• David Martin

Dancing With Pain: The Two-Step


If you have never experienced chronic pain, you may not truly appreciate its impact. Imagine this. You soundly hit your thumb with a hammer. You then begin preparing your tax returns. As the pain subsides, you hit your thumb again. You continue trying to prepare your returns. Pain is distracting. People with significant chronic pain know this well. And many suffer bouts of depression when the pain cannot be alleviated.


It is difficult to evaluate restrictions and limitations based on pain. Pain cannot be seen on an x-ray or an MRI. The amount of pain necessary to cause a mental distraction cannot be objectively measured. Therefore, long-term disability insurers under ERISA frequently ignore pain. They have a long list of doctors who are willing to review medical records and provide an opinion which flatly ignores any complaints of pain. And unfortunately, there are some judges who are perfectly willing to rubberstamp their decision. But not all judges are that way.


In Kahn v. Provident Life and Accident Ins. Co., a hospital neurologist began to struggle with relapsing polychondritis and polyarthralgias (painful conditions involving destructive inflammation of joints and connective tissues). He tried to work through the pain. However, the pain was distracting and interfering with his judgment. His confidence was shaken. He worried about making a mistake. He couldn’t focus. He finally quit working and filed a claim for long-term disability benefits.


Provident Life did not believe pain was a legitimate restriction. The Court, however, took note that the Social Security Administration has been evaluating pain for decades. Say what you want about the federal government, but at least it knows it hurts if you hit your thumb with a hammer.


The Social Security Administration has a little two-step dance to evaluate pain. The first step is to determine whether there is a medically determinable impairment that could reasonably be expected to produce the pain and fatigue alleged. Second, are the complaints of pain substantiated by the claimant’s own statements and the medical records? Or in SSA lingo… “We evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities”.


In following this two-step dance, the court held, “The Court finds that Plaintiff has proven by a preponderance of the evidence—in particular, the unanimous opinions of the physicians who examined him—that he suffers from medically determinable impairments that could reasonably be expected to produce the pain and fatigue alleged. Defendant's in-house medical reviewers have never meaningfully challenged the validity of any of Plaintiff's diagnoses, and outside rheumatologist Dr. Bello agreed that the diagnosis of relapsing polychondritis was confirmed by the medical record.”


When we handle a long-term disability claim, our ERISA disability lawyers and long-term disability lawyers use our years of experience as well as that of medical professionals to document the claim. For those based on pain and fatigue, we try to follow this two-step dance so that even an insurance company with two left feet can follow along.