LEGAL GUIDE
Written by attorney Jonathan C. Ginsberg | Jun 16, 2017

How to Win a Back Pain Social Security Disability Claim in 2017

If you are pursuing Social Security disability benefits based on back pain, you need to be aware that the majority of men and women filing for SSDI or SSI are also claiming that they are disabled wholly or partially due to back pain. Because so many people pursue SSDI or SSI because of diseases of the spine, my experience has been that Social Security will only approve cases that document a significant level of impairment.

When I speak with a potential client about lower back injuries, or cervical spine (neck) injuries and Social Security I will ask the following questions:

-have you had an MRI and/or a CT scan been run and does it show one or more herniated discs, or at least bulging discs? -does the MRI or CT scan show any type of impingement on the spinal cord that would be consistent with your complaints of radiating pain, weakness or other specific problem? -have you undergone back surgery that did not alleviate the problem? -has your treating orthopedic surgeon or neurosurgeon suggested a second surgery? -have you been referred to pain management because surgery is too risky or not an option? -do you see a doctor (ideally a specialist like an orthopedist, neurologist, physiatrist, neurologist as opposed to a family doctor) regularly? -have you gone through physical therapy without much benefit? -have you been prescribed prescription pain medications? -are you experiencing significant levels of pain with even moderate activity?

The days when you could argue for disability based on back pain, relying on an X-ray and compelling testimony are over. Judges expect to see MRI and/or CT scan reports and other evidence supporting a high level of impairment.

NON-MEDICAL FACTORS In addition to having compelling medical evidence, disability judges look at a variety of non-medical factors:

Age – are you age 50 or older. While anyone at any age with a serious back injury can get approved, your chances go up at age 50 and higher. A special set of regulations called the “grid rules” can only apply to claimants over age 50;

Work History – do you have a long and consistent work history. Judges tend to give more “benefit of the doubt” to claimants with long and consistent work histories. A 28 year old with a 5 year work history is going to need overwhelming medical evidence of back problems, whereas a 53 year old with a 20 year work history at the same company won’t need quite as much;

Education – do you have a high school or less education? Social Security’s grid rules offer an advantage to claimants over age 50 with limited work skills and/or a high school or less education. The rules assume that a less educated 50+ year old will have a more difficult time finding an accommodating job than a younger individual;

Work Attempts – have you tried, unsuccessfully, to work since leaving your last full time job? My experience has always been that judges appreciate disability applicants who have tried to work following an injury but who are unsuccessful. An “unsuccessful work attempt” is one that lasts 3 months or less and I have presented evidence in the form of employment records and statements from former co-workers and supervisors to win back pain cases.

REMEMBER THE BIG PICTURE You will win Social Security disability benefits if we can prove that because of your damaged spine, you would not be a reliable employee at even a simple, entry level job. Disability is less about your medical diagnosis and more about how your back pain, limitation of movement, and medication side effects leave you too unreliable to work at any job.

It does not matter that you do not have transportation to a job it does not matter that you are not aware of any jobs out there that you might be able to do it does not matter that you are certain no one would hire you because of your age and medical history All that matters is what the medical record says about the limitations you would have trying to get through an 8 hour day, 5 days a week.

The best evidence we can present to win your case includes:

*a compelling medical record showing regular visits with your doctor but no real improvement in your condition;

*a statement from your doctor(s) identifying work limitations you would likely experience if you try to work. This can be in the form of a narrative report from the doctor, or it can be in the form of a functional capacity evaluation. Personally I like to use functional capacity evaluations because I can include questions that address limitations I know judges will find compelling – for example if I ask the doctor and he states that you are likely to need to take unscheduled breaks 3 or more times a day, 3 or 4 days a week, I know that any vocational expert your judge uses will testify that this level of absenteeism is unacceptable for any type of competitive work.

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