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Musculoskeletal Injuries: How Severely Impaired Must I Be?

Intentionally or not, the Social Security Administration has done a good job selling the idea that winning disability benefits is extremely hard. Bloggers (including me) write about the long delays and the arbitrary nature of decisions and the possibility of drawing a judge who would not approve a deathbed claimant.

Clearly, claimants without compelling medical evidence are having an increasingly difficult time winning. Ten years ago, judges were much more likely to accept your testimony about your work activity limitations – now, judges are looking for extensive medical evidence.

I often hear from, or end up representing disability claimants who have been denied at the administrative (initial application or reconsideration) and who are about ready to give up. Ironically, many of these claimants have cases that are likely to be approved because the medical evidence is so compelling.

Recently, I received an email from a gentleman named Kevin who was turned down at reconsideration, and wants to know what I think about his chances. I don’t have access to his specific medical records but, after reading his case summary, I would be shocked if he was denied. I would guess that 95% + of judges that I might see would approve this case after submission of a brief or after a brief hearing.

As I have discussed before in writing and on video, the state agency adjudicators are not judges and they do not have the experience or authority to make value judgments. Adjudicators are looking for listing level impairments without any reservations.

My guess is that in Kevin’s case, the medical record was extensive and not organized by attorney for easy evaluation, and there was a reference to expected recovery within 6 months.

Any reasonable judge would see in about 10 minutes that there is clearly enough here to warrant a finding of disability. Take a look and let me know what you think.

“Are my Injuries Severe Enough?”

I have been a subscriber to your YouTube channel for several months now and I must say thank you for all the great advice you provide. I wish I had known about this before I applied to only be denied. The denial letter said I was disabled but since my original surgeon’s office said they expected me to recover in six months they denied me. I appealed that denial decision right after my first surgery, and I am now waiting to hear when my court date will be scheduled.

I have had 3 spinal fusions between 12/1/14 and 11/1/15, and epidural injections after each surgery since I was still having pain. The third surgery was become the hardware came loose so they had to perform an emergency fusion. As of today I am still experiencing a lot of pain and my last CT Scan showed some fusion occurring but also a lot of inflammation in my sacrum which they feel might be causing the pain.

I am scheduled for another injection since I am not fond of having a spinal cord implant, which is what they are now suggesting.

My question is: If the latest imaging doesn’t show a severe issue but my pain is legitimate what chance will I have with having my case approved? Will the medical documentation of the last 5 years that clearly shows my issues and my attempts to eliminate the problem through medication, therapy, injections and surgery provide a strong enough base for disability approval?

Jonathan’s Case Evaluation

Based on what you write, I think you have a strong case for disability benefits. Clearly you have a medically determinable impairment that you have tried to address through “conservative treatment” – medications, physical therapy, epidural and/or facet injections.

The conservative treatment did not work and you were referred for surgery. It also appears to me that the surgery was not successful, as documented by the need for multiple surgeries within a 12 month period and the need for emergency surgery.

At this point you are either in an extended recovery period from the fusion, or you have a chronically unstable spine. Hopefully these fusions will take and you will see a reasonable restoration of function If the pain does not dissipate and if function is not restored, you may be referred for long term pain management.

Ideally, a treating doctor – preferably the surgeon or orthopedist – but it could be your family doctor – would be willing to complete a functional capacity evaluation which identifies specific work activity limitations. A few that come to mind include:

  • inability to get through an 8 hour workday without the need to take frequent, unscheduled breaks to lie down
  • likelihood that you would miss 3 or more days per month due to pain
  • inability to sit for more than 30-45 minutes at a time without the need to stand and walk for approx 10 minutes
  • inability to sit in a work environment for more than 3 hours total + inability to stand/walk in a work environment for more than 3 hours total (i.e., you could not physically perform a job for 8 hours a day
  • off task for 30% or more of the day due to severe pain, pain medication side effects, or other complications from your surgery

In a big picture sense all of the treatment you have had, including surgery, has not restored sufficient function for you to return to even a simple, entry level job. I would argue that Listing 1.04 applies here, and in the alternative, I would argue that your functional capacity for work has been so impaired by the damage to your spine and the poor response to treatment that you do not have the capacity for full time employment.

With even minimal file organization and case preparation, this is a winning claim.

4 thoughts on “Musculoskeletal Injuries: How Severely Impaired Must I Be?”

  1. If I am 43 and have a multitude of unusual health issues that effect my everyday functionaing with the constant vomitting and inability to stand upright etc. but was on disability back in 97 and went back to work for a good 15 years after learning to walk etc again do i even have a chance at ssi now that my last date insured says i can no longer qualify for ssd? No one will take my case til goes back to hearing level. If there is anyone that knows ssi law and how i am to proceed that would be willing to talk to me i would greatly appreciate it otherwise i guess i am filing on my own on the 9th with the rfcs i got my current treating docs to complete. I am tapped out. 0 resources left faceing homelessness again soon and dont understand any of this or even what dates i am allowed to use for records now I am assuming only medical records after my denial from my hearing are submittable? who knows. I cannot pay another attorney 50 to 100 dollars for them to not answer my questions and just tell me to get 4 work qtrs in at an easy job and apply again for ssd when im 50. lol If i could hold a job for more than 3 days with my medical conditions and impairments i certainly would not choose to be destitute and unable to meet basic needs. How do i get a local attorney to tell me if i have a good case or not and how to proceed?

    1. Rebecca, if you only qualify for SSI, then you are subject to the deeming rules. This means that household income (from a spouse) or assets you may own can offset your SSI. If most or all of your SSI benefit is offset you won’t be able to find a lawyer to take your case under a contingency fee.

  2. What if you refuse surgery on the basis of a heart condition that could be aggravated by spinal fusion which could lead to death? Would surgery refusal eliminate someone from qualifying for disability?

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