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By Diana Wade
Disability Advocate 

Can back pain qualify for disability?

Ask the Advocate

 

May 23, 2020

Diana Wade

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 eight 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.

In a back pain case, your medical records often look like this: they may consist of 20 pages of office notes describing 30 office visits over a three year period of time. In each day's entry, your doctor may write down how you reported feeling, and 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.

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 five 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.

An Accredited Disability Representative with more than 20 years experience, Diana Wade believes her clientele can be comfortable knowing that she is recognized by SSA and is a charter member of NADR. To contact Ms. Wade call (661) 821-0494, email [email protected] or visit http://www.CaliforniaDisability.net.

 
 

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