, the claimant also submitted a letter to the Appeals Council that she suffered from CFS, was not a malingerer, and was unemployable after July 31, 1988. The court noted that a diagnosis even several years after the actual onset of the impairment is entitled to significant weight, and that “[t]hese findings are particularly apt given the nature of CFS and the diagnostic challenge that it presents.” Id., citing Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981). The court held that the ALJ and Appeals Council failed to provide clear and convincing reasons for rejecting the treating physician’s diagnosis of the claimant. Id.

An Oregon district court confirmed that there is no “dipstick laboratory test” for diagnosing CFS and there was no “suggestion in [CFS cases] that this disease – or any other disease – is per se excluded from coverage because it cannot be conclusively diagnosed in a laboratory setting.” Shore v. Callahan, 977 F. Supp. 1075, 1079 (D. Or. 1997), citing Sisco v. U.S. Dept. of Health & Human Servs., 10 F.3d 739, 744 (10th Cir. 1993). The court upheld the treating physician’s reliance on the “operational diagnosis technique used by the medical community” in his analysis of the claimant’s CFS. Id. at 1079.

The ALJ’s determination that the claimant suffering from CFS, who could not perform the full range of sedentary work, could still perform other jobs in the national economy was not based on substantial evidence where it was inconsistent with the medical evidence in the record and the claimant’s testimony. Irwin v. Shalala, 840 F. Supp. 751, 770 (D. Or. 1993).

Tenth Circuit

The ALJ improperly discounted the claimant’s unrebutted testimony and improperly discredited her treating physicians’ diagnosis of CFS based on the lack of conclusive laboratory tests. Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d 739, 744 (10th Cir.1993). The court noted that the medical community only began to recognize CFS as a disease in 1988. Id. at 745.

Although the Tenth Circuit recognized that there is no “dipstick” laboratory test for CFS, the retrospective opinion of the claimant’s treating physician that the claimant suffered from CFS prior to the claimant’s date last insured was insufficient without evidence of actual disability. Adams v. Chater, 93 F.3d 712, 714-15 (10th Cir. 1996), citing Sisco v. U.S. Dep’t of Health & Human Servs., 10 F.3d 739, 744-45 (10th Cir. 1993).

Because the claimant’s subjective complaints are consistent with the symptomatology for CFS recognized by the Commissioner, are documented in medical records, and are corroborated by testimony from family members, and since the ALJ relied upon evidence that either was not significant or reliable in the context of CFS, the ALJ’s finding that the claimant was capable of performing her past relevant work and sedentary work was not supported by substantial evidence. Vogt v. Chater, 958 F. Supp. 537, 548 (D. Kan. 1997).

In discounting the effect of CFS by calling it a “provisional diagnosis,” the ALJ improperly discounted the findings of the experts contained in the record and substituted his judgment for that of persons who possess expertise beyond his own. Thaete v. Shalala, 826 F. Supp. 1250, 1252 (D. Colo. 1993).

Eleventh Circuit

In Vega, the claimant argued that despite the evidence of record documenting that she was diagnosed with CFS, the ALJ failed to find that she suffered from this impairment. Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1219 (11th Cir. 2001). The Eleventh Circuit held that in light of the diagnosis of CFS in the record, the “ALJ should have acknowledged it in his evaluation and discussed why he disregarded it.” Id. As it was “clear” that the ALJ did not properly consider the diagnosis of CFS, the Eleventh Circuit held that the ALJ did not “meaningfully conduct an analysis of the effect of CFS on Vega’s ability to work.” Id. The court noted that while the Eleventh Circuit had not addressed the nature of CFS and the factors to be considered by the ALJ when evaluating a claim of CFS, other circuits have “remanded cases when the ALJ’s conclusions did not fully account for the nature of CFS and its symptoms.” Id., citing Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998); Sarchet v. Chater, 78 F.3d 305, 307-09 (7th Cir. 1996); Rose v. Shalala, 34 F.3d 13, 17-19 (1st Cir. 1994). The court in Vega cited extensively from SSR 99-2p, noting that this Ruling recognizes that “there are no specific laboratory findings that are widely accepted as being associated with CFS. Id.at 1219-20, citing SSR 99-2p, The Court concluded that the ALJ appeared:

to have rejected CFS as a diagnosis because there is no definite test or specific laboratory findings to support such a diagnosis. This lack of testing, however, does not preclude the diagnosis of CFS. Because the ALJ ignored the symptoms of CFS, as well as Vega’s other subjective complaints regarding symptoms related to CFS, the ALJ did not meaningfully conduct an analysis of the effect of CFS on Vega’s ability to work.

Id. at 1219-20.

CFS is “‘recognized by the Social Security Administration as a disease which, while not specifically addressed in the Listings, may produce symptoms which significantly impair [a] claimant’s ability to perform even sedentary work . . . .’” Sabo v. Chater, 955 F. Supp. 1456, 1461 (M.D. Fla. 1996), quoting Fragale v. Chater, 916 F. Supp. 249, 253-54 (S.D.N.Y. 1996).Given the nature of this impairment, “it is not unusual for a person suffering from chronic fatigue syndrome to undergo physical examinations resulting within normal limits,” noting that the disease is diagnosed, in part, through a process of elimination. Id. at 1462. Symptoms such as insomnia, poor sleep, depression, headaches, pain, sore throat and fatigue are consistent with CFS. Id. at 1463. Where the claimant manifested symptoms of CFS, and medical sources supported the diagnosis of CFS, the court remanded the matter for further proceedings with instructions to the ALJ to apply the POMS criteria for evaluating CFS. Id.

An Alabama district court noted that the ALJ found that the claimant suffered from CFS and fibromyalgia but disregarded the opinion of her treating physician regarding residual functional capacity, and found the claimant capable of sedentary work. Lewis v. Massanari, 176 F. Supp.2d 1283, 1286 (S.D. Ala. 2001). The court disagreed and found the ALJ’s conclusions were not supported by substantial evidence. Id. The court noted that according to her doctor, the claimant met all criteria as set out by the Centers for Disease Control for CFS. Id. The court also noted: “CFS is a disease diagnosed by a process of elimination; it is only after other disorders and diseases are discarded that a doctor can diagnose CFS as it is not amenable to objective medical testing.” Id.

In analyzing the case of a claimant who suffered from migraine headaches, the court commented that the Commissioner had “for years” accepted CFS as a medically determinable impairment, without requiring laboratory findings. Ortega v. Chater, 933 F. Supp. 1071, 1075 (S.D. Fla. 1996).

D.C. Circuit

The court observed that “the ALJ did not seem to understand the symptoms the claimant reported, including joint and muscle pain, impaired memory and concentration, and a general feeling of lassitude, which are certainly consistent with the diagnosis of chronic fatigue syndrome which the Secretary of Health and Human Services has adopted for evaluating claims premised on chronic fatigue syndrome.” Martin v. Apfel, 118 F. Supp.2d 9, 18 (D.D.C. 2000),citing Fragale v. Chater, 916 F. Supp. 249, 253 (W.D.N.Y. 1996). Thus, the court concluded that since the physician’s diagnosis was supported by the symptoms he observed, the ALJ’s contrary conclusion was unsubstantiated and cannot stand. Id.

Fibromyalgia

By Legal issues

Fibromyalgia and Social Security Disability

The condition of fibromyalgia has received increasing attention in recent Social Security disability court decisions. The cases generally require the ALJ to evaluate carefully the effect of medically-documented fibromyalgia on a claimant’s ability to work. The following summary of cases includes only those cases where the issue of fibromyalgia was central to the court’s decision. Cases where the ALJ properly evaluated the claimant’s fibromyalgia condition or properly obtained vocational expert testimony as to the claimant’s residual functional capacity are not included in the summary. Detailed excerpts from several of the referenced cases are provided for the reader’s convenience and to facilitate understanding of the disabling nature of this disease.

Rulings

Social Security Ruling 99-2p

SSR 99-2p, pertaining to Chronic Fatigue Syndrome (“CFS”), recognizes the “considerable overlap” between the symptoms present in CFS and fibromyalgia. It explains that individuals with CFS who have tender points have a medically determinable impairment, and that claimants with impairments that fulfill the American College of Rheumatology criteria for Fibromyalgia (which includes a minimum number of tender points) may also fulfill the criteria for CFS. However, SSR 99-2p explains, even in cases where the claimant does not have the tender points sufficient to establish fibromyalgia, they will still be found to have a medically determinable impairment. Thus, in SSR 99-2p, SSA has clarified that fibromyalgia which is documented by tender points, as exists here, indeed, is a medically determinable impairment as defined in the regulations.

Social Security Ruling 96-3p

SSR 96-3p provides that symptoms, such as pain, fatigue, shortness of breath, weakness or nervousness, will not be found to affect an individual’s ability to do basic work activities unless the individual first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment and that the impairment could reasonably be expected to produce the alleged symptoms.

Social Security Ruling 96-7p

In evaluating pain, the ALJ must evaluate whether an underlying medically determinable physical or mental impairment could reasonably be expected to produce the individual’s pain or other symptoms. If there is no medically determinable physical or mental impairment, or if there is a medically determinable physical or mental impairment but the impairment could not reasonably be expected to produce the individual’s pain or other symptoms, the symptoms cannot be found to affect the individual’s ability to do basic work activities.

Case Law

First Circuit

The district court held that because the ALJ did not consider the potentially debilitating effects of fibromyalgia, he did not have before him all of the necessary evidence to fully and fairly evaluate whether the claimant was disabled. Weiler v. Shalala, 922 F. Supp. 689, 698 (D. Mass. 1996). Fibromyalgia has been recognized by the courts as being potentially disabling. Id.at n. 11.

In Lacroix, the claimant argued that the ALJ failed to properly credit her primary treating physician’s diagnosis of fibromyalgia because the ALJ focused on objective medical tests, which was inappropriate, because there are no objective medical tests for fibromyalgia. Lacroix v. Barnhart, 352 F. Supp.2d 100, 113 (D. Mass. 2005). The court declined to “go into detail regarding this argument,” accepting the Commissioner’s argument that the ALJ acknowledged that the claimant had fibromyalgia which was a “severe” impairment and considered this impairment to be the primary cause of the functional limitations that confined her to sedentary work. Id.

Second Circuit

In Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003), an ALJ rejected a treating physician’s opinion and found that a claimant who had fibromyalgia could perform sedentary work. Id. at 106. The Second Circuit held that the ALJ should have given controlling weight to the treating physician’s opinion about the claimant’s functional limitations. Id. “The fact that Dr. Helfand also relied on Green-Younger’s subjective complaints hardly undermines his opinion as to her functional limitations, as ‘[a] patient’s report of complaints, or history, is an essential diagnostic tool.’” Id. at 107, quoting Flanery v. Chater, 112 F.3d 346, 350 (8th Cir. 1997). Further, the Second Circuit held that fibromyalgia must be evaluated taking into account the precise nature of fibromyalgia and the ALJ erroneously required objective findings not present in fibromyalgia to reject the claim of disability based on fibromyalgia. Id. at 108.

The term fibromyalgia is often interchangeably used with the terms fibromyositis or fibrositis. Lisa v. Secretary of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991).

In Willoughby, the claimant argued that the ALJ improperly disregarded the medical evidence pertaining to her diagnosis of fibromyalgia and held that the ALJ’s decision that the claimant did not have fibromyalgia was based on legal error and was not supported by substantial evidence. Willoughby v. Comm’r of Soc. Sec., 332 F. Supp.2d 542, 546 (W.D.N.Y. 2004). The court cited to the numerous court decisions which “have recognized that evaluating the nature and severity of this condition in the context of social security disability review has proven to be difficult because of its elusive nature and the lack of objective tests that can conclusively confirm the existence of the disease. Id. at 546 n.3, citing Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000); Kelley v. Callahan, 133 F.3d 583, 585 n. 2 (8th Cir. 1998); Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996); Preston v. Sec. of Health and Human Servs., 854 F.2d 815, 818 (6th Cir. 1988). “Nevertheless, despite the lack of objective medical screening devices, fibromyalgia is a potentially disabling impairment that can provide the basis for disability insurance and supplemental security income benefits in the appropriate case.” Id., citing Green-Younger, 335 F.3d at 108-109; Soto v. Barnhart, 242 F. Supp.2d 251, 256-57 (W.D.N.Y. 2003). The court also held that the ALJ improperly discounted the diagnosis of the claimant’s treating physician because it was not supported by objective medical findings. Id. at 547. The ALJ specifically reasoned that this physician failed to specify in her medical records the claimant’s specific “trigger points” which undermined the diagnosis. However, the court noted that this physician’s opinion was based, in part, on the report of a rheumatologist to whom she referred the claimant for her fibromyalgia symptoms, who found that the claimant had eleven out of eighteen tender points and experienced other symptoms consistent with the disease. However, the ALJ never addressed the rheumatologist’s report in his decision, nor explained why no weight was given to that “important evaluation.” Id. Finally, the court held that since the ALJ did not consider fibromyalgia as a medically determinable impairment and did not assess whether the degree of inactivity the claimant testified to was consistent with such a condition, the court remanded with directions to reconsider the claimant’s:

testimony and complaints of pain, fatigue, and limitations in daily activity in light of the diagnosis of fibromyalgia. In
this regard, the ALJ should not simply discount plaintiff’s credibility based on the fact that there are no lab results or other objective medical findings to support her testimony about her limitations. The ALJ must consider the fact that there is no clinical test that can identify fibromyalgia or determine its severity. In fact, as a number of courts have recognized, the absence of abnormal clinical signs and findings (such as swollen joints, limited ranges of motion, or weakened muscles) is consistent with a diagnosis of fibromyalgia.

Id. at 548-59, citing Green-Younger, 335 F.3d at 109; Gang v. Barnhart, No. 02-CV-3647, 2003 WL 22183423, *5-*6 (E.D.N.Y. Sept. 23, 2003); Sarchet, 78 F.3d at 307; Preston, 854 F.2d at 819; Soto, 242 F. Supp.2d at 256-57.

In a case where the claimant alleged that the ALJ either misunderstood or disregarded her diagnosis of fibromyalgia or CFS, the New York district court looked to the Seventh Circuit’s decision in Sarchet which discussed fibromyalgia, noting:

The principal symptoms are ‘pain all over,’ fatigue, disturbed sleep, stiffness, and . . . 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. All these symptoms are easy to fake, although few applicants for disability benefits may yet be aware of the specific locations that if palpated will cause the patient who really has fibromyalgia to flinch . . . . Some people may have such a severe case of fibromyalgia as to be totally disabled from working, but most do not and the question is whether [the plaintiff] is one of the minority.

Coyle v. Apfel, 66 F. Supp.2d 368, 374-75 (N.D.N.Y. 1999), quoting Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996) (citation omitted). The court held that the claimant was never diagnosed with at least eleven trigger points that would indicate the presence of fibromyalgia, and even assuming that the evidence established this impairment, her condition was not so severe as to render her totally disabled. Id. at 375-76.

