by Scott E. Davis, Esq.
Disability Attorney
In a disability case, almost
any symptom or limitation can be disabling; but to determine
whether they preclude work, the relevant questions are how
frequent are they, how severe are they, and how long do they
last?
A critical point I make to
people who contact me everyday is that their disability case
is won or lost based on symptoms/limitations and not on
their diagnosis! Clearly, under federal law, a disability
claimant has to have a legitimately diagnosed physical
and/or psychological disorder to even allege disability, but
this is only the beginning of the analysis.
Disability cases are almost
always won or lost based on the quality (documentation) of
your medical records and the subsequent opinions rendered by
your treating physicians regarding your ability to sustain
full-time employment. The documentation of symptoms and
limitations in your medical records is critical as it
provides tremendous credibility to and an understanding of
why your doctors’ have concluded you are unable to work.
Once a diagnosis is
established, the disability inquiry immediately shifts to
why you are unable to work due to the symptoms and
limitations that result from the diagnosis. I tell my
clients that of the total time spent in a disability hearing
before a federal judge, 5% is spent on the diagnosis and 95%
is spent determining the frequency, severity and duration of
symptoms and limitations, and whether they prevent all work.
Ignoring this fact places the success of your claim in great
peril…don’t ever forget this!
A common problem disability
claimants frequently make is having “tunnel vision” and
focusing solely on their diagnosis, as if the fact they have
been diagnosed with a disorder automatically confirms they
are disabled and entitled to benefits. This is especially
true of people suffering from chronic pain and fatigue
disorders such as fibromyalgia and chronic fatigue syndrome.
I believe this is true because these folks have almost
universally been sent on an “odyssey” by the medical
community, simply to obtain a diagnosis.
Never forget that obtaining
a physical and/or psychological diagnosis is the very
beginning, and not the end of your disability case.
Thus, the question becomes,
“How do I document the frequency, severity and duration of
my symptoms and limitations?”
Tip
#1: What should I be Documenting?
Simply put, "whatever it is
that prevents you from working." For example, let’s use
chronic pain and fatigue. It is critical you distinguish why
the pain and fatigue is different from what an average
person may experience. If I say “I am in pain and fatigued,”
that does not tell you much. Why? From time to time we all
experience some degree of pain and/or fatigue. But if you
tell your doctor “I am unable to function as I experience
severe daily pain and exhausting fatigue lasting most of the
day without relief,” or “I am unable to function 2 days per
week due to migraine headaches that last all day even with
medication,” now you’ve given the doctor and a judge an idea
of why your symptoms are so debilitating.
Tip
#2: Obtain a Copy of your Medical Records
from your Treating Physicians
After you have followed Tip
#1, the next question becomes, “Did the doctor write down
what I just told him/her?”
I am often surprised at how
many people applying for disability benefits have never seen
their medical records. Obtaining a copy of your current
treating physician’s records is important because it will
give you an idea of whether your symptoms and limitations
are being recorded. You may be surprised to find that your
complaints do not appear in the records or if they do, the
doctor’s notes are totally illegible! Illegible handwriting
is a real problem, because judges who decide your claim are
just like you and I, they don’t (and generally won’t) try
too hard to decipher what the notes say.
If you are not satisfied
with the documentation, address the issue tactfully with
your doctor and explain the importance of documentation to
your disability case. If they are receptive, I suggest you
give them a copy of this article for reference.
Tip
#3: Keep A Short Diary of Your Symptoms and Limitations
before your next Visit to the Doctor
Whether you know it or not,
your daily lives tell a compelling story about your
inability to work. But how do you remember the frequency,
severity and duration of your symptoms especially if you
can’t spell your name at times!
I advise clients to keep a
short and simple diary one week before their next visit with
their doctor. For simplicity sake, the entries should short
and not detailed (otherwise you will not do it). On a day
when you were unable to get out of bed due to pain or
fatigue, document it. Or document when you slept for only
three hours the night before and then took a couple of naps
the next day. Or document the migraine headache that lasted
for two days in spite of medication.
Then, on your next doctor
visit, when he/she asks “How are you doing?” you will have a
laundry list of symptoms and limitations rather than giving
them a blank stare!
Of course, winning your
disability case is more complicated than this article has
the time for; however, following these tips will
significantly increase your odds of winning.
Best of luck to
you and remember to keep
fighting for the benefits you deserve!
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