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, how severe, and how long do they last?
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.
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 as to 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
dont 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
that obtaining a physical and/or psychological diagnosis is the
very beginning, and not the end of your disability case.
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, lets 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 youve
given the doctor and a judge an idea of why your symptoms are
Tip #2: Obtain
a Copy of your Medical Records from your Treating Physicians
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 physicians 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 doctors
notes are totally illegible! Illegible handwriting is a real problem,
because judges who decide your claim are just like you and I,
they dont (and generally wont) 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
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 cant
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!
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!
Copyright 2002, Scott E. Davis, P.C., Used with Permission
All Rights Reserved Worldwide
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 his web