In Soto v. Barnhart, 242 F. Supp.2d 251 (W.D.N.Y. 2003), the court held that the ALJ’s finding that the claimant’s diagnoses of fibromyalgia and chronic pain syndrome were not well supported by objective medical evidence, and that the claimant had the RFC to perform light and sedentary work was not supported by substantial medical evidence and the ALJ improperly discounted the claimant’s subjective symptoms in making his determination. Id.at 254. Given the unavailability of clinical tests for fibromyalgia, an ALJ cannot reject a physician’s diagnosis of fibromyalgia on the grounds that it is not supported by objective medical findings. Id.at 254-55. Further, the ALJ improperly dismissed the many reports of the claimant’s treating physicians, who limited the claimant’s RFC to less than sedentary work. Id. at 255-56. These physicians clearly demonstrated the claimant’s long history of pain and opined that such pain supported the diagnoses of fibromyalgia and Chronic Pain Syndrome. Id. at 256. The court held that the opinions of the claimant’s treating physicians were entitled to controlling weight. Id. Finally, the ALJ’s rationale for discrediting the plaintiff’s subjective symptoms was totally unpersuasive. In fibromyalgia cases, the “credibility of a claimant’s testimony regarding her symptoms must take on substantially increased significance in the ALJ’s evaluation of the evidence.” Id. In cases where it is well documented that the claimant “has endured this pain for many years, and has as a result learned to tolerate such pain,” the court found the ALJ’s observation of no apparent signs of distress to be of very limited value. Id. at 257.

In Sanchez, an unrepresented claimant presented a hospital medical record containing one diagnosis of fibromyalgia, but which did not elaborate upon the claimant’s condition, and the ALJ advised the claimant that he would subpoena all of her records from the hospital and obtained a waiver from the claimant so that he could directly review the records. Sanchez v. Barnhart, 329 F. Supp.2d 445, 451 (S.D.N.Y. 2004). However, the hospital never responded to that subpoena and the ALJ did not notify the claimant that the hospital failed to respond nor did he follow up before issuing his decision. Id. The court remanded, holding that the ALJ failed to fulfill his duty to make “every reasonable effort” to obtain the medical reports, finding that “[t]he ALJ’s actions are particularly disconcerting considering the Second Circuit’s decisions noting the immense difficulties involved in making an objective medical diagnosis of fibromyalgia despite the disabling effect and unremitting pain the patient feels.” Id., citing Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003); Lisa v. Sec’y of Dep’t of Health & Human Services, 940 F.2d 40 (2d Cir. 1991). The court also held that the ALJ was obligated, “at a bare minimum,” to inform the claimant of the hospital’s failure to respond, and to allow her an opportunity to obtain the necessary information. Id.

In Aragon-Lemus v. Barnhart, 280 F. Supp. 2d 62 (W.D.N.Y. 2003), the court held that the ALJ erred in placing “great weight” on the opinion of an examining physician’s “incomplete report” in determining the claimant’s RFC because this report did not take into consideration the claimant’s subsequent diagnosis of fibromyalgia by her treating physician. Id. at 69. The ALJ’s credibility finding was also not supported by substantial evidence and the “consequence of this error is amplified where, as here, the claimant had fibromyalgia, an ailment which has been recognized as difficult to diagnose with tangible clinical evidence.”Id. at 70, citing Green-Younger v. Barnhart, 335 F.3d 99, 107-09 (2d Cir. 2003). See also Johnson v. Barnhart, 312 F. Supp.2d 415, 426 (W.D.N.Y. 2003) (holding that the ALJ’s determination that the claimant did not suffer from fibromyalgia was not supported by substantial evidence in the record and the ALJ erred in not clarifying the treating physician’s “suggested” diagnosis of fibromyalgia by contacting him to determine whether additional information on his fibromyalgia diagnosis was readily available).

Third Circuit

The Appeals Council’s finding that the pain suffered from a claimant with fibrositis was not credible was not based on substantial evidence. Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987).

In finding that the record supported the ALJ’s finding that the claimant’s fibromyalgia was not a severe impairment, the court cited: (1) the limited medical evidence concerning her fibromyalgia prior to expiration of her insured status and (2) the fact that a doctor did not report the nature or severity of the condition, and did not specify the effects it had on the claimant. Hirschfeld v. Apfel, 159 F. Supp.2d 802, 812 (E.D. Pa. 2001). Therefore, the court stated that the ALJ only had the claimant’s subjective complaints to rely upon in making his decision, and that it was within his discretion to find them not credible, as the claimant’s “account was contradictory and inconsistent with her daily activities.” Id.

Fourth Circuit

In Gavigan v. Barnhart, 261 F. Supp.2d 334 (D. Md. 2003), a case where the claimant suffered from fibromyalgia and a back disorder, the court held that the ALJ’s credibility analysis did not comport with the required two-step process for assessing the credibility of a claimant’s subjective complaints of pain as set forth in Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). Id. at 338. First, the ALJ did not address step one, which is whether the objective medical evidence shows the existence of a medical impairment which could reasonably be expected to produce the actual pain in the amount and degree alleged by the claimant. Id. at 339-40. The court concluded that the “the need for a clear, cogent step one analysis is heightened because plaintiff suffers from fibromyalgia, a disease that poses particular challenges to credibility analyses due to the limited available objective medical evidence.” Id. at 340. On remand, the ALJ should determine whether the claimant’s fibromyalgia could reasonably be expected to cause her pain and “should discuss the symptoms associated with fibromyalgia (particularly pain) and explain what pain could reasonably be expected from the disease.” Id. at 341. Second, as the ALJ did not adequately address step two, which requires consideration of the various actors set forth at 20 C.F.R. § 416.929, the court was unable to conclude that substantial evidence supported the ALJ’s decision. Id. at 341-42. In basing his step two analysis solely on the objective medical evidence, “the ALJ may have improperly required plaintiff to show objective medical evidence of the pain itself,” which is particularly inappropriate in a fibromyalgia case, where symptoms are subjective and there are no laboratory or radiographic tests. Id. at 342. The court noted that the ALJ pointed to x-rays and an MRI as inconsistent with the claimant’s pain, yet “unremarkable MRI and x-ray results do not support the ALJ’s conclusion that plaintiff’s alleged pain is inconsistent with the objective medical evidence.” Id.

Fifth Circuit

While remanding the case on other grounds, a Texas district court held that the ALJ did not err in not considering the claimant’s alleged tinnitus and fibromyalgia as there was no evidence that these conditions would limit the claimant’s ability to perform a limited range of sedentary work.Brown v. Barnhart, 285 F. Supp.2d 919, 935-36 (S.D. Tex. 2003).

Sixth Circuit

In Preston v. Secretary of Health and Human Servs., 854 F.2d 815, 817 (6th Cir. 1988) (per curiam), the Sixth Circuit stated that:

[F]ibrositis causes severe musculoskeletal pain which is accompanied by stiffness and fatigue due to sleep disturbances. In stark contrast to the unremitting pain of which fibrositis patients complain, physical examinations will usually yield normal results — a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. There are no objective tests which can conclusively confirm the disease; rather it is a process of diagnosis by exclusion and testing of certain ‘focal tender points’ on the body for acute tenderness which is characteristic in fibrositis patients. The medical literature also indicates that fibrositis patients may also have psychological disorders. The disease commonly strikes between the ages of 35 and 60 and affects women nine times more than men.

Id.

An Ohio district court held that the ALJ’s reasons for not giving controlling weight to the opinion of the claimant’s treating physician were inconsistent with the legal standards applicable for determining the weight to be given to treating physicians’ opinions in fibromyalgia cases and lacked the support of substantial evidence. Swain v. Commissioner of Soc. Sec., 297 F. Supp.2d 986, 993 (N.D. Ohio 2003). In so holding, the court noted that due to the nature of fibromyalgia and its manifestations, the pain analysis is difficult as: (1) there is almost never medical evidence confirming the severity of the alleged pain; and (2) the analysis of whether the medical condition is of such severity that the alleged pain can reasonably be expected to occur, in most cases, consists of diagnostic findings confirming the severity of the impairment and the opinion of a physician as to limitations that pain caused by such severity will impose. Id. at 990. “Since the presence and severity of fibromyalgia cannot be confirmed by diagnostic testing, the physician’s opinion must necessarily depend upon an assessment of the patient’s subjective complaints.” Id. On remand, the ALJ was also directed to reconsider the claimant’s credibility, noting that the ALJ placed undue emphasis on the lack of objective evidence. Id. at 994.

In Runyon v. Apfel, 100 F. Supp.2d 447 (E.D. Mich. 1999), the court held that the ALJ erred in not accepting the opinion of the claimant’s treating physician that he was disabled due to his fibromyalgia and that his complaints of pain were consistent with this opinion. Id. at 450. In so holding, the court rejected the Commissioner’s argument that the physician failed to substantiate his opinion with objective medical findings, and his findings were inconsistent with the predominantly normal objective medical findings of other physicians, noting that while these reasons “might be a valid basis for discounting an opinion in most cases, fibromyalgia is different” as in fibromyalgia cases, “‘physical examinations will usually yield normal results in a full range of motion, no joint swelling as well as normal muscle strength and neurological reactions’” Id., quoting Preston v. Sec’y of Health & Human Servs., 854 F.2d 815, 817-818 (6th Cir. 1988). The court observed that “[w]ith fibromyalgia claimants, the disability determination is more necessarily complicated because normal clinical test results do not necessarily suggest the absence of a disability.” Id. In light of the difficulty of supporting an opinion with clinical findings in fibromyalgia cases, it is unlikely that a treating physician’s opinion will be entitled to controlling weight. Thus, these opinions must be analyzed on the various factors set forth in 20 C.F.R. § 404.1527. After weighing these factors, the court found that the treating physician’s opinion was “entitled to deference, and the clinical findings and opinions of the other physicians do not represent substantial evidence.” Id.

In Gaffney v. Commissioner of Social Security, 277 F. Supp.2d 733 (E.D. Mich. 2003), the court held that the ALJ’s finding that the claimant was not disabled as a result of chronic fatigue syndrome and fibromyalgia was not supported by substantial evidence as the evidence documented a clinical correlation for the claimant’s complaints of chronic fatigue and muscle weakness, and that the de minimis step two burden was easily met. Id. at 738.

In a fibromyalgia case, an Ohio district court noted that the ALJ must carefully consider the claimant’s statements about pain and reach a conclusion about the credibility of those statements in deciding disability and that this “consideration takes on paramount importance in a fibromyalgia case because the symptoms of that impairment are entirely subjective.” Wines v. Commissioner of Soc. Sec., 268 F. Supp.2d 954, 960 (N.D. Ohio 2003). In this case, the ALJ’s articulation of his reasons for finding her less than credible was inadequate as his specific discussion of credibility did not contain a detailed analysis of the claimant’s daily activities and repeatedly referenced the lack of objective medical evidence, while the lack of such objective medical evidence is typical in a fibromyalgia case. Id.

Seventh Circuit

In 1996, in the seminole case of Sarchet v. Chater, 78 F.3d 305 (7th Cir. 1996), the Seventh Circuit described fibromyalgia in terms relative to Social Security disability claims as follows:

[Fibromyalgia’s] 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. All these symptoms are easy to fake, although few applicants for disability benefits may yet be aware of the specific locations that if palpated will cause the patient who really has fibromyalgia to flinch. There is no serious doubt that [the claimant] is afflicted with the disease but it is difficult to determine the severity of her condition because of the unavailability of objective clinical tests. Some people may have such a severe case of fibromyalgia as to be totally disabled from working, Michael Doherty & Adrian Jones, Fibromyalgia Syndrome (ABC of Rheumatology), 310 British Med. J. 386 (1995); Preston v. Secretary of Health & Human Services, 854 F.2d 815, 818 (6th Cir. 1988) (per curiam), but most do not and the question is whether [the claimant] is one of the minority.

Id. at 306-07. The Seventh Circuit further found, in a detailed analysis, that the ALJ’s opinion demonstrated a “pervasive misunderstanding” of fibromyalgia. Id.

The Seventh Circuit also described fibromyalgia as “‘a syndrome involving chronic widespread and diffuse pain throughout the entire body, frequently associated with fatigue, stiffness, skin tenderness, and fragmented sleep.’” Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998), quoting Robert M. Bennett, “The Fibromyalgia Syndrome,” Textbook of Rheumatology 511, 511-14.The court did not dispute that fibromyalgia is very difficult to diagnose, as no objective medical tests reveal its presence, but also noted that it can be completely disabling. Id., citing Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).However, the court pointed out that it is not enough for the claimant to receive a diagnosis of fibromyalgia with an onset date prior to the expiration of the insured period, “since fibromyalgia is not always (indeed not usually) disabling.” Id., citing Sarchet, 78 F.3d at 307.Based upon extensive evidence that the claimant could perform jobs that did not require much walking or standing, the court concluded that the ALJ had substantial evidence to find the claimant was not disabled from fibromyalgia or any other condition. Id. at 642.

In Alexander v. Barnhart, 287 F. Supp.2d 944 (E.D. Wis. 2003), the court first held that the ALJ erred in concluding that the claimant did not suffer from fibromyalgia as such a conclusion was reached in violation of the treating physician rule, was unsupported by any medical evidence, and was contradicted by the ALJ himself. Id. at 965. The court noted that the claimant’s treating physician opined that the claimant met the American College Rheumatology criteria for fibromyalgia and indicated the presence of multiple tender points. Id. at 963. Apparently, the ALJ reviewed the treatment records and concluded that these trigger points did not exist. However, it is “not the job of the lay ALJ to review the medical data and render his own diagnosis.” Id. As the ALJ is not an expert at diagnosing fibromyalgia, it was improper for him to conclude that the claimant did not display the necessary symptoms. Id. at 964. The ALJ cited no contrary medical evidence in reaching this conclusion and a review of the record reveals none. The court also held that the ALJ erred in rejecting the claimant’s testimony concerning her symptoms. When a claimant has fibromyalgia, it is inappropriate for an ALJ to reject her claims of pain because they are not verified by traditional medical tests. Id.

Fibromyalgia has been described as an “elusive and mysterious” disease that shares common features with chronic fatigue syndrome. Aidinovski v. Apfel, 27 F. Supp.2d 1097, 1099 (N.D. Ill. 1998), citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). In Aidinovski, the court rejected the ALJ’s reliance on medical opinions offered by a general practitioner and a pediatrician, which showed the claimant’s limitations to be far less than that opined by a rheumatologist, the “relevant specialist” qualified for diagnosing and evaluating fibromyalgia. Id. at 1105. The court further noted that, by definition, the claimant’s fibromyalgia diagnosis meant that in all likelihood her reports of pain and fatigue would seem out of proportion with the available objective evidence. Id. at 1103.Accordingly, the ALJ did not appear to have considered its peculiar characteristics at all in evaluating the claimant’s credibility, and therefore, absent proper consideration of the subjective nature of the symptoms of the illness, the ALJ’s credibility determination was inadequate. This was especially so since the ALJ did not discuss (1) why she rejected the evidence favorable to the claimant, and (2) how the uniquely subjective nature of the claimant’s illness factored into the analysis. Id.

