GETTING SSDI BENEFITS FOR CHRONIC PAIN
I've read hundreds of medical records in which the patient is diagnosed with "Chronic Pain Syndrome," or something like that.
The question is: Can chronic pain be a disability for purposes of Social Security?
The answer is, Yes. But only under certain circumstances.
Pain is a subjective complaint. There are no lab tests, imaging studies or other tests that diagnose or prove you have pain. The pain is coming from somewhere and that must be discovered medically.
Under Social Security regulations, you must have a "medically determinable impairment." That means one that is demonstrated by objective medical findings--such as lab tests, imaging studies or other medically accepted findings.
So, how can you be approved for chronic pain?
First, there needs to be a medical explanation for what's causing the pain. For instance, let's say you have a herniated disc in your back with nerve root impingement. That is demonstrated by an MRI or X-ray. It is reasonable, then, that an impinged nerve root in the spinal cord will cause chronic pain. You now have a "medically determinable" impairment that could possibly be approved for disability benefits.
Another example: You have Chron's Disease which causes severe abdominal cramping. Chron's can be demonstrated by medical tests, such as colonoscopy and other studies. You now have a "medically determinable" impairment which explains the source of chronic pain. This could be approved for disability.
Second: How severe is the pain? Now that you have objective medical evidence of what's causing the pain, Social Security must evaluate several more factors before they decide whether your condition is disabling:
Third: What is the frequency of the pain? Pain may be "constant, frequent, occasional or intermittent." How often you experience severe pain will influence whether it is disabling or not:
(A) What is the severity of the pain? This can also be somewhat subjective. Social Security will ask: Do you take pain medications? How much/how often? Are you in an accredited pain management program?" How are you trying to control the pain? How often do you see the doctor for pain?
(B) How limiting is your pain? What activities are possible with the pain and what activities must be restricted or avoided? In short, how does the pain make you unable to work at all jobs? How does pain limit your other activities: driving, cleaning, hobbies, taking care of the kids...?
(C) Are there some types of work you can still perform--in spite of the pain?
Pain may make some work impossible but allow for other kinds of work.
Social Security considers 5 levels of physical exertion in jobs, as follows:
- Very Heavy work
- Heavy work
- Medium work
- Light work
- Sedentary work (physically, the easiest work)
It is possible that pain eliminates the ability to perform medium work; therefore it also eliminates heavy and very heavy work. But, does the pain eliminate easier work at the Light or Sedentary levels? If not, the claimant will not usually be considered "disabled" for purposes of SSDI or SSI benefits.
The decision may come down to whether the claimant can perform some type of sedentary work. This work is often called "sit down" work because it requires up to 6 hours per day of sitting but only about 2 hours of standing/walking. Sedentary work also requires occasional lifting of no more than 10 pounds. Thus, a claimant may be unable to perform Light work--but still able to perform Sedentary work--such as office assistant, parts inspector or ticket taker. Of course, pain may impact the ability to sit for long periods, to concentrate or remain on task; therefore, it can rule out sedentary work, too.
Social Security will also consider postural limitations. Can the claimant sit for up to 2 hours at a time? Can she bend occasionally, or use a single flight of stairs occasionally? Does she require her feet to be elevated while sitting? Is the claimant restricted in bilateral manual dexterity? What is her ability to balance, stoop, kneel or crouch? Can she stand and/or walk up to 2 hours per 8-hour day? Is she able to work an 8-hour day without becoming too fatigued?
Social Security must also consider the psychological effects of chronic pain: Can the claimant focus or concentrate for up to about 2 hours at a time and remain on task? Is he able to understand and carry out simple instructions and complete tasks in a timely manner? Will pain cause him to be off task or absent from work excessively?
SUMMARY: If you go to Social Security with only a complaint of chronic, severe pain that is not explained by objective medical evidence, your claim will likely be denied. But if you have objective medical evidence that reasonably explains your pain as a symptom of a medically determinable impairment, you will have a much better chance. Therefore, good diagnostic evidence is important. Your doctor should have explored the CAUSE of your pain and included objective evidence in your files--which may be laboratory tests, imaging studies or physical examinations. The more objective evidence you have to explain the cause, frequency and severity of your pain, the better your chances with Social Security. Your medical record should also show a history of pain--how long have you had it?
Your attorney will know how to build a disability case around chronic pain. One thing your attorney will likely recommend is a "Medical Source Statement" or "Residual Functional Capacity Report" from one of your treating physicians. This report explains exactly how your impairment restricts important work-related functions: sitting, standing, walking, bending, reaching, use of hands, lifting, thinking, concentration, understanding and following instructions, etc.
One final thought: A general statement by your doctor will not help your case. Some doctor's statements that do no good at all include:
"This patient has severe chronic pain which makes him unable to work at any job."
"Mr. Smith has a bad back which causes very severe pain. He is totally disabled and should be approved for disability benefits."
WHAT'S WRONG WITH THESE STATEMENTS?
First, there is a legal problem. The decision about who can work and who cannot, and at what type of jobs--is reserved to the Commissioner of Social Security under CFR §404.1527. Only the Commissioner may determine who is disabled; doctor's may not. So, the above statements will not be admissible under the regulations.
Second, there are practical problems with the doctor's statements: To begin, they are very vague and much too general. Why can't the patient work? What work functions can she not perform? What are her exact limitations? Explain her restrictions of basic work-related activities: sitting, standing, walking, using stairs, lifting, use of hands or arms, balance, kneeling, fatigue, etc. Explain specific psychological or mental restrictions involving: understanding, concentration, being off task, being absent, difficulty following instructions, inability getting along with supervisors, co-workers or the general public. Be specific and document opinions by citing specific examinations, tests, or observations.
CONCLUSION: Pain should always be approached as a symptom of a broader underlying problem. Pain is being caused by a problem which has been medically identified and documented by objective evidence. Pain must not be mysterious, undefined, unidentified or undocumented. In short, what underlying medical problem is causing the pain? Then, proceed to consider the other factors outlined herein. It won't be enough to say, "I hurt all over most of the time," or "I have 8/10 back pain constantly."
It is much better to say: "Two herniated discs in my back produce severe radiculopathy and restrict the ability to stand to less than 3 hours per day and limit my ability to sit for more than 30 minutes at a time, according to Dr. J.J. Jones findings in medical Exhibit 4F, pages 15-21."
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Charles Forsythe is founder of The Forsythe Firm in Huntsville, AL. He represents disability claimants in Alabama, Tennessee and other states. (256) 799-0297.
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