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15 Mich. St. U. J. Med. & L. 71Michigan State University Journal of Medicine & LawWinter, 2010SMALL CIRCLES OF PAIN CAUSE BIG HEADACHES IN COURT - A PRIMER ON MYOFASCIAL PAIN AND TRIGGER POINTSSamuel?D.?Hodge, Jr.a1?Jack E. Hubbardaa1?Daniel Mitsakosaaa1Copyright ? 2010 Michigan State University Journal of Medicine & Law;?Samuel?D.?Hodge, Jr., Jack E. Hubbard, Daniel Mitsakos HYPERLINK "" \l "co_g_ID0EQMAG" I.Introduction72II.Myofascial Trigger Points74III.Neurological Symptoms76A.Headaches76B.Dizziness78C.Sensory Symptoms79IV.Treatment80A.Non-pharmacologic Therapy80B.Pharmacologic Treatment81C.Follow-up Care81V.Myofascial Pain in a Claim Setting82A.Causes of Myofascial Pain83B.Myofascial Pain and Social Security Disability Insurance841.The Five-Step Evaluation Process for Determining SSDI Eligibility as it Relates to Myofascial Pain Syndrome84a.Step One - Substantial Gainful Activity85b.Step Two - Severe Impairment85c.Step Three - The Listings and Durational Requirements87d.Step Four - Residual Functioning Capacity87e.Step Five - Ability to Do Other Work90C.Workers' Compensation92D.American Medical Association's Guides to the Evaluation of Permanent Impairment94E.Myofascial Pain and Third Party Claims991.Causation99a.The Frye Standard for Expert Testimony99b.The Daubert Test for Expert Testimony100c.State Statutes on Expert Testimony1012.Damages102F.Disability Insurance103G.Americans with Disabilities Act105VI.Conclusion107VII.Practice Checklist for Myofascial Pain Syndrome108VIII.Research Tools109A.West Key Numbers109B.American Jurisprudence109C.A.L.R.109D.Law Reviews and Other Periodicals110*72?TANESHA WAS INVOLVED in a motor vehicle accident and complained of pain in her neck, left shoulder and lower back.1?She had a series of chiropractic treatments and a neurologist opined that she suffered from post-traumatic myofascial pain.2?An MRI, however, revealed no abnormalities.3?Eighteen months after the incident, Tanesha was still complaining of localized pain in her spine as well as headaches.4?At trial, the medical expert for the defense disagreed with the diagnosis, claiming that the myofascitis would have been visible on an MRI as either inflammation or swelling.5?The jury disagreed and concluded that the plaintiff had sustained a permanent soft tissue injury, and awarded $400,000 in damages.6?On appeal, the defense argued that the plaintiff's myofascial pain was not verified by objective medical evidence and was inadequate to prove a permanent condition as required under the no-fault law of the state.7?The appellate court was not impressed with this position and allowed the verdict to stand.8?Welcome to the world of myofascial pain and trigger points in a personal injury setting, a source of continuing controversy.I. IntroductionWhiplash, sprains and strains, herniated disks, fibromyalgia and even complex regional pain syndrome are fairly well known conditions that have become part of an attorney's vocabulary. But what is myofascial pain, a term that is showing up with some frequency in the medical reports of personal injury and disability claimants? This article will explore the medical and legal implications of this condition, including an examination of how the problem?*73?is diagnosed and treated along with a review of how the diagnosis has been viewed by the courts.Defining the name given to this diagnosis is an appropriate first step. “Myo” is the prefix for muscle and “fascia” refers to the protective covering surrounding a muscle. Myofascial pain, therefore, is a disorder of a muscle and its covering that is responsible for many patient visits to doctors' offices.?Myofascial pain is a localized condition that can “affect any skeletal muscle” and can cause such manifestations as tenderness, local or referred pain, stiffness, and “muscle weakness without atrophy.”9?Discomfort “arises from referred pain and muscle dysfunction caused by trigger points [T]ight bands of skeletal muscle with palpable [nodes].”10?In non-medical terms, this is known as a “muscle knot.”11While the diagnosis may be alien to some attorneys, it is well known in the medical community. In fact, myofascial trigger points, or MFTPs, were first described by Dr. Janet Travell and colleagues in 194212?and have been recognized as a common cause of chronic neck and back pain.13?Less well-known is the fact that MFTPs can also cause a wide spectrum of associated symptoms. For example, in one survey of patients with this malady, it was reported that neurological, gastrointestinal, musculoskeletal, and otological symptoms occurred in 10% to 40% of the cases.14?In a litigation setting, a court described the problem in the following way:Unlike the generic problem of ‘back strain’, myofascial pain syndrome is a chronic form of muscle pain which, unlike normal muscle pain, does not resolve in a few days. The pain is centered around sensitive muscle points called trigger points which are painful when touched;*74?locations of the trigger points include the jaw, neck, low back, pelvis and extremities.15II. Myofascial Trigger PointsMyofascial trigger points are localized segments of muscle that have been subjected to trauma either by acute injury or micro-trauma from repetitive stress, and in some cases, are the result of a systemic illness.16?Any skeletal muscle can develop MFTPs, which can be identified by a careful examination of the affected muscle groups for “knots” two to five millimeters in diameter and tight bands that are painful when palpated.17?“A trigger point is a small patch of a tightly contracted muscle, [or a more] isolated spasm affecting just a small patch of muscle tissue [Unlike a spasm that affects the entire muscle similar to a] ‘charley horse’ or cramp.”18?In turn, a collection of painful trigger points is called “myofascial pain syndrome” or MPS.19The diagnosis of MPS is based on the patient's history and examination, as there are no laboratory tests or imaging studies that can confirm the presence of MFTPs.20?Therefore, the criteria for diagnosing this problem is somewhat controversial,21?and debate exists over whether or not they are true pathologic entities.22Although some theories suggest that MFTPs are on the same spectrum of disorders as fibromyalgia,23?MFTPs and fibromyalgia24?are not one and the?*75?same.25?MFTPs are localized areas of injury and discomfort, whereas the pain from fibromyalgia is more diffuse and thought to reflect a central pain syndrome.26?Myofascial trigger points can be objectively identified during a careful examination of the patient; whereas a fibromyalgia diagnosis relies on the subjective responses of the patient as he or she is examined for sensitive trigger zones.27?Finally, and most importantly, MFTPs are more easily treated than fibromyalgia.28Myofascial trigger points are quite common, especially in the cervical musculature, and are most often found in patients 31 to 50 years of age,29?with a greater incidence in women than men.30?Several studies have even reported that up to 85% of back pain and 54% of neck pain accompanied by headaches are caused by myofascial discomfort.31?Developing most frequently in the axial musculature (neck and back), MFTPs are associated with poor posture and can develop insidiously from occupational activities such as cradling the telephone handset between the head and shoulder, sitting in an awkward position in front of a computer, or non-vocational activities such as bending one's?*76?head for a prolonged period of time while knitting or reading.32?Another common cause of MFTPs is acute trauma, such as a flexion/extension injury from a motor vehicle accident.33?In some cases, however, a specific cause cannot be identified.The pathophysiology of a myofascial trigger point remains speculative. One theory is that muscle injury stress disrupts the sarcoplasmic reticulum, a tubular network structure found in striated muscle fibers, releasing free calcium ions.34?In the presence of adenosine triphosphate (ATP), a molecule that stores energy, ionic calcium causes the actin and myosin of the muscle fibers to lock into place. This action results in diminished blood flow and release of painful substances such as serotonin, histamine, kinins, and prostaglandins in the injured area.35III. Neurological SymptomsMyofascial trigger points frequently produce neurological symptoms such as headache, dizziness, and sensory problems including tingling and numbness. Therefore, physicians need to be aware of the possibility of MFTPs when patients present with such symptoms.A. HeadachesHeadache is a frequent consequence of a neck injury and, conversely, neck pain is common in patients who suffer from headaches.36Headaches occur in 55% to 66% of patients who sustain a whiplash-type injury, and neck pain is reported in 73% of patients with migraine headaches.37?Although the cause of headache following a whiplash injury is often the result of cervical?*77?facet dysfunction,38MFTPs may also develop at the same time and account for persistent headache in many patients.39The mechanism of headaches generated or exacerbated by MFTPs most likely involves the trigeminocervical complex, a sensory network that integrates pain input from the neck with pain centers for the face and head.40?Constant painful stimuli from neck muscle trigger points converge on the trigeminal nucleus caudalis located in the upper cervical spinal cord, which is a nerve-center that controls sensation to the head.41?This continuous stimulation results in an amplification of pain signals to the trigeminal pathways, which relay sensory information from the head and face.42Myofascial trigger points typically cause “tension” headaches that originate either directly from the trigger points in the muscles of the head such as the temporalis, or indirectly from the cervical musculature.43?These headaches may be severe and debilitating, raising concerns of an expanding intracranial mass or infection. Myofascial trigger points also can precipitate migraines or contribute to their worsening. Continuous painful input from the neck muscle trigger points stimulates the migraine neural pathways, resulting in an increase in the frequency and/or severity of migraine headaches.44As early as 1981, the head and neck muscles were recognized as important for headache generation.45?Trigger points can influence the frequency, severity, and treatment of migraines.46?With appropriate trigger-point therapy, these headaches often come under better control, decreasing in both frequency and severity.47Individuals who have frequent migraine headaches, as in one to three per week, or those who do not respond to appropriate preventive and/or abortive therapy often have cervical MFTPs. With the application of specific myofascial therapy to the cervical musculature, patients report that the frequency of their headaches decreases significantly, eliminating the need for preventive medications. When these individuals do experience migraines, they find that their headaches generally respond more effectively to medication such as a triptan or other abortive therapy including drugs like Imitrex, Imigran, Zomig, or Relpax.?Also, those patients who experience daily tension headaches that?*78?are present with the superimposed migraine pattern see improvement in their chronic headaches as well.B. DizzinessA frequent complaint of those with cervical MFTPs is dizziness. They describe their dizziness in nonspecific terms such as feeling off balance and unsteady or in the context of “walking on a cloud.” In one study of patients with cervical MFTPs, 23% reported experiencing dizziness.48?Interestingly, these patients also were found to have other otological symptoms such as tinnitus (42%), ear pain (41%), and reduced hearing (17%). Nausea also was common, but vomiting was not a symptom.49Such patients often indicate that their dizziness worsens with prolonged or repetitive bending of the head and neck. For instance, Travell and Simons noted patients reporting feelings that they would “pitch over backwards” when looking up or fall forward when looking down.50?Patients with these types of symptoms are usually referred for neurological or otolaryngological evaluation. Although most patients with this “cervicogenic vertigo” have concomitant neck pain and/or headaches, some, especially those who are elderly, will deny any neck discomfort when questioned or report only minor stiffness.These patients should have a careful examination for trigger points in the cervical area. When the trigger points are treated with appropriate myofascial therapy, the dizziness usually resolves. The mechanism of the dizziness is likely related to excessive proprioceptive51?input from the cervical muscles,52?especially the clavicular division of the sternocleidomastoid muscle and the trapezius muscle.53?Travell and Simons theorize that dizziness results from proprioceptive information from the cervical musculature that helps orient the body.54?Because of its attachment to the mastoid process, the sternocleidomastoid muscle also may refer pain deep into the ear and cause tinnitus.55*79?C. Sensory SymptomsMore than a quarter of patients with cervical MFTPs experience sensory symptoms in the upper extremities and face, such as numbness and tingling.56?Pain also can be referred distally from MFTPs in patterns that do “not follow [known] dermatomal57, myotomal58, or sclerotomal patterns59.”60?In fact, one researcher suggests that pain referred from MFTPs follows the distribution of acupuncture meridians.61The distribution of sensory symptoms caused by MFTPs depends on the location of the trigger points. For instance, cervical trigger points can refer numbness and tingling to the face, head or upper extremities.62?Upper extremity motor impairment, such as weakness or incoordination, can arise from pain generators in the neck.63?Trigger points in the lumbar region can refer sensory symptoms to the legs.64?On the other hand, thoracic trigger points may mimic a thoracic radiculitis.65?Patients who have such symptoms are often referred to a specialist to rule out other causes such as multiple sclerosis or neuropathy. Sensory symptoms and findings caused by MFTPs closely mimic those of radiculopathy.The referral of sensory symptoms distant from trigger points is likely because of changes in processing within the brain and spinal cord.66?For example, Niddam and colleagues demonstrate that a center within the brainstem,?