In a fibromyalgia case, an Indiana district court observed that the “ALJ may have misunderstood the nature of fibromyalgia and how it correlates with Social Security’s rulings” in light of his focus on the “minimal” objective evidence. Liscano v. Barnhart, 230 F. Supp.2d 871, 884 (N.D. Ind. 2002). “Naturally, fibromyalgia patients may exhibit somewhat limited medical signs and findings since the disease must necessarily be evaluated based on subjective responses to testing, however, that does not mean there are no medical signs or findings supporting the Plaintiff’s allegations.” Id. In Liscano, the ALJ made no finding about whether the claimant’s “subjective symptoms (i.e., complaints of “all over pain” and fatigue) could be shown to be manifestations of fibromyalgia through medically acceptable clinical diagnostic techniques,” observing:

since the Plaintiff’s condition has been diagnosed based on perhaps the only diagnostic technique available, trigger point evaluations, and because subjective complaints of pain and fatigue are generally recognized as manifestations of fibromyalgia . . . the Plaintiff’s complaints may actually rise to the level of objective medical signs that support her claims.

Id. at 885 (citations omitted). The court also held that the ALJ erred in not soliciting the testimony of a vocational expert despite the fact that the claimant’s fibromyalgia “involved a number of serious nonexertional impairments.” Id. at 886-87. Finally, the ALJ improperly discounted opinions of the claimant’s treating rheumatologist, a noted fibromyalgia specialist, who noted the presence of trigger points, and ultimately determined that the claimant was severely limited in her ability to work, as well as another physician and improperly determined the claimant’s credibility. Id. at 888-90. See also Kilps v. Barnhart, 250 F. Supp.2d 1003, 1013 (E.D. Wis. 2003) (holding that the ALJ failed to supply good reasons for rejecting the opinions of the claimant’s treating source, as the purported lack of support from x-rays, MRI studies, CT scans, and laboratory tests was not probative of whether the record supported the doctor’s opinion regarding the limitations of a claimant who suffered from fibromyalgia).

A Wisconsin district court explained that the ALJ’s decision was not clear as to why he found that the claimant’s doctor visits were either intermittent or infrequent, which was one of the reasons he found that the claimant’s allegations were incredible. Dominguese v. Massanari, 172 F. Supp.2d 1087, 1096 (E.D. Wis. 2001). However, the record contained no medical evidence concerning how regularly or how often a patient experiencing plaintiff’s stated level of pain related to fibromyalgia and plaintiff’s other afflictions would be expected to see a doctor. In the absence of such evidence, the ALJ made his own independent medical determination about the appropriateness of doctor visits. This determination was not within the ALJ’s province to make. Additionally, the court noted that fibromyalgia sufferers should engage in a “comprehensive treatment course that includes pain management, exercise and referral to psychiatric sources,” and that the record indicated the claimant’s regimen involved most of these elements, including “regular medical treatment, pain management, and exercise.” Id. Therefore, to the extent the ALJ based his credibility finding on the claimant’s record of doctor visits, the court found that “his conclusion was not supported by substantial evidence and did not logically follow from the evidence.” Id.The court also noted that one of the bases for the ALJ’s rejection of the treating physician’s opinion was his determination that it was not well-supported by medically acceptable data and that the ALJ sought “hard evidence.” Id. at 1100. However, the court pointed out that the claimant’s primary alleged disabling condition was fibromyalgia, and that, in most cases, “there will be no objective evidence indicating [its] presence or severity.” Id. Therefore, “in light of the nature of the condition, the absence of hard evidence was not a ‘good’ or even logical reason for rejecting [the treating physician’s] opinion or for according it lesser weight.” Id.

In a case where a claimant suffered from fibromyalgia, the court held that the ALJ failed to “give good reasons” for her decision because she failed to explain how her findings could be squared with the contrary opinions of the claimant’s treating doctors, upon whose opinions she claimed to afford “significant weight.” Wates v. Barnhart, 274 F. Supp.2d 1024, 1035 (E.D. Wis. 2003). In fact, one physician opined that the claimant suffered from fatigue of sufficient severity to significantly interfere with a full-time work schedule and that the claimant would require breaks due to fatigue and would incur frequent work absences because of her fibromyalgia. Id. at 1034-35. The court also reversed and remanded for reconsideration of the credibility of the claimant’s testimony, noting, in part, that the the ALJ failed to cite to any medical support for her conclusion that the claimant’s doctor visits were “infrequent,” observing that “there was no evidence as to how often someone with plaintiff’s conditions should reasonably see her physician.” Id. at 1039-40, citing Dominguese v. Massanari, 172 F. Supp.2d 1087, 1096 (E.D. Wis. 2001).

In Gister, the ALJ ignored the objective evidence of fibromyalgia, which was shown by “clinically demonstrable evidence regarding trigger points.”Gister v. Massanari, 189 F. Supp.2d 930, 934 (E.D. Wis. 2001). The court held that the “ALJ’s conclusory analysis dismissing fibromyalgia” was not supported by substantial evidence and further, that “the ALJ’s beliefs about fibromyalgia colored his credibility determination.” Id. at 934-35. The court also held that the ALJ’s entire credibility analysis was “adversely affected by the ALJ’s attitude towards fibromyalgia” because his finding that the claimant’s physical illnesses were ungrounded in any clinical evidence ignored “the objective evidence of fibromyalgia, and the extent to which it could cause the [claimant’s] pain.” Id. at 936-37. The ALJ also erred in relying on the observations of a psychiatric medical expert as a basis to find that the claimant was not credible. Id. at 937. As fibromyalgia “‘is a rheumatic disease and the relevant specialist is a rheumatologist,’” the ALJ “cannot rely” on this opinion to rule out the pain caused by fibromyalgia, Id., quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).

Eighth Circuit

The Eighth Circuit held that fibromyalgia, “which is pain in the fibrous connective tissue components of muscles, tendons, ligaments, and other white connective tissues, can be disabling” and “often leads to a distinct sleep derangement which often contributes to a general cycle of daytime fatigue and pain.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998),citing Cline v. Sullivan, 939 F.2d 560, 563, 567 (8th Cir. 1991).The court further described fibromyalgia as a “degenerative disease which results in symptoms such as achiness, stiffness, and chronic joint pain.” Id. at 590, citing Cline, 939 F.2d at 567; Stedman’s Medical Dictionary 222 (4th ed. 1976).In Kelley, the court held that in rejecting the treating physician’s 4-hour workday restriction, the ALJ wrongly assumed that physicians cannot opine as to the hours a claimant can work, stating that doctors regularly make such judgments which are not only allowed but encouraged. Id., citing Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995).

In Garza, the claimant argued that the ALJ erred by not listing fibromyalgia as a severe impairment. Garza v. Barnhart, 397 F.3d 1087, 1089 (8th Cir. 2005). The Eighth Circuit agreed that the ALJ misunderstood fibromyalgia and that this misunderstanding affected the ALJ’s RFC findings, and her hypothetical question posed to the VE.Id. But see Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004) (affirming the ALJ’s decision, in part, based on its finding that the ALJ’s credibility finding was supported by the fact that no “trigger points were not identified to support her claimed fibromyalgia”); Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (holding that the record supported the ALJ’s determination that the claimant’s subjective complaints of disabling pain were not credible to the extent alleged, noting that the claimant had undergone 75 trigger point injections over a 2-year period for her fibromyalgia and stated that the injections relieved the pain and made the “knots go down”).

In a fibromyalgia case, the Eighth Circuit held that the reasons given by the ALJ for discrediting the claimant’s testimony were unsupported by the record. Brosnahan v. Barnhart, 336 F.3d 671, 677 (8th Cir. 2003). Regarding the “degree of medical treatment required,” the ALJ did not specify the physician’s reports and findings upon which he relied, and the claimant received treatments recommended by the American College of Rheumatology (ACR) for fibromyalgia. Regarding the ALJ’s finding that the claimant had made inconsistent statements about her pain and ability to walk and lift, the Eighth Circuit found that the statements reflected her attempt to describe the variability of her symptoms. The lack of any need for surgery, another reason cited by the ALJ, was also not a reason to discredit the claimant as the ACR does not recommend surgery for fibromyalgia. Regarding missed doctor appointments, another reason cited by the ALJ, the claimant testified that she missed these appointments only because of the very symptoms for which she sought benefits, namely, she felt too weak and ill to dress. Id. The Eighth Circuit also held that the claimant’s testimony and reports were supported by objective medical evidence of fibromyalgia – consistent trigger-point findings – and by her consistent complaints during her relatively freque
nt physicians’ visits of variable and unpredictable pain, stiffness, fatigue, and inability to function. Id. at 677-78. Finally, the court reiterated that fibromyalgia can be disabling because of its potential for sleep derangement and resulting daytime fatigue and pain, and the VE testified that a claimant who could not perform reliably on a full-time basis because of pain and fatigue could not work. Id. at 678.

In Forehand v. Barnhart, 364 F.3d 984 (8th Cir. 2004), the court found that the claimant has “long exhibited symptoms consistent with fibromyalgia, such as sleep deprivation, fatigue, and pain.” Id. at 987. The court noted that fibromyalgia is a chronic condition which is usually diagnosed after eliminating other conditions and there are no confirming diagnostic tests. Id., citing Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir. 2003). In Forehand, the court noted that it appeared that the ALJ gave little weight to the consistent diagnosis of fibromyalgia or its debilitating effect on the claimant and erred in not crediting the opinion of the claimant’s physician. The court reiterated that the Eighth Circuit has “long recognized that fibromyalgia has the potential to be disabling.” Id., citing Broshahan. The court also held that the ALJ’s credibility finding was either unsupported by the record or unpersuasive on the issue of whether the claimant’s allegations of limitation were true, stating:

The medical reports of many treating physicians amply support her allegations of pain and limitation. The fact that she does not use assistive devices to walk is simply no reason to reject her claims of pain, particularly in light of medical reports that support her complaints of trouble with walking and standing. As to her mental state, tests administered by . . . a consultive psychologist, indicate that Forehand has significant memory and concentration difficulties, and suffers from depression. While Forehand may not have sought specific psychiatric treatment, she did consistently seek treatment from physicians for her mental health . . . .

Id. at 987-88.

The Eighth Circuit noted in Hatcher v. Barnhart, 368 F.3d 1045 (8th Cir. 2004) that the facts of this case are remarkably similar to Cox v. Barnhart, 345 F.3d 606 (8th Cir. 2003), noting that, as in Cox: (1) the claimant sought disability benefits on the basis of fibromyalgia and costochondritis; (2) the ALJ disregarded the opinion of the claimant’s treating physician and instead relied on the opinion of the same one-time medical examiner on whose opinion the ALJ relied in this case; and (3) the opinion of the medical examiner could not constitute substantial evidence supporting the ALJ’s decision. Id. at 1046-47. As the ALJ’s decision and district court decision were rendered prior to the decision in Cox, the court remanded for further proceedings and consideration of Cox. Id. at 1047. See Cox v. Barnhart, 345 F.3d 606, 608 (8th Cir. 2003) (holding that the ALJ improperly discounted treating physician’s opinion in determining that the claimant, who suffered from fibromyalgia and costochondritis was not disabled).

A Missouri district court reversed and remanded a fibromyalgia case, describing this impairment as follows:

Fibromyalgia (or fibrositis) consists of a constellation of symptoms associated with few physical findings and essentially normal laboratory tests.The disease primarily affects women. Its cause is unknown. The main complaints include joint and muscle pain and stiffness, easy fatigability, and difficulty with sleep. The symptoms usually appear insidiously, although some patients may recall a precipitating physical or emotional event.There is usually a significant degree of functional impairment with inability to work or difficulty with chores at home.

Brown v. Apfel, 996 F. Supp. 922, 934 n.3 (W.D. Mo. 1998), citing Robert E. Rakel, M.D., Textbook of Family Practice 1035 (5th ed. W.B. Saunders Company).

In Haines v. Apfel, 986 F. Supp. 1212 (S.D. Iowa 1997), the court stated that “fibromyalgia is not a diagnosis of exclusion,” and “[a]lthough the symptoms are subjective, there is a test upon which, when done properly by a rheumatologist, a diagnosis can be based.” Id. at 1214, citing Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996). The court also criticized the ALJ’s comments at the hearing regarding fibromyalgia and the fact that it is diagnosed from symptoms and cannot be explained objectively. Since the court found that neither the claimant’s fibromyalgia nor depression were properly developed, the court remanded the case with instructions to “arrange for consultative examinations by a rheumatologist and a psychiatrist, unless [the claimant] is already being treated by doctors in these specialties, so that proper diagnoses can be obtained.” Id.

Despite the fact that the record contained the diagnosis of fibromyalgia, which corroborated the claimant’s complaints of pain, depression, and bowel problems, the ALJ failed to address this diagnosis in his decision. Daniel v. Massanari, 167 F. Supp.2d 1090, 1093 (D. Neb. 2001). The court found this to be “perplexing,” given the fact that there was “little or no evidence” of record that directly contradicted this diagnosis and, as a result, was unable to “evaluate the strength or weakness of the ALJ’s decision.” Id. On remand, the court directed the ALJ to: (1) address the claimant’s allegation of disabling depression, noting that the depression complaint was “interwoven with the fibromyalgia issue”; (2) address the claimant’s gastroenteritis or similar complaints, noting that a relationship between the fibromyalgia and the claimant’s intestinal problems was not uncommon; and (3) directly address the treating physician’s opinions regarding the fibromyalgia issue. Id.

Where the ALJ found that the claimant suffered from fibromyalgia and depression, the court held that the ALJ erred in finding that she was able to perform a wide range of sedentary work, in finding that her testimony was not credible, and in disregarding the testimony of the VE that the claimant was unable to perform sedentary work. High v. Apfel, 46 F. Supp.2d 961, 963 (W.D. Mo. 1999). The court also held that the ALJ’s determination that the claimant’s subjective complaints of disability were not credible was not supported by substantial evidence in the record as a whole. Finally, the court concluded that, based upon the testimony of the VE and the claimant’s credible statements concerning her inability to stay awake during the day, there was no work that the claimant could perform. Thus, the court reversed and remanded for an award of benefits. Id. at 976.

In Hinders, the Commissioner sought a remand to give the ALJ the opportunity to further evaluate the claimant’s impairments and allegations of fibromyalgia and chronic fatigue syndrome and the claimant argued that the evidence supported a reversal with an award of benefits and that “further proceedings will only delay the receipt of benefits to which Plaintiff is entitled.” Hinders v. Barnhart, 349 F. Supp.2d 1218, 1219 (S.D. Iowa 2004). The court evaluated the evidence of record and remanded for an award of benefits as “further proceedings will only lead to one outcome, namely that Plaintiff is disabled and entitled to the benefits for which she applied.” Id. at 1226.

Ninth Circuit

A claimant who suffered from fibromyalgia appealed the district court’s decision remanding the case for further administrative proceedings instead of an immediate award of benefits.
Benecke v. Barnhart
, 379 F.3d 587, 589 (9th Cir. 2004). The Ninth Circuit reversed and remanded to the district court with instructions to remand to the Commissioner for an award of benefits, finding that there were no outstanding issues that must be resolved and it was clear from the record that the claimant was entitled to benefits. Id. The Ninth Circuit found that the ALJ erred in discounting the opinions of the claimant’s treating physicians, relying on his disbelief of the claimant’s testimony regarding her symptoms as well as his misunderstanding of fibromyalgia, stating:

The ALJ erred by ‘effectively requir[ing] “objective” evidence for a disease that eludes such measurement.’ Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (reversing and remanding for an award of benefits where the claimant was disabled by fibromyalgia). Every rheumatologist who treated Benecke . . . diagnosed her with fibromyalgia. Benecke consistently reported severe fibromyalgia symptoms both before and after diagnosis, and much of her medical record substantially pre-dates her disability application. Sheer disbelief is no substitute for substantial evidence.

