A Female Disease: The Unintentional Gendering of Fibromyalgia Social Security Claims

INTRODUCTION 86I. FIBROMYALGIA 89II. THE SOCIAL SECURITY ADMINISTRATION'S RELIANCE ON PHYSICIANS 93A. The History of Delegation to Physicians 93B. The Social Security Administration's Sequential Evaluation of Disability 96C. The Reliance on Clinical Medical Evidence 99III. OBJECTIVITY, SUBJECTIVITY AND CREDIBILITY IN PROOF OF EXCESS PAIN 101A. Before 1984 102B. 1984 to 1991 105C. 1991 to the Present 107IV. WHY CONSIDERING SUBJECTIVE EVIDENCE FAILS TO ADDRESS GENDERED PROBLEMS 109A. Gender Differences in Pain 110B. Gender Differences in Care IllC. Gender Differences in Credibility-Damaging Evidence 113V. EVOLVING A SOLUTION 115CONCLUSION 117INTRODUCTIONIn the 1950s, Congress created Social Security disability benefits as a wide-reaching safety net for Americans who were unable to support themselves due to disability.1 As of December 2002, about 5.5 million Americans were receiving Social Security disability benefits.2A significant number of Social Security recipients suffer from fibromyalgia, a diffuse syndrome primarily characterized by severe pain. Although the identification of fibromyalgia as a distinct syndrome is a recent phenomenon, fibromyalgia has not only become a familiar term to most Americans,3 but has also become an increasing source of Social Security disability claims.4 For example, in one survey of Social Security recipients near Wichita, Kansas, fibromyalgia was the source of forty-six percent of disability awards.5The process of evaluating disability for the purposes of Social Security benefits, however, seems ill-equipped to grapple with fibromyalgia. Fibromyalgia is an unusual syndrome in that it is not a physical injury or trauma, nor is it a disease that can be identified by a clinical test yielding a yes or no answer. As a result, people suffering from fibromyalgia face considerable challenges in navigating the Social Security process.6Fibromyalgia is an unusual syndrome for another reason: it overwhelmingly affects women more often than men. In practical effect, therefore, fibromyalgia patients struggling to make disability claims are women. Moreover, these gendered disability claims are evaluated by a system that is already known to have a disparate effect according to the gender of the claimant. In 1992, the Ninth Circuit Gender Bias Task Force surveyed representatives of Social Security claimants to assess whether the evaluation process was gendered.7 Only thirty-nine percent of male representatives believed that the gender of a claimant affected the opinion of the medical experts evaluating his or her claim.8 Similarly, every male administrative law judge (ALJ) surveyed stated that gender played no role in making a determination of disability.9By contrast, ninety-eight percent of female representatives believed that the gender of a claimant affected the opinion of medical experts.10 Female ALJs also said that many ALJs are biased as to the gender of claimants appearing before them.11 Many scholars looking at the problems of women within the Social Security system blame this on bias on the part of ALJs tasked with evaluating the credibility of female claimants.12It is the contention of this article that this does not tell the whole story. Determinations of disability for the purpose of granting or denying Social Security benefits rest on a particular definition of disability as a clinically determinable state.13 Congress and the Social Security Administration (SSA) have delegated recognizing and identifying disabilities almost entirely to physicians, based upon a misguided belief that clinical medical evidence evaluated by a trained physician will answer with certainty whether an individual claimant is capable of working. Although the SSA and ALJs eventually make a final judgment of disability, physicians play a "critical gatekeeping role" in disability determinations, purportedly making the determination process objective. …