*80?the periaqueductal gray67?of the midbrain, can alter and regulate pain signals from neck muscle MFTPs.68?Other suggested mechanisms include the convergence of sensory inputs with projections to higher sensory centers of the cerebral cortex, branching with multiplication of the pain nerve fibers from the affected muscle, amplification of pain signals from the trigger point, and spread of neuronal activity from sympathetic nerve fibers.69IV. TreatmentSuccessful treatment of MFTPs usually eliminates or significantly reduces the associated neurological symptoms. The goal in trigger-point management, therefore, is to restore muscle fiber length in the affected segments.70?Management of MFTPs includes both non-pharmacologic and pharmacologic therapies.A. Non-pharmacologic TherapyMyofascial trigger point therapy is a manual technique that involves applying pressure to a trigger point to release the pathologic contraction of the muscle segment and to stretch that segment in order to restore normal muscle fiber length. The duration of treatment varies from person to person, but an initial course is usually manual therapy twice a week for three to four weeks. To be effective, trigger point therapy must be performed by a physical therapist skilled in manual therapy with myofascial release techniques.71?Traditional physical therapy that initially involves vigorous exercise and traction often does not help and sometimes causes the symptoms to worsen. In addition, acupuncture, stress management, and relaxation techniques, when combined with myofascial release therapy, can help patients with pain caused by MFTPs.72*81?B. Pharmacologic TreatmentThere is no pharmacologic agent that is specific for treating MFTPs. Any pharmacotherapy must be administered in conjunction with physical therapy and can be administered orally, topically, or by injection. Oral medications such as muscle relaxants can improve muscle function.73?Nonspecific agents such as antidepressants, non-steroid anti-inflammatory drugs, anticonvulsants, and opioids are usually used for pain control. Topical agents include local anesthetics or nonsteroidals in patch or gel form. Local anesthetics with or without corticosteroids, neurolytic agents, or botulinum toxin74?can be injected directly into trigger points to “break up” the localized muscle knots.75?Some investigators have even concluded that simple dry needling of the trigger points can be effective.76C. Follow-up CareA post-treatment program is necessary to maintain the achieved clinical improvement. Myofascial therapy may not entirely eliminate symptomatic active trigger points, which are characterized by a local twitch response followed by pain during palpation, but may convert them to asymptomatic latent points, which can be activated by re-injury.77?To prevent this from happening, patients need to make appropriate ergonomic changes in their work and day-to-day activities to avoid repetitive stress on the injured muscles.78?For example,*82?patients with cervical myofascial trigger points should use a telephone headset when spending long periods of time on the phone, or change their position to avoid bending their heads while knitting or reading. In addition, a strengthening and conditioning regimen for the affected muscle groups, usually taught by the physical therapist, is beneficial.V. Myofascial Pain in a Claim SettingA disorder like myofascial pain syndrome demonstrates the distinction between the analyses and procedures found in the medical fields and the nature of scrutiny found in adversarial legal practice. Although myofasical trigger points and myofascial pain syndrome are routinely diagnosed and treated by physicians, the criteria used for its diagnosis remains somewhat controversial since no routine biochemical, electromyographic or diagnostic imaging procedures reliably detect the presence of MFTPs.79?The diagnosis is literally in the hands of the doctor, as MFTPs are objectively identified by a skilled examiner through careful palpation of the injured musculature.This palpation results in an involuntary painful response, or a positive jump sign resulting in a patient response.80?In a claims setting, the lack of a definitive test to establish this disorder creates a recipe for disagreement and suspicion, as does the fact that a doctor must rely on the injured party's feedback. These facts have led to different views in various federal and state courts regarding this medical problem. One court cited to a report that referenced a Mayo Clinic pronouncement that MPS “is a chronic form of muscle pain” that “centers around [sensitive] points in [the] muscles” that are “painful when touched.”81?Another court had to resolve a battle of experts, where one doctor opined that MPS is a “‘contentious' diagnosis in the medical community,” and the opposing expert physician replied with a “point-by-point defense, arguing that [the other expert's] opinions were outdated....”82?This next portion of the article will examine some of the various law related contexts in which myofascial pain and its associated myofascial trigger points have arisen.*83?A. Causes of Myofascial PainAssuming that a claimant has demonstrated that he or she has the hallmark signs of myofascial pain or myofascial trigger points, an attorney's job is not finished. The next inquiry is to ascertain the cause of that pain response or, in a legal context, to determine if the problem is proximately caused by a tortfeasor's actions or an injury that can be claimed in a worker's compensation or other disability setting. Although the most common reason for MPS is trauma, either acute or repetitive, there are some less recognized causes; and these are important areas of investigation that should be explored in a litigation or administrative setting.As a starting point, it is not always possible to establish the cause for MPS. As noted in Awad v. Secretary of Health and Human Services,83?“‘myofascial pain syndrome’ is a term used to describe a situation in which an individual over a period of months or longer has chronic fibrous tissue pain of unknown cause in a localized area of the body.”84?Other potential causes include the micro-trauma of daily living or the chronic strain from sedentary habits. Myofascial pain may also be related to systemic inflammation disorders, infection, minor stress, overstretching of muscles or overuse in repetitive movement, arthritis, a psychogenic anxiety tension state, hypothyroidism, estrogen deficiency, mild anemia and certain vitamin deficiencies.85?A few studies suggest that the condition could be related to general fatigue, a heart attack, stomach irritation,86?and inadequate sleep.87?Counsel, therefore, should scour the medical records for other possible causes for myofascial pain and not merely assume it is from trauma.When a medical report describes findings of myofascial trigger points, there is no way of knowing whether the symptoms developed in the past five days or the past five years. In other words, there is nothing unique on examination which dates the onset of these findings. This information needs to be gleaned from the client's history, examination, and medical records. For example, if a client with no prior history of neck pain was involved in a motor vehicle accident and complained of pain localized to the left side of his neck with the finding of trigger points in those muscles, then most likely the trigger points developed as result of the accident. If, on the other hand, the client has a prior history of neck pain with documented trigger points on examination?*84?and increased neck pain following a new accident, this would be, at most, an exacerbation of a pre-existing condition.B. Myofascial Pain and Social Security Disability Insurance“[T]he Social Security Administration is authorized to pay disability insurance benefits [“SSDI”] and Supplemental Security Income to [those] who have a ‘disability”’;88?a rigidly defined term that is based on the inability to work.89?In order to qualify for SSDI, the applicant must generally show: “(1) a medically determinable physical or mental impairment that has lasted, or can be expected to last, for twelve months; (2) an inability to engage in any substantial gainful activity; and (3) that this inability results from the impairment.”90Furthermore, an individual will only be declared disabled “if his physical impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.”91The applicant must also have an impairment that can be established by objective “medical evidence consisting of signs, symptoms, and laboratory findings, not only [the claimant's] statement of symptoms.”92?That “impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques.”93?In the context of myofascial pain, this can be a daunting task because there are no laboratory tests or imaging studies that can objectively confirm the presence of myofascial trigger points.1. The Five-Step Evaluation Process for Determining SSDI Eligibility as it Relates to Myofascial Pain SyndromeThe Commissioner of Social Security has established a five-step process in order to ascertain if an applicant is disabled and this process must be followed in a set order in all disability determinations.94?In fact, “[e]ach step in the disability determination entails a separate analysis and legal standard.”95*85?a. Step One - Substantial Gainful ActivityInitially, a determination must be made as to whether the claimant is engaged in “substantial gainful activity.”96?If the individual is engaged in any type of work activity, the claimant cannot be considered disabled and the inquiry stops.97?Generally, the Social Security Administration does not consider personal care, “household tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial gainful activity.”98For example, a claimant was diagnosed with MPS and fibromyalgia, but worked for her daughter's private school as a lunch monitor two hours a day.99?An ALJ determined that this job was not substantial gainful employment.100?The record suggests that the fact finder made this determination because the claimant's hourly wage was credited to her daughter's tuition, and because she took on the monitoring duties as part of psychological therapy in adjusting to her impairments so “she could regain a part of her life.”101b. Step Two - Severe ImpairmentThe second step in the analysis is to determine whether the claimant has a severe impairment.102?This term is defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.”103?Basic work activities are essentially the “abilit[y] and aptitude[] necessary to do most jobs,” including:(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of judgment; (5) Responding appropriately to supervision, co-workers and usual work situations; and (6) Dealing with changes in a routine work setting.104If the claimant's impairment “would have no more than a minimal impact on [the] ability to work,” then the claimant is not disabled.105?A finding that the claimant's condition is not severe stops the inquiry into disability and benefits are denied.106?Practically speaking, however, one appellate court has?*86?warned that this step may not do much more than “screen out de minimis claims.”107Myofascial pain syndrome has been recognized as a severe impairment that may qualify a claimant for disability benefits by a number of courts.108?In Brunson v. Barnhart, it was determined that an ALJ could not reject a diagnosis of MPS despite the fact that there were few, if any, clinical examinations which tested for the presence or severity of the condition.109?Another ALJ, in Smith v. Astrue, was found to have committed error for the failure to discuss the claimant's diagnosis of MPS or list it as a severe impairment.110?These favorable decisions have their limits, however. When there were only isolated references to MPS in an evaluation form filled out by a claimant's doctor without a formal diagnosis or recommendations for treatment, one court affirmed an ALJ's ruling that MPS could not be a severe impairment under the facts presented.111?The court also considered the “lack of [objective] medical records,” the claimant's “reports to her physician that she did not suffer from fatigue, stiffness, or muscle pain,” and her “testimony that she perform[ed] a variety of tasks, including step aerobics.”112Administrative law judges have also been chastised by appellate courts for inserting their own opinions into the disability analysis. One appellate court has referred to this practice as “sit and squirm jurisprudence,” which is grounds for reversal.113?For example, in Guarino v. Commissioner of Social Security,114?the ALJ dismissed the claimant's ten-year history of MPS because “treatment notes from the pain management center do not document trigger points in 11 of 18 areas of the upper and lower torso and extremities, which the American College of Rheumatology denotes as being one of the diagnostic features of myofascial pain syndrome or fibromyalgia.”115?By improperly ascribing a symptom of fibromyalgia to MPS, the ALJ drew a warning that his?