The unique challenge to winning social security disability for Back Pain
Commonality problem: Everyone has low back pain sometimes
Back pain is one of the most common medical problems in the United States. It is also one of the most common causes of disability throughout the world. “Musculoskeletal system and connective tissue” disorders – which includes back pain – are the leading basis for social security disability benefits among workers.
These facts might suggest that winning social security disability based upon back pain is routine and easy. But just because low back pain cases do account for a large percentage of approved social security disability cases – it does not follow that a high percentage of the low back cases presented are in fact approved. That is, if back pain cases represent a very high percentage of disability claims made, the approval level of low back pain cases could still be low.
Unfortunately, we have no statistics on how many, or what percentage of, back pain disability cases are in fact approved by the social security administration.
Low back pain claims are certainly legitimate and winnable, but in my experience as a social security disability lawyer of many years, the “commonality” of low back pain in our society does present unique challenges.
Let’s think for a moment on how the commonality of back pain may impact your low back pain-based disability claim. Most disability applicants are denied disability benefits until they reach the administrative hearing stage. Doubtlessly the Administrative Law Judge considering your claim for disability based upon back pain has herself suffered from back pain – perhaps she has even had back surgery. I have know several over the years: being a judge is a “sedentary” way of life, after all.
This common experience of low back may help your disability claim. The judge suffering or having suffered from back pain indeed fully understands just how debilitating back pain can be.
But could such personal experience on the judge’s part hurt your claim?
What if such a judge who has recovered from a back surgery and debilitating back pain, looks at you and wonders:
I got back to work from my low back pain – why can’t you?
Our common human experience may lead us to judge others who – for whatever reason – have not recovered and for whom back pain prevents work. Consider Senator Rand Paul’s opinion in 2015 about disability claimants with back pain:
“Over half the people on disability are either anxious or their back hurts. Join the club. Who doesn’t get up a little anxious for work every day and their back hurts? Everyone over 40 has a back pain”
This attitude toward low back pain suffers on social security disability is unfortunately quite widespread.
Varied Causes of Back Pain
The lumbar spine is a complex structure. There are a host of spinal structure abnormalities that are the source of low back pain including:
- Degenerative disc disease
- Sacroiliac joint dysfunction
- Spinal stenosis
- Facet joint dysfunction
in addition, medical science believes there is a varied range of conditions not associated with specific spinal structure abnormalities that cause back pain, including:
- Depression, Anxiety and other psychiatric disorders
- No specific known cause
When it comes to a back pain-based disability case what difference does it make what causes your back? Pain is pain, right?
Social security regulations require that you have an actual “medically determinable impairment“. This is a medical diagnosis based upon objective medical tests that explains your symptoms.
The reality is that doctors cannot find a specific cause for a high number of patient low back pain complaints. Many reporting low back pain are diagnosed with “non-specific” back pain. This is widely understood to be pain without a specific disease, injury or structural abnormality to explain it. This type of back pain is unlikely to support a favorable social security disability decision.
Why? Because no specific “medically determinable impairment” explains the back pain.
Medical explanations of back pain due to a mental illness in theory support a favorable disability finding. In practice these seldom result in a win based upon low back pain. These claimants could obviously win disability benefits based upon their mental impairments, but a high number claiming only low back pain in a disability case are not likely to be getting any psychiatric treatment.
Connection between Medical Evidence and Severity of Low Back Pain
If radiographic studies such as MRI, CT Scan or X-Ray reveal spinal structure abnormalities like degenerative disc disease or spinal stenosis you do indeed have a “medically determinable impairment”. You are not going to have the problems those with non-specific back pain will have.
But the administrative law judge will still consider whether the objective medical evidence supports the extent and intensity of your back pain.
An example may be instructive. Consider the following hypothetical low back disability claimants:
|Claimant||Medical Evidence: Lumbar MRI Results|
|Low Back Claimant A||mild stenosis, minimal facet joint hypertrophy, slightly bulging disc|
|Low Back Claimant B||ruptured lumbar disc impacting thecal sac, severe lumbar stenosis, advanced degenerative disc disease at all level.|
Who do you think – Claimant A or Claimant B – is more likely to win their disability case?
Claimant B because the objective MRI findings are more extensive. The stenosis is “severe”, and a disc is actually ruptured and is impacting the thecal sac, a condition widely associated with severe back pain. The degenerative disc disease is “advanced” and present at all spine levels.
One can see that Claimant A may get denied. An administrative law judge could easy agree that he has back pain, but the objective evidence in the MRI may not be convincing. The MRI shows “minimal” stenosis, minimal facet joint hypertrophy, and only a “slight” disc bulge (as opposed to rupture). These findings may mean that the judge finds Claimant A could still work.
