Case Strategy for Disability Claims
Involving Migraine Headaches

I have seen an increase in the amount of disability claims based on migraine headaches in the last ten to fifteen years.  It is estimated by the Migraine Research Foundation, a private organization that funds research into causes of and treatments for migraine headaches, that approximately 30 million Americans suffer from migraine headaches.  These headaches result in employers losing over $13 billion each year as a result of 113 million lost workdays!

Migraine sufferers file for disability when the frequency and severity of headaches reaches the point where work activity is impossible, despite relaxation techniques and medication therapy.

In my experience, a winning migraine headache case has the following traits:

• The Judge perceives the claimant to be sincere, truthful and credible.
• The claimant had tried all available therapies and medications to no avail
• The medical record confirms the claimant’s allegations of the severity and frequency of the headaches

My case strategy for winning a migraine case is based on a “functional capacity” argument.  The basic argument is that due to the frequent and debilitating migraine headaches, my client would not be a reliable employee at even a low stress, simple job with minimal physical and mental demands.

I use this functional capacity argument (also known as residual functional capacity argument, or RFC argument) since Social Security has yet to publish a medical listing for migraine headaches.  I suspect, however, that Social Security might publish a medical listing for migraine headaches one day.  In fact, an organization known as the Migraine Awareness Group (aka M.A.G.N.U.M.) has already proposed legislation calling for the publishing of a migraine listing.

Using The Functional Capacity Argument
to Win a Migraine Disability Case

As I mentioned above, there is no Social Security listing for migraine headaches.  In the absence of a listing, how does one go about proving disability?  One alternative is to argue that your capacity to perform work has been so reduced by your condition that you would not be a reliable employee in any job situation.

This type of argument is known in technical terms as the functional capacity argument (aka the residual functional capacity, or RFC, argument).  An argument like this says to the Judge that you can no longer work because of:

• Your medical problems
• additional medical problems that diminish your reliability
• specific functional limitations (your limited ability to sit, stand, or walk, for example)
• pain and other “non-exertional” limitations
• medication side effects such as fatigue, drowsiness, nausea, poor concentration, etc.
• depression/anxiety resulting from your physical condition and inability to work

Keep in mind, Social Security’s definition of disability looks to your capacity for work rather than just your medical problem.  So be sure to highlight all of the limitations brought on by your illness, not just your illness itself.

Also, since Social Security is concerned with whether you could perform any work, you have 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 many Social Security disability hearings, Judges even call upon vocational expert witnesses to testify as to the kind of work they think you may be capable of given your past work history and current limitations.

So the best way to prove disability is to really show the limitations brought on by your conditions.  The more limitations, the better; with every limitation that the Judge accepts, one category of work is potentially 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.

Some functional limitations specific
to Migraine Headache cases

In migraine headache cases, the functional capacity limitations that I usually see involve job attendance and daily reliability. Migraine patients frequently experience headaches randomly, with no specific cause identified.  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 questions 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 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.