*87?statement “smack[ed] of ‘set[ting] his own expertise against that of a physician who [submitted an opinion to or] testified before him.”’116c. Step Three - The Listings and Durational RequirementsThe third step in the process requires a determination of whether the claimant's severe impairment meets or equals one of the listings found in the Code of Federal Regulations117?and whether such impairment meets the twelve-month durational requirement.118?The impairments in these listings have been acknowledged by the Commissioner of Social Security to “be of sufficient [magnitude] to preclude gainful employment.”119?If the claimant's impairment is equivalent to one of the impairments in the listings, the claimant is conclusively disabled and is entitled to benefits.120As it relates to MPS, the listings contain a categorization of musculoskeletal impairment, but make no explicit reference to pain disorders.121?Therefore, a claimant suffering from MPS must prove that his or her diagnosis alone or in combination with other ailments equals one of the listed impairments.Feliciano v. Barnhart122?provides an example where the claimant failed to present sufficient medical evidence that her MPS matched a listed impairment.?In this case, the claimant was diagnosed with myofascial pain syndrome after the primary care doctors examined the results of X-rays and an MRI.123?However, these same doctors reported that the claimant had “no limitations in overall mobility and ambulation” on the medical assessment forms sent by the Social Security Administration.124?The court affirmed the ALJ's determination that the claimant's MPS was not coupled with a limitation in motion or other significant musculoskeletal impairment to rise to the level of severity required to satisfy one of the listed impairments.125d. Step Four - Residual Functioning CapacityIf a claimant is unable to satisfy step three, the individual must proceed to a fourth step that requires the applicant to show a lack of residual functioning capacity (“RFC”) to perform his or her past work.126?The administrative?*88?officials must then assess the claimant's RFC, which, put another way, “is the most a claimant can do [physically] despite [his or] her limitations.”127?If the claimant is found to have the ability to perform that past work, the person is not disabled and the analysis ends.128In Marden v. Barnhart, an ALJ determined that the claimant's MPS was severe, but did not “meet or equal” the impairments set forth in the listings, leading the Commissioner to determine at step four that the claimant had the requisite RFC to “return[] to her past relevant work as a cashier [or a] waitress.”129?According to the record, the claimant's MPS stemmed from an incident involving an attack by a resident in the nursing home where she worked, who “squeezed [the claimant's] shoulders so tightly in a bear hug that [the claimant] temporarily lost consciousness.”130?On appeal, the ALJ was found to have committed error during step four of the analysis.131?It was held to be improper for the ALJ to simply ignore three other RFC assessments in favor of an RFC assessment from an independent medical examiner (“IME”) that examined the claimant pursuant to a separate worker's compensation claim.132?In fact, the doctor who performed the IME opined that the claimant did not exhibit any significant disability and had no medically determinable impairment because she “had not presented any objective sign of any significant problem” that the examiner could “see, feel, touch, or measure.”133But because the ALJ also chose to credit other evidence that the claimant suffered from severe MPS, the court found that the ALJ's determination was logically inconsistent without sufficient explanation.134?In the eyes of the reviewing court, this logical inconsistency at step four was critical enough to “filter[] through to and undermine[]” the rest of the five-step analysis.135In Wilson v. Astrue,136?a claimant argued that the ALJ “failed to properly consider her myofascial pain syndrome diagnosis [when] determining her RFC.”137?The court's analysis ultimately turned on the claimant's credibility, considering the lack of objective medical evidence.138?The appellate court gave weight to the fact that the claimant was diagnosed with “possible myofascial pain syndrome” by her doctor, but noted that she manifested no physical?*89?cause for her complaints of severe pain.139?The court also considered the fact that other doctors diagnosed the claimant with somatoform disorder.140?The court was further dissuaded by the fact that the claimant told the doctors that she had chronic fatigue syndrome when it was never diagnosed.141?The claimant also told clinicians that she was hoping to obtain Social Security Disability benefits so she could spend more time with her son.142?Given the claimant's misrepresentations and inconsistencies regarding her physical limitations, as well as deception regarding drug and alcohol abuse, the court affirmed the ALJ's determination that the claimant's testimony was not credible.143In Bennett v. Barnhart,144?an ALJ determined that the claimant suffered from severe MPS, but denied benefits because the ALJ determined that the plaintiff was not prevented from performing her prior work.145?The ALJ factored into the analysis his observations that the claimant “did not have [trouble] sitting during the hearing.”146?He also noted that none of the plaintiff's physicians recommended surgery, “which indicate[d] the claimant's condition [was] not as severe as alleged.”147?The district court reversed this finding, noting that the ALJ erred in conducting an improper credibility analysis and refusing to credit the plaintiff's pain testimony.148?By interjecting his opinion without citing to medical evidence in the record, the ALJ “succumbed to the [forbidden] temptation to play doctor and make [his] own independent medical findings[,]” according to the court.149?The court found it “particularly troubling that the ALJ recited the lack of a surgical recommendation” while acknowledging that the claimant had severe MPS, a disorder not alleviated by surgical treatment.150Ultimately, the district court remanded the case with specific instructions that the claimant be awarded benefits.151*90?e. Step Five - Ability to Do Other WorkIn the last step of the inquiry, if the claimant is able to show that he or she lacks the RFC to perform the applicant's past work, the burden shifts to the Commissioner who must show that the claimant is capable of less demanding employment.152?This means that the claimant remains capable of performing some other type of substantial, gainful employment in the national economy.153This fifth-step inquiry is divided into two stages.154?First, specific, relevant characteristics of the claimant are considered, such as “physical ability, age, education, and work experience.”155?Second, an inquiry must be made into “whether jobs exist in the national economy that a person having the claimant's qualifications could perform.”156The Commissioner may meet the requisite burden at the fifth step by resorting to the applicable Medical-Vocational Guidelines157?(“the grids”), also found in the Code of Federal Regulations.158?The grids consider the claimant's age, residual functional capacity, work experience, and education and “indicate whether the claimant can engage in any substantial gainful work existing in the national economy.”159?Furthermore, “[a]lthough the grid results are generally dispositive, exclusive reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant's physical limitations.”160?This is also the case when “non-exertional limitations” like pain and mental or sensory impairments might reduce the claimant's range of work.161?In these situations, the Commissioner must obtain the testimony of a vocational expert, who generally makes an independent evaluation of the?*91?claimant's ability.162?The vocational expert may use the grids as a framework for making a decision if she so desires.163?However, the testimony of the vocational expert is relevant only to the extent it is offered in response to questions about hypothetical claimants that correspond to the medical evidence of record.164?Appellate courts have noted that the hypothetical questions need not contain every impairment alleged by the claimant, but must include the impairments supported by substantial evidence on the record as a whole.165Because MPS is a type of pain disorder, vocational experts must be utilized at step five in order to evaluate the effect of the claimant's complaints of pain on the person's range of work.166?However, hypothetical questions posed to these experts may be scrutinized by a court on appeal if the questions omit substantial evidence of documented limitations.An illustration of such scrutiny can be found in Tyron v. Astrue.167?In this case, the claimant was found to be severely impaired by an ALJ as a result of “cervical strain, myofascial pain syndrome, and left lateral epicondylitis.”168?At step three, the ALJ determined that the claimant did not have an impairment that was either explicitly included in, or equivalent to an impairment in the listings.169?At step four, the ALJ considered the claimant's RFC and found?*92?that she could perform unskilled light work, but “did not retain [the] sufficient capacity to perform her past relevant work as a truck driver.”170?At step five, the ALJ heard testimony from a vocational expert.171?On the basis of the vocational expert's responses to the ALJ's hypothetical, the ALJ found that Tyron could perform any number of unskilled, light work jobs.172?Thus, the ALJ “concluded that [the claimant] was not disabled.”173?On appeal, it was found that there was substantial evidence that the claimant's MPS triggered headaches three to four times per week.174?The court ruled that the claimant's headaches were improperly discredited by the ALJ and should have been factored into the hypothetical questions posed to the vocational expert.175The case was then remanded so that the administration could correctly “re-assess the severity and/or length of [claimant's] headaches because they directly impact her ability to hold gainful employment.”176C. Workers' CompensationThe premise of workers' compensation is to provide benefits to an employee who suffers an injury “arising out of and in the course of employment.”177?In this regard, MPS is a compensable injury under the appropriate circumstances. The burden of proof, however, remains on the claimant to prove that the condition was caused by a work-related injury.178?Whether the courts accept MPS as the cause of the employee's disability, however, depends on the facts of the case and jurisdiction.179?Because medical opinions regarding this diagnosis can be contentious, case law demonstrates that injured workers achieve more successful outcomes when they present multiple opinions from medical experts that MPS is the primary cause of disability.A case in point is Catic v. IBP, Inc.,180?where the claimant sustained cumulative injuries at his job in a pork processing plant, including right shoulder,?*93?neck, and head injuries after two hogs fell from an overhead rail onto him.181?Two doctors diagnosed the claimant with several conditions, including myofascial pain syndrome in the right upper extremity.182?However, there was contradictory evidence that the claimant suffered injuries to his right shoulder while serving in the Bosnian War.183?The Workers' Compensation Commissioner determined that the consensus of the medical opinions indicated that the war-related injuries were distinct from the work injuries, and noted that the claimant had been employed by the defendant for several years before developing MPS and other conditions.184Accordingly, the Commissioner held that the claimant suffered an on-the-job injury, was permanently disabled in his right shoulder, and suffered a 35% loss of earning capacity as a result of MPS and other maladies in the employee's right shoulder.185Both sides are capable of securing witnesses who will opine about whether a worker does or does not have myofascial pain syndrome. Physicians may even reach opposite conclusions as to the extent of the worker's impairment. This is demonstrated in Jackson County v. Wehren,186?where conflicting medical opinions emerged regarding whether the employee's neck pain stemmed from a work-related injury.187?One doctor believed that the neck pain was related to work-related MPS. The employer's expert countered that the claimant suffered from a non-work related idiopathic injury.188?Ultimately, the court sided with the injured worker and gave more credence to his doctor's opinion, which was premised on a diagnosis of myofascial pain syndrome.189?The court felt that this expert considered all potential contributing factors, including those suggested by the employer's doctor, before concluding that the work-related injury caused MPS.190Myofascial pain cases have even arisen in the context of a worker performing repetitive tasks over a period of time.191?Some jurisdictions, however,?