Winning Arguments in Migraine Disability Cases
There are three main arguments that judges consider when evaluating Social Security disability cases. Two of these arguments rarely apply in migraine disability cases, but the third – called the functional capacity argument can be used with great success.
The two arguments that rarely work are called the “meet a listing” argument and the “meet a grid rule” argument. The “listings” refers to a Social Security publication called the “Blue Book.” In the Blue Book, Social Security identifies a variety of medical conditions that are considered serious enough to prevent a patient diagnosed with one of these conditions from working. Examples of listing level conditions include certain cancers, serious heart disease, diabetes with complications and schizophrenia.
The “meet a listing” argument does not apply in migraine cases because there is not yet a listing for migraines. The closest listing that can sometimes apply may be found in the Neurological conditions section of the Blue Book. Claimants who have suffered significant head injuries and are left with severe headaches and other limitations may meet a neurological listing. But for a claimant who suffers with migraines alone, there is no listing that directly applies. Social Security has given some thought to adding a listing category for migraines but this proposed change has not yet happened.
The “meet a grid rule” argument does not apply in migraine cases because the grid rules only apply in cases where you have a physical limitation. The Grid Rules refer to a set of regulations that applies to claimants over age 50 who have a limited education and limited work skills. The grid rules reflect Social Security’s recognition that claimants over age 50 with limited skills and a limited education will have difficulty finding simple, entry level work. Even if such a person could perform simple work, that person is considered “disabled” because he/she would most likely not be able to find a job. Pain is not considered a physical or “exertional” impairment so the grid rules are not applicable.
The Functional Capacity Argument – Your Best Bet in Migraine Disability Cases
A “functional capacity argument” is the most common argument used by successful disability claimants who cannot work because of migraine headaches and associated complications. When building a case around this idea, you will assert that your capacity to perform even a simple, entry-level, low stress job has been so diminished by the frequency and duration of your headaches, and by the side effects of medications used, that you would not be a reliable worker.
In other words, your capacity to function (“functional capacity”) has been so eroded by your migraine headaches that you can no longer meet the demands of any type of work.
Some functional limitations specific to Migraine cases
In migraine headache cases, the functional capacity limitations that usually apply include job attendance and daily reliability problems. Migraine patients frequently experience headaches randomly, with no specific cause identified. When a migraine hits, you may need to lie down in a dark room and avoid all stimuli including noise or light. If you happen to be at work, you will have to leave or be driven home. Unscheduled absences from work are also common. As you know, severe migraine headaches cause pain at such a level that no activities of any type would be possible.
The main questions you will want to discuss relate to:
- the frequency of your migraines
- the severity of your migraines
- how long do your migraines last when they occur?
Your judge will want to know
- Are you sincere, truthful and credible?
- Have you tried without success all available therapies and medications proposed by your doctor?
- Does your medical record support your allegations of the severity and frequency of you headaches?
If your 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. Your doctor should also describe the unpredictability of your migraine headaches, side effects of medications and how successful are your medications in reducing your symptoms.
If you find that the frequency and duration of your migraine headaches leave you unable to find or keep a job, you may have a viable Social Security disability claim. We invite you to complete the case evaluation form on this page to speak to a lawyer experienced in representing migraine disability claimants.
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Comments on Winning Arguments in Migraine Disability Cases
I find this very helpful, but I do have a question. What do you do if you were denied and your lawyer advised you to NOT appeal, and are now WORSE? I no longer have any work credits. I no longer have an attorney. I have not worked since Sept 2001.
I have suffered from migraines for almost 20 years. When I was working and could afford the migraine medicine I would use all 9 pills allowed me in a month. I get 3 to 4 migraines a week and they are severe, and I also suffer from cluster migraines. I have tried many different kinds of medications to no avail. I have even had a hysterectotmy, and had my ovaries removed and still nothing helps. I am currently unemployed, and have no income. I have missed work in the past due to migraines. I am almost 50 years old, and I live outside the Akron Ohio area. Is there any hope for me in getting disability benefits?