While it may seem reasonable and intuitive that “severe” findings are more persuasive than “slight” abnormalities, there is evidence that the severity of spinal structural abnormalities and the severity of pain and limitation do not correlate well. Just because your MRI has “severe” all over it does not mean you experience disabling pain. And just because your MRI results are read as “mild” does not mean you are able to work with your low back pain.
It is also a fact that a high number of people over 50 years of age that have spinal abnormalities on MRI but report no back pain or limitations. So Claimant B could really, truly be experiencing debilitating pain that prevents him from working.
Social security will also look at the totality of your daily activities: are they consistent with debilitating back pain? This has historically been the issue of whether you are “credible”, a source of widespread offense to many disability claimants. Social security has created a new ruling designed to make this inquiry sound less offensive, but the fact remain the same: the judge is going to consider whether your claims of disabling pain are believable.
Lifestyle Choice Connection to Low Back Pain
Lifestyle choices may not cause back pain – but they without question affect the severity. Poor general physical and mental health is associated with low back pain.
The principal lifestyle choice domains concerned with back pain are inactivity (little to no exercise), repetitive postures and body activities such as continuous lifting or constant sitting, obesity and poor diet, and smoking.
The human body was designed to move, but unfortunately, most jobs limit us to specific body postures. Repetitive body postures cut across job types and skill levels. Dentists have a higher incidence of neck, shoulder and arm disfunction and pain, and carpenters have more low back disfunction and pain.
If you have low back pain, and are obese, a smoker, have a poor diet, and get no exercise, you invite the administrative law judge considered your claim to speculate that if “you only took care of yourself” you would be able to work.
If you had only…
Very few administrative law judge’s will say in their decision that they have turned you down because you are obese and smoke cigarettes. But in my experience the reality is there may be an influence on whether or not you win.
So what is a low back pain social security disability claimant do?
Tip #1: Follow Doctor’s Advice or Have a Good Reason Why Not
Spinal surgery is often recommended to disability claimants with back pain. Not all suspected sources of back pain have a viable surgical option, however. Some back impairments require back surgery to avoid catastrophic future results like permanent nerve damage or even paralysis. In other cases, back surgery is intended to increase function and/or reduce or eliminate pain.
When it comes to winning social security disability, there is no hard and fast rule on whether a claimant needs to have back surgery. Social security will not automatically deny a disability claim because the claimant refused back surgery. Nor will a claim be granted just because a claimant has undergone multiple back surgeries.
But if a disability claimant refuses medical treatment, social security will consider whether this “failure to follow prescribed treatment” is a reason to deny the claim. This long-standing policy was restated and refined in a 2018 Social Security Ruling.
This Ruling provides that social security cannot deny a disability claim based upon refusing advised medical treatment if such surgery or treatment would not be expected to restore the claimant’s ability to work. At first blush this may seem a bit nonsensical: what kind of doctor would prescribe a surgery that doesn’t help?
But the standard is whether or not the surgery is expected to get the claimant back to work. For example, an orthopedic surgery may want to do surgery to reduce her patient’s pain, but have no expectation that the surgery could return the claimant to work. This would not be a situation where social security could justify benefit denial based upon the failure to undergo a surgery that might be expected to help the claimant, but not to get them back to work.
Tip #2: Exercise, Weight Loss and Smoking: Eliminate Negative Lifestyle Factors
You don’t have to be perfect. But you should be trying. The medical records should reflect you are taking a least modest steps to improve your activity, that you are enrolled in a smoking cessation class, and that you trying to limit your calorie intake and improve your diet.
Tip #3: Solicit Medical Opinion on Your Ability to Work
Treating doctor opinions about your functioning, your limitations, and your ability to work are vital to winning a disability case. We have a long and detailed post on this subject. A detailed doctor opinion tells the judge that yours is not the garden-variety case of law back that he may get from time to time.
Tip #4: Be Unique: Paint a Detailed Picture of Your Back Pain as Beyond a Simple “back ache”
The key to combating the “commonality” problem with low back pain is to be sure you paint a picture of your back pain that goes far beyond what is typical. This includes the following:
- Telling medical staff at doctor appointments about the problems you have with daily activities, with your pain level, and your ability to sleep.
- Ask family and friends before you testify at your administrative law judge hearing to relate the problems they have seen you experiencing: often times people forget just how limited their lives have become.
- Think of the most embarrassing problems your back pain has caused you: make sure you relate them in your disability hearing.
Tip #5: Consider Psychiatric/Psychological Treatment and Counseling
As noted above, psychiatric and emotional problems are often associated with low back. Get mental health treatment if your doctor has suggested it. If you are depressed or anxious, tell your treating doctor. It is not a sign of weakness or a factor that would cause the administrative law judge to not believe that your back pain is real. Rather, it is likely to contribute to the possibility taht the judge would approved your disability due a combination of back and psychiatric problems.