*94?require clear and convincing evidence when such cumulative injuries are claimed to have arisen out of employment; a burden that may be quite difficult to meet.192?Furthermore, the credibility of injured employees and the weight of conflicting evidence play important roles in the outcome of litigation. For example in Oden v. Gulf States Steel, Inc., the employee was diagnosed with myofascial pain syndrome after complaining of gradually-increasing soreness while working.193?However, there was also evidence that the employee was malingering and had unrelated congenital spinal problems.194?The court concluded that the employee's causation evidence was not clear and convincing, and affirmed the denial of workers' compensation benefits by the trial court.195?A concurring opinion gave support to the trial court's conclusion that “[m]uch of the employee's testimony was not credible, based on observation of demeanor, comparison with records and other substantiated testimony and the like.”196D. American Medical Association's Guides to the Evaluation of Permanent ImpairmentThe Guides to the Evaluation of Permanent Impairment of the American Medical Association (“Guides”) are currently in their sixth edition and contain standardized assessment ratings for health care providers to use when assessing an individual's permanent impairment.197Although written by physicians, the Guides present an objective impairment rating system that is designed primarily to help judges and others determine the appropriate benefits for an individual who has suffered a measurable physical loss as a result of injury or illness.198The Guides acknowledge that the impairment rating systems constitute a form of expert testimony.199?This requires that physician users rely on “objective criteria and all available clinical knowledge, skill, and abilities” when using the rating guidelines in order to make the evaluations admissible in a legal?*95?proceeding under?Rule 702 of the Federal Rules of Evidence?and relevant case law on the issue of expert testimony.200Use of the Guides in administrative proceedings, however, varies widely by jurisdiction. On one end of the spectrum is a state like Alaska that adheres strictly to the Guides.201?Texas has also enacted a statutory pronouncement in workers' compensation matters requiring that an award of impairment income benefits be based upon the Guides.202?In contrast, a handful of states, including Illinois, have established state-specific disability schedules to rate permanent impairment without reference to the Guides.203?Other jurisdictions, such as California, have developed state impairment schedules based on the Guides.204?In fact, the California Workers' Compensation Appeals Board has recently held that the state's schedule for rating permanent disability is rebuttable under certain circumstances.205Although there is hardly a consensus on how the Guides are to be used or even what edition of the Guides should be consulted, a number of doctors issue reports referencing the impairment rating systems articulated in the Guides because of its widespread acceptance.206?As noted by a Kentucky court in Jones v. Brasch-Barry General Contractors:*96?[T]he AMA Guides are an integral tool for assessing a claimant's disability rating and monetary award. So to be useful for a fact-finder, a physician's opinion must be grounded in the AMA Guides And any assessment that disregards the express terms of the AMA Guides cannot constitute substantial evidence to support an award of workers' compensation benefits.207Not all states adopt this rigid approach to the Guides as outlined in the above case. For instance, an Arizona court noted that the “Guides are only a tool adopted by administrative regulation to assist in [determining] an injured [employee's] percentage of disability.”208?When the Guides are inadequate to reflect a claimant's loss, a fact-finder may use his or her discretion to take additional evidence and to establish a rating separate from the Guides.209Regardless of an individual state's approach, the Guides can be a useful tool in a compensation setting since they contain objective pronouncements on many medical conditions.Myofascial pain syndrome is one of a number of chronic pain disorders that is subject to a fierce debate that extends even to the formulation of rating systems in the Guides.210?This controversy includes various arguments over the way these disorders should be measured, if at all, by the Guides, since doctors must incorporate certain subjective responses from patients when attempting to make an objective assessment of a disability.211?In fact, several specific conditions are explicitly not ratable under the Fifth Edition of the Guides, including myofascial pain syndrome.212Myofascial pain syndrome does not warrant this type of treatment in the Sixth Edition of the Guides. Presumably then, doctors are authorized by the Guides to rate MPS by analogy, which they are allowed to do “only if the Guides provides no other method for rating [an] objectively identifiable impairment.”213?For example, if myofascial pain syndrome affects the shoulder, a doctor may assign an impairment rating using the tables found in the upper extremities section of the Guides.214?Alternatively, if the patient's myofascial pain cannot be rated using another section in the Guides, then the doctor may assign an impairment rating based upon pain alone.215?In that scenario, however, doctors cannot tack the rating ascribed to a myofascial pain-related impairment?*97?to another rating from a different section of the Guides, as this practice is explicitly prohibited.216Pain-related impairment can be measured, in part, by a five-step process referenced in both the Fifth and Sixth Editions of the Guides.217?The pain-related impairment (PRI) protocol involves a questionnaire filled out by the patient.218?According to both editions, the maximum impairment rating that can be given for chronic pain is 3%.219?Notwithstanding those similarities between editions, the most current volume of the Guides provides a Pain Disability Questionnaire (PDQ) with precise instructions as a response to criticisms of persuasive patients potentially “gam[ing] the system” under the earlier PRI rating protocol.220?Physicians can also reduce the impairment rating if they suspect that the patient is malingering.221The current PDQ is markedly different from the Fifth Edition's PRI questionnaire. First, the PDQ reduces the number of questions from twenty-six to fifteen.222?Second, the questions in the PDQ are primarily geared towards measuring a patient's functional status in response to pain.223?These questions gauge work activities, personal care, traveling, lifting objects, and walking.224?Last and perhaps most significantly, the PDQ completely changes the way a patient's personal feelings of pain and mood are factored into the PRI calculus.225In fact, the PDQ in the Sixth Edition of the Guides all but eliminates patient-centered assessments of pain and mood in an attempt by the Guides to eliminate malingering.226?The PDQ includes only one question regarding the emotional status of the patient, immediately followed by an inquiry concerning how emotions interfere with family, social, or work activities.227?The PDQ also includes inquiries about income decline, intake of pain medication, and frequency of doctor visits.228Several cases have been published involving myofascial pain and the Guides. For instance, New Hampshire changed the way the Guides were used in that jurisdiction when presented with an appeal of a state worker's compensation?*98?board decision that denied the claim of a person who suffered from myofascial pain syndrome.229?In the matter of Rainville, the evaluating doctor admitted to the board that he used the claimant's diagnosis of myofascial pain syndrome to determine an 18% whole person impairment rating, even though the Fourth Edition of the Guides did not refer to myofascial pain syndrome.230?Despite this omission from the Guides, the New Hampshire Supreme Court recognized myofasical pain syndrome as potentially not ratable under the permanent impairment ratings found in that edition of the Guides.231?As a result, the Rainville court held that “a physician, exercising competent professional skill and judgment” may use other methods to estimate permanent impairment if: (1) the physician finds that the recommended procedures in the Guides are inapplicable to the condition; (2) these methods were not otherwise prohibited by the Guides; and (3) the physician fully explains in his or her report, the alternative methodology in sufficient detail, as well as the reasons for a deviation from the Guides.232Other courts have used evidence based on the impairment rating systems found in the Guides to rule in favor of and against worker's compensation claimants involving myofascial pain.For instance, in a matter where a former diesel mechanic was pinned by a hoisted transmission and suffered injuries including myofascial pain in the lumbar area, the worker's application for permanent total disability was denied, as was a subsequent request for a writ of mandamus asking for the compensation commission's decision to be vacated.233?Interestingly, the diesel mechanic was examined at the request of the commission, by an occupational medicine specialist who ascribed a combined 42% whole person impairment under the tables found in the Fifth Edition to the Guides.234?This determination, however, could not support the issuance of a writ of mandamus ordering an entry of permanent total disability compensation for the mechanic.235In Richie Pharmacal v. Dunn,236?a sales executive who had previously been awarded partial worker's compensation benefits was subsequently granted full income benefits after the case was reopened.?After being initially diagnosed with reflex sympathetic dystrophy, the claimant's condition apparently deteriorated.237?In affirming the ALJ's decision to grant full worker's compensation benefits, the Supreme Court of Kentucky relied on evidence that the claimant was later diagnosed with myofascial pain syndrome that affected the?*99spinae erector and rhomboid muscles.238?The court also justified its decision based on evidence that the claimant had been assigned a combined 9% whole person impairment rating under the Fifth Edition of the AMA Guides.239E. Myofascial Pain and Third Party Claims1. CausationPerhaps the most critical element in a negligence case involving myofascial pain is causation. Court decisions have shown that claimants may experience various hurdles in establishing a casual link between the injury and diagnosis. An important factor in this analysis is whether the jurisdiction follows the older Frye240?standard for expert opinion testimony or the more contemporary view advanced under the Daubert test.241a. The Frye Standard for Expert TestimonyMarsh v. Valyou242?offers an example of the legal battle over expert testimony in a Frye jurisdiction that mandates general acceptance in the relevant scientific community. In Marsh, the defendants filed a motion to exclude expert testimony from a physician on chronic pain.243?The testimony included an opinion that the plaintiff's myofascial pain syndrome and fibromyalgia were caused by the trauma of “four separate and unrelated [car] accidents.”244?A second expert, a former medical examiner, talked about his observations of myofascial pain syndrome in trauma victims, which the expert observed while performing autopsies.245?The defendants asserted that this evidence should be excluded under the Frye standard, arming themselves with an affidavit prepared by a rheumatologist who opined:(1) there is no scientific evidence which suggests that MPS and fibromyalgia syndrome are discrete clinical disorders, distinct from one another, or that they are of known pathophysiology or causation; (2) there are no criteria for even a classification diagnosis of MPS, [sic] (3) there has been no scientific study which shows the hypothetical criteria for MPS had statistical validity; and (4) there are no valid scientific?*100?publications establishing a causal relationship between trauma and either MPS or fibromyalgia.246The trial court granted the defendant's motion to bar the opinion testimony linking the accidents to the plaintiff's myofascial pain syndrome.247?The appellate court noted the trial court's finding that “‘there is even less of a scientific consensus regarding causes of and diagnostic procedures for MPS' than there were for fibromyalgia.”248?On appeal, the plaintiff asserted that the proposed testimony was not subject to a Frye analysis because her expert opinion was based on the personal experience and clinical observations of her medical experts.249?The appellate court disagreed and noted that “the diagnostic criteria for MPS were developed by Drs. Travell and Simons, but subsequent studies have found these criteria unreliable and invalid.”250?The Florida Supreme Court reversed this determination and found in favor of the plaintiff.251?The court held that the Frye standard did not apply in that jurisdiction to expert testimony linking the cause of fibromyalgia to trauma, but if it did, such opinion testimony would satisfy the Frye test.252?Interestingly, the plaintiff “apparently abandoned the MPS issue as it was largely ignored in her briefs.”253?As a result, the Florida Supreme Court declined to address whether Frye applied to expert opinion testimony linking trauma to myofascial pain syndrome.254b. The Daubert Test for Expert TestimonySome courts who follow the Daubert test premised upon?Federal Rule of Evidence 702?have failed to find a causal link between an alleged injury and myofascial pain syndrome. For instance, in Valente v. Sofamor, S.N.C.,255?doctors utilized orthopedic bone screws in the course of spinal fusion surgery, which the plaintiffs alleged were defective and caused them to suffer from myofascial pain syndrome and other injuries.256?The plaintiffs attempted to introduce the testimony of an expert who opined that the plaintiffs' myofascial pain syndrome was “most likely” caused by the screws, rods, and other hardware used during the plaintiffs' spinal fusion surgeries.257?The defendants filed a motion to exclude this testimony under Daubert as scientifically unsubstantiated.?