I have been having migraines since i was 33 i am now 41. since sept of 04 they have increased to the point of diability. I have Migraines that last 1 to 3 days twice a week. The Problem is i am allergic to migraine aborting meds. have been to 2 neuros who could not help me. I have been on every medication imaginable for preventive measures. My Neuro released me and has stated that there is nothing more he can do for me and referred me to Medical University of charleston last June 2010. The first available appointment is scheduled for April 20th,2011. In the mean time i just suffer. I go to a pain management doctor for back pain and the medications he has me on(2-20 mg of oxycontin and 2 10mg of percocet and 4 4mg of sanaflex along with 2 naproxen a day does not keep me out of pain. The pain management doctor doesn’t handle migraine pain, but it just so happens it helps with the severity of the migraine. However i have to stay so drugged i cannot drive. I have also Fibromyalgia which causes me constant pain. Iritable bowel,Tendonitis,bursitis,and i know there is a problem with the vertabrae in the middle of my back. I was diagnosed with osteopenia several years ago whch may be related to my back pain. I have no insurance as of last sept so i find it hard to afford to go to a specialist to find out exactly the cause of chronic pain coming from my back. I stay chronically fatigued and frustrated over the fact that i live in PAIN. Washing dishes hurts changing sheets and even to try and vacumm the floor causes pain. Migraine triggers are light, noise,barometer,smells and hormones to mane a few. I worked for harland check printers approx 10 years until 1998 i became self employeed to have a more flexible work schedule. But do to the migraine severity i had to shut down my business of boat manufacturing. I Have had no income for over 2 years now.
I am unable to work because of chronic pain and migraines. I live with my boyfriend whom pays the bills. I really need some help, i paid in to social security over 20 years and i thought that would be what i would be entiltled to in this situation. I applied originally in Jan2010 and was denied in June 2010. I appealed and was denied again Jan 20th,2011. I know there should be medical records showing where i have been to the doctor at least once a month for a solid 7 years then to specialist and now referred to musc. I don’t exaclty know what records social security ever got. The Family Practice i went to since i was diagnosed wants .60 per page for records, i quit going therew last june because of the dr wanting to constanlty do test on me that i can not afford. In my history he has told me i had temporal artiritis and tmj and many other things and always wants me to come in for follow ups. Last visit he said i need upper gi and hemocult and i refused, then he told me he wouldn’t treat me any longer if i did not cooperate with having these test done so i haven’t been back. If You think You can help me please contact me by email you can call but you will have to leave a message because i don’t answer because of all the collection phone calls. Thank You, Larenda Paul
Hello,
I have been dealing with hemiplegic migraines since 2008,but was dyginose with migraines since 2002,and have been dealing with it since i was 9..My mother and father side of the family have migraines and i have all of theres.Since 2008 i have been haveing migraine attacks everyday..dont know how long they last becasue it never goes away…I get paralysis on my left side from my face to my toe.The paraylsis can last from hours to weeks,to months.I had to stay in the hospital for a month and then went to a rebilitation place for a month,because i couldnt walk or use my left arm or leg.. I also get slurd speech,seizure and TIA symtoms due to the migraines.Along with my debilitating migraines i have chronic Asthma,a buldging disk,drepression,and PTSD.
I was denied twice,and now im at my last stage of the appeals..
all I can say is help…going thru alot and loseing hope..
I have suffered off and on for 20 years from severe migraines. Five years ago I began a preventative medication (Topamax) which helped decrease the migraines to once every 3 mths or so instead of monthly. I have been employed at my current job for 9 years now. For the past three months my migraines have reappeared. Coming more fast & more frequent as the weeks go by. At this point I am experiencing one every 5-6 days. The duration is usually 14 hrs even with treatment at the onset. My doctor completed FMLA (Family Medical Leave Act) for my employer which will allow me 6 wks of missed work in a 12 mth period without losing my job. They want to start me on a beta blocker while weaning me off the Topamax which during this time my migraines will most likely worsen before getting better if this even works. I believe that it is due to peri menopause and the change of my hormones from day to day. I haven’t even begun menopause yet which doesn’t guarantee they will subside then. My Grandmother & Mother experienced migraines until the day they died. My husband & I have worked hard for everything we have for the last 25 years. Now that I am missing work without pay once a week or more I am losing hundreds of dollars a month. I have records dating back to 1989 of my migraines but have switched doctors numerous times throughout the years for various reasons. My doctor I have now I have been with for 6 mths. All I know is that I can’t afford to lose more money due to finding a treatment or medication that will finally end these migraines. My husband is 8 years away from retirement and our house will be paid off then. I don’t want to lose everything I have due to losing my job or losing money on a weekly basis. There has to be a way that I can win a case to help me get disability for my migraines. One shouldn’t have to lose everything they have worked so hard for because of something that is our of their control. I am a hard worker but I can’t work hard any longer. I can’t be depended upon to appear at work on a daily basis nor can I be depended upon to be there for the whole day if a migraine sets in. What can be done to help me? Can you recommend any disability lawyers for my ailment in the Cincinnati area?
I am 34 years old and have suffered from headaches since I was 7. I wake up with a headache and go to sleep with it. An MRI showed I have bulging disks between c4 and c5 and bone spurs.
I work at a daycare working with toddlers. I have been fired from my previous job and am having problems with my current job directly due to my job performance because of my headaches.
I rarely call in sick because I have a headache every second of my life. Even when I have a migraine, i go to work but everyone suffers.
Could i be eligible for disability?