Winning Your Disability Case in Three Words .
. . Frequency, Severity, and Duration
by Scott Davis, Esq.
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!
Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged only if his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via telephone (602) 482-4300, or email: info@scottdavispc.com.
Visit his website at
www.ScottDavisPC.com.
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