*101?258?The court noted that it had a “‘gate keeping’ obligation” under Daubert “to first determine [whether] the proffered testimony of an expert satisfies the reliability and relevancy foundation for admissibility[,]” and that the testimony “‘fit’ the facts of the case.”259?This requires a determination that the reasoning or methodology underlying the expert's testimony is scientifically valid based upon: “1) whether the theory has been or can be tested; 2) whether the theory or technique has been subjected to publication and peer review; 3) the theory's or technique's rate of error; and 4) whether the theory or technique is generally accepted among the expert's peers.”260The defense aggressively challenged the proposed expert opinion under Daubert. It argued that the plaintiffs' expert relied upon a purely chronological relationship between the plaintiffs' surgeries and the onset of myofascial pain syndrome and that their expert's opinions were unscientific because the expert: (1) could not demonstrate actual causation; (2) was inexperienced with the particular procedure; (3) “formed his opinions regarding pedicle screws solely in the context of his employment as an expert witness”; and (4) “failed to cite medical literature to support his opinions.”261The Valente court was ultimately persuaded by the arguments from the defense. The court held that the plaintiffs failed to show causation between the bone screw devices and myofascial pain syndrome because the expert's opinions were conclusory; that is, the expert did not identify a design defect in the devices, nor did the expert address whether other factors might have caused the plaintiff's injuries.262?In fact, the court stated that the expert's manner of forming his opinion on causation was “anthetical to the scientific method,” and failed to meet Daubert standards.263c. State Statutes on Expert TestimonySome states have applicable statutes that qualify experts for the purposes of opinion testimony as to causation. In Wooten v. Warren,264the defendant challenged a court's decision admitting the testimony of a chiropractor, arguing that the testimony was “beyond the expertise” of a chiropractic practitioner under the state statute.265?The chiropractor testified that he diagnosed and treated the plaintiff for myofascial pain syndrome, which, in the chiropractor's opinion, stemmed from an improper healing of the structures of the plaintiff's neck and back after an injury from a car accident.266?The appellate court allowed?*102?the testimony, holding that it was within the scope of the chiropractor's expertise under the state statute applicable to chiropractic practitioners.2672. DamagesWhere there is an award for myofascial pain syndrome that is inadequate or contrary to law, a jury verdict for trauma-induced MPS may be reversed.268?For instance, a court held that the failure of a jury to award a full range of damages to an injured plaintiff suffering from myofascial pain syndrome as the result of two traffic accidents was “against the manifest weight of the evidence and shock[ed] reasonable sensibilities.”269On the other hand, a jury verdict may be overturned as excessive if a defendant can demonstrate that the verdict shocked the conscience of the court and/or was the result of passion, prejudice, or corruption. As Westphal v. Wal-Mart Stores, Inc.,270?shows, challenging the validity of myofascial pain syndrome may not lead to a favorable result for a defendant on appeal. In Westphal, the plaintiff fell on a wet concrete floor and was diagnosed with myofascial pain syndrome.271?She was awarded $150,000 for pain and suffering and $8,000 for economic damages including lost wages.272On appeal, the defendant argued that the jury verdict was excessive; the plaintiff countered that the appeal was frivolous.273?The defendant asserted that the “[plaintiff] suffered little more than a bruised tailbone” and challenged the diagnosis of myofascial pain syndrome because it was based on “reflections of plaintiff's subjective complaints[,]” and because the “[p]laintiff ... did not sustain any fractures, broken bones, and did not require any surgery.”274?These arguments were rebuffed by the court as it noted that the defendant would have been better off utilizing other arguments rather than to criticize a widely-accepted diagnosis.275?The court referenced the lack of expert evidence to support the defendant's argument and pointed to a compendium of medical encyclopedias and case law supporting the validity of myofascial?*103?pain syndrome.276?The court also imposed sanctions against the defendant for attacking the plaintiff's injuries without merit and “omit[ting] pertinent testimony or gloss [ing] over the degree of plaintiff's pain and suffering.”277F. Disability InsuranceMyofascial pain has been the subject of several claims by policyholders to collect disability benefits with varying degrees of success.When disability insurance is part of an employer-provided health benefits plan, it is subject to regulation by the Employment Retirement Income Security Act (“ERISA”)278?and federal courts are vested with jurisdiction to review benefit determinations.279?In this context, the critical issues appear to be the standard of review given to the denial of benefits under ERISA case law and how a reviewing court weighs various factors in its fact-dependent analysis.280Richey v. Hartford Insurance Company is instructive because the court notes that “ERISA disability is not established by the existence of pain, even chronic pain, in the absence of proof that the claimant's [discomfort] actually preludes him or her from working.”281?Richey suffered from a variety of medical problems including cervical myofascitis.282?However, “ERISA case?*104?law establishes that [this type of] ailment[] [is] among the many medical conditions that vary in degree of severity and often do not prevent a person from working.”283In Richey, the employee's long term disability policy placed the burden on the employee to prove that she was incapable of working in “any occupation.”284?The administrative record, in the eyes of the reviewing court, established that Richey was capable of sedentary-to-light work.285?The court stated that since “individuals capable of performing sedentary-to-light work are not totally disabled under ‘any occupation’ ERISA [benefit] polic[ies][,]” the claimant was not entitled to long-term disability payments.286In Pelchat v. UNUM Life Insurance Co. of America,287?an employee was diagnosed with myofascial pain syndrome after several motor vehicle accidents, resulting in back and neck discomfort that interfered with her ability to breathe.288?The insurer denied the employee's claim for long-term disability, arguing that there was no objective medical evidence in the file that would prevent the claimant from performing her sedentary job.289?In finding this decision arbitrary and capricious, the court remarked that the insurer relied on a selective assessment of the employee's medical records and the carrier “identified no more ‘objective’ evidence that plaintiff could have submitted, in addition to her doctor's observations, to support her claim of disability.”290?The court concluded by noting that the defendant failed to reasonably interpret the benefits policy because there was no requirement in the contract that the employee present objective medical evidence in filing a claim.291The opposite result was reached in Matney v. Hartford Life Insurance Co.292?The facts show that the plaintiff was required to provide updated medical information under her plan after having collected benefits for a number of years.293?Upon learning that several of the plaintiff's conditions had resolved and that she had not seen a physician in over eighteen months, the insurer?*105?concluded that the plaintiff was not disabled and terminated her benefits.294?During the administrative appeal process, the plaintiff presented evidence that she suffered from a variety of physical and psychological issues, including myofascial pain syndrome.295?In fact, an examining physiatrist noted that the claimant “invented a number of implements that she use[d] to release myofascial tightness[,]” including “a drill on the nail beds of her fingers.”296?This unusual “myofascial release treatment” was a form of “self-mutilating behavior,” which led the physiatrist to attribute the employee's disabling condition to psychological factors.297?However, the claimant never advanced a claim for a psychological disability, several other examining doctors refused to put a restriction on her ability to work, and the claimant refused to provide the medical records from her treating specialists.298?On review, the court concluded that no objective evidence of disability from myofascial pain syndrome was presented, so it upheld the insurer's decision that the employee was not disabled.299G. Americans with Disabilities ActThe Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against those with disabilities in hiring, firing, advancement, and other conditions of employment.300?To receive the protections afforded by the Act, the employee must be “disabled” and that term is defined as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”301?In turn, what constitutes a physical or mental impairment is set forth in the Code of Federal Regulations.302There are only a few claims of alleged discrimination under the ADA involving myofascial pain, but the reported decisions overwhelmingly find in favor of the employer.?There are several decisions worthy of mention that offer guidance in this area.*106?In Thornton v. McClatchy Newspapers, Inc.,303?a newspaper reporter with myofascial pain syndrome argued that her employer failed to reasonably accommodate her workplace limitations under the ADA, as she could not type or write for an extended period of time.304?The plaintiff argued that her myofascial pain syndrome was a disability because it “substantially limited [her] major life activities of ‘working’ and ‘performing manual tasks.”’305?The court concluded that the reporter was not substantially limited from “working,” as the defendant presented unquestioned evidence of the plaintiff's level of education, her work as a journalism professor, and her ability to be a freelance writer during the litigation.306?The court also determined that the plaintiff could perform manual tasks based on her ability to shop, drive, perform housework, and dress herself; her inability to type and write for extended periods of time was found not to outweigh the large number of manual tasks that she could perform.307?Furthermore, because the employer did attempt to reasonably accommodate the reporter while she was employed, the court dismissed the plaintiff's argument that the employer regarded her as disabled for purposes of the ADA.308In Webb v. Wynne,309?the plaintiff asserted that her employer failed to reasonably accommodate her disability and wrongfully terminated her in violation of the Act.310?Webb was a non-government contract employee with the United States Air Force who suffered from myofascial pain syndrome and successfully filed for short-term Social Security Disability and workers' compensation benefits.311?After returning to work on a modified schedule, the Air Force refused her requests to take a leave of absence without pay, citing a lack of medical documentation.312?Webb was later terminated for taking unapproved time off.313?Although the employee suggested that her disability could be reasonably accommodated if she worked from home part-time, the Air Force presented evidence that the employee's physical presence at the office on a regular, full-time basis was an essential function of the job.314?The lower court held that the employee was not a qualified individual with a disability because she was unable to perform the essential functions of her job even?