How to prove disability

AuthorScott M. Riemer/Jennifer L. Hess
Chapter 5
To prove a disability claim, you must establish: (1) your client has
a sickness or injury; (2) the sickness or injury has reduced your client’s
functional capacity; and (3) as a result of your client’s reduced functional
capacity, he is unable to sustain the functional requirements of the occu-
pational standard specied in the policy.
Proving disability will require you to gather at least two types of
documentation: medical evidence and vocational evidence. Medical
evidence includes objective testing, treatment notes from physicians,
hospital visits, and medical literature. Vocational evidence includes the
claimant’s job description, employment history, education and other
records that describe her current occupation, including other potential
employment opportunities.
In addition to medical and vocational evidence, you may wish to get
creative and submit other forms of evidence. Indeed, there is nothing
stopping you from submitting symptom diaries, photographs, videos,
witness statements, client statements, etc. You can submit anything you
want in support of the claim, so allow yourself to think outside of the
box. In one of our claims, we submitted a video of the client’s wife
interviewing the client. Only when seeing the client on video could
you appreciate how the client’s Bell’s palsy impacted his ability to func-
tion and communicate. Benets were quickly granted after the video
§5.1 ERISA Disability Claims and Litigation 5-38
§5.1.1 Objective vs. Subjective Medical Evidence
Medical evidence is either objective or subjective. Objective evidence
consists of test results, such as MRIs, X-rays, blood tests, etc., and clinical
ndings. Clinical ndings are ndings observed by the medical professional,
such as a rash, fever, swollen glands, red throat, restricted range of motion,
etc. By contrast, subjective evidence consists of recordings of a patient’s
subjective complaints that cannot be veried by objective testing or clinical
observation, such as pain and fatigue. Subjective evidence is more credible
when it corresponds with objective evidence. For instance, if a patient’s
MRI shows a herniated disc, the patient’s subjective complaint of back pain
is more credible because a herniated disc is expected to cause back pain.
Likewise, subjective complaints are more credible if they are quantied. For
instance, the patient’s complaints of pain are more credible if the doctor
recorded complaints of pain on each visit in the treatment notes, particularly
if the doctor asked the patient to quantify the pain on a scale of 1 through 10.
§5.1.2 When Objective Evidence Is Necessary
Insurance companies often insist a claimant supply objective evi-
dence in support of disability. e courts generally have supported this
insistence when a condition or disability can be established by objective
evidence. For instance, a diagnosis of bromyalgia can be established
with the evidence of 11 of 18 trigger points. Courts will arm the denial
of a bromyalgia claim when the insurer requested trigger point proof
and the claimant failed to provide it. See, e.g., Hobson v. Metropolitan Life
Ins. Co., 574 F.3d 75, 88 (2d Cir. 2009); Hawkins v. First Union Corporation
Long-Term Disability Plan, 326 F.3d 914, 917 (7th Cir. 2003).
Insurers, however, often insist on objective evidence even when a
condition or disability cannot be established by objective evidence. For
instance, in one recent case, an insurance company required a claimant
to provide objective evidence of tinnitus, even though there is presently
no objective way to demonstrate tinnitus. e court, in accord with most
courts around the country, found the insurer’s denial on that ground to
be arbitrary and capricious. e court would not require the claimant to
provide the impossible. See, e.g., Miles v. Principal Life Ins. Co., 720 F.3d
472, 488-489 (2d Cir. 2013).

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