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DIB ‘Totally Disabled’ Same as ‘Unemployable,’ Even If No Diagnostic Evidence of Pain


An aviation mechanic for the U.S. military was discharged due to pain from an ankle injury. The Department of Veterans Affairs (VA) determined that he was 70 percent disabled and “unemployable” in “a substantially gainful occupation” and, therefore, was totally disabled. Nine years later he applied for social security disability insurance benefits (DIB) on the ground that pain from his ankle injury, together with back and knee pain and other ailments, had steadily worsened and by that time had rendered him totally disabled under the standards of the Social Security Act.

 

He underwent a series of physical examinations and diagnostic tests. Some of the results were normal but many were not, and revealed torn ligaments, obesity (a BMI varying between 30 and 32; 30 is considered the threshold of obesity), possible arthritis in a knee and ankle, an “alignment problem” in his back, and fibromyalgia.

 

At his hearing before an administrative law judge (ALJ), the man testified that he cannot sit continuously for more than half an hour or stand continuously for more than an hour, is incapacitated by his pain for at least six days a month, of the 12 days per month on which his wife is working and he is home alone with the children he is incapacitated for six of them and has to get help from his father to take care of the children, and that often when his wife is at home he has to lie on his back and apply heat or ice to his body to alleviate his pain. Including pain killers and muscle relaxants, he takes four meds daily and they make him “drowsy” and “foggy.” On the basis of the evidence presented at the hearing a vocational expert concluded that if as one of the doctors had said the man could not sit continuously for more than 15 minutes or stand for more than 10 and if his testimony about his pain was credible, then the man was indeed totally disabled, but otherwise he could perform such jobs as general office clerk, hand packer, or ticket checker.

 

The ALJ concluded that the man was not totally disabled, albeit severely impaired by the effects of a torn ligament in his ankle, obesity, and a torn meniscus in his knee. The ALJ gave “some” but not “great” weight to the VA's determination that the man was totally unemployable because the VA and Social Security Administration (SSA) use different criteria for determining disability. The ALJs principal reason for concluding that the man was not totally disabled by pain was that the diagnostic tests, mainly x-rays, that he underwent provided only limited support for his pain complaints.

 

The man brought an action for judicial review of the decision of the Commissioner of Social Security denying his application for disability insurance benefits (DIB).

 

The United States District Court for the Southern District of Indiana affirmed the decision of the Commissioner of Social Security denying his application for DIB.

 

The Seventh Circuit United States Court of Appeals reversed and remanded with directions to remand the case to the SSA. The court held that the ALJ failed to properly analyze and weigh the determination of the VA that the man was totally unemployable by reason of his disability and the ALJ's finding that the man's complaints of pain were not credible was not supported by substantial evidence.

 

The ALJ failed to properly analyze and weigh the prior determination of the VA that the man was totally unemployable by reason of his disability. Although the VA rated the man 70 percent disabled, its determination that he was totally unemployable by reason of his disability equated to a finding of total disability under SSA regulations. The VA determined that the man’s medical condition precluded substantial gainful employment. The SSA’s definition of total disability is that a medical condition precludes substantial gainful employment. Therefore, the VA’s determination that the man was totally unemployable was equivalent to a finding of total disability under SSA regulations.

 

The ALJ's finding that the man's complaints of pain were not credible was not supported by substantial evidence. The court held that complaints of pain need not be confirmed by diagnostic tests to be credible. The court noted that numerous cases and the SSA's own regulation, SSR 96–7p(4), make clear, an ALJ may not deny benefits on the sole ground that there is no diagnostic evidence of pain but only the applicant's or some other witness's statement. The court found that several doctors noted that the man had been in pain when examined, and this was some corroboration of his testimony. The court stated that the ALJ should have known of the limitations of x-rays as tools for diagnosing pain and, knowing that, should have ordered an MRI before issuing her decision. The court explained that the ALJ could have resolved her doubts by ordering an MRI or directing a further examination by a medical expert.

 

The Seventh Circuit United States Court of Appeals reversed the district court’s affirmation of the decision of the Commissioner of Social Security denying the man’s application for disability insurance benefits.

 

See: Hall v. Colvin, 2015 WL 727962 (C.A.7 (Ind.), February 20, 2015) (not designated for publication).

 

See also Medical Law Perspectives, December 2011 Report: When Pain is the Only Proof: Subjective Impairments

 

See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation

 

See also Medical Law Perspectives, June 2013 Report: Independent Medical Evaluations: Legal Risks and Responsibilities

 

 

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