*107with reasonable accommodations.315?The Circuit Court affirmed this decision even after considering evidence that the Air Force previously had allowed the plaintiff to work four hours a day from home.316VI. ConclusionMyofascial trigger points are pathologic changes within muscle segments that are usually caused by trauma such as a motor vehicle accident, repetitive movements, or remaining in a static position for a prolonged period. Identified on examination as painful knots and taut bands within the affected muscle, trigger points are capable of producing neurological symptoms including headache, dizziness, and sensory disturbances. As such, they can imitate more serious neurological disorders such as intracranial mass, nerve injury, radiculopathy, and multiple sclerosis. Patients who present with such neurological symptoms that are not explained by any other cause should have the appropriate musculature carefully examined for trigger points. With appropriate treatment, pain and symptoms associated with trigger points can improve over time.In a compensation setting, relying on a claimant's feedback and the lack of a definitive test to establish the diagnosis of myofascial pain are a recipe for disagreement and suspicion.?Defense attorneys and insurance carriers continue to be suspicious of these claims especially when these “small circles of pain” cause persistent complaints and lost time from work over a prolonged period of time. As a result, the legitimacy of myofascial pain continues to be a source of contention between the plaintiff and defense bars. In fact, it may be viewed in a claims setting with even more suspicion than a whiplash injury; a diagnosis which is much better known and understood. Cases involving myofascial pain have been met with varying degrees of success for both plaintiffs and defendants with the credibility of the claimant being one of the most important factors in determining the outcome of the litigation.*108?VII. Practice Checklist for Myofascial Pain Syndrome? Myofascial pain is a disorder of a muscle and its covering, which can affect any skeletal muscle and cause tenderness, local or referred pain, stiffness, and muscle weakness without atrophy.? A collection of trigger points is called myofascial pain syndrome or MPS.? MFTPs are localized parts of muscle that have been subjected to acute injury or micro-trauma from repetitive stress. In some cases, MFTPs are the result of a systemic illness.? MFTPs can be identified by a careful examination of the affected muscle groups for knots two to five millimeters in diameter and tight bands of muscle that are painful when palpated. The diagnosis is based on the patient's history and examination, as there are no laboratory tests or imaging studies that can confirm the presence of MFTPs.? Myofascial pain syndrome differs from fibromyalgia because MFTPs are localized and can be objectively identified by examination, whereas fibromyalgia is a more centralized pain disorder with a separate diagnostic procedure and treatment.? MFTPs frequently produce symptoms such as headache, dizziness, and sensory problems including tingling and numbness. Physicians need to be aware of the possibility of MFTPs when patients present with such symptoms.? Despite the widespread acceptance of MPS as a clinical entity, the criteria used for its diagnosis are somewhat controversial in claims settings, since no routine biochemical, electromyographic or diagnostic imaging procedures reliably detect the presence of MFTPs.? In seeking Social Security Disability Insurance benefits, the claimant faces a five-step inquiry by the Social Security Administration; MPS has been recognized by various courts as a severe disability.? In a worker's compensation setting, the claimant carries the burden of proof in showing that her myofascial pain syndrome stems from a work-related injury. Some jurisdictions may impose a higher burden of proof if the MPS is claimed to have developed from repetitive work functions.? The Guides to the Evaluation of Permanent Impairment of the American Medical Association are often used in administrative proceedings for doctors to assess and quantify an individual's permanent impairment. Myofascial pain syndrome is not listed in the Sixth Edition of the Guides. However, doctors assumedly may rate MPS by analogy using other sections of the Guides. Alternatively, doctors may rate an individual's permanent impairment up to 3% using the pain-related impairment protocols.*109?VIII. Research ToolsA. West Key NumbersDAMAGES115k127.33 Back and spinal injuries in general > In general.SOCIAL SECURITY AND PUBLIC WELFARE356Ak142.10 Proceedings in general > Findings and conclusions.356Ak142.5 Proceedings in general > Hearing and administrative review.356Ak143.65 Disability claims, evidence as to > Medical evidence of disability, sufficiency.LABOR AND EMPLOYMENT231Hk629(2) Disability claims > Weight and sufficiency.B. American Jurisprudence31A AM. JUR. 2D Expert and Opinion Evidence § 211(2010).60A AM. JUR. 2D Pensions § 526 (2010).70C AM. JUR. 2D Social Security and Medicare § 2021 (2010).70C AM. JUR. 2D Social Security and Medicare § 2026 (2010).5 AM. JUR. TRIALS § 921 (1966 & 2010 West Elec. Supp.).C. A.L.R.Carl T. Drechsler,? HYPERLINK "(sc.Search)" Excessivness or Adequacy of Damages Awarded for Injuries to Back, Neck, or Spine, 15 A.L.R. 4th 294 (1982).Ann K. Wooster,?Determination and Application of Correct Legal Standard in Weighing Medical Opinion of Treating Source in Social Security Disability Cases, 149 A.L.R. Fed. 1 (1998).Ann K. Wooster,?Standard and Sufficiency of Evidence When Evaluating Severity of Claimant's Pain in Social Security Disability Case under §3(a)(1) of Social Security Disability Reform Act of 1984, 42 U.S.C.A. § 423(d)(5)(A), 165 A.L.R. Fed. 203 (2000).Ann K. Wooster,?Effect of Administrative Law Judge's Failure to Explain Rejection of Probative Evidence in Social Security Disability Case, 167 A.L.R. Fed. 65 (2001).Ann K. Wooster,?Judicial Review of Denial of Disability Benefits Under Employee Benefit Plan Governed by Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1132(a)(1)(B)—Selection and Scope of Particular Standards of Review—Post-Firestone Cases, 12 A.L.R. Fed. 2d 1 (2006).Danny R. Veilleux,?Sufficiency of Evidence to Prove Future Medical Expenses as Result of Injury to Back, Neck, or Spine, 26 A.L.R.5th 401 (1995).*110?D. Law Reviews and Other PeriodicalsMichael Finch,?Law and the Problem of Pain, 74 U. CIN. L. REV. 285 (2005).Gene Stephens Connolly,?Hidden Illness, Chronic Pain: The Problems of Treatment and Recognition of Fibromyalgia in the Medical Community, 5 DEPAUL J. HEALTH CARE L. 111 (2001).Footnotesa1Esquire. The author is a Professor and Chair of the Legal Studies Department at Temple University where he teaches both law and anatomy.aa1Ph.D, M.D. Board certified in Neurology and Pain Medicine, Ph.D. in Anatomy. The author is currently in private practice with the Minneapolis Clinic of Neurology and is an Adjunct Professor of Neurology at the University of Minnesota, School of Medicine.aaa1Third year law student at the Beasley School of Law at Temple University.1Staton v. Adenuga, No. L-656-05, 2009 WL 3170456, at *1 (N.J. Super. Ct. App. Div. Oct. 5, 2009), cert. denied,?988 A.2d 1179 (N.J. 2010).2Id.3Id. at *4.4Id. at *1.5Id. at *3-*4.6Id. at *2.7Staton v. Adenuga, No. L-656-05, 2009 WL 3170456, at *2 (N.J. Super. Ct. App. Div. Oct. 5, 2009), cert. denied,?988 A.2d 1179 (N.J. 2010).8Id. at *4.9Jennifer E. Finley, Myofascial Pain: eMedicine Physical Medicine and Rehabilitation, WEBMD PROFESSIONAL, http:// emedicine.article/313007-overview (last visited Oct. 24, 2010).10Mikel A. Rothenberg, Myofascial Pain Syndrome, in PREPARING ORTHOPEDIC DISABILITY CASES, § 6.02 at 1 (2006).11Paul Ingraham & Tim Taylor, Save Yourself from Trigger Points & Myofascial Pain Syndrome!, SAVEYOURSELF.CA, http:// saveyourself.ca/tutorials/trigger-points.php (last visited Oct. 24, 2010).12Janet Travell et al., Pain and Disability of the Shoulder and Arm: Treatment by Intramuscular Infiltration with Procaine Hydrochloride, 120 JAMA 417, 417 (1942).13Edward S. Rachlin, Trigger Points, in MYOFASACIAL PAIN AND FIBROMYALGIA: TRIGGER POINT MANAGEMENT 203, 203 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d ed. 2002); Janet Travell & David Simons, 1 TRAVELL & SIMONS' MYOFASCIAL PAIN AND DYSFUNCTION: THE TRIGGER POINT MANUAL 5, 14 (1st ed. 1983).14James R. Fricton, Myofascial Pain Syndrome: Characteristics and Epidemiology, in 17 ADVANCES IN PAIN RESEARCH AND THERAPY: MYOFASCIAL PAIN SYNDROME AND FIBROMYALGIA 107, 119 (James R. Fricton & Essam A. Awad eds., 1990).15Furtivo v. Astrue, No. 07-1332, 2009 WL 650735, at *3 n.2 (W.D. Pa. Mar. 12, 2009)?(citing MAYO CLINIC, health/myofascial-pain-syndrome/DS01042 (last visited Oct. 24, 2010)).16See Travell et al., supra note 12, at 417-22; Rachlin, supra note 13, at 204-05; Travell & Simons, supra note 13, at 6.17See Travell et al., supra note 12, at 417-22; Rachlin, supra note 13, at 203-16; Travell & Simons, supra note 13, at 25, 29.18Ingraham & Taylor, supra note 11.19Id.20See Travell et al., supra note 12, at 417-22; Rachlin, supra note 13, at 205; Travell & Simons, supra note 13, at 22.21Elizabeth A. Tough et al., Variability of Criteria Used to Diagnose Myofascial Trigger Point Pain Syndrome—Evidence from a Review of the Literature, 23 CLINICAL J. PAIN 278, 278 (2007).22Thomas Behr, Problems with Myofascial Pain Syndrome and Fibromyalgia Syndrome, 46 NEUROLOGY 593, 593-94 (1996); Robert M. Bennett, Myofascial Pain Syndromes and the Fibromyalgia Syndrome: A Comparative Analysis, in 17 ADVANCES IN PAIN RESEARCH AND THERAPY: MYOFASCIAL PAIN AND FIBROMYALGIA 43, 46 (1990).23See Behr, supra note 22, at 593-97; Bennet, supra note 22, at 43-65.24In?Russell v. UNUM Life Insurance Co. of America, 40 F. Supp. 2d 747, 751 (D.S.C. 1999), the court made the following comment: “[f]ibromyalgia is a type of muscular or soft tissue rheumatism that affects primarily muscles and their attachment to bones, but which is also commonly accompanied by fatigue, sleep disturbances, lack of concentration, changes in mood or thinking, anxiety, and depression.” (quoting?Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 796 (9th Cir. 1997)). It further stated that, “‘fibromyalgia can be severely disabling and can only be diagnosed by examination of the patient.’ Therefore, courts are aware that fibromyalgia is a diagnosable condition. More importantly, the medical community also recognizes this fact.” (quoting?Godfrey v. BellSouth Tele-communications, Inc., 89 F.3d 755, 759-60 (11th Cir. 1996)).25These two medical problems have caused confusion in the courts. For example, in? HYPERLINK "(sc.Search)" \l "co_pp_sp_4637_1276" Beauclair v. Barnhart, 453 F.Supp.2d. 1259, 1276 (D. Kan. 2006), the court noted that “[i]n the Merck Manual, ‘Myofascial Pain Syndrome’ is classified under ‘Fibromyalgia’ as one of ‘[a] group of common nonarticular disorders characterized by achy pain, tenderness, and stiffness of muscles, areas of tendon insertions, and adjacent soft tissue structures.”’ (quoting THE MERCK MANUAL OF DIAGNOSIS AND THERAPY 481 (Mark H. Beers & Robert Berkow eds., 17th ed. 1999)). Thus, the court noted that “the two impairments are closely related.” Id. In Beauclair, the Administrative Law Judge (“ALJ”) used the terms trigger points and tender points interchangeably. Id. In reality, tender points relate to fibromyalgia and trigger points relate to myofascial pain syndrome. The court, in review of the ALJ, noted that mistaking the two disorders and confusing the symptoms is a common phenomena. Id. (citing?Johnson v. Metro. Life Ins. Co., 437 F.3d 809, 814 (8th Cir. 2006);?Moore v. Barnhart, 114 Fed. Appx. 983, 991 (10th Cir. 2004);? HYPERLINK "(sc.Search)" \l "co_pp_sp_6538_526" Bartyzel v. Comm'r of Soc. Sec., 74 Fed. Appx. 515, 526 (6th Cir. 2003)?(discussing both “focal tender points” and “focal trigger points”);?Kelly v. Callahan, 133 F.3d 583, 586-87 (8th Cir. 1998)?(“one physician cited-using both terms at different times in progress notes”);? HYPERLINK "(sc.Search)" \l "co_pp_sp_4637_934" Gister v. Massanari, 189 F. Supp. 2d 930, 934-35 (E.D. Wis. 2001);?Ward v. Apfel, 65 F. Supp. 2d 1208, 1216 n.1 (D. Kan. 1999)?(“finding it unnecessary to decide whether the difference is merely semantic”)).26Muhammad B. Yunus & Fatma Inanici, Fibromyalgia Syndrome: Clinical Features, Diagnosis, and Biopathophysiologic Mechanisms, in Myofasacial Pain and Fibromyalgia: Trigger Point Management 2-4 (EDWARD S. RACHLIN & ISABEL S. RACHLIN EDS., 2D ED. 2002).27Yunus & Inanici, supra note 27; Edwin D. Dunteman, Fibromyalgia and Myofascial Pain Syndromes, PRACTICAL PAIN MANAGEMENT, July/Aug. 2004, at 26.28See Yunus & Inanici, supra note 27 at 3-24; Dunteman, supra note 27, at 27, 29.29Rachlin, supra note 13.30Id.; Travell & Simons, supra note 13, at 30.31David A. Fishbain, et al., DSM-III Diagnoses of Patients with Myofascial Pain Syndrome (Fibrositis), 70 ARCHIVES PHYSICAL MED. & REHABILITATION 433, 434 (1989); James R. Fricton, et al., Myofascial Pain Syndrome of the Head and Neck: A Review of Clinical Characteristics of 164 Patients, 60 ORAL SURGERY ORAL MED. ORAL PATHOLOGY 615, 616 (1985).32See Travell & Simons, supra note 13, at 5, 14.33See id.34See Rachlin, supra note 13, at 203-16.35Jay P. Shah, New Frontiers in the Pathophysiology of Myofascial Pain, 19 PAIN PRACTITIONER 40, 40-41 (2009).36A. Binder, The Diagnosis and Treatment of Nonspecific Neck Pain and Whiplash, 43 EUROPA MEDICOPHYS 79, 82 (2007); Monica Drottning, Cervicogenic Headache After Whiplash Injury, 7 CURRENT HEADACHE REPORTS 384, 384 (2003); Jeffrey Nelson et al., Cervical Myofascial Trigger Points in Headache Disorders, PRACTICAL PAIN MANAGEMENT, Sept. 2008, 59, 59; Loretta Mueller, Cervicogenic Headache: A Diagnostic and Therapeutic Dilemma, 14 HEADACHE & PAIN 29, 29 (2003); Dawn A. Marcus, Headache and Musculoskeletal Abnormalities: A Guide to Treatment Approaches, 18 HEADACHE & PAIN 58, 59-60 (2007).37P. Tfelt-Hansen, Prevalence and Significance of Muscle Tenderness During Common Migraine Attacks, 21 HEADACHE 49-54 (1981); see also Binder, supra note 36; Drottning, supra note 36 at 384-85; Nelson et al., supra note 36; Mueller, supra note 36, at 31, 33; Marcus, supra note 36 at 58-65.38Way Yin & Nikolai Bogduk, The Nature of Neck Pain in a Private Pain Clinic in the United States, 