Using a Functional Capacity Argument
to Win a Migraine Social Security Disability Case
What can you do to win your disability case if your impairment is not included in the “Listings” published by the Social Security Administration? One alternative: argue that your capacity for performing work or work like activities has been so reduced by your medical problem that you would not be a reliable employee.
Among lawyers, this “reliability” argument is known as a “residual functional capacity” (abbreviated as an “RFC”) argument. When arguing functional capacity, your attorney will argue to the judge that you no longer have the capacity to perform competitive work because of:
- your primary medical problems
- other medical conditions that add to your reliability problems
- specific functional problems - lifting, carrying, walking
- pain and other “non-exertional” limitations
- medication side effects such as fatigue, nausea or poor concentration
- depression/anxiety that arise from dealing with your medical problems
Remember that Social Security’s definition of disability looks to your capacity for work rather than just at your medical problem. In theory, you could have serious medical problems like congestive heart failure, herniated discs, insulin dependent diabetes, even cancer, but if your doctor will not go on record to say that one or more of these conditions will prevent you from performing a simple, unskilled job 8 hours a day, 5 days a week, you will not win your case.
When presenting an RFC argument, my main goal is to demonstrate to the judge that you would not be a reliable worker at even the easiest, sit-down, low stress job that exists in the national economy. In most hearings, Social Security judges hire expert witnesses called “vocational experts” to testify about your past work and about what you might be able to do given the limitations that arise from your testimony and the medical evidence presented.
Our job, therefore, is to identify as many specific limitations in work-like activities as we can. With every limitation that the judge accepts, categories of jobs will be eliminated. For example, if we show that you have medication side effects that cause occasional drowsiness, we would eliminate all jobs that require driving, or those that require the use or ropes, ladders and scaffolds. If the judge accepts that you cannot lift more than 5 pounds, then we eliminate all jobs that have greater lifting requirements.
Functional Capacity Limitations Arising
in Migraine Headache Cases
In migraine headache cases, the functional capacity limitations that I usually see involve job attendance and daily reliability. Frequently migraine patients experience headaches randomly, with no specific cause. When a migraine hits, the claimant needs to lie down in a dark room and avoid all stimuli including noise or light. If the claimant happens to be at work, he/she has to leave or be driven home. Unscheduled absences from work are also common. From what my clients tell me, severe migraine headaches cause pain at such a level that no activities of any type would be possible.
The main question to be answered, therefore have to do with:
- the frequency of the migraines
- the severity of the migraines
- how long do the migraines last when they occur
If you doctor will document activity limitations - preferably in a functional capacity checklist - you have a good chance at winning. For example, you will want your treating doctor to state that you will need unscheduled breaks from work, that you will miss several days of work each month because you can’t come in, and that you need low stress activities.
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