If your back has ever “went out,” you understand just how devastating back problems can be. In my practice, impairments involving the spine are the single most common disabling condition. What follows below is my legal (as opposed to medical) understanding of back problems and my strategies to obtain disability benefits as a result of them.
1. What Types of Back Injuries May Qualify for Benefits
Most significant back problems involve disc injuries. The discs are the cushions between the bones in your back, the vertebra. You can think of them as jelly donuts as they have a jelly-like substance in the middle. They sit in between the vertebra and allow for the range of motion you have in your spine. The most significant disc injury occurs when one of these discs ruptures and the jelly-like substance in the middle is pushed out – just like smashing a jelly donut. When the substance comes out, it can come into contact with the spinal cord causing nerve damage. This is commonly referred to as a herniated disc and can certainly be a source of disability.
Bulging discs, however, are usually not a source of disability. Bulging discs are relatively common findings on an MRI. People with absolutely no back pain can have an MRI with bulging discs. As we all get older we tend to get more bulging as the process of aging compresses the spine. This compression of the discs (jelly donuts) causes them to bulge. Typically a bulging disc (or discs) by itself does not correspond to a disabling impairment.
2. Back Problems as a Listed Impairment
In my previous post, 5 Step Disability Evaluation Process, I described the disability evaluation process. The third step was to determine if the Claimant had a Listed Impairment. If the Claimant has a Listed Impairment, disability is granted without a consideration of whether the Claimant could return to work. A back condition has to be very severe to meet the requirements for a Listed Impairment.
As a threshold matter, there must be some nerve root compromise to qualify for the Listed Impairment for spinal disorders. From a symptom perspective, the pain and other symptoms cannot be localized in the back but need to radiate into the legs (or arms). As discussed above, something (most commonly that jelly-like material) is coming into contact with the spinal cord or nerve roots coming from the spinal cord. This needs to be demonstrated with an objective diagnostic test – like an MRI or EMG.
If that preliminary test has been met, the Claimant can meet the listing one of three ways. First, he or she could show that there is ongoing nerve root compression. This is demonstrated by all the following:
- limited range of motion,
- atrophy (muscle loss),
- sensory or reflex loss, and,
- if it’s a low back problem, a positive straight leg raising test (e.g. a test the doctor does by raising the Claimant’s leg while he or she is lying on the examination table).
If the Claimant cannot show ongoing nerve root compression, the Claimant could show spinal arachnoiditis. This is a very rare condition involving inflammation of the membranes that protect the spinal cord. The diagnosis would have to be confirmed through an operative note or pathology results.
Failing nerve root compression and arachnoiditis, the Claimant’s final way to meet the listing is showing lumbar spinal stenosis resulting in pseudoclaudication resulting in an inability to walk effectively. Stenosis is a narrowing of the spinal canal causing a compression of the spinal cord. Pseudoclaudication typically involves severe leg pain with walking or standing. It is often accompanied by numbness and weakness in the legs.
3. What if the Back Condition Is Not Severe Enough to Meet a Listing?
Most Claimants do not meet the technical requirements for the listed impairment. Many have some of the elements, but very few have all the requirements to meet the listing. In those situations, the Claimant must prove that his or her residual abilities would preclude returning to work.
As a direct result of the back impairment, Claimants often have difficulty doing the following types of activities:
- prolonged standing,
- prolonged sitting, and
Back problems indirectly – either because of pain or the effects of pain medication – also can cause difficulties:
- staying on task,
- being punctual, and
- missing work due to flare-ups.
For Claimants under age 50, these impairments must not only prevent a return to the Claimant’s past work but also prevent any other type of work. When I ask my clients with back problems why they cannot work, they often indicate to me that they cannot sit or stand for very long. Unfortunately, these restrictions usually are not sufficient to prove disability. SSA has determined that there are jobs that allow for a sit/stand option. In other words, there are jobs that can be performed either sitting or standing. Additionally, SSA has found that these jobs will also allow for the employee to change positions frequently. Thus the inability to sit or stand for prolonged periods of time rarely is sufficient to prove disability.
The more typical rationale for granting disability for Claimants under the age of 50 is that the effect of his or her pain, pain medications, and frequent flare-ups would so decrease his or her productivity, that the Claimant would be unable to sustain work. The argument is that while at work the Claimant would be unproductive because of pain and/or pain medication. Additionally, the Claimant might also miss a lot of work due to flare-ups of his or her condition. If the Claimant cannot sustain full time work, he or she would be found to be disabled.
For Claimant’s over age 50, the road is a little easier. Such a Claimant will be granted benefits if the Claimant:
- cannot do his or her past work,
- has a restriction to only sedentary work (i.e. desk work), and
- does not have transferable skills to sedentary work.
For example, a 50 year old Claimant who has worked construction his entire life and now can only lift 10 pounds because of a back impairment would be found disabled. The Claimant could not return to construction work with a 10 pound lifting restriction. A 10 pound lifting restriction would only allow the Claimant to do sedentary work. Finally, during the Claimant’s years in construction, it is doubtful that the Claimant acquired skills that would transfer to a sedentary work setting (e.g., like an office).David Galinis
Managing Partner – Estates and Social Security Practice
Berman, Sobin, Gross, Feldman & Darby, LLP
481 N Frederick Avenue, Suite 300
Gaithersburg, MD 20877