9 PAIN MED. 196, 197 (2008).39Thomas J. Romano, Trauma and Chronic Soft Tissue Pain, 13 AM. J. PREVENTIVE MED. 98-105 (2003); see also, Rachlin, supra note 13, at 203-16.40Maria Adele Giamberardino et al., Contribution of Myofascial Trigger Points to Migraine Symptoms, 8 J. PAIN 869, 869-78 (2007).41Nelson et al., supra note 36.42Mueller, supra note 36, at 29-37.43Travell & Simons, supra note 13, at 18.44Giamberardino et al., supra note 40, at 869-78; Travell & Simons, supra note 13, at 335.45Yin & Bogduk, supra note 38, at 196-203.46Nelson et al., supra note 36, at 60; Travell & Simons, supra note 13, at 335.47Giamberardino et al., supra note 40, at 876.48Fricton, supra note 14, at 119.49Id.; Travell & Simons, supra note 13, at 310.50Id.51A proprioceptive is “the ability to sense stimuli arising within the body. Definition of Proprioceptive, , http:// script/main/art.asp?articlekey=6393 (last visited Oct. 24, 2010).52Travell & Simons, supra note 13, at 21; Isabelle Paulus & Simon Brumagne, Altered Interpretation of Neck Proprioceptive Signals in Persons with Subclinical Recurrent Neck Pain, 40 J. REHABIL.?MED. 426, 427 (2008); Michael G. Good, Senile Vertigo Caused by Curable Cervical Myopathy, 5 J. AM. GERIATR. SOC. 662-67 (1957).53Travell & Simons, supra note 13, at 21; Paulus & Brumagne, supra note 52, at 431; Good, supra note 52.54Travell & Simons, supra note 13, at 310.55Id. at 309.56Fricton, supra note 14, at 119.57A dermatome is a patch of skin whose sensory nerves come from a single spinal nerve root. The Merck Manuals: Online Medical Library, MERCK, (last visited Oct. 24, 2010).58A myotome is a “group of muscles supplied by a pair of intercostal nerves.” Keith Moore and Arthur Dalley, CLINICALLY ORIENTED ANATOMY 85 (Lippincott, Wilkens & Wilkens eds., 4th ed. 1998).59A sclerotome is an “area of a bone innervated from a single spinal segment.” Sclerotome, DORLANDS MEDICAL DICTIONARY, http:// pp/us/cns/cns_hl_dorlands_split.jsp?pg=/ ppdocs/us/common/dorlands/dorland/seven/000095242.htm (last visited Oct. 24, 2010).60Peter T. Dorsher, Myofascial Referred-Pain Data Provide Physiologic Evidence of Acupuncture Meridians, 10 J. PAIN 723, 729 (2009); see also, Travell & Simons, supra note 13, at 6.61Dorsher, supra note 60.62Travell & Simons, supra note 13, at 43.63Paulus & Brumagne, supra note 52, at 426-32.64Edwin D. Dunteman, Myofascial Elements of Low Back Pain, PRACTICAL PAIN MANAGEMENT, Mar. 2005, at 29-34; see generally Janet Travell & David Simons, 2 TRAVELL & SIMONS' MYOFASCIAL PAIN AND DYSFUNCTION: THE TRIGGER POINT MANUAL: THE LOWER EXTREMITIES (1992).65Radiculitis is a nonspecific term utilized to generally to describe numbness or pain in the distribution of a single spinal nerve root. However, it lacks objective signs of neurologic dysfunction. Radiculitis is believed to result from the inflammation of nerve roots located within the lowest portion of nerves contained in the spine. Neuralgia, Neuritis, and Radiculitis, MD GUIDELINES, (last visited Oct. 24, 2010).66Giamberardino et al., supra note 40.67Periaqueductal gray refers to “[a] core of gray matter nervous tissue surrounding the cerebral aqueduct in the midbrain It plays a role in the modulation of pain and in defensive [behaviors].” Periaqueductal gray, , (last visited Oct. 16, 2010).68See generally David M. Niddam et al., Central Modulation of Pain Evoked from Myofascial Trigger Point, 23 CLIN. J. PAIN 440 (2007).69Rachlin, supra note 13, at 211-12.70Travell & Simons, supra note 13, at 5-44.71Beth Paris, The Practical Application of Trigger Point Work in Physical Therapy, in MYOFASCIAL PAIN & FIBROMYALGIA 525-43 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d ed. 2002).72Joseph A. Audette & Russell A. Blinder, Acupuncture in the Management of Myofascial Pain and Headache, 7 CURRENT HEADACHE REPORTS 395, 399 (2003); Hans Kraus, Muscle Deficiency, in MYOFASCIAL PAIN & FIBROMYALGIA 437-65 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d ed. 2002); Travell & Simons, supra note 13, at 45-102.73Anthony H. Wheeler, Myofascial Pain Disorders: Theory to Therapy, 64 DRUGS 45, 45 (2004).74According to Natalio Schwartz, M.D., J.D., a pain specialist and anesthesiologist in Philadelphia, in a letter to?Samuel?D.Hodge, Jr., the practice guidelines in the area of pain management address treatments with botulinum toxin for the treatment of myofascial pain and trigger points. (Aug. 16, 2010) (on file with author,?Samuel?D.?Hodge, Jr.). Based upon the April 2010 practice guidelines issued by the American Society of Anesthesiology in Anesthesiology in Practice Guidelines for Chronic Pain Management: An Updated Report by the American Society of Anesthesiologists Task Force on Chronic Pain Management and the American Society of Regional Anesthesia and Pain Medicine, 112 ANESTHESIOLOGY 810, 810-33, “botulinum toxin should not be used in the routine care of patients with myofascial pain.” A review of the current literature by Dr. Schwartz reveals that Botulinum Toxin is indicated for certain spastic conditions (e.g., cerebral palsy, stroke, head trauma, spinal cord injuries, and multiple sclerosis) while all other uses in the treatment of other types of spasm, related to smooth or skeletal muscle types, is considered investigational and unsupported by current literature.75Wheeler, supra note 73, at 45-62; N. Ann Scott et al., Trigger Point Injections for Chronic Non-Malignant Pain: A Systematic Review, 10 PAIN MED. 54, 54-69 (2009).76Edward S. Rachlin, History and Physical Examination for Myofascial Pain Syndrome, in MYOFASCIAL PAIN & FIBROMYALGIA 217-30 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d ed. 2002).77Travell & Simons, supra note 13, at 45-102.78Elsayed Abdel-Moty et al., The Role of Ergonomics in the Prevention and Management of Myofascial Pain, in MYOFASCIAL PAIN & FIBROMYALGIA 561-87 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d ed. 2002).79Eduardo Vazquez Delgado et al., Myofascial Pain Syndrome Associated with Trigger Points: A Literature Review. (I): Epidemiology, Clinical Treatment and Etiopathogeny, 14 MEDICINA ORAL PATOLOGIA ORAL CIRUGIA BUCAL 494, 496 (2009).80Luke Rickards, Diagnosing Myofascial Trigger Points: A Critical Review of the Evidence and Clinical Implications, LUKE RICKARD'S BLOG, http:// diagnosing-myofascial-trigger-points-a-critical-review-of-the-evidence-and-clinical-implications/ (last visited Oct. 24, 2010).81Guarino v. Comm'r of Soc. Sec., No. 7:07-cv-1252 (GLS/VEB), slip op. at 3 n.5 (N.D.N.Y. Jan. 14, 2010) (quoting Myofascial Pain Syndrome, MAYO CLINIC, (last visited Oct. 25, 2010)).82Jackson County v. Wehren, 63 P.3d 1233, 1235 (Or. Ct. App. 2003).83No. 92-79V,?1995 WL 366013 at *6 (Fed. Cl. June 5, 1995).84Id.85Jaime Wilensky, Myofascial Soft Tissue Pain, in EVALUATION AND TREATMENT OF CHRONIC PAIN 200 (Gerald M. Aronoff ed., 1985).86Pain Management: Myofascial Pain Syndrome (Muscle Pain), WEBMD, (last visited Oct. 25, 2010).87Pelchat v. UNUM Life Ins. Co. of America, No. 3:02CV7282, 2003 WL 21105075 at *1 n.1 (N.D. Ohio June 16, 2003)?(citing THE MERCK MANUAL OF MEDICAL INFORMATION 250 (Robert Berkow et al. eds., Home ed. 1995)).88Barnhart v. Thomas, 540 U.S. 20, 21 (2003).8920 C.F.R. § 404.1508 (1991).90Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001)?(citing?42 U.S.C. § 423(d)(1)(A)?(emphasis omitted)).9142 U.S.C. § 423(d)(2)(A)?(2004).9220 C.F.R. §§ 404.1508,?416.908 (1991).93Id.94See?20 C.F.R. § 404.1520 (2003);?20 C.F.R. § 416.920 (2003);?Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).95Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006)?(citing?20 C.F.R. §§ 404.1520(a)(4),?416.920(a)(4)?(2003)).9620 C.F.R. §§ 404.1520(a)(4)(i),?416.920(a)(4)(i)?(2003).97Id.9820 C.F.R §§ 404.1572(c),?416.972(c)?(1980).99Vogrin v. Barnhart, No. Civ.A. 01-2545-KHV, 2002 WL 31156842 at *4 (D. Kan. Aug. 20, 2002).100Id. at *9 (D. Kan. Aug. 20, 2002).101Id. at *4, 6.10220 C.F.R. §§ 404.1520(c),?416.920(c)?(2003).103Id.10420 CFR § 404.1521 (1985);?20 C.F.R. § 416.921 (1991).105Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001)?(citing?Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).10620 C.F.R. §§ 404.1520(c),?416.920(c).107Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995)?(citing? HYPERLINK "(sc.Search)" \l "co_pp_sp_780_158" Yuckert, 482 U.S. at 158?(O'Connor, J., concurring)).108See, e.g., Baker v. Astrue, No. 4:05CV2253 FRB, slip op. at 17 n.29 (E.D. Mo. Mar. 2, 2009);?Gonzalez v. Astrue, 537 F. Supp. 2d 644, 665 n.10 (D. Del. 2008); Stroh v. Astrue, Civ. No. 08-1148-JE, slip op. at 5 (D. Or. Feb. 17, 2010) (noting that “the ALJ found that plaintiff's ‘borderline fibromyalgia or myofascial pain syndrome’ was a ‘severe impairment’ within the meaning of the relevant regulations).109No. 01-CV-1829?(ERK), 2002 WL 393078, at *15 (E.D.N.Y. Mar. 14, 2002)?(citing?Lisa v. Secretary of Health & Human Servs., 940 F.2d 40, 44-45 (2d Cir. 1991)).110No. 4:08cv1945ERW TCM, 2010 U.S. Dist. LEXIS 22478, at *68 (E.D. Mo. Feb. 3, 2010).111Saunders v. Astrue, Civ. Action No. 1:07cv800-CSC, 2008 WL 2358735, at *5 (M.D. Ala. June 6, 2008).112Id at *6.113McRoberts v. Bowen, 841 F.2d 1077, 1081 (11th Cir. 1988)?(quoting?Johns v. Bowen, 821 F.2d 551, 557 (11th Cir.1987)).114Civ. Action No. 7:07-cv-1252 (GLS/VEB), slip op. (N.D.N.Y. Jan. 14 , 2010).115Id. at 5.116Id. (quoting?Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)).11720 C.F.R. Pt. 404, Subpt. P, App. 1 (2010).11820 C.F.R. §§ 404.1520(d),?416.920(d)?(2003).119Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).120Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994).121See 20 C.F.R.?Pt. 404, Subpt. P, App. 1, § 1.01 (2010).122No. 04 Civ.9554 KMW AJP,?2005 WL 1693835, at *1 (S.D.N.Y. July 21, 2005).123Id. at *14.124Id.125Id. (citing?20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02).126Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 512 n.3 (7th Cir. 1999).127Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009)?(citing?20 C.F.R. § 404.1545(a)(1)?(2003)).12820 C.F.R. §§ 404.1520(f),?416.920(f)?(2003).129No. 00-238-B, 2002 WL 453252, at *1 (D. Me. Mar. 26, 2002).130Id at *3 n.4.131Id. at *3.132Id. at *2-3.133Id. at *2.134Id. at *3.135No. 00-238-B, 2002 WL 453252, at *3 (D. Me. Mar. 26, 2002).136602 F.3d 1136 (10th Cir. 2010).137Id. at 1142.138Id. at 1145.139Id. at 1142-43.140Id. at 1143;?See also,?Sims v. Barnhart, 442 F.3d 536, 537 (7th Cir. 2006)?(“The term ‘somatoform disorder’ refers to what used to be called ‘psychosomatic’ illness: one has physical symptoms, but there is not physical cause.”); 20 C.F.R.?Pt. 404, Subpt. P, App. 1, § 12.07 (The listings characterize somatoform disorder as “[p]hysical symptoms for which there are no demonstrable organic findings or known physiological mechanisms.”).141Id. at 1143-44.142Wilson, 602 F.3d at 1146.143Id. at 1146.144288 F.Supp 2d 1246 (N.D. Ala. 2003).145Id. at 1250.146Id.147Id. at 1251.148Id. at 1250.149Bennett, 288 F.Supp 2d at 1251?(quoting?Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)).150Id.151Id. at 1256.152See?Heckler v. Campbell, 461 U.S. 458, 460 (1983)?(citing?20 C.F.R. § 404.1520(f)(1)); see also?20 C.F.R. § 416.920(f)(2003).153Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 512 n.3 (7th Cir. 1999)?(citing?Stein v. Sullivan, 892 F.2d 43, 44 n. 1 (7th Cir. 1990)).154Heckler, 461 U.S. at 460.155Id. at 460-61?(citing?42 U. S. C. § 423(d)(2)(A);?20 C.F. R. § 404.1520(f)). In a subsequent footnote in?Heckler, the Supreme Court explained that a regulation-guided inquiry must be made into each of these factors, as well as an “individual assessment of each claimant's abilities and limitations.” Id. at 461 n.1 (citing?20 C.F.R. §§ 404.1545-65). For example, in determining a person's physical ability, the relevant authority will consider the extent to which the claimant's capacity for performing such tasks as lifting objects or standing for long periods of time has been impaired by the disability. See?20 C.F.R. § 404.1545(b)?(2010).156Heckler, 461 U.S. at 461?(citing?20 C.F.R. §§ 404.1520(f)).15720 C.F.R. Pt. 404, Subpt. P, App. 2 (2008).158See, e.g.,?Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999)?(quoting Bapp v. Bowen, 82 F.2d 601, 604 (2d Cir. 1986)).159See id.; see also,? HYPERLINK "(sc.Search)" \l "co_pp_sp_345_667" Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996).160Rosa, 168 F.3d at 78.161A “non-exertional limitation” is a restriction resulting from a claimant's impairments and related symptoms, which affects only the plaintiff's ability to meet the non-strength demands of jobs.?20 C.F.R. § 416.969a (2007);? HYPERLINK "(sc.Search)" \l "co_pp_sp_506_889" Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001)?(citing?Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994)).162Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994)?(citing? HYPERLINK "(sc.Search)" \l "co_pp_sp_350_1110" Warmoth v. Bowen, 798 F.2d 1109, 1110 (7th Cir. 1986); See, e.g.,?Alexander v. Barnhart, 287 F. Supp. 2d 944, 949-50 (E.D. Wis. 2003)?(describing the testimony of a vocational expert who analyzed the claimant's age, past work experience, skills, and education; considered the claimant's particular diagnosis of fibromyalgia; and stated the number of jobs that could accommodate the claimant's limitations in the region where she currently lived).163See 20 C.F.R.?Pt. 404, Subpt. P, App. 2, § 200.00(e)(2) (2008).164Arocho v. Sec'y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982); See also?McKinney v. Apfel, 228 F.3d 860, 865 (8th Cir. 2000)?