Id. at 594. The court further observed that the opinion of each rheumatologist is given greater weight than those of the other physicians and that “[r]heumatology is the relevant specialty for fibromyalgia.” Id. at 594 n.4, citing 20 C.F.R. § 404.1527(d)(5); Jordan v. Northrop Grumman Corp., 370 F.3d 869, 873 (9th Cir. 2004). “Specialized knowledge may be particularly important with respect to a disease such as fibromyalgia that is poorly understood within much of the medical community.” Id.

Where the claimant suffered from fibromyalgia, the court found that the ALJ did not provide sufficient reasons for rejecting the claimant’s pain testimony because he improperly relied upon the lack of objective medical evidence. Svatos v. Apfel, 44 F. Supp.2d 1113, 1119 (D. Or. 1999). Because the ALJ failed to articulate adequate reasons, the claimant’s testimony was credited as a matter of law. The ALJ also failed to provide sufficient reasons for rejecting uncontradicted treating physicians’ testimony that the claimant suffered from disabling chronic fatigue syndrome. Id.

The ALJ’s implied determination that the claimant did not suffer from fibromyalgia was not supported by substantial evidence. Powell v. Chater, 959 F. Supp. 1238 (C.D. Cal. 1997). There is no conflict between the diagnosis of chronic fatigue syndrome and the diagnosis of fibromyalgia, especially since chronic fatigue syndrome and fibromyalgia share a number of common features. Id.

In Willis v. Callahan, 979 F. Supp. 1299 (D. Or. 1997), the ALJ rejected the claimant’s testimony regarding the symptoms resulting from her fibromyalgia based on a finding that she failed to produce “objective evidence” of an impairment which could “reasonably be expected to produce pain and fatigue.” Id. at 1306. The ALJ further stated that “to prove that impairments are disabling there must be laboratory or clinical evidence in addition to subjective complaints.” Id. The court held that this was not “a clear and convincing reason for discrediting Willis’ testimony as to the degree of her pain or fatigue,” noting that her treating physician used clinical means to diagnose her symptoms as fibromyalgia. Id.

A Washington district court determined that since the Commissioner did not meet his burden of showing that there were specific DOT jobs existing which would adjust to the claimant’s disabilities of fibromyalgia and organic brain dysfunction, she was entitled to benefits. LaPierre v. Callahan, 982 F. Supp. 789, 794 (W.D. Wash. 1997).

Tenth Circuit

As the claimant suffered from joint disease or fibromyalgia, chronic fatigue, migraines or chronic headaches, depression, and reflux disorder, the ALJ was required to assess the combined impact of these impairments to determine the effect, if any, they had on the claimant’s ability to perform work-related activities and his failure to do so required reversal. Langley v. Barnhart, 373 F.3d 1116, 1124 (10th Cir. 2004).

“‘Fibromyalgia is defined as a syndrome of pain in the fibrous tissues, muscles, tendons, ligaments, etc.’” Anderson v. Apfel, 100 F. Supp.2d 1278, 1286 (D. Kan. 2000), quoting Duncan v. Apfel, 156 F.3d 1243, 1998 WL 544353 at *2 (10th Cir. Aug. 26, 1988) (Table) (citing the Merck Manual of Diagnosis & Therapy at 1369 (Robert Berkow & Andrew J. Fletcher, eds., (16th ed. 1992)). “‘The symptoms of fibromyalgia are entirely subjective, and there are no laboratory tests to identify its presence or severity.’” Id., quoting Ward v. Apfel, 65 F. Supp.2d 1208, 1213 (D. Kan. 1999) (citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). “‘Because fibromyalgia, . . . is diagnosed by ruling out other diseases through medical testing, . . . negative test results or the absence of an objective medical test to diagnose the condition cannot support a conclusion that claimant does not suffer from a potentially disabling condition.’” Id., quotingLantow v. Chater, 98 F.3d 1349, 1996 WL 576012, at *1 (10th Cir. Oct. 8, 1996) (Table). Regarding the claimant’s need to lie down after physical activity, the court cited to a recent Tenth Circuit case, stating:

Next, the ALJ stated that plaintiff’s claim that she must lie down several times during the day because of pain is unsupported. However, ‘[t]he pain [of fibromyalgia] is aggravated by strain or overuse,’ The Merck Manual of Diagnosis & Therapy, at 1370, and is accompanied by symptoms such as poor sleep and fatigue. See Id. Plaintiff’s problems with sleep disturbances and fatigue are documented. (Citation omitted). Therefore, it is not apparent what evidence supports the ALJ’s finding that she need not lie down periodically during the day.

Id. at 1290, quoting Duncan v. Apfel, 156 F.3d 1243, 1998 WL 544353, at *2 (10th Cir. Aug. 26, 1998). In Anderson, the court noted that the record established that the claimant suffered from poor sleep and fatigue, and there was no record evidence to support the ALJ’s finding that the claimant did not need to lie down three to four times a day. Id. at 1290. Thus, the court held that given the nature of fibromyalgia and fatigue, the claimant’s symptoms, and the medical evidence that supported those findings to the extent possible, the ALJ erred when he discredited the claimant’s pain testimony due to a lack of objective medical evidence. Id., citing Baca v. Apfel, 2000 WL 357268 at *1 (9th Cir. Apr. 6, 2000).

A Kansas district court held that the record showed that the ALJ failed to follow the recognized law in evaluating the medical opinions concerning fibromyalgia and further ignored uncontroverted medical evidence regarding the severity of the claimant’s symptoms. Priest v. Barnhart, 302 F. Supp.2d 1205, 1213 (D. Kan. 2004). The court reiterated its prior decision in Anderson v. Apfel, 100 F. Supp.2d 1278, 1286 (D. Kan. 2000) in which it summarized what other courts had said about fibromyalgia as a possible disabling condition.Id. The court also referenced the Eighth Circuit’s decision in Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir. 2003) discussing fibromyalgia. Id. at 1213-14. The court considered these decisions and concluded that the ALJ’s finding “that the diagnosis of fibromyalgia cannot be medically determined” was not supported by substantial evidence. Id. at 1214. “The ALJ reveals his fundamental misunderstanding of fibromyalgia in asserting that there must be objective documentation of this condition (other than the plaintiff’s complaints) before there is a medically determinable impairment.” Id. Finally, the court held that the ALJ committed legal error when he discredited the claimant’s testimony for lack of objective medical evidence and remanded with instructions for the ALJ to “consider all of the Luna factors for evaluating pain testimony in light of the diagnosis of fibromyalgia and the entire record.” Id. at 1216.

A Kansas district court confirmed that the claimant’s symptoms of fibromyalgia were supported by the record in that “[t]he principal symptoms of [fibromyalgia] are ‘pain all over,’ fatigue, disturbed sleep, stiffness, and. . . multiple tender spots . . .,’” not the symptoms specified by the ALJ which were not documented in the record. Biri v. Apfel, 4 F. Supp.2d 1276, 1279 (D. Kan. 1998), citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The diagnosis of fibromyalgia “is not inconsistent with a diagnosis of [chronic fatigue syndrome].” Vogt v. Chater, 958 F. Supp. 537, 547 n.5 (D. Kan. 1997).

In Ward v. Apfel, 65 F. Supp.2d 1208 (D. Kan. 1999), the court held that the ALJ’s finding that the claimant who suffered from fibromyalgia was not credible was not supported by the record. Id. at 1214. The court reasoned that there were no legitimate reasons to discredit her testimony, there was no suggestion of exaggeration or malingering by her doctors, and her testimony was supported by her treating physician, psychiatrist, and husband. Id. at 1215.

In Hendrix, the court first rejected the claimant’s argument that the ALJ failed to properly consider the combination of her impairments of chronic fatigue syndrome, fibromyalgia, and migraine headaches in determining that these severe impairments, alone or in combination, did not meet or equal a listing. Hendrix v. Barnhart, 313 F. Supp.2d 1222, 1229-30 (D. Utah 2004). In finding this challenge “without merit” the court explained that the ALJ acknowledged the medical evidence that the claimant was diagnosed with multiple impairments, including CFS and fibromyalgia, and that such impairments were severe; these impairments were also considered, alone and in combination, by the ALJ when assessing the claimant’s RFC; and the claimant failed to meet her burden of establishing disability under the Listings as she “failed to present medical findings evidencing her condition or conditions were equal in severity to all the criteria for the one most similar listed impairment” as such determination requires “medical judgment.” Id. at 1230-31. However, the court held that the ALJ erred at step five, given the VE’s testimony that a hypothetical person like the claimant with chronic absenteeism due to fatigue, pain and headache would be unable to work at any job and reversed and remanded for an award of benefits. Id. at 1231-32.

In a fibromyalgia case, an Oklahoma district court reversed and remanded, finding that the ALJ improperly evaluated the opinion of the claimant’s treating physician, improperly substituted his own medical opinion, and failed to provide specific and legitimate reasons for discounting a physician’s physical assessment. Green v. Barnhart, 262 F. Supp.2d 1271, 1280 (N.D. Okla. 2003).

Following the ALJ’s decision, the claimant submitted new evidence to the Appeals Council which documented that she suffered from fibromyalgia, and had all eighteen tender points required for a diagnosis of this impairment. Lloyd v. Halter, 161 F. Supp.2d 1211, 1218 (D. Kan. 2001). The court thus surmised that it was highly likely that the pain alleged by the claimant resulted from fibromyalgia, in that “fibromyalgia does not require a traumatic onset.” Id., citingSarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The court concluded that the evidence was material and non-cumulative, stating:

The fact that plaintiff has been diagnosed with fibromyalgia, which can cause the disabling pain described by plaintiff, would likely change the ALJ’s credibility determination as to plaintiff’s subjective complaints, such as her ability to stand and sit due to back and shoulder pain. Therefore, the court finds this case is appropriate to reverse and remand. On remand, the Commissioner is to determine plaintiff’s credibility in light of the diagnosis of fibromyalgia.

Id. at 1218-19.

In Glenn, the ALJ pointed to the lack of objective medical evidence to support the claimant’s claims. Glenn v. Apfel, 102 F. Supp. 2d 1252, 1259 (D. Kan. 2000). However, fibromyalgia symptoms are subjective pain all over, fatigue, disturbed sleep, and stiffness, for which there are no objective clinical tests to determine severity. Id.,citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). The court also noted that the claimant had all eighteen tender spots common to fibromyalgia. Id., citing Sarchet, The court also confirmed that there are no clinical tests to identify its existence or severity, noting that courts have recognized that the pain suffered by fibromyalgia patients can be disabling. Id. at 1258, citing Sarchet v. Chater, 78 F.3d at 309; Cline v. Sullivan, 939 F.2d 560 (8th Cir. 1991); Ward v. Apfel, 65 F. Supp.2d 1208 (D. Kan. 1999); Biri v. Apfel, 4 F. Supp.2d 1276 (D. Kan. 1998).

In Ward v. Apfel, 65 F. Supp.2d 1208 (D. Kan. 1999), the court held that the ALJ’s finding that the claimant who suffered from fibromyalgia was not credible was not supported by the record. Id. at 1214. The court reasoned that there were no legitimate reasons to discredit her testimony, there was no suggestion of exaggeration or malingering by her doctors, and her testimony was supported by her treating physician, psychiatrist, and husband. Id. at 1215.

The diagnosis of fibromyalgia is not inconsistent with a diagnosis of chronic fatigue syndrome. Vogt v. Chater, 958 F. Supp. 537, 547 n. 5 (D. Kan. 1997).

A diagnosis of fibromyalgia does not automatically mean that a claim of disabling pain must be accepted. Koenig v. Chater, 936 F. Supp. 776, 784 (D. Kan. 1996), citing Tsarelka v. Secretary of Health & Human Servs., 842 F.2d 529, 534 (1st Cir. 1988) (noting that the mere presence of a fibrositis condition did not entitle the claimant to benefits). See also Moses v. Barnhart, 321 F. Supp.2d 1224, 1229 (D. Kan. 2004) (affirming the ALJ’s rejection of the diagnosis of fibromyalgia, noting that the mere fact that the claimant was diagnosed with fibromyalgia did not mean she was disabled, and the physician who diagnosed fibromyalgia never opined that this impairment caused limitations in her ability to work).

Fibromyalgia is an impairment which causes pain. Owen v. Chater, 913 F. Supp. 1413, 1419 (D. Kan. 1995).

Eleventh Circuit

In Moore, the Eleventh Circuit reaffirmed its unpublished decision inStewart v. Apfel, No. 99-6132, 245 F.3d 793 (Table), 2000 WL 33125958, 2000 U.S. App. LEXIS 33214 (11th Cir. Dec. 20, 2000), noting that inStewart:

we reviewed medical research on fibromyalgia, which often lacks medical or laboratory signs, and is generally diagnosed mostly on a individual’s described symptoms. Because the impairment’s hallmark is thus a lack of objective evidence, we reversed an ALJ’s determination that a fibromyalgia claimant’s testimony was incredible based on the lack of objective evidence documenting the impairment.

Moore v. Barnhart, 405 F.
3d 1208, 1211 (11th Cir. 2005), citing Stewart, 2000 U.S. App. LEXIS 33214, at *9, n. 4. The Eleventh Circuit further noted that in Stewart, it stated that a “treating physician’s testimony can be particularly valuable in fibromyalgia cases, where objective evidence is often absent.” Id. at 1212, citing Stewart, 2000 U.S. App. LEXIS 33214 at *9. In Moore, the Eleventh Circuit distinguished Stewart, and held that the “absence of laboratory evidence was not the basis for the ALJ’s own negative credibility determination” but, rather, relied on the inconsistencies between the claimant’s descriptions of her diverse daily activities and her claims of infirmity. Id. Since the ALJ provided a detailed factual basis for his credibility determination, which “did not turn on the lack of objective evidence documenting fibromyalgia, Stewart is unavailing to Moore.”Id.

In Phillips, the Eleventh Circuit noted that the although the ALJ found that the claimant suffered from Sjögren’s syndrome and fibromyalgia, and that these impairments were “severe,” the ALJ did not specifically determine whether the claimant’s exertional limitations prohibited her from performing a full range or unlimited types of work at the sedentary level. Phillips v. Barnhart, 357 F.3d 1232, 1243 (11th Cir. 2004). As the ALJ “must address and resolve this issue in the first instance before relying on the Grids,” the Eleventh Circuit remanded with directions that the ALJ consider whether the claimant’s exertional limitations affect her ability to perform a full range or unlimited types of sedentary work. Id.

