Winning Isn't Easy Season 3 Episode 40: Neuropathic Disorders, Disorders Causing Pain or Neuropathic Pain Part 2

Welcome to Season 3, Episode 40 of "Winning Isn't Easy"! 🎙️

In this insightful episode, your host, Nancy L. Cavey, continues her exploration of "Neuropathic Disorders, Disorders Causing Pain, or Neuropathic Pain, Part 2." Neuropathic disorders can be extremely challenging to deal with, particularly due to the pain and discomfort they bring. Understanding how these disorders relate to disability claims is crucial.

In this episode, you'll gain a deeper understanding of:

🩺 Various neuropathic disorders and the pain they can cause.
📋 The significance of comprehensive medical documentation and evidence in disability claims associated with neuropathic pain.
🤝 Practical tips and strategies for building a strong disability case when confronted with these complex conditions.

Nancy will share her wealth of experience in disability law to provide valuable insights and guidance for individuals and their representatives who are navigating the intricacies of disability claims linked to neuropathic disorders and pain.

Whether you or someone you know is affected by these conditions or you're a professional assisting clients in similar situations, this episode offers essential information to help you advocate effectively.

Tune in to Season 3, Episode 40 of "Winning Isn't Easy" to gain a deeper understanding of neuropathic disorders and their implications on disability claims. 📻🩺

Resources Mentioned In This Episode:

LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO PROFESSIONAL BOOK: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/

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Please remember that the content shared is for informational purposes and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

ERISA Attorney Nancy L. Cavey: 0:10

Hey, I'm Nancy Cavey , national ERISA and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've gotta give you a legal disclaimer. This podcast is not legal advice. The Florida Bar Association says, I have to say this. So I've said it. Nothing, however, will prevent me from giving you an easy to understand overview of the disability insurance world, the games the disability carriers play, and what you need to know to get the disability benefits you deserve. So, off we go. Now, I've been on a kick recently talking about neuropathic pain disorders, and I've got some more. You may think, well, why should I be listening to this episode? Uh, because I don't have a neuropathic good disorder. But you probably have a medical condition that causes pain. And the disability carrier plans approach to evaluating pain claims, including neuropathic pain is the same. So I'm specifically potentially gonna be talking about a number of medical conditions that are perhaps a little bit , uh, unusual , uh, and not always seen in in the the disability claim world. But again, I think these , uh, uh, types of medical conditions give you a roadmap into how disability carrier or plan is gonna evaluate your claim. So, bear with me here. I'm gonna talk about neuropathic pain and a Social security disability claim and what impact that will have on a ERISA disability claim. I'm gonna talk about how disability carriers like Reliance Standard will deny Charcot Marie Tooth diseases by using social media searches and what can happen to your ERISA disability claim. And I'm lastly gonna close with a piece on a chronic inflammatory demyelinating polyneuropathy, lots of words there, and your ERISA disability insurance , uh, claim. Remember, we're gonna talk about pain painful conditions, the impact , uh, that a social security claim can have on your ERISA claim. I'm gonna talk about the use of social media and the techniques that carriers or plans use in denying claims. Got it. Let's take a break.

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ERISA Attorney Nancy L. Cavey: 2:44

