Courts struggle with disability claims caused by subjective symptoms due to the difficulty in quantifying the level of pain and fatigue experienced by a claimant. Unfortunately, pain and fatigue are the principle disabling symptoms caused by many diseases such as multiple sclerosis, fibromyalgia, rheumatoid arthritis, degenerative spine conditions, etc. The Ninth Circuit has recognized that an insurer may not disregard subjective symptoms merely they cannot be quantified or “proved” by objective testing. However, at the same time, courts also recognize the difficulty in assessing or quantifying the level of pain and fatigue caused by a disease.
There are means for helping to determine the severity of one’s pain or fatigue. We encourage clients to keep logs or journals of their symptoms. This is especially useful for those who suffer from migraines, which are unpredictable. Written notes from family members and co-workers who have observed expressions of, or limitations caused by pain may also be instructive.
Courts also look to the treatment obtained by a claimant in an effort to alleviate pain. If one undergoes nerve block injections or a subsequent surgery in an effort to alleviate pain, this is useful evidence. A person does not undergo painful treatments merely to obtain disability benefits.
Referral to a pain management specialist is also evidence of severe pain. Courts consider the fact that the pain was of such severity that a referral was necessary. It is also helpful to have documented treatment with a physician who specializes in pain management.
Finally, evidence of prescription medication for pain is extremely important. If there has been a change or increase in the medication, this is proof that the medication is not “controlling” the symptoms. Pharmacy records prove that the medication was purchased and are an accurate record of what has actually been prescribed over the course of time.
Medications may also cause adverse side effects, such as drowsiness or dizziness. This can be expected with narcotic medication and the side effects alone can be disabling. However, insurers often disregard the potentially disabling symptoms of medication side effects because the adverse symptoms were not “documented in the medical records.” We encourage clients to report side effects to their physicians, even if they are to be expected. This will ensure that all symptoms are accurately recorded in the medical records.
If you have been denied long term disability benefits based on a failure to prove disabling pain, or for any other reason, please call Kantor & Kantor at 800-446-7529 for a free consultation.