Recent Publications

DISABILITY LAW NEWS – JULY 2003

Judge Orders Calculation of Benefits in Fibromyalgia Case

Rochester attorney Lawrence Heller scored a significant federal court victory in the Western District. In Soto Vs. Barnhart, 242 F.Supp.2d 251 (WDNY 2003), District Court Judge David Larimer agreed with Larry that his client suffered from debilitating fibromyalgia and chronic pain syndrome. He held that the ALJ’s conclusion that the claimant did not really have fibromyalgia because, according to the ALJ, there was a lack of clinical findings and none of the treating physicians had articulated the requisite “trigger points”, “demonstrate [d] a failure to fully consider the medical evidence of record, as well as a misunderstanding of fibromyalgia.” 242 F. Supp. 2d at 254.

Judge Larimer admonished the ALJ for improperly dismissing the many reports of plaintiff’s treating physicians in favor of a consulting exam and a State agency assessment. He went on to point out that the CE’s use of terms like “moderate” and “mild” could not, without additional information, be relied on by the ALJ to infer that the plaintiff could perform certain exertional requirements. In a nice footnote, the ALJ also shot down a frequent trick of this particular ALJ – discounting the treating physician’s evaluation as based on the plaintiff’s subjective assessment. According to Judge Larimer, a thorough reading of the medical records reveals that the treating physician made his assessment based on his own treatment notes. 242 F. Supp. 2d at n.7.

As if that were not enough in one decision, the Court also criticized the ALJ’s credibility findings. Judge Larimer noted that because of the lack of clinical tests to identify fibromyalgia, the subjective testimony and evidence could be particularly helpful in such cases. He agreed with Larry that the mere fact that the treating physician noted that the plaintiff was “tolerating” her pain was an indication that she was enduring it rather than it had abated. He held that neither that nor the fact that the plaintiff did not display muscle atrophy were sufficient proof that she was exaggerating her symptoms.

Finally, he found that the ALJ’s “sit and squirm” test was of little value: “Where it is well documented that the plaintiff has endured this pain for many years, and has as a result learned to tolerate such pain, I find it of very limited value that the ALJ observed no apparent signs of distress”. 242 F. Supp .2d at 257.

Judge Larimer agreed that remand in this case would serve no purpose and ordered the immediate calculations of benefits. Congratulations to Larry Heller for a job well done. In addition to securing benefits for his client, he has given us some great case law that is sure to be cited again and again!