In a fibromyalgia case, a Florida district court held that the ALJ erred by failing to properly evaluate the opinion of the claimant’s treating rheumatologist, and that his finding that this doctor’s opinion “is not consistent with the evidence of record as a whole, including the doctor’s own examination findings,” was “too general to permit meaningful judicial review in this case.” Morrison v. Barnhart, 278 F. Supp.2d 1331, 1336 (M.D. Fla. 2003). The court observed that rheumatologists “may be better qualified to determine the effects of fibromyalgia because not all doctors are trained to recognize this disorder.” Id. at 1335-36, citing Stewart v. Apfel, 2000 U.S. App. LEXIS 33214 at *8 (11th Cir. Dec. 20, 2000) (unpub.); Burroughs v. Massanari, 156 F. Supp.2d 1350, 1367 (N.D. Ga 2001); 20 C.F.R. § 404.1527(d)(5). The court directed that on remand, the ALJ is to reevaluate the opinion of the claimant’s treating rheumatologist and identify specifically what evidence of record “as a whole” was inconsistent and which of the physician’s “own examination findings were inconsistent with his opinion.” Id. at 1337. See also Bruet v. Barnhart, 313 F. Supp.2d 1338, 1346 (M.D. Fla. 2004) (noting that rheumatologists “may be better qualified to determine the effects of fibromyalgia because not all doctors are trained to recognize this disorder” and as the opinion of the claimant’s treating rheumatologist (as well as her treating physician) are “especially important,” the ALJ erred by failing to properly evaluate these opinions).

In Burroughs v. Massanari, 156 F. Supp.2d 1350 (N.D. Ga. 2001), the court was not able to “discern any relevance” to the ALJ’s reliance on the absence of joint swelling in a disability claim based on fibromyalgia. Id. at 1366, citing Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (stating that “[s]ince swelling of the joints is not a symptom of fibromyalgia, its absence is no more indicative that the patient’s fibromyalgia is not disabling than the absence of headache is an indication that a patient’s prostate cancer is not advanced”). The court also found that the opinion of the claimant’s treating physician was not contradicted by the opinion of a consulting physician, as found by the ALJ, and further, that as a specialist in rheumatology, he was “better qualified” to diagnose fibromyalgia and to determine its effects on an individual. Id. at 1367.

An Alabama district court noted that “[f]ibromyalgia presents unique problems in the context of Social Security cases” which have been recognized by the courts. Bennett v. Barnhart, 288 F. Supp.2d 1246, 1249 (N.D. Ala. 2003), citing Sarchet v. Chater, 78 F.3d 305 (7th Cir. 1996) and Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). However, despite its “illusive nature,” the presence of fibromyalgia can be objectively verified by the presence of “tender areas,” or “trigger points,” which are well defined and cause pain upon palpation. Id., citing Sarchet. Additionally, the court noted that clinical support for a diagnosis of fibromyalgia may be present if “injections of pain medication to the trigger points are prescribed.” Id., citingKelley, 133 F.2d at 589. The court also stated that “fibromyalgia if properly diagnosed satisfies the pain standard.” Id. In Bennett, one of the reasons cited by the ALJ for refusing to credit the claimant’s pain testimony was the fact that none of the claimant’s physicians recommended surgery, “which would indicate the claimant’s condition is not as severe as alleged.” Id. at 1251. The court found it “particularly troubling” that the ALJ relied on the lack of a surgical recommendation despite finding that the claimant suffered from fibromyalgia and myofascial pain syndrome, “neither of which is amenable to surgical treatment.”Id. See also Harrison v. Barnhart, 346 F. Supp.2d 1188, 1193 (N.D. Ala. 2004) (holding that the ALJ erred in concluding that there must be objective evidence in a fibromyalgia case, as there are no objective clinical tests to determine the severity of fibromyalgia, noting that the ALJ failed to note findings of trigger points, which is indicative of fibromyalgia); White v. Barnhart, 336 F. Supp.2d 1183, 1189 & 1189 n. 15 (N.D. Ala. 2004) (holding that the ALJ failed to properly evaluate Plaintiff’s fibromyalgia which was diagnosed by her treating physicians and holding that the ALJ erred in failing to find the claimant’s fibromyalgia to be a severe impairment and in failing to explain why he was not crediting the diagnosis).

The court held that the ALJ’s reasons for rejecting the opinion of the claimant’s treating physician met the “good cause” requirement as the record was devoid of clinical findings which supported the conclusion that the claimant suffered from fibromyalgia. Daughtry v. Barnhart, 347 F. Supp.2d 1135, 1140 (M.D. Ala. 2004). The court also rejected the claimant’s argument that the ALJ failed to properly credit her subjective allegations of pain from fibromyalgia because of the lack of any objective medical evidence to support the existence of the alleged medical condition. Id. at 1141.

Fibromyalgia is a condition which is “‘not inconsistent with a diagnosis of [chronic fatigue syndrome].’” Sabo v. Chater, 955 F. Supp. 1456, 1462 (M.D. Fla. 1996), quoting Fragale v. Chater, 916 F. Supp. 249, 254 (W.D.N.Y. 1996).

Illiteracy

By Legal issues

Illiteracy and Social Security Disability

The Social Security Administration’s (SSA) Medical-Vocational Guidelines (Grids) provide that the literacy or illiteracy of certain categories of claimants can either result in a finding of “disabled” or “not disabled.” See 20 C.F.R. Pt. 404, Subpt. P, App. 2. Consequently, if a claimant appears to have trouble reading or writing in English, the Grids should be closely reviewed to determine whether the claimant’s other vocationally-relevant characteristics would direct a finding of disabled if the claimant was illiterate.

As described below, many courts have issued decisions ruling that administrative law judges improperly determined that claimants were literate and, therefore, applied the incorrect Grid Rule. [Where the claimant is both illiterate and unable to communicate in English, please see Inability to Speak English.]

Tip

Illiteracy can be established by the results of a Wide Range Achievement Test (WRAT), Wechsler Individual Achievement Test (WIAT), or the Woodcock-Johnson Psychoeducational Battery–Revised: Tests of Achievement (WJ-R ACH).

Regulations

20 C.F.R. §§ 404.1564, 416.964

20 C.F.R. §§ 404.1564(a), 416.964(a) states that past work experience and the kinds of responsibilities the claimant had when working may show intellectual abilities, although the claimant may have little formal education. The regulations also stated that formal education that was completed many years before the claimant’s impairment began, or unused skills and knowledge that were a part of a claimant’s formal education, may no longer be useful or meaningful in terms of a claimant’s ability to work. 20 C.F.R. §§ 404.1564(b), 416.964(b). The regulations define illiteracy as “the inability to read or write.” 20 C.F.R. §§ 404.1564(b)(1), 416.964(b)(1). The SSA considers someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists, even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling. Id. The regulations specifically require that SSA ask how long the claimant attended school and whether s/he is able to speak, understand, read and write in English and do at least simple calculations in arithmetic. 20 C.F.R. §§ 404.1564(b)(6), 416.964(b)(6).

20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), § 201.00(h)

For claimants (1) who are at least 45 years of age; (2) who are restricted to sedentary work; (3) who are unskilled or have no transferable skills; (4) who have no relevant past work or who can no longer perform vocationally relevant past work; and (5) who are either illiterate or unable to communicate in the English language, a finding of disabled is warranted. On the other hand, if the claimant is under age 45, age is usually not a significant factor in limiting the individual’s ability to make a vocational adjustment, even an adjustment to unskilled sedentary work, and even where the individual is illiterate or unable to communicate in English.

20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), § 201.00(h)(1)

While illiteracy or the inability to communicate in English may significantly limit an individual’s vocational profile, the primary work functions in the bulk of unskilled work relate to working with things (rather than with data or people), and in these work functions at the unskilled level the ability to communicate in English has the least significance. The functional capability for a full range of sedentary work represents sufficient numbers of jobs to indicate substantial vocational scope for those individuals age 18-44, even if they are illiterate or unable to communicate in English.

20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), §§ 202.00(c) and (d)

A finding of disabled is warranted for individuals (1) who are at least closely approaching advanced age (ages 50 to 54); (2) who can no longer perform their past work; (3) who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual’s functional capacity, or who have no work experience; and (4) who are illiterate or unable to communicate in English.

Rulings

Acquiescence Ruling 86-3(5) (“AR 86-3(5)”)

Issued in response to Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984), AR 86-3(5) provides that when illiteracy and the inability to communicate in English are both alleged or appear to be in question, the ALJ must make findings with respect to both issues. Where individuals ages 18 to 44 are limited to sedentary work, are unskilled or have no work history, and are found to be both illiterate and unable to communicate in English, the lowest category of the Grid regulations that might be applied, namely Grid Rule 201.23, cannot be mechanically applied. In addition, Grid Rule 202.16 cannot be mechanically applied to individuals who are both illiterate and unable to communicate in English.

This ruling applies only to cases in which the individual resides in Texas,Mississippi or Louisiana at the time of the determination or decision at any level of administrative review, i.e., initial, reconsideration, ALJ hearing or Appeals Council review.

Resources

HALLEX I-5-3-12, Evaluation of Illiteracy (June 1994)

The adjudicator is required to determine educational abilities based on the claimant’s numerical grade of education completed, unless there is contradictory evidence. Contradictory evidence that could indicate possible illiteracy may be found in medical reports, reports of field office personnel, work history reports, etc. HALLEX I-5-3-12(A)

HALLEX I-5-3-12(B) provides that adjudicators should be aware that claimants who may not recognize the relevance of their illiteracy may attempt to hide it. If an ALJ has reason to believe that an individual may be illiterate, but the evidentiary record does not clearly show literacy or illiteracy, the ALJ may want to ask the individual at the administrative hearing to read and write a simple message, in addition to eliciting testimony on the issue. Any writing obtained from the individual at the hearing should be entered as an exhibit. It is also appropriate to obtain any available school records or any other evidence that would bear on the issue.

Development of illiteracy may be especially important to the case when the issue has a direct bearing on which Grid Rule applies. Specifically, Grid Rules 201.17 and 202.09 direct a conclusion of disability when a claimant is illiterate and the other medical and vocational factors are identical to the cited rule. However, the same claimant who is at least literate and able to communicate in English would be found not disabled under Grid Rules 201.18 and 202.10. The ALJ should give careful consideration to the need to develop possible illiteracy when considering whether Rule 201.18 or 202.10 applies to direct a conclusion.

Case Law

Second Circuit

The ALJ improperly considered the prospects for sedentary job employment in light of the claimant’s inability to speak English and his possession of only a fifth grade education. Minuto v. Secretary of Health and Human Servs., 525 F. Supp. 261, 265 (S.D.N.Y. 1981).

Third Circuit

Where the claimant’s past work necessarily involved comprehension and evaluation of written documents, and the claimant admitted to having completed the seventh grade, the court found that the ALJ properly concluded that the claimant was literate. Tavoletti v. Sullivan, 732 F. Supp. 578, 581-82 (W.D. Pa. 1989).

Fourth Circuit

The district court found that the ALJ’s finding that a claimant had a limited education was not supported by substantial evidence when the claimant had attended school through the sixth grade but the transcript reflected evidence of his functional illiteracy and his limited ability to do simple arithmetic or to count. Freeman v. Harris, 509 F. Supp. 96, 101 (D.S.C. 1981).

Fifth Circuit

In Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984), the Fifth Circuit held that in cases where a “claimant is both illiterate and unable to communicate in English, he does not fall within the criteria set out in Rule 201.23.” Id. at 797. This Rule is applicable in those cases where a claimant can perform sedentary work, is illiterate or unable to communicate in English, is 18 to 44 years old and has an unskilled work history or no work history. Id. at 796. Thus, the court remanded to determine whether or not the claimant was unable to communicate in English. Id. at 797.

The Fifth Circuit found that the ALJ erroneously determined that the claimant was literate (despite evidence that the claimant could not read or write) and, therefore, applied an incorrect Grid Rule. Albritton v. Sullivan, 889 F.2d 640, 643 (5th Cir. 1989).

A Texas district court noted that as a consequence of Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984), “ALJs in this circuit are instructed that, ‘when illiteracy and inability to communicate in English are alleged or appear to be in question, findings with respect to both issues must be made.’”Delgado v. Barnhart, 305 F. Supp.2d 704, 715 (S.D. Tex. 2004), citing AR 86-3(5)). As an accurate assessment of the claimant’s literacy and ability to communicate in English were deemed critical to a proper assessment of the claimant’s educational level, and since the ALJ failed to employ the appropriate legal and procedural standards in assessing his educational level, substantial evidence did not support the ALJ’s finding that the claimant had a limited education. Id. at 718.

The sole issue before the court in Jimmerson was whether the claimant was illiterate. Jimmerson v. Apfel, 111 F. Supp.2d 846, 849 (E.D. Tex. 2000). In Jimmerson, the claimant presented abundant testimony regarding his illiteracy, including a witness who had known the claimant for ten years offered corroborating testimony that he had personal knowledge of the claimant’s inability to read and write. The ALJ rejected this uncontradicted evidence of illiteracy, in part, based on the fact that since the claimant attended high school through the tenth grade, it was “highly unlikely” that he “could proceed to that level of education and be illiterate.” Id. However, the court stated that it was “clear” that the claimant’s past level of education was not dispositive of the issue of his alleged illiteracy. Id. The court concluded that the record revealed that whatever schooling the claimant may have received was “no longer meaningful and did not represent his educational abilities in the face of uncontradicted evidence that he was functionally illiterate.” Id., citing Albritton v. Sullivan, 889 F.2d 640, 643 (5th Cir. 1989). See also Bridges v. Commissioner of Social Sec. Admin. 278 F. Supp.2d 797, 806-807 (N.D. Tex. 2003) (holding that the ALJ’s omission of illiteracy from the hypothetical question, “although not obviously defective at the time of the hearing, rendered his hypothetical questions defective upon the Appeals Council’s receipt of evidence of Plaintiff’s illiteracy”).

Sixth Circuit

The claimant was determined to be functionally illiterate, despite the fact that he had a sixth grade education. Conn v. Secretary of Health and Human Servs., 51 F.3d 607, 609 (6th Cir. 1995).

Despite “overwhelming evidence” of the claimant’s illiteracy, the ALJ erroneously concluded that the claimant possessed a marginal education and was not disabled. Skinner v. Secretary of Health & Human Servs., 902 F.2d 447, 450 (6th Cir. 1990). Had the ALJ properly found the claimant illiterate, the Grids would have directed the ALJ to award the claimant benefits. Id.

Even though the claimant had a seventh grade education, a Michigan district court concluded that substantial evidence did not support the ALJ’s conclusion that the claimant had a limited education, as the evidence strongly supported the conclusion that the claimant was illiterate. Boone v. Sec’y of Health & Human Servs., 595 F. Supp. 758, 759-760 (E.D. Mich. 1984). In so holding, the court cited to the claimant’s testimony that he could not read or write, could not write a letter or a note, could not read the newspaper, and that his daughter had to read a letter for him. Id. at 760. The court also found that “this evidence of illiteracy is further buttressed by the record which is replete with references indicating that plaintiff’s forms and applications were completed by others and that plaintiff needs his daughter’s assistance in processing his claim.” Id. See also Young v. Comm’r of Soc. Sec., 351 F. Supp.2d 644, 648 (E.D. Mich. 2004) (noting that the claimant was functionally illiterate, given his testimony that while he could make out a grocery list, he was unable to obtain a driver’s license in Iowa because he could not take the written test).

