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.