In my practice as a New Mexico Social Security Disability lawyer, I often see clients with back injuries. Social Security claimants in New Mexico and nationally seek disability benefits because of back injuries more often than virtually any other injury or condition. The most common back problem is low back pain. The challenge for back pain cases is that claimants may suffer from pain, muscle spasms, and limitations in their ability to sit, stand, lift or bend, but the objective medical evidence may not show serious abnormalities.
Poor correlation of medical imaging results and back pain
Doctors agree that x-rays and other medical imaging test results often do not match up with a person’s symptoms. Some people with x-ray evidence of severe bone and joint degeneration have mild or even no symptoms. Others with mild abnormalities suffer severe pain. The Social Security Administration recognizes in its musculoskeletal Listings that “there is a relative lack of correlation between findings on imaging and function of the joint.”
Despite this language in the Listings, administrative law judges frequently deny disability benefits in low back pain cases on the grounds that the “mild” x-ray findings do not support the claimant’s claims of pain and exertional limitations.
Administrative law judges also point to lack of significant limitation in lumbar (low back) range of motion as a justification for denial of low back pain claims. But there is little correlation between lumbar range of motion and residual functional capacity (RFC—the ability to exert oneself to do work). Studies have shown that people with no back impairment exhibit a large variation in lumbar range of motion. Lumbar range of motion can be affected by age, gender, and time of day of testing. Spinal stability has been found to be more important for the performance of everyday activities than is the ability to bend over.
Administrative law judges sometimes deny low back pain cases even when the record contains a report from the treating physician reciting findings and describing a significantly limited RFC. To avoid this problem, your disability attorney must ask the treating physician to explain why the findings support the diagnosis, and why the medical signs and findings caused the physician to conclude your RFC was so limited.
Emotional factors that may contribute to back pain
Emotional factors may help explain low back pain. An emotional overlay is defined as “the emotionally determined increment to an existing organic symptom or disability.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 29th ed., p. 1295.
If your treating physician concludes that your back symptoms are more severe than expected for the objective medical findings and that an emotional overlay may explain the difference, your disability attorney should develop evidence concerning this emotional overlay. A psychological evaluation can provide corroboration. Often the combination of the back problem and the emotional overlay will explain your symptoms.
New Mexico Social Security cases involving arthritis and limited ability to walk
Claimants with arthritis and joint problems frequently seek help at my Albuquerque Social Security law firm. One way a New Mexico Social Security attorney can build a case for you if you have arthritis or joint dysfunction is to prove you cannot “ambulate effectively.” A person who cannot “ambulate effectively” will be disabled under Social Security Administration regulations know as the musculoskeletal listings.
According to these Social Security regulations, inability to ambulate effectively means an extreme limitation of the ability to walk. That is, an impairment that interferes very seriously with your ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient functioning of your legs to permit you to walk without the use of a hand-held assistive device that limits the functioning of both arms.
To ambulate effectively, according to the Social Security Administration, you must (1) be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living, and (2) have the ability to travel without companion assistance to and from a place of employment or school.
Examples of ineffective ambulation include, but are not limited to:
- The inability to walk without the use of a walker, two crutches or two canes,
- The inability to walk a block at a reasonable pace on rough or uneven surfaces,
- The inability to use standard public transportation,
- The inability to carry out routine ambulatory activities, such as shopping and banking, and
- The inability to climb a few steps at a reasonable pace with the use of a single hand rail.
Just because you can walk independently about your home without the use of assistive devices does not mean you can ambulate effectively.
This regulation seems to say that you must need a walker or two canes before the Social Security Administration will decide that you cannot ambulate effectively. But that is not true. The Social Security Administration recognizes that “individuals with extreme inability to ambulate do not necessarily use assistive devices. Furthermore, we recognize that an individual who uses a cane may be disabled.” 66 Fed.Reg. 58026-58027 (2001).
As part of a training program on the musculoskeletal Listings, the Social Security Administration’s Office of Disability issued a series of questions and answers. One question was:
“Can there be situations where there is ineffective ambulation that meets Listing §1.02A when only one extremity is involved and only one cane or crutch is used?”
Answer: “The use of a cane(s) or crutch(es) is not a requirement to meet this listing …. It is important to remember that it is the medical inability to ambulate effectively, not the use of an assistive device(s), that establishes listing level severity. Therefore, when the listing criteria are met, a claimant’s impairment can meet §1.02A even if he or she is not using any assistive device.”
The real test is “Can you walk a block at a reasonable pace on rough or uneven surfaces?” If the answer is no, you are likely disabled under the musculoskeletal listings.
How Social Security evaluates diabetes cases
The Social Security Administration sees many claimants for disability benefits who are afflicted with diabetes. Diabetes mellitus is a major cause of disability because it affects the entire body and is associated with a number of serious complications.
To win your claim for Social Security disability benefits, you must prove:
- Your diabetes is severe enough to meet or equal a listing; or
- Your diabetes prevents you from doing your former jobs and any other jobs that exist in sufficient numbers and that you could do considering your age, education, and experience.
Meeting or equaling a listing
Only the most severe cases will meet the diabetes listing. To meet the listing you must have one of the following:
- Neuropathy (nerve damage) in two extremities so severe that it disturbs your ability to move, walk, and stand.
- Acidosis (a serious disturbance in blood chemistry usually requiring hospitalization) that occurs every two months on average.
- Retinitis proliferans (an eye disease that damages the retina) with significant loss of vision.
Even if you don’t meet the diabetes listing, you may have a combination of impairments that together equal the severity of disability of a listing. For example, you may suffer from one or more of the complications associated with diabetes such as kidney failure, heart disease, foot ulcers, or stroke.
Proving your inability to work
If your diabetes and its complications are not severe enough to meet or equal the listings, you will need to show that they prevent you from doing past jobs and any other jobs that exist in significant numbers considering your age, education, and experience. It will be very important to get a complete description of your symptoms from your doctor and you should be prepared to testify about them in detail at your hearing. Your disability attorney can send your doctor a form to fill out or a letter requesting him or her to describe your symptoms. And you can keep a diary in which you record your daily symptoms.
Here is a checklist of the many symptoms commonly associated with diabetes that you and your doctor should consider:
– dizziness/loss of balance/falls
– retinopathy: spots
– episodic blurriness
– neuropathy: burning pain, numbness, clumsiness, dropping things, difficulty walking
– vascular disease: leg cramping with walking
– cardiac involvement: chest pain
– abdominal pain
– frequency of urination
– bed wetting
– kidney problems
– chronic skin infections
– history of vascular disease
– excessive eating with weight loss
– sensitivity to light, heat, or cold
– muscle weakness
– general malaise
– associated psychological problems
– hot flashes
– difficulty thinking concentrating
– loss of manual dexterity
– fast heart rate
– blurred vision
– insulin shock/coma
– post-attack fatigue
If you are not already represented by a Social Security disability attorney and want my evaluation, give me a brief description of your claim using the form to the right.
Or you may contact me at:
New Mexico Disability Attorney
6301 Indian School Road NE
Albuquerque, New Mexico 87110