A Tennessee district court remanded for reevaluation based on the correct educational level where the ALJ erroneously found that the claimant had a high school education, when in fact, the claimant only had a tenth grade education with reading and arithmetic abilities at the third grade level. Field v. Apfel, 34 F. Supp.2d 1081, 1091-92 (W.D. Tenn. 1998).

“Illiteracy” was intended to be included in the education component of Grid Rule 201.19. Welchance v. Bowen, 731 F. Supp. 806, 811 (M.D. Tenn. 1989). If such had not been the intent, the drafters would have used the same language they used in Rule 201.18. Id.

Seventh Circuit

The Seventh Circuit determined that the ALJ properly found that the claimant was literate, as described in the regulations. Glenn v. Secretary of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987).

In Yourek v. Barnhart, 334 F. Supp.2d 1090 (N.D. Ill. 2004), the court held that the ALJ had an obligation to develop a complete record once the claimant had raised the issue of his potential illiteracy. Id. at 1093. The court noted that neither the ALJ nor the claimant’s counsel “made any attempt to ascertain Mr. Yourek’s literacy level by asking him to perform such tasks as reading a brief article or writing a note.” Id. As the ALJ’s determination regarding the claimant’s literacy level was not supported by substantial evidence, and as the literacy issue was crucial to the disability determination, the court remanded for re-evaluation of the claimant’s literacy level. Id. at 1093-94.

An Illinois district court held that there was substantial evidence in the record that the claimant was not illiterate. Briscoe ex rel. Taylor v. Barnhart, 309 F. Supp.2d 1025, 1041-42 (N.D. Ill. 2004). In so holding, the court noted that even though the claimant testified that he could not read or write well, and that he could not understand a lot of words when attempting to read a newspaper, “[a]n inability to read or write well, or an inability to understand words in a newspaper, does not necessitate a finding that Plaintiff was unable to perform minimal literary endeavors similar to writing simple messages such as instructions or inventory lists.” Id., citing 20 C.F.R. § 404.1564. Additionally, the court cited to the claimant’s testimony that he can read and write a “little bit, and when he does read, he likes to read the newspaper.” Id. Thus, the ALJ was not required to find the claimant disabled under Rule 202.09 of the Grids. Id. at 1041-42.

Eighth Circuit

In Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998), the second ALJ in the case determined the claimant was not illiterate partly because he achieved an IQ score of 86, finding that, “[t]his performance is impossible for an illiterate person.” The Eighth Circuit held that the ALJ mistakenly viewed the WAIS-R as a test of a person’s ability to read and write. The court also emphasized several factors that supported the finding that the claimant was illiterate: (1) the claimant had testified at the first hearing that he could not read or write; (2) his doctor and the SSA worker observed that the claimant could not read; (3) the claimant’s wife corroborated his testimony that he could not read; and (4) the VE testified that illiteracy would have a significant impact on the claimant’s ability to work. Id. The court remanded the case to the Commissioner for further testing to settle the question of the claimant’s literacy, stating:

Tests such as the Wechsler Individual Achievement Test (WIAT), the Wide Range Achievement Test 3 (WRAT3), or the Woodcock-Johnson Psychoeducational Battery–Revised: Tests of Achievement (WJ-R ACH), are designed to measure people’s ability to, among other things, read and write.

Id. at 1138, citing Otfried Spreen & Esther Strauss, A Compendium of Neuropsychological Tests, Administration, Norms, and Commentary 161 (2d ed. 1998).

In Holz, the Eighth Circuit directed the Commissioner to consider, on remand, whether the Medical-Vocational Guidelines, “to the extent they are instructive, direct or suggest a finding of disability in the particular circumstances of this case.” Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999). The court noted that the claimant was between the ages of 47 to 49 during the relevant period, could not perform his past relevant work, had no transferrable skills, was physically limited to sedentary work, and had an IQ of 76 and a limited ability to read and write and may be illiterate or “nearly so.” Id. See also Muncy v. Apfel, 247 F.3d 728, 735 (8th Cir. 2001) (directing the Commissioner to consider, on remand, whether the Medical-Vocational Guidelines “suggest a finding of disability in the particular circumstances of this case,” noting that the claimant was illiterate, could not write or manage his own finances, could not perform his past relevant work, has no relevant skills, and is physically limited to light work).

In Howard, the claimant argued that she was illiterate, which the court noted would support a finding of disabled even if the claimant could perform light work. Howard v. Massanari, 255 F.3d 577, 584 (8th Cir. 2001), citing 20 C.F.R. Part 404, Subpt. P, App. 2, § 201.09. The court determined that as the “literacy question [was] crucial, the ALJ should have developed a stronger record on this point.” Id., citing Wilcutts v. Apfel, 143 F.3d 1134, 1137-38 (8th Cir. 1998). However, the Eighth Circuit held that “[i]n the final analysis,” the fact that the ALJ failed to develop “more robust proof of literacy (or illiteracy)” was not “fatal” to the Commissioner’s decision since the record included evidence that the claimant had the ability to read, and, “given our deferential standard of review,” the evidence was sufficient to support the ALJ’s conclusion that the claimant was functionally literate. Id. at 584-85.

The Eighth Circuit commented that a finding that a claimant has the ability to read and write only very simple messages could preclude an award of disability benefits. Mitchell v. Shalala, 48 F.3d 1039, 1042 (8th Cir. 1995), citing Starks v. Bowen, 873 F.2d 187, 190 (8th Cir. 1989) (concluding that although the claimant could only read and write “poorly,” substantial evidence supported the Commissioner’s finding that he was literate). See also Foreman v. Callahan, 122 F.3d 24, 27 (8th Cir. 1997) (remanding for further proceedings where a claimant suffered from borderline intellectual functioning, a learning disability which required special instruction, and “very limited” ability to read and write).

Limited education, generally considered to have ended at 7th grade through 11th grade, is defined as the ability to perform “reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job skills needed in semi-skilled or skilled jobs . . . .” Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996). In Shelton, the Eighth Circuit found that the ALJ properly developed the record regarding literacy, and affirmed the ALJ’s finding that the claimant was literate with a limited education. Id. See also Loving v. Dep’t of Health & Human Servs., 16 F.3d 967, 971 (8th Cir. 1994) (rejecting a psychologist’s conclusion that the claimant was functionally illiterate where the conclusion of functional illiteracy was contradicted by the claimant’s own testimony about his reading activities).

In Hensley v. Barnhart, 352 F.3d 353 (8th Cir. 2003), the court held that although there might not be substantial evidence in the record to support the ALJ’s finding that the claimant has at least an eighth-grade education and was not illiterate, any resulting error was harmless. Id. at 357.

A Missouri district court reversed and remanded for further examination and expansion of the record because the ALJ made inconsistent findings regarding literacy evidence without explanation. King v. Apfel, 991 F. Supp. 1101, 1104 (E.D. Mo. 1997).The court noted that the claimant’s disability claim was based in part on his illiteracy, and that his application form indicated he needed assistance because he could not read or write. Id. Additionally, since the claimant testified that he knew only “little words,” and could write “a few” of them, and that he could not complete a job application, there was at least some “evidence to contradict” the presumption of language skills high enough to be associated with a marginal education.Accordingly, it was not permissible to base the claimant’s education entirely on his grade level, as the ALJ apparently did. Id. at 1105, citing Smith v. Shalala, 46 F.3d 45, 46 (8th Cir. 1995); Walston v. Sullivan, 956 F.2d 768, 771-72 (8th Cir. 1992). The court concluded that there was no evidence the claimant could write a simple message, and that the record “simply does not provide enough evidence to allow the court to determine on what basis the ALJ discredited plaintiff’s claims, and whether substantial evidence supports the finding.” Id. at 1106.

In Anderson v. Callahan, 981 F. Supp. 1258 (E.D. Mo. 1997), the court questioned the claimant’s alleged illiteracy because: (1) he was not observed to have problems reading and writing at his initial disability interview; (2) he had obtained jobs and a driver’s license; (3) he did not allege that difficulty reading and writing caused him to lose any of his jobs; and (4) he did not allege illiteracy as a disabling condition in either his application for disability benefits or his request for reconsideration. Id. at 1268-69.

Ninth Circuit

In Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001), the court noted that the ALJ’s failure to clarify how the claimant’s language and literacy abilities factored into his analysis that she could perform her past relevant work, “given that the Dictionary of Occupational Titles description required language ability above that possessed by Pinto.” Id. at 846. As the Ninth Circuit explained:

Illiteracy seriously impacts an individual’s ability to perform work-related functions such as understanding and following instructions, communicating in the workplace, and responding appropriately to supervision. These are all factors that Social Security Ruling No. 96-8p requires an ALJ to consider when determining whether a claimant has the residual functional capacity to perform past relevant work. Here the ALJ, although noting Pinto’s limitation in both his findings of fact and hypothetical to the vocational expert, failed to explain how this limitation related to his finding that Pinto could perform her past relevant work as generally performed. See SSR 82-62.

We do not suggest that applicants who are illiterate are entitled to a finding in step four of the disability proceeding that they are disabled. A claimant is not per se disabled if he or she is illiterate. We merely hold that in order for an ALJ to rely on a job description in the Dictionary of Occupational Titles that fails to comport with a claimant’s noted limitations, the ALJ must definitively explain this deviation. Neither the ALJ nor the vocational expert addressed the impact of Pinto’s illiteracy on her ability to find and perform a similar job.

Id. at 846-847 (citation omitted). The court also noted that a claimant who can only speak Spanish is considered illiterate. Id. at 846 n. 4. The court observed that “[i]lliteracy seriously impacts an individual’s ability to perform work-related functions such as understanding and following instructions, communicating in the workplace, and responding appropriately to supervision” and these are all factors that SSR 96-8p “requires an ALJ to consider when determining whether a claimant has the residual functional capacity to perform past relevant work.” Id.

The Ninth Circuit noted in Silveira v. Apfel, 204 F.3d 1257 (9th Cir. 2000) that the Commissioner bears the burden of establishing that the claimant is literate. Id. at 1261. In Silveira, the court remanded the case for further proceedings, finding that the ALJ made no express finding that the claimant was literate in English, and the record lacked sufficient evidence to determine this issue. Id. at 1261-62.

In 1996, the Ninth Circuit held that the word “or” in Grid Rule 201.23 should be interpreted as conjunctive and applied to claimants who are unable to communicate in English and/or are illiterate. Chavez v. Department of Health & Human Servs., 103 F.3d 849, 852 (9th Cir. 1996).In such a case, a claimant who was both illiterate and unable to communicate in English, and had the RFC for sedentary work, would be subject to Grid Rule 201.23, providing that a claimant who is illiterate or unable to communicate in English is not disabled. Id.

Tenth Circuit

The Tenth Circuit held that the ALJ’s determination that the claimant was literate was not based on substantial evidence, and was based solely on the ALJ’s unsubstantiated inference derived from the claimant’s previous employment that the claimant could read and write. Eggleston v. Bowen, 851 F.2d 1244, 1248 (10th Cir. 1988).

Because the Commissioner’s determination was based on an unsupported finding and the applicable Grid factors did not coincide with a particular rule, the Tenth Circuit remanded the case to determine whether there were jobs in the national economy that the claimant could perform taking into account his illiteracy. Id.

The Tenth Circuit found a claimant to be illiterate where he had completed eight years of formal schooling and could sign his name, but where the record contained “absolutely no evidence” of literacy. Dollar v. Bowen, 821 F.2d 530, 535 (10th Cir. 1987).

The ALJ’s determination that the claimant was literate was not based on substantial evidence where the record contained evidence that the claimant could not write, even though she could read (minimally). Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir. 1987).

In Espinosa v. Sec’y of Health & Human Servs., 565 F. Supp. 810 (D. Kan. 1983), the court held that there was “not a scintilla of evidence, much less substantial evidence” for the ALJ’s finding that the claimant was “not illiterate.” Id. at 815. The court noted that the record was “replete with evidence of plaintiff’s difficulty with spoken, much less written, evidence,” including the fact that the claimant testified that he could not read English; his education was limited to the second grade in Mexico; and there was “no evidence of record that he could read English at all.” Id.

A Kansas district court rejected a claimant’s contention that he was functionally illiterate, noting that he was able to read a booklet to obtain his driver’s license, was able to work as a security guard, had completed several hours of vocational education, had spent time in the military, and had some college credits. Ross v. Chater, 930 F. Supp. 1452, 1455 (D. Kan. 1996).

Eleventh Circuit

In Wolfe v. Chater, 86 F.3d 1072 (11th Cir. 1996), the Eleventh Circuit held that substantial evidence did not support the ALJ’s finding that the claimant possessed marginal education and had a reading and spelling level just below the third grade level or in the second grade level of functioning. Id. at 1076. The court looked to other circuits for guidance on this issue, noting that: (1) the Eighth Circuit has held that being able to sign one’s name does not make one literate and that one can be illiterate even if one had a significant amount of formal schooling; (2) the Sixth Circuit has held that a person who reads and writes at the third grade level is functionally illiterate; and (3) the Tenth Circuit has held that, especially in cases where many years have passed since the completion of formal education, the numerical grade level completed in school may not be representative of actual educational abilities. Id. at 1076-77, citing Glenn v. Sec’y of Health & Human Servs., 814 F.2d 387, 390 (7th Cir. 1987); Skinner v. Sec’y of Health & Human Servs., 902 F.2d 447, 449 (6th Cir. 1990); Dixon v. Heckler, 811 F.2d 506, 509-10 (10th Cir. 1987).Because the determination of illiteracy affected the application of the Grids, the Eleventh Circuit remanded the matter for additional evaluation as to whether the claimant was illiterate or marginally educated. Id. at 1079-80 n.7.

An Alabama district court held that the ALJ properly found that the claimant was not illiterate, despite his testimony that he had failed the fifth and sixth grades and completed the seventh grade and testified that he could not read or write. McCray v. Massanari, 175 F. Supp.2d 1329, 1333 (M.D. Ala. 2001). The court noted that the ALJ considered other evidence, including the claimant’s “previous work at a semi-skilled level requiring technical knowledge or skills and supervisory responsibility.” Id., citing 20 C.F.R. § 404.1564(a).

In Lipson v. Barnhart 347 F. Supp.2d 1182 (M.D. Ala. 2004), the claimant argued that remand was required in light of a conflict regarding her education, citing in part, the findings of a psychologist who stated that his assessment revealed that she was illiterate. Id. at 1186. The court noted that this psychologist’s results were contradictory because he also found that the claimant could read, “albeit at less than the third grade level.” Id.at 1187. Furthermore, by the claimant’s own account, she can read, and she can also write, as she “completed a great portion of the materials in her application and supplements that are part of this record.” Id. Furthermore, the psychologist’s assessment made no findings regarding “the impact of Lipson’s reading skills and intellectual functioning upon her ability to perform vocational tasks.” Id. Thus, the court affirmed the ALJ’s finding that the claimant completed the tenth grade. Id. at 1188.