Welcome back to Winning Isn't Easy. Let's talk about neuropathic pain and a Social security disability claim . Now , neuropathy is a nerve disorder that causes damage to your peripheral nervous system . Your peripheral nervous system is like the , a track, if you will. It is the nervous system that will transmit signals from the brain and the spinal cord to the rest of your body. It kind of follows a track, if you will. Now, a disorder , uh, neuropathic disorder can cause pain, numbness, and tingling of your hands and feet that can make it impossible to do the lightest physically demanding work that you have , uh, done both for social security claims purposes and long-term disability claims purposes. And in a social security claim, you also at step five, have to show that you can't do other work in the mythical not real world national economy. You be of your age education skills and restrictions limitations. These two tests sound a bit like the test that's used in ERISA case own occupation and any occupation. But in both instances, in a social security claim and in an erisa long-term disability claim, you've got the burden of proof. Now, I try to use my social security experience as a social security , uh, attorney in handling neuropathy claims in the long-term disability context. So let's dive into that a little bit. Under this social security , uh, view of cases, they're gonna divide neuropathies into two categories. There's diabetic neuropathy and neuropathies caused by treatment for cancer. Um, there are other causes of neuropathy. It's not uncommon to see neuropathic issues in , uh, MS for example, and I use for MS listings in the social security cases and bring all of these kinds of techniques, if you will, to an ERISA claim. So a diabetic neuropathy situations where high blood sugar levels will damage nerves, nerves in the hands and feet. And that means you might have difficulty holding a knife, fork, buttoning buttons, or using your hands to manipulate things. You've got weakness, tingling, and numbness that can make it difficult to walk, stand and, and sit. So you may have to alternate sitting and standing, and that can make it hard to do not only your own occupation, but any other occupation. Now, there is also something called chemotherapy induced neuropathy and drugs used to treat cancer can damage nerves much like the damage that's done in diabetic neuropathy. Um, and an example of that is a PAX Lital , um, peripheral neuropathy. So what I wanna do is kind of tie this together a a little bit for you. In the social security world, they evaluate neuropathies primarily, as I said, based on diabetic neuropathies and based on , uh, chemotherapy induced neuropathies. But they also will evaluate neuropathies , uh, under orthopedic , uh, conditions and neurological listings. So there are many times when I have a person who has a herniated disc in their neck or their low back, and I'm trying to argue that they meet a listing under for social security purposes. Um, but more importantly, I am getting physicians to complete forms called residual functional capacity forms. Now, you may say, well, what does that have to do with an ERISA disability claim? Because my doctor there is filling out an attending physician statement form, I am taking the, the neuropathy forms that I get in my social security claims, and I am amending the attending physician statement form in an ERISA disability , uh, claim because I find that the attending physician statement forms that are used in an ERISA disability claim, don't ask the right questions, particularly when it comes to neuropathic pain issues. So I want to supplement the a PS form with the forms I use in my social security , uh, case because I want the disability carrier to understand the right restrictions and limitations , uh, so that they can determine whether or not you're able to do your own occupation and any occupation. Now, what's particularly important in these neuropathy cases , uh, is that the neuropathy is well developed, the cause of the neuropathy diagnostic studies to confirm the basis of the neuropathy, what symptoms you experience both in your , uh, upper and lower extremities or any other part of your body that's been affected by the nerve damage. Uh, we also wanna document the treatment that you've gotten and your response to the treatment. As a side note, that's particularly important in peripheral neuropathy that has been induced by treatment , uh, for cancer , um, and , um, uh, pto . So , uh, treatment is commonly used to treat breast cancer with weekly treatment , um, plans. Uh, and studies have shown that women who get dose dense treatment are more likely to experience induced peripheral neuropathy , uh, than those who get it weekly. So it's the frequency of the treatment that's important in the, the induced peripheral neuropathy case. Now that's normally, as I've said, characterized by numbness and tingling in the feet that will limit daily activities. Um, and so regardless of how the neuropathy is caused, I think that you should be documenting the nature of the treatment that you are getting for that peripheral neuropathy , um, because you wanna document how the treatment is impacting your ability to sit , whether you have to alternate sitting and standing, whether or not , uh, you have problems using your hands and fingers , uh, particularly manipulating things because ultimately when we get to the , uh, if you will, the , um, step five of a social security claim and , uh, the any occupation stage of social security, I'm sorry, of a ERISA claim, we have to show that you can't do basically a sedentary job. Now , one of the big differences, of course, is that social security takes into consideration age where the ERISA policies and plans generally don't, but the game, if you will, is certainly the same in both instances at step five of a social security , uh, claim. And at the , um, uh, own occup or any occupation stage , you need to develop the reasons why you can't do sedentary work. So the tingling in your feet might make you make it difficult for you to sit. You may have to alternate sitting and standing. It may interfere with your ability to walk. And of course, if you have , uh, upper extremity neuropathies, you may have problems that we've talked about with manipulating things both with gross motor movement and fine motor movement, all of which adversely impact the ability to do , uh, sedentary work. Now, I find that many of the medications that are prescribed for peripheral neuropathy conditions, including those caused by treatment for cancer cause fatigue and , uh, other side effects that impact a person's ability to concentrate and maintain pace and , uh, duration. So it's important that all of those things are developed in your medical records. It might be that the treatment is sort of quote unquote successful in terms of the cancer treatment. For example, the treatment that you've gotten might make that your cancer in remission, but you've got the side effects. It might be that the diabetic neuropathy is quote unquote controlled with medication, but we have to be careful about using those kinds of words, remission and control, because disability carriers, much like the social Security Administration, will seize on those kinds of words to say, okay, you're stable, you're in remission. Your , uh, neuropathy is under control, and therefore we think that you can do your own occupation. Or we , or you can do , uh, any occupation. So you need to be very careful if you are having a quote unquote remission or some improvement because we still wanna document the nature of your symptoms, how often you have those symptoms, how those symptoms impact your ability to function, whether or not you're having side effects of medication, the frequency and intensity of the side effects of medication. Uh, you know, your restrictions, your you need to alternate sitting and standing, the problems you have using your hands concentration. But we also kind of wanna tie this together, particularly if your improvement is quote unquote temporary , uh, either because of , uh, the , the side effects of medication are , um, are reduced or because you're actually having some improvement. Be careful about the words that you use to the doctor about remission or improvement. Don't use words like better or improved . Quantify the change. Don't use what I call weasel words. Okay? So we've covered a lot of information. Uh , I want you to digest this, think about it, and think about what impact it has on proof in a , a claim regardless of whether or not it's a peripherally induced , uh, pain claim, side effects of cancer treatment, or what I'm gonna call in quotes , a generic pain claim. Got it. Let's take a break. Welcome back to winning Isn't Easy. Now, I've been talking about chronic pain , uh, conditions, and one of the things that I wanna talk about here is how we experience pain. Um, I think that's important for us to understand because disability carriers generally don't not understand pain claims. They don't appreciate the fact that your brain is producing sensations of pain. Uh, and our nervous system is sending the information to our brain about these pain signals and interprets that pain information in terms of our individual makeup, who we are, how we experience pain, the nature of the physical injury or condition, genetics, gender, and even our psychological makeup. So let's think about this. If you've had a physical injury like a back injury, many disability carriers think that once you recover from back surgery that you're cured and they don't really understand the postoperative pain that could become chronic. They don't understand conditions like fibromyalgia or chronic fatigue or Ehlers D anlos or ms. These conditions can cause pain in various parts of your body. U h, they vary in intensity, frequency, location, duration. U m, think about migraines. They can make your head feel like it's going t o explode b lo, but that might be only a certain number of days per month. And so people experience pain differently. But disability carriers use a one f fi a ll approach to a n analyzing these pain claims. Many times disability carriers think that chronic pain is just a w ay to get attention or disability benefits, and if they don't see it, they don't believe it. There is a n ew study about the measurement of chronic pain. It was done by the, uh, university of California San Francisco, and it was done, uh, by Dr. V olker and his colleagues, and they set out to study the report of people with chronