Migraine Headache—It Isn’t Easy But You Can Get Benefits

A migraine is a neurological condition associated with intense headaches sometimes accompanied by nausea, vomiting, and perceptual disturbances known as aura¹. 
 
The Listing of Impairments contains hundreds of medical conditions that will automatically qualify a person for disability benefits, if his/her condition meets all the requirements of a listed impairment. There is no specific listing for migraines in the Listing of Impairments, so a person who suffers only from migraines will not meet a listing. However, migraine headache sufferers may "equal" a listing if it can be shown that their symptoms are of equal severity to a listing for a similar condition.
There is medical research that would arguably place migraines on the seizure spectrum; as such it's possible that someone with chronic migraines could equal the listings for epilepsy.  Merely having occasional migraines won't equal the listing. To equal a listing, migraines must occur at least twice a week, despite treatment, and impair mental functioning for several hours at a time. Equaling a listing is difficult in any case. You will need support in the medical records and from witnesses.
Usually a migraine diagnosis is primarily based upon reported symptoms and medical history. Migraines do not appear on x-rays or MRIs but objective testing may be done to rule out other possible causes of headache. 
 
What the Administrative Law Judge will be searching in the record and questioning the claimant about is a credible medical history, treatment etc. to support the claimant’s allegations of disability.
Consider Kirby v. Callahan, 975 F.Supp. 1290 (D.Kan.1997) – Complaints of disabling migraine headaches were discounted where the claimant failed to seek any treatment for headaches.  Many times I have had people in this situation because they lacked medical insurance.  Emergency room records may show incidents, but are lacking on treatment records.
VERSUS- Orr v. Chater, 956 F.Supp 861 (N.D. Iowa 1997) Here the claimant submitted evidence relating to duration, frequency and intensity of pain to support her allegations of subjective pain from recurring headaches and seizures and tended to make her subjective complaints that pain was disabling more credible then less.

It is important to a case in which migraine headaches are alleged to be the impairment that the claimant keeps a headache diary and recording detailed information about headaches, including the following:

• date of migraine
• length of migraine
• intensity of pain
• description of aura, if any
• preceding symptoms
• possible triggers
• medication and dosage, and level of relief.
  

It is important that the claimant be consistent in attending treatment, consistent in his/her complaints to the doctor, and shares his diary with the doctor (for purposes of treatment, not “because my attorney told me to tell you these things”). Such a diary will assist the doctor in making an accurate diagnosis. It will also improve the Social Security disability case by documenting the frequency and intensity of the migraine headaches.

If a claimant’s condition does not meet or equal the Listing of Impairments (probably the Neurological schedule 11.00, 11.02, 11.03) the determination moves to steps 4 and 5 of the sequential evaluation.

At steps 4 and 5, Social Security is to take into account claimant’s age, educational level, employment history, and Residual Functional Capacity (RFC) to decide whether there are jobs in the U.S. that claimant can perform.  One or more of the following limitations might be found in the RFC of a claimant with persistent migraines.

• Missing more than two days of work per month due to pain.
• Require unscheduled breaks throughout the day because of nausea, pain, or the  
• Be off-task for at least 15% of the workday due to pain.
• Would be unable to maintain focus and concentration throughout the workday.
  

An impairment of this type presents unique difficulty because it is an impairment based upon a subjective evaluation to identify the impairment and establish its severity.  With this impairment, the more documentation you can put before the Administrative Law Judge (ALJ) the better.
Difficult or not, if sufficient evidence is presented the ALJ cannot ignore it. Consider: Baker v. Apfel, 159 F.3d 1140 (8^th Cir. 1998) The hypothetical question posed by the ALJ to the vocational expert was inadequate and did not fairly reflect impairments and capabilities of claimant, and therefore did not establish claimant was qualified for any jobs existing in the national economy where the questions did not consider limited time claimant was able to work, absences from the workplace, treatment etc.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it. This blog is only the opinion of the author and are not expressed authority on any of the subjects discussed

1An aura is a perceptual disturbance experienced by some with migraine or seizures before either the headache or seizure begins. It often manifests as the perception of a strange light, an unpleasant smell or confusing thoughts or experiences. Some people experience aura without a subsequent migraine or seizure. From Wikipedia, the free encyclopedia