Inability to afford treatment

By Legal issues

Inability to Afford Treatment and Social Security Disability

The regulations provide that, to obtain Social Security disability benefits, a claimant must follow prescribed treatment if the treatment would restore the claimant’s ability to work. Although the regulations do not list “inability to pay” as a justifiable excuse for failing to follow prescribed treatment, applicable rulings and case law establish that the inability to pay is a valid excuse. The court decisions, however, are varied regarding the level of effort a claimant must exert in attempting to obtain such treatment.

Tip

If you lack the financial resources to pay for prescribed treatment, document your financial circumstances and your attempts to obtain the required treatment.

Regulations

20 C.F.R. §§ 404.1530, 416.930

These regulations provide that, to obtain disability benefits, a claimant must follow treatment prescribed by his or her physician if the treatment would restore the claimant’s ability to work. If the claimant does not follow prescribed treatment without a good reason, the claimant will not be found disabled, or if already receiving benefits, the claimant will no longer be entitled to receive benefits. The SSA will consider a claimant’s physical, mental, educational, and linguistic limitations (including any lack of facility with the English language) when determining if the claimant has an acceptable reason for failing to follow prescribed treatment. The regulations do not list financial inability to pay for treatment as an acceptable excuse for failing to follow prescribed treatment.

Rulings

Social Security Ruling 82-59

SSR 82-59 provides that an individual’s failure to follow prescribed treatment will be generally accepted as “justifiable” and would not preclude a finding of “disability” if the individual is unable to afford prescribed treatment which he or she is willing to accept, but for which free or subsidized community resources are not reasonably available in the local community. Before determining that a claimant does not have a good reason for failing to follow prescribed treatment which could be expected to restore the ability to engage in gainful activity, the claimant must be informed of this fact and of its effect on his or her eligibility for benefits. The claimant must also be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for failing to do so.

Social Security Ruling 96-7p

Social Security Ruling 96-7p provides that the adjudicator must not draw any inferences about a claimant’s symptoms and his functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the claimant may provide, or other information in the record, that may explain the infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re-contact the claimant or question the claimant at the hearing in order to determine whether there are good reasons the claimant does not seek medical treatment or does not pursue treatment in a consistent manner. The Ruling further provides that the explanations offered may provide insight into the claimant’s credibility and then lists various factors that may provide an explanation for the limited treatment. This list includes the need to consider the fact that the claimant “may be unable to afford treatment and may not have access to free or low-cost medical services.”

Acquiescence Ruling 97-2(9)

In response to Gamble, decided by the Ninth Circuit (discussed below), the SSA stated that a claimant whose lower extremity is amputated at or above the tarsal region and is unable to use any prosthesis that is reasonably available to him will be considered to have satisfied the requirements of Listing 1.10C, 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.10C. When determining the reasonable availability of a prosthetic device, the SSA stated that adjudicators must consider evidence of the inability to afford the cost of the prosthesis. Adjudicators must evaluate all such evidence and consider the claimant’s economic circumstances in determining whether the claimant can afford the prosthesis. The Ruling applies only where the claimant resides in Alaska, Arizona, California, Guam, Hawaii (including American Samoa),Idaho, Montana, Nevada, Northern Mariana Islands, Oregon or Washington at the time of the determination or decision at any administrative level, i.e., initial, reconsideration, ALJ hearing or Appeals Council.

Case Law

First Circuit

While “poverty excuses noncompliance” with prescribed treatment, the court held that the record contained evidence that prescribed treatment may have been available to the claimant at little or no cost. Zeitz v. Secretary of Health and Human Servs., 726 F. Supp. 343, 350 n.3 (D. Mass. 1989).

Second Circuit

In Shaw v. Apfel, 221 F.3d 126 (2d Cir. 2000), the district court rejected the treating physician’s opinion of disability, in part because of the fact that the claimant did not receive medical treatment for a period of three years, which undermined the claimant’s contention of disability. Id. at 133. The Second Circuit found this logic “troubling,” stating that this “time lapse” did not negate the “compelling evidence” that the claimant was completely disabled. Id.The court noted that prior to the lapse in treatment, the claimant was treated on multiple occasions, but his condition did not improve. Thus:

it was not unreasonable for him to discontinue those treatments, particularly in light of his testimony that he could not afford further medical care . . . It would fly in the face of the plain purposes of the Social Security Act to deny claimant benefits because he is too poor to obtain additional treatment that had proved unhelpful . . .

Just because plaintiff’s disability went untreated does not mean he was not disabled. The fact that his condition did not improve, and that there was no suitable treatment other than physical therapy, bolsters the argument that plaintiff’s impairments were permanent and that he was unlikely to recover from them.

Id.,citing Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995); Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984).

Third Circuit

In Newell v. Commissioner, 347 F.3d 541 (3d Cir. 2003), the ALJ denied a widow’s disability benefits claim based on a finding that prior to August 31, 1997 (which was seven years after her husband’s death), she did not have a severe impairment meeting the durational requirement as the record lacked evidence of treatment for liver disease, diabetes, or neuropathy prior to that date. Id.at 547. The Third Circuit noted that SSR 96-7p provides that:

[T]he adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.

Id. The court found that the claimant’s explanation for her failure to seek treatment prior to August 31, 1997, was adequate and supported her claim that she could not afford treatment until her father gave her money in June 1998. Accordingly, the court disagreed with the ALJ’s statement that “‘[i]t is reasonable to assume that if [Newell] was experiencing the degree of pain and functional limitation which she has alleged that she would have sought medical treatment.’” Id.

In Bennett, the court agreed that the ALJ’s finding that the claimant’s depression, alcohol abuse, and personality disorder were not severe was marred by legal error and otherwise unsupported by substantial evidence. Bennett v. Barnhart, 264 F. Supp.2d 238, 256 (W.D. Pa. 2003). In discounting the claimant’s mental impairments, the ALJ relied in part on the fact that, when hospitalized and/or under treatment for his depression, the claimant’s GAF was generally between 55 and 60 and that his depression appeared to be well controlled by medication and infrequent therapy. Id.at 255. The court commented:

While these observations may be generally accurate, a claimant’s ability to function within a structured hospital or treatment setting is not necessarily indicative of his ability to carry out basic work activities in a job setting on a regular and continuing basis.

Id.

Fourth Circuit

In 1994, the Fourth Circuit held that, while a claimant’s failure to obtain medical treatment due to the lack of financial resources did not justify an inference that her condition was not as serious as alleged, inconsistencies between the severity of her condition and related treatment were probative of the claimant’s credibility. Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir. 1994).

The Fourth Circuit held that due to the Appeals Council’s improper reliance on the claimant’s failure to seek treatment, the Appeals Council’s decision that the claimant’s complaints of severe disabling pain were not credible did not withstand substantial evidence review. Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986).

The Fourth Circuit held that the case should be remanded with instructions that the claimant be given the opportunity to show good cause for his failure to obtain treatment due to his lack of financial resources. Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984).

Although the ALJ’s opinion apparently placed considerable weight on the fact that a medical provider had recommended therapy, and that the claimant allegedly failed to obtain or do any therapy, there was no information in the record that indicated what this therapy should comprise, what its anticipated outcome is, other than improved range of motion to an unspecified degree, or most importantly, how it might affect the claimant’s functional abilities. Fleming v. Barnhart, 284 F. Supp.2d 256, 274 (D. Md. 2003). Therefore, particularly under the heightened standard applicable to this case, the ALJ should have developed the record by re-contacting the provider to determine what the recommended therapy comprised and what outcome might be anticipated. Id.

Where the claimant claimed that he was financially unable to afford blood monitoring strips, which would cost approximately $84.00 per month, the court cited SSR 82-59 for the proposition that noncompliance may be justified if the claimant “is unable to afford prescribed treatment which he or she is willing to accept, but for which free community resources are unavailable.” Nunley v. Barnhart, 296 F. Supp.2d 702 n.3 (W.D. Va. 2003).

The court found that without affording the claimant the opportunity to document her financial condition, the ALJ erred in finding that the claimant’s testimony was totally discredited by her failure to seek medical treatment. Futrell v. Shalala, 852 F. Supp. 437, 441 (E.D.N.C. 1994).

Fifth Circuit

The court rejected the claimant’s argument that the ALJ was precluded from relying upon the lack of treatment as an indication of nondisability. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990). The court found that the “failure to follow prescribed treatment” cases were not controlling because there was no record evidence, besides the claimant’s testimony, that he would be disabled with or without regular medical treatment.Id.at 1024.

If a claimant cannot afford prescribed treatment or medicine, and can find no way to obtain it, the condition that was “disabling in fact continues to be disabling in law.” Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987).

The Fifth Circuit concluded that because the claimant was “unable sooner to obtain remedial treatment” due to financial causes, the claimant’s foot condition was an impairment that in fact caused his disability to last more than 12 months. Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986).

Sixth Circuit

The Commissioner must first determine whether the claimant’s conditions are disabling in the absence of treatment. McKnight v. Sullivan, 927 F.2d 241, 242 (6th Cir. 1990). If so, then the Commissioner must determine if there is an available affordable treatment that would prevent the disability from being a severe impairment under the statute and regulations. Id.

Seventh Circuit

In Brennan-Kenyon, the ALJ had found that the claimant was not credible because she did not receive medical treatment and was not taking medication for her impairments between 1996 and 1999. Brennan-Kenyon v. Barnhart, 252 F. Supp.2d 681, 696 (N.D. Ill. 2003). The ALJ also discredited the claimant because she claimed “incapacitating orthopedic pain” yet “she seeks no relief from it in analgesic medication.” Id. at 696-97. The court noted that SSR 96-7p provides, in pertinent part, that:

the adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re-contact the individual or question the individual at the administrative hearing in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations provided by the individual may provide insight into the individual’s credibility.

Moreover, SSR 96-7p sets forth examples for why a claimant may chose not to seek medical treatment; such as, ‘the individual’s daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms . . . [or that] the individual may be unable to afford treatment and may not have access to free or low-cost medical services.’

Id. at 697. The court found that the ALJ failed to question the claimant at the hearing or at a later time regarding the fact that she had not sought medical treatment on a regular basis for her impairments. Further, the claimant testified that she had a very high health insurance deductible of $5,000 which may have precluded her from seeking regular medical treatment. Accordingly, the court held that as there was insufficient evidence in the record regarding the claimant’s reason(s) for not seeking medical treatment (other than the fact that the very high health insurance deductible), “the ALJ should have sought out additional information and developed the record in this area in order to properly assess Plaintiff’s credibility.” Id.

In Windus v. Barnhart, 345 F. Supp.2d 928 (E.D. Wis. 2004), the court held that the ALJ’s credibility determination could not stand, in part, because the ALJ failed to account for the fact that the claimant was to begin interferon treatment, but her insurance would not cover the expense. Id. at 949, citing SSR 96-7p (stating that the “adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment”).

In Brown v. Barnhart, 298 F. Supp.2d 773 (E.D. Wis. 2004), one reason cited by the ALJ for rejecting the claimant’s testimony was that the claimant had “not received recent treatment for carpal tunnel syndrome, calling into question the extent this condition troubles the claimant.” Id.at 797-98. While it was reasonable for the ALJ to consider conservative treatment in assessing the severity of this condition, the observation lended little or nothing to the ALJ’s ultimate conclusion that the claimant’s complaints were not credible. Id. at 797. The ALJ failed to mention the claimant’s testimony about her pain in her neck, back and head, as well as her hands and failed to cite any medical evidence concerning what sort of treatment the claimant should have been pursuing. Finally, the ALJ failed to consider any reasons for the claimant’s lack of treatment. Id.

An Indiana district court found that “the ALJ did not err by citing [the claimant’s] lack of treatment as undermining her claim that her impairment is automatically disabling under Listing 3.07,” noting that the listing specifically requires intervention by health care providers. Caviness v. Apfel, 4 F. Supp.2d 813, 819 (S.D. Ind.1998). In Caviness, the court stated that it knew of no other cases that held that the ALJ could not consider lack of treatment for any reason at step three when the relevant listing precisely requires medical intervention. Id. However, the court noted that the ALJ relied heavily on the claimant’s failure to seek “regular, direct, in-person care by a physician” in finding that her subjective complaints were not credible. Id. at 821.However, “many courts, including the Seventh Circuit, have questioned the relevance of a claimant’s failure to seek medical treatment, especially when he or she is unable to afford it.” At the hearing, the claimant testified extensively concerning her financial situation, but the ALJ did not even mention her financial situation, much less its effect on her ability to pursue regular medical treatment. Id.

In Wiggins v. Apfel, 29 F. Supp.2d 486, 494 (N.D. Ill. 1998), the court acknowledged that poverty excuses a claimant’s failure to correct a treatable impairment. Id.494. However, it held that the claimant failed to meet his burden of proof that his poverty was so severe as to preclude obtaining a “simple” pair of eyeglasses, or that his visual impairment was such that the cost of correcting it would be prohibitive. Id., citing DeFrancesco v. Bowen, 867 F.2d 1040, 1044 (7th Cir. 1989); Dawkins v. Bowen, 848 F.2d 1211, 1213-14 (11th Cir. 1988).

Eighth Circuit

The Eighth Circuit held that the claimant’s inability to afford medication or the TENS unit could not be used as a basis for denying benefits. Tang v. Apfel, 205 F.3d 1084, 1086 (8th Cir.2000), citingRicketts v. Secretary of Health & Human Servs., 902 F.2d 661, 663-64 (8th Cir. 1990).

In view of the claimant’s limited financial resources, the Eighth Circuit held that the claimant’s failure to take prescription pain medication was not inconsistent with his subjective complaints. Ricketts v. Secretary of Health and Human Servs., 902 F.2d 661, 663 (8th Cir. 1990).

The Eighth Circuit rejected the claimant’s argument that he failed to follow prescribed treatment due to his lack of financial resources based on the lack of factual evidence in the record supporting his allegation. Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir. 1989).

Although it is permissible in assessing the severity of pain for an ALJ to consider a claimant’s medical treatment and medications, the ALJ must consider a claimant’s allegation that he has not sought medical treatment or used medications because of a lack of finances. Dover v. Bowen, 784 F.2d 335, 337 (8th Cir. 1986).

The Eighth Circuit held that a lack of sufficient financial resources to follow prescribed treatment to remedy a disabling impairment may be an independent basis for finding justifiable cause for noncompliance. Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir. 1984).

In Osborne, the claimant argued that the ALJ erred in relying on the failure to seek mental health treatment as a basis for concluding that she was not depressed. Osborne v. Barnhart, 316 F.3d 809, 812 (8th Cir. 2003) The court noted that although the claimant’s mother cited “lack of insurance” as a reason for not pursuing mental health treatment for her daughter, there was no evidence that either the claimant or her mother attempted to obtain treatment, and were denied such treatment because of insufficient funds or insurance. Id.

The Eighth Circuit affirmed the ALJ’s credibility finding in which the ALJ discredited the claimant, in part, based on his admission that he had not taken prescription pain medication for years. Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999). While the claimant asserted that could not afford such medication, “there is no evidence to suggest that he sought any treatment offered to indigents or chose to forgo smoking three packs of cigarettes a day to help finance pain medication.” Id.

