Back Pain and Social Security Disability - a Case Strategy
Studies in medical journals show that back pain is the number one cause of chronic pain to adults in the United States. Some 30% of all work injuries involve back pain and around 90% of adults in the United States experience back pain at some point in their lives.
Obviously, not every person with back pain qualifies for Social Security disability. However, Social Security does recognize that a person with chronic and severe back pain may be so limited in performing even simple activities that a finding of “disabled” is appropriate.
How Social Security Looks at Back Pain Cases
The main issue in your Social Security back pain disability case is whether or not you are able to work. In a back pain case, Social Security considers both your activity limitations (called “exertional” impairments) and your pain limitations (called your “non-exertional” impairments). In order to win, you have to prove that because of these impairments, there is no way you can perform even a simple, unskilled job 8 hours a day, five days a week.
There are two ways you can prove that you are unable to work:
- You can meet the back pain listing - by showing SSA that your spinal damage is equal to the medical criteria for musculoskeletal injury set out in the Code of Federal Regulations.
- You can prove that your “functional capacity” for performing work at any level has been so reduced by your spinal damage that you would not be able to obtain or keep any type of full time job.
Either way, while you have to identify a medical reason for your inability to work, you will not win if you focus on the details of your medical condition. Instead, your focus must be the specific ways in which your ability to function has been limited by your condition.
Are Your Medical Records Sufficient
for Social Security Purposes?
In a back pain case, your medical records often look like this: they may consist twenty pages of office notes describing thirty office visits over a three year period of time. In each day’s entry, your doctor may write down how you reported feeling, his impressions as to redness, stiffness, or swelling. Your doctor also may note what medications you are taking, how well they seem to be working and whether he intends to refer you to a specialist for more tests.
What is missing here? These notes are perfectly good as documentation of your illness and your treatment. However, they may not help you in your Social Security case.
Social Security, remember, focuses on work activity limitations. There is nothing in these records about how much you can lift, how much you can carry, or how long you can sit. There is also no analysis of your pain in terms of the extent to which your pain interferes with concentration, or causes irritability that might cause tension with co-workers.
A Social Security adjudicator would not give these notes a second look as they do not even begin to suggest limitations on your functioning. Even an experienced Social Security Judge will not presume to derive specific work limitations from this type of office note.
Some judges may, however, recognize the significance of a long treatment history, and might be more inclined to accept limitations set out in your testimony. Other judges, however, are less inclined to believe anything unless it is in your record.
Using Social Security’s Special Language
An experienced disability lawyer would approach this problem by studying your medical record, and thereafter create or modify a form for your doctor to fill out. The form will allow your doctor to quickly and easily identify your diagnosis and prognosis, and, most importantly, identify the specific work activity limitations arising from your medical problems.
Doctors like these forms because it is much faster and easier to check off lines of a form than it is to write a three or four page narrative report. Social Security lawyers and Social Security judges like these forms because these forms provide exactly the information Social Security needs to make a determination whether you are disabled - can you perform work activities?
Functional capacity forms allow doctors to identify specific job activity limitations that arise from your medical condition. And your doctor can use the form to explain just how severe your limitations are.
For example, a pain limitation that causes interference with concentration such that you would not be able to understand and carry out complex job instructions is not particularly limiting, since many jobs exist that only require you to understand and carry out simple job instructions.
On the other hand a sitting and standing limitation that says you can stand only 5 minutes at a time and that you must lie down for 30 minutes every three hours is extremely significant since there are no jobs that would permit an unscheduled 30 minute break every three hours.
Getting Cooperation from your Doctor
Your doctor may truly feel that you cannot work, but if he is not familiar with Social Security practice and procedure, he may not think to complete the most important questions contained in a functional capacity form. Every case is different, however, there are certain activity limitations that seem especially important to Social Security judges. As you might expect, these threshold activities relate to job reliability and minimal physical activities.
What should you do if your doctor says that he “does not want to get involved.” Often this is the result of a bad experience with a legal case in the past - perhaps the doctor was forced to wait around the courthouse for hours, only to be brutally cross-examined by an aggressive lawyer.
If your doctor expresses concern about getting involved in a Social Security case, you should explain to him that Social Security judges follow relaxed rules of evidence. Written reports or letters are almost always. Live testimony by the doctor is extremely rare. Further, there is no cross-examination by a hostile lawyer - at the Administrative Law Judge level, there is no government lawyer on the other side.
In addition, if you are approved for Disability (Title II) benefits, you will become eligible for Medicare 24 months after your first date of Title II entitlement. Medicare, of course, can be a source of payment for your doctor, and may result in more cooperation.
Most caring physicians will agree to spend ten or fifteen minutes to complete a form that can dramatically better your life. If your doctor refuses to cooperate or if he wants to charge you more than $50 to complete a functional capacity form, you may want to think about finding a more cooperative doctor.
Hearing Issues Unique to Back Pain Claims
in Social Security Disability Cases
Because back pain is a common ailment, and a common basis for disability claims, almost every disability case involves complaints of back pain. Almost everyone has some “degenerative disk disease” in their spine and many people live and work with disk bulges or even small disk herniations.
Generally, Social Security judges are looking for evidence of either an extremely serious spinal condition, or complications to your diagnosis. Here are some examples of the types of diagnoses that can support a finding of disability in a back pain case:
- herniated disc(s) with radiculopathy
- failed back syndrome
- multi-level herniated disks
- impingement to the nerve root
- severe narrowing of spinal canal
- interference with bladder or bowel function
- failed fusion
- chronic pain syndrome with referral to pain management physician
- cervical spinal damage and resulting migraine headaches
- collapsed disks and chronic pain
- chronic pain with associated severe depression
Generally, you will need a treating physician to issue an opinion - in a functional capacity form or in a written report - that your chronic back pain and associated complications leave you unable to reliably function in a work environment.
Preparing your Case File for a Hearing
In preparation for your hearing, your lawyer should, at a minimum, perform the following tasks:
- review your file thoroughly and make sure that all medical records are current and up to date
- decide on a clear theory of disability - why you are unable to work even a simple, unskilled job - boiled down to two or three sentences
- prepare you to give the judge very specific information about very specific activity limitations
You, as the claimant, should make several lists yourself, so that you will not forget to fully explain your case:
- list every part of your body that hurts or bothers you and be prepared to explain how your work capacity is reduced by the damage or injury to that body part
- make a list of every job you have had for the past 15 years, with a brief description of what you did
- make a list of each and every prescription and non-prescription medication that you take and identify the side effects of each drug
- identify your capacity for basic physical activities - how long or how far can you walk or stand, how long can you sit, how much can you lift and how much can you carry
Finally, before you meet with a Judge, both you and your attorney should have a clear understanding of the theory of your case. In three or four sentences, can you and your lawyer summarize why you are disabled and why disability is appropriate for you.
|
