Proving Disabilities Based On Pain

Many of our clients have disabling pain. However, the difficulty is proving that the pain is disabling. There is no test to quantify the severity of pain as it is an entirely subjective condition. This does not mean however, that an insurance carrier is free to disregards reports of disabling pain, merely because there isn’t “objective evidence” to quantify its severity.

An insurance carrier may not disregard a claimant’s reports of symptoms in the absence of a specific, clear and convincing reason. Subjective evidence of a claimant’s pain, based on his own testimony and the medical reports of examining physicians is more than ample to establish his disability, if believed. Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 872-3, fn 3 (9th Cir. 2008). Rather, the severity of symptoms of pain, so long as they are consistent with the prevailing diagnosis and are supported by the other evidence, will, of necessity, be established by symptom complaints.

What types of “other evidence” will a court consider as persuasive of disabling pain? Courts are often impressed with the severity of a claimant’s pain when it appears that the claimant has pursued treatments in an effort to relieve the pain.

As the Court recognized in Goble v. Astrue, 385 F. App’x 588, 591, 2010 WL 2776563 (7th Cir. 2010):

What is significant is the improbability that the claimant would have undergone the pain treatment procedures that she did, which included not only heavy doses of strong drugs such as Vicodin, Toradol, Demerol, and even morphine, but also the surgical implantation in her spine of a catheter and a spinal cord stimulator, merely in order to strengthen the credibility of her complaints of pain and so increase her changes of obtaining disability benefits. 499 F.3d at 646.

Referral to a pain management specialist and consistent use of pain relieving medication may also be considered as evidence of disabling pain. If the medication causes adverse side effects, this can also be considered disabling. The side effects should be communicated to your physician so that his or medical records will accurately reflect the additional impairment caused by the medication.

If you require help with a disability claim, call Kantor & Kantor on 888-569-6013. We can help.

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