The Eighth Circuit rejected a claimant’s argument that her financial hardship justified her failure not to pursue additional treatment. Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992). According to the court, if the claimant was unable to follow a prescribed regimen of medication and therapy to combat her disabilities because of financial hardship, that hardship may be taken into consideration when determining whether to award benefits. Id., citing Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir. 1984). While these hardships can be considered in determining whether to award a claimant benefits, however, the fact that a claimant is under financial strain is not determinative. Id., citing Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987). In the present case, the ALJ’s determination that the claimant’s financial difficulties were not severe was supported by the evidence, including her inability to qualify for a Medicaid card, the lack of evidence that the claimant sought to obtain any low-cost medical treatment from her doctor or from clinics and hospitals, and the lack of evidence that the claimant was denied medical care because of her financial condition. Id.

Due to the claimant’s failure to seek less expensive or readily available professional relief for her pain, the court concluded that the Commissioner could properly consider her failure to seek such relief as inconsistent with her account of its severity. Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987).

Since the claimant was not disabled even without medication, the court found that there was no need to determine whether her financial situation provided a sufficient rationale for her failure to follow her prescribed treatment. Brown v. Heckler, 767 F.2d 451, 453 (8th Cir. 1985).

In Hutsell v. Sullivan, 892 F.2d 747 (8th Cir. 1989), the Eighth Circuit noted that the “lack of means to pay for medical services does not ipso facto preclude the Secretary from considering the failure to seek medical attention in credibility determinations.” Id. at 750 n. 2 See also Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992) (rejecting claim of financial hardship where there was no evidence that claimant attempted to obtain low cost medical treatment or that claimant had been denied care because of her poverty).

In remanding a case, a Missouri district court noted that the ALJ’s credibility analysis contained obvious flaws. Miller v. Barnhart, 265 F. Supp.2d 1087, 1097 (W.D. Mo. 2003). For example, in finding that the claimant’s lack of medical records from 2001 to 2002 showed that he was not disabled, the ALJ ignored the claimant’s testimony that he lost his insurance in January 2001 and was unable to afford medical bills. The ALJ also ignored the fact that when the claimant’s mother paid for him to see a doctor in 2002, the doctor found that the claimant’s condition had not improved since he last obtained medical treatment in late 2000. The ALJ also found that as the claimant was not taking prescription medications, he was precluded from being found. Id.

In Sailors v. Barnhart, 292 F. Supp.2d 1190 (D. Neb. 2003), the court held that the evidence as a whole (both medical and otherwise) supported the ALJ’s adverse credibility assessment which was based, in part, on the claimant’s failure to seek Interferon treatment claiming lack of funds, while the clamant was able to afford to drink alcohol. Id. at 1197. The court rejected the claimant’s argument that the cost of that medication far exceeded the cost of alcohol and he would not have been able to afford the treatment even if he quit drinking. Id. The court stated that the ALJ’s point was not that alcohol and Interferon cost the same, but rather was that the claimant was at least partly disingenuous when he solely attributed his inability to afford treatment to the cost of this medication. Id. The court noted that the record was replete with evidence that the claimant was helped by a friend with the cost of his medications and various health care professionals provided him with drug samples and medical treatment without regard to his finances. Id. at 1197-98.

In Norman v. Apfel, 48 F. Supp.2d 905 (W.D. Mo. 1999), the court rejected the claimant’s argument that the ALJ should have considered her financial constraints when he evaluated her failure to seek treatment for her mental disorder and for her smoking habit. Id.at 909. The court relied on Eighth Circuit case law that specifically holds that the claimant’s lack of financial resources does not excuse her failure to seek medical treatment absent evidence that she sought low or no-cost treatment or that any provider denied her treatment because of her financial situation. Id., citing Clark v. Shalala, 28 F.3d 828, 831 n. 4 (8th Cir. 1994); Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir. 1989); Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992).

A Missouridistrict court noted that the ALJ properly considered the fact that the claimant did not take regular prescription pain medication, or over-the-counter preparations for her alleged disabling pain. Hamilton v. Barnhart, 355 F. Supp.2d 991, 1003 (E.D. Mo. 2005). While the claimant reported that she could not afford such medications because she had limited financial resources, no health insurance since being unemployed, and that pain medications do not work well, the record showed that the claimant was taking pain medication prior to, and after her surgery, to control pain and there was no indication that pain medication was ineffective at that time. “Moreover, there is no evidence in the record to suggest plaintiff attempted to obtain low-cost pain medication or assistance, or was prevented from obtaining medication or care due to a lack of insurance or finances” and the claimant was able to afford at least a pack a day tobacco habit. Id.

In Shimkus v. Apfel, 72 F. Supp.2d 1056 (S.D. Iowa 1999), the court held that the ALJ appropriately discounted a 5-pound lifting limitation attributed by a physician to the claimant’s hernia, as the claimant did not have surgery on his right hernia after he received an inheritance. Id.at 1060. The court noted that “choosing to spend one’s money in alternative ways” was not an acceptable reason for failing to follow the prescribed treatment. Even though surgery had not been expressly prescribed for his right hernia, based on the claimant’s and his wife’s hearing testimony and the fact that he had successful surgery on a left inguinal hernia in the past, the court stated it was “confident plaintiff was aware of his options.” Id.In any event, even if 20 C.F.R. § 404.1530 was inapplicable, the court added that “the fact plaintiff voluntarily chose to live with his hernia, while maintaining a relatively active lifestyle, is substantial evidence that the pain is not truly disabling.” Id.

In Craig v. Chater, 943 F. Supp. 1184 (W.D. Mo. 1996), the district court rejected the claimant’s argument that he could not afford medical treatment or medication. Id. at 1190. The court stated that financial problems are not always an excuse for failing to follow a treatment plan. Id., citing Brown v. Heckler, 767 F.2d 451, 453 n.2 (8th Cir. 1985). Since the record did not indicate that the claimant attempted to secure low-cost medical care or discussed alternative methods of payment with his physician, the court found that the claimant’s alleged financial problems were not an acceptable reason for his refusal to seek medical assistance. Id.

Ninth Circuit

In Regennitter v. Commissioner of Soc. Sec. Admin., 166 F.3d 1294 (9th Cir. 1999), the ALJ rejected the claimant’s complaints of pain, in part, because they were inconsistent with the lack of treatment he had received. Id. at 1296. However, the Ninth Circuit noted that the claimant received regular treatment until his insurance coverage ran out, and he still saw treating doctors five times and examining doctors four times in the following two years. The Ninth Circuit also held that the record corroborated the claimant’s “uncontested explanation for not seeking more treatment: he could not afford it.” Id. The court reiterated that it has “proscribed the rejection of a claimant’s complaints for lack of treatment when the record establishes that the claimant could not afford it.” Id., citing Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)

In 1995, the Ninth Circuit held that a disabled claimant cannot be denied benefits for failing to obtain medical treatment that would ameliorate his condition if he cannot afford that treatment. Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995).

An Oregon district court noted that the “Ninth Circuit proscribes the rejection of a claimant’s pain testimony for lack of treatment when the record establishes that claimant cannot afford it.” Jerry v. Commissioner of the Soc. Sec. Admin., 97 F. Supp.2d 1219, 1225 (D. Or. 2000), citing Regennitter v. Commissioner of the Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999). In Jerry, the ALJ relied, in part, on the fact that the claimant did not use any strong pain medication as a basis to find that her complaints were exaggerated and that she was not credible. Id. The court noted that the claimant testified that her pain frequently ranked an 8 or 9 on a scale of 1 to 10 without pain medication, that she took coated aspirin and three Extra Strength Tylenol for pain, and attempted to explain “how lack of money limits her access to prescription medication but the ALJ cut her off.” Id.The court also noted that the fact that the claimant took “only” three Extra Strength Tylenol did not tend to show that she exaggerated her pain. The court concluded that the ALJ’s finding that the claimant did not rely on strong pain medication was not supported by substantial evidence. Id.

In Ibarra v. Commissioner of the Social Security Administration, 92 F. Supp.2d 1084 (D. Or. 2000), the ALJ noted that at the time of the hearing, the claimant was not following any medication regimen for her bi-polar condition, and further that “[a]dherence to such an appropriate medication regiment would likely substantially improve her overall functioning.” Id.at 1087. The court determined that this finding, as well as the ALJ’s ultimate finding of nondisability “rest, in significant part, on his expressed perception that her failure to follow a prescribed treatment caused her condition to be worse than it might otherwise be.” Id. The court concluded that the ALJ erred in his “apparent finding” that the claimant failed to follow a prescribed treatment. The court further determined that SSR 82-59 required remand for an immediate payment of benefits and for proper development of the issue of the claimant’s failure to follow prescribed treatment or the availability of a treatment program. Id. at 1088.

Tenth Circuit

The Tenth Circuit observed that the “lack of evidence of medical treatment does not constitute objective medical evidence of improvement,” noting that “a decrease in the medical severity of an impairment sufficient to constitute medical improvement must be substantiated by changes in signs, symptoms, or laboratory findings.” Threet v. Barnhart, 353 F.3d 1185, 1190 n.7 (10th Cir. 2003), citing Shepherd v. Apfel, 184 F.3d 1196, 1200-01 (10th Cir. 1999). In Threet, the claimant testified that all she could afford was over-the-counter Tylenol. Id.Yet, instead of acknowledging that the claimant’s “inability to pay may provide a justification for a claimant’s failure to seek treatment,” the ALJ concluded this evidence meant that the claimant’s pain was amenable to control, while the record appeared to indicate otherwise. Id.

Although the claimant was initially opposed to surgery, he subsequently became receptive, but by the time of the hearing could not afford the cost of the surgery. Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985). Thus, the Tenth Circuit held that the claimant’s failure to undergo surgery did not constitute an unjustified refusal. Id.

In Brown, the court stated that the ALJ failed to consider the evidence that the claimant had trouble affording to go to the doctor’s office.Brown v. Barnhart. 362 F. Supp.2d 1254, 1262 (D. Kan. 2005). While the inability to pay for services does not automatically weigh in favor of the claimant, it is a factor that should have been discussed by the ALJ. Id.

The fact that an individual may not seek medical treatment may be due to a lack of financial resources, and may not be an indication that the claimant’s testimony regarding the extent of his disability is not credible. Walker v. Callahan, 990 F. Supp. 1283, 1287 (D. Kan. 1997). See also Crawford v. Chater, 997 F. Supp. 1387, 1396 (D. Colo. 1998) (holding that the claimant’s failure to seek medical treatment was justifiable in that she and her husband lived on his Social Security benefits resulting in lack of finances for her to see a doctor and afford her own medications, causing her to use her husband’s medications); Eason v. Chater, 951 F. Supp. 1556, 1562 (D.N.M. 1996) (noting that if the claimant’s failure to keep an appointment with a psychiatrist was justified due to the lack of economic resources, the claimant should not be penalized).

The claimant could not be expected to seek medical attention for seizures occurring up to several times a week when he had few resources to pay for treatment and the care provided differed little from what he received at home.Gomez v. Sullivan, 761 F. Supp. 746, 753 (D. Colo. 1991).

A district court held that when the claimant’s failure to seek medical treatment can be attributed to the inability to pay for such treatment, “evidence of nontreatment is of little weight.” Hockenhull v. Bowen, 723 F. Supp. 555, 557 (D. Colo. 1989).

A Kansasdistrict court upheld that the ALJ’s credibility finding which was based, in part, on the fact that the claimant failed to seek medical treatment for long periods of time, which the court noted was “significant.” Hill v. Barnhart, 250 F. Supp.2d 1286, 1289-90 (D. Kan. 2003), citing Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988). The court noted that the fact that the claimant spent money on his cigarette habit suggests that he may have been able to afford medical care if it was necessary. Id.at 1290.

In Nichols v. Commissioner of Social Sec. Admin., 260 F. Supp.2d 1057 (D. Kan. 2003), the court held that the ALJ properly evaluated the claimant’s credibility, noting that the ALJ relied, in part, on the claimant’s treatment record. Id.at 1073. Specifically, the ALJ observed that although the claimant stated that her disability began in December 1989, she did not pursue any type of psychological treatment until October 1995 — more than six years later. While the ALJ noted that she claimed that she was unable to afford psychotherapy, “he found nothing in the record to indicate that she had pursued or applied for any type of indigent program for psychotherapy or counseling.” Id.

Eleventh Circuit

In Ellison v. Barnhart, 355 F.3d 1272 (11th Cir. 2003), the Eleventh Circuit held that the ALJ’s failure to consider the claimant’s ability to afford his seizure medication was not reversible error as the ALJ did not significantly base his decision that the claimant was not disabled on a finding of non-compliance. Id. at 1275. The court also held that the fact that the claimant had worked for several years in spite of his seizure disorder, along with the opinions of several doctors that the claimant’s seizure disorder did not prevent him from meeting the demands of unskilled work, constituted substantial evidence which supported the ALJ’s decision to discredit the opinion of an examining physician that the claimant was totally disabled. Id. at 1275-76.

The Eleventh Circuit reversed and remanded a case, in part, because the ALJ failed to consider whether the claimant’s poverty excused her noncompliance with prescribed treatment. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988). Several Alabama courts have relied on Dawkins in reversing the Commissioner’s decision. See, Cronon v. Barnhart, 244F. Supp. 2d 1286, 1292 n.16 (N.D. Ala. 2003) (noting that the ALJ placed heavy emphasis on the fact that the claimant did not have an MRI or additional testing performed, yet the claimant testified that she did not have funds for these expensive tests and poverty excuses noncompliance with treatment); White v. Barnhart, 336 F. Supp.2d 1183, 1186 n. 9 (N.D. Ala. 2004) (noting that the claimant’s lack of funds has prevented her from having more recent testing procedures and the same reasoning of Dawkins is applicable to the claimant’s inability to have more recent expensive testing procedures, noting that “[w]hen you cannot afford it, you cannot afford it”); Lacy v. Barnhart, 309 F. Supp.2d 1345, 1351 & 1351 n.19 (N.D. Ala. 2004) (holding that the ALJ improperly ignored a treating physician’s opinion, in part, due to the lack of recent treatment, yet the record documented that finances played a limiting role in receipt of treatment).

A Floridadistrict court held that the ALJ’s finding that the claimant’s complaints were not totally credible because she was noncompliant with medication and treatment was on “equally shaky ground.” Zeigler v. Barnhart, 310 F. Supp.2d 1221, 1225-26 (M.D. Fla. 2004). This is because one of her treating physicians agreed with discontinuation and changes in her medication. Id. at 1226. Additionally, the claimant testified that she was at times not financially able to pay for medication and treatment and “[p]overty excuses noncompliance with treatment.” Id., citing Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).

In Burroughs, the court noted that the lack of treatment is “not surprising or indicative of an absence of significant illness in light of the consulting psychologist’s finding that plaintiff has poor insight into her mental condition,” and the fact that her “failure to obtain additional treatment could also be due to her obviously low economic status.” Burroughs v. Massanari, 156 F. Supp.2d 1350, 1364 (N.D. Ga. 2001).

D.C. Circuit

Where the claimant testified that she had not sought medical treatment due to her indigency, and there was nothing in the record to contradict her testimony, the court stated that it was impermissible for the ALJ to find that she was not disabled due to the absence of medical data. Hayes v. Bowen, 643 F. Supp. 770, 773 (D.D.C. 1986).