(“[T]estimony from a vocational expert is substantial evidence [on the record as a whole] only when the testimony is based on a correctly phrased hypothetical question that captures the concrete consequences of a claimant's deficiencies.”) (quoting?Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir. 1997)).165See?Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005)?(“A hypothetical question posed to the vocational expert is sufficient if it sets forth impairments supported by substantial evidence in the record and accepted as true.”) (quoting?Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001)?(citations omitted); See also?Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999)?(holding that an ALJ need not include additional complaints in the hypothetical not supported by substantial evidence).166See e.g.?Allen v. Astrue, No. 6:05-CV-0101 (NAM/GJD), 2008 WL 660510, at *10 (N.D.N.Y. Mar. 10, 2008)?(stating that the exclusive use of the grids may be precluded because a claimant with myofascial pain syndrome had physical and non-exertional impairments, which required that the Commissioner introduce testimony of a vocational expert that jobs existed in the economy that the claimant could perform).167No. 4:06CV01320 HDY, 2008 U.S. Dist. LEXIS 19844, at *1 (E.D. Ark. Mar. 13, 2008).168Id. at *4. Lateral epicondylitis, is the more formal term for “tennis elbow,” which involves “inflammation and pain over the outer side of the elbow.” See? HYPERLINK "(sc.Search)" \l "co_pp_sp_506_477" Granfield v. CSX Transp., Inc., 597 F.3d 474, 477 n.1 (1st Cir. 2010)?(citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 2356 (2002).169Tyron, 2008 U.S. Dist. LEXIS 19844, at *4-5.170Id. at *5.171Id.172Id. at *5-6 & n.2.173Id. at *6.174Tyron, 2008 U.S. Dist. LEXIS 19844, at *9-10.175Id.176Id. at *10.177See, e.g.,?LA. REV. STAT. ANN. § 23:1031(A) (2010);?TENN. CODE ANN. § 50-6-103(a) (2010).178See?Vollmer v. Wal-Mart Store, Inc. 729 N.W.2d 377, 382 (S.D. 2007)?(“To prevail on a workers' compensation claim, a claimant must establish ‘a causal connection between [her] injury and [her] employment . . .”’) (citation omitted).179See Insurance Regulation by State, ADVANCED INSURANCE MANAGEMENT, LLC, (last visited July 16, 2010) (explaining the state-by-state breakdown of the regulatory agencies involved with workers' compensation).180Nos. 5013746/5013747, 2006 WL 2528606, at *1 (Iowa Workers' Comp. Comm'n. Aug. 28, 2006).181Id. at *2.182Id. at *4-5.183Id. at *2.184Id. at *7.185Catic v. IBP, Inc., 2006 WL 2528606, at *10-13.18663 P.3d 1233 (Or. Ct. App. 2003).187Id. at 1235.188Id.189Id. at 1238.190Id.191Several cases reported from the Iowa Workers' Compensation Commission have involved workers at meat-packing plants who developed myofascial pain syndrome after performing repetitive tasks over a period of time. See, e.g.,? HYPERLINK "(sc.Search)" Catic v. IBP, Inc., 2006 WL 2528606, at *2, *5?(claimant diagnosed with myofascial pain syndrome after working several jobs including repetitively using a straight knife to remove meat from hog cheeks, raising hogs onto a rail using a pulley-chain device, and shaving hogs);?Dugan v. Tyson, No. 5020849, 2009 WL 763829, at *2-4 (Iowa Workers' Comp. Comm'n. Mar. 19, 2009)(claimant diagnosed with myofascial pain syndrome from performing the job of repetitively bagging loins);? HYPERLINK "(sc.Search)" Suljevic v. Tyson Fresh Meats, Inc., No. 5017829, 2008 WL 867321, at *2-3 (Iowa Worker's Comp. Comm'n. Mar. 27, 2008)?(claimant diagnosed with myofascial pain syndrome from repetitively skinning the membranes from pig bellies);?Lopez v. IBP, Inc./Tyson, Inc., No. 5018075, 2008 WL 1712326, at *2, 4 (Iowa Workers' Comp. Comm'n. Apr. 8, 2008)?(claimant diagnosed with myofascial pain syndrome from performing the job of repeatedly cutting the cheeks out of hog heads with an electric knife).192See?Oden v. Gulf States Steel, Inc., 797 So. 2d 1093, 1094 (Ala. Civ. App. 2001)?(Murdock, J., concurring) (citing?ALA. CODE § 25-5-81(c) (1975)).193Id. at 1097?(Yates, J., dissenting).194Id. at 1094.195Id.196Id. at 1094-95 (Murdock, J. concurring).197See AM. MEDIC. ASS'N, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT 20 (Robert D. Rondinelli et al., eds., 6th ed. 2008) [hereinafter GUIDES, 6th ed.]; See also? HYPERLINK "(sc.Search)" \l "co_pp_sp_162_963" Getson v. W. M. Bancorp, 694 A.2d 961, 963 n.4 (Md. 1997).198GUIDES, 6th ed., supra note 197.199Id. at 27.200Id. at 28-29. The trinity of cases that formed the basis of?Rule 702?include? HYPERLINK "(sc.Search)" Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);?General Electric Co. v. Joiner, 522 U.S. 136 (1997); and? HYPERLINK "(sc.Search)" Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).201ALASKA STAT. § 23.30.190(b) (2010).202TEX. LAB. CODE ANN. § 408.124 (West 2005). The Texas courts have held that the Guides is the only permissible source for determining impairment ratings within the workers' compensation system.?Fireman's Fund Ins. Co. v. Weeks, 259 S.W.3d 335, 340 (Tex. Ct. App. 2008).203820 ILL. COMP. STAT. 305/1-30 (2010).204Schedule for Rating Permanent Disabilities Under The Provisions of the Labor Code of the State of California, STATE OF CALIFORNIA LABOR AND WORKFORCE DEVELOPMENT AGENCY, DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF WORKERS' COMPENSATION (2005), available at v. Envtl. Recovery Servs., 3 Cal. WCC 97 (Cal. W.C.A.B. 2009), en banc, rev'd and modified after reconsideration3 Cal. WCC 874 (Cal. W.C.A.B. 2009), en banc [hereinafter “Almarez/Guzman II”]; See also?Ogilvie v. City and Cnty.of S.F., 3 Cal. WCC 918 (Cal. W.C.A.B. 2009), en banc. In these cases, the California Workers' Compensation Board remarked that the burden of rebutting a permanent disability rating under the state schedule lies with the party disputing that rating. A scheduled disability rating can be rebutted by successfully challenging a component element of the disability rating with substantial evidence. In Almarez/Guzman II, the challenged element was the injured employee's whole person impairment based on the AMA Guides. The California board determined that the evaluating physician may use any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment, but held that is not permissible to go outside the four corners of the AMA Guides to determine whole person impairment.206See Impairment Use of the AMA Guides, IMPAIRMENT RESOURCES, LLC, Use_of_AMA_Guides.htm (last visited Oct. 25, 2010) (providing a table for how the AMA Guides are used, if at all, in each state); see also?SAMUEL?D.?HODGE, JR., ANATOMY FOR LITIGATORS 98 (2006).207189 S.W.3d 149, 154 (Ky. Ct. App., 2006).208Slover Masonry, Inc., v. Industrial Comm'n of Ariz., 761 P.2d 1035, 1040 (Ariz. 1988).209Id.210GUIDES, 6th ed., supra note 197, at 31-32, 35-37.211AM. MEDIC. ASS'N, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT 569 (Linda Cocchiarella & Gunnar B.J. Andersson eds., 5th ed. 2001) [hereinafter GUIDES, 5th ed.]212Id.213GUIDES, 6th ed., supra note 197, at 23.214See id. at 40.215Id. at 43-44, Apps. 3-1, 3-2.216Id. at 39.217GUIDES, 5th ed., supra note 211, at 574-84; GUIDES, 6th ed., supra note 197, at 40, 43-44.218GUIDES, 6th. ed., supra note 197.219Id. at 45.220Id. at 37, 39-50.221Id. at 39-40.222Compare GUIDES, 5th ed., supra note 211, at 576-577, Table 18-4, with GUIDES, 6th ed., supra note 197, at 43-44, Apps. 3-1, 3-2.223GUIDES, 6th. ed., supra note 197.224Id.225Id.226Compare GUIDES, 5th ed., supra note 211, at 576-577, Table 18-4, with GUIDES, 6th ed., supra note 204, at 43-44, Apps. 3-1, 3-2.227GUIDES, 6th ed., supra note 197, at 43, App. 3-1.228Id.229In re Rainville, 732 A.2d 406 (N.H. 1999).230Id. at 412.231Id.232Id. at 413.233State ex rel. Pitstick v. Indus. Comm'n of Ohio, No. 06AP-857, 2007 WL 1847690, at * 1, 8 (Ohio Ct. App. Feb. 23, 2007).234Id. at *3.235Id. at *8.236No. 2004-SC-0288-WC, 2005 WL 635045, at *1-4 (Ky. Mar. 17, 2005).237Id. at *2.238Id. at *2, 5.239Id. at *2.240See?Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).241See? HYPERLINK "(sc.Search)" \l "co_pp_sp_780_597" Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993); see also? HYPERLINK "(sc.Search)" Kumho Tire Co., v. Carmichael, 526 U.S. 137 (1999);?FED. R. EVID. 702.242917 So. 2d 313, 319 (Fla. Dist. Ct. App. 2005), overruled by?977 So. 2d 543 (Fla. 2007).243917 So. 2d at 315, 317.244Id. at 315, 318.245Id. at 319.246Id. at 318.247Id.248Marsh, 917 So. 2d at 318.249Id. at 319.250Id. at 327.251Marsh v. Valyou, 977 So. 2d 543, 551 (Fla. 2007).252Id. at 545.253Id. at 546 n.1.254Id.25548 F. Supp. 2d 862 (E.D. Wis. 1999).256Id. at 863-66.257Id. at 866-67.258Id. At 863, 868.259Id. at 868.260Id. (citing? HYPERLINK "(sc.Search)" \l "co_pp_sp_780_593" Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993)).261Valente, 48 F. Supp. 2d at 868.262Id at 869.263Id. at 870.264451 S.E.2d 342 (N.C. Ct. App. 1994).265Id. at 345.266Id. at 346.267Id. at 345?(citing?N.C. GEN. STAT. § 90-157.2 (1993)). Although Wooten was decided after? HYPERLINK "(sc.Search)" Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the principles of Daubert (and Frye) do not apply in North Carolina. SeeHowerton v. Arai Helmet, Ltd., 597 S.E.2d 674 (N.C. 2004). North Carolina maintains its own separate three part test when considering whether to admit expert testimony under the state rules of evidence. See?State v. Morgan, 604 S.E.2d 886, 903-04 (N.C. 2004), cert. denied,?546 U.S. 830 (2005).268See, e,g.,?Coy v. Neiter, No. 17-95-16, 1996 WL 141706, at *1 (Ohio. Ct. App. Mar. 19, 1996).269Sotos v. Edel, No. 02AP-1273, 2003 Ohio App. LEXIS 5773, at ?? 9, 26, 95 (Ohio. Ct. App. 2003).27068 Cal. App. 4th 1071, 81 Cal. Rptr. 2d 46 (Cal. Ct. App. 1998).271Id. at 1074, 1076.272Id. at 1077.273Id. at 1078, 1080.274Id. at 1079.275Id.276Westphal, 68 Cal. App. 4th at 1079-1080?(“When a treating physician has diagnosed a patient as suffering from [myofascial pain] syndrome, the mere lack of objective medical evidence to substantiate the patient's symptoms or functional limitations is not a ground to reject a finding of disability.”) (citing?Cline v. Sullivan, 939 F.2d 560, 566 (8th Cir. 1991);? HYPERLINK "(sc.Search)" \l "co_pp_sp_345_1203" Opgennorth v. Shalala, 897 F. Supp. 1199, 1203-04 (E.D. Wis. 1995)).277Id. at 1082.27829 U.S.C. §§ 1001-3007 (1974).279Estate of Bratton v. Nat'l Union Fire Ins. Co., 215 F.3d 516, 521-22 (5th Cir. 2000)?(citing 29 U.S.C. § 1132(a)(1)(B) (1974)).280A denial of benefits under ERISA,?section 1132(a)(1)(B) is reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”?Firestone Tire & Rubber Co., v. Bruch, 489 U.S. 101, 115 (1989). Where the ERISA plan expressly affords discretion to administrators to make benefit determinations, the “arbitrary and capricious” standard of review applies.?Id. at 110-12.?Since most plans include discretionary language, courts apply a deferential standard. The Supreme Court has recently stated that a plan administrator has conflicting interests when it reviews claims and pays out benefits; however, this conflict does not automatically raise judicial scrutiny above the “arbitrary and capricious” standard. See?Metropolitan Life Ins. Co., v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2346 (2008). The Supreme Court noted in Glenn that a conflict of interest is merely a factor in determining whether a decision by the plan administrator is arbitrary and capricious and refused to give lower courts a more detailed factor-based test.?128 S.Ct. at 2349-52. In turn, each Circuit Court of Appeals has its own distinct interpretation of ERISA.281608 F. Supp. 2d 1306, 1310 (M.D. Fla. 2009)?(citing?Schatz v. Mutual of Omaha Ins. Co., 220 F.3d 944, 948 (8th Cir. 2000);?Russell v. Paul Revere Life Ins. Co., 288 F.3d 78, 80-81 (3d Cir. 2002).282Id. at 1310.283Id. at 1310-11 (citations omitted).284Id. at 1311.285Id. A footnote in Richey explains that “[t]he U.S. Department of Labor recognizes five categories of work with respect to the degree of physical exertion required. They are, in order from least demanding to most demanding: sedentary, light, medium, heavy, and very heavy These categories are often used by administrators, physicians, and courts in the ERISA disability context.” Id. at 1312 n.2 (citing?Richards v. Hartford Life and Accident Ins. Co., 356 F. Supp. 2d 1278, 1280 (S.D. Fla. 2004), aff'd,?153 Fed. Appx. 694 (11th Cir. 2005)).286Id. at 1311-12 (quoting Silvey v. FMC Long-Term Disability Plan, No. 95-6251, 1196 WL 690156, at *3 (6th Cir. Nov. 27, 1996)).287No. 3:02CV7282, 2003 U.S. Dist. LEXIS 8095, at *1 (N.D. Ohio Mar. 25, 2003).288Id. at *2, 7, 12.289Id. at *16.290Id. at *32.291Id. at *31-34.292Civ. Action No. 3:02-CV-2278-L, 2004 U.S. Dist. LEXIS 26806 (N.D. Tex. Dec. 23, 2004).293Id. at *4-8.294Id. at *10-12.295Id. at *6-8, *17-18.296Id. at *17-18.297Id. at *18, 29-30.298Civ. Action No. 3:02-CV-2278-L, 2004 U.S. Dist. LEXIS 26806, at *28-32 (N.D. Tex. Dec. 23, 2004).299Id. at *32.30042 U.S.C. §§ 12101-12300 (2010).30142 U.S.C. § 12102(1)?(2010).30229 C.F.R. § 1630.2(h)?(2010) (“(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”).303261 F.3d 789 (9th Cir. 2001).304Id. at 792-93.305Id. at 794.306Id. at 796.307Id. at 796-98.308Id. at 798.309No. 2:07-cv-471-ID, 2008 U.S. Dist. LEXIS 89386, at *1 (M.D. Ala. Nov. 3, 2008), aff'd sub nom,?Webb v. Donley, 347 Fed. Appx. 443 (11th. Cir. 2009).310Webb, U.S. Dist. LEXIS 89386, at *1.311Id. at *5-7.312Id. at *7-8313Id. at *8-9.314Id. at *15-16.315Id. at *17.316Webb v. Donley, 347 Fed. Appx. 443, 446 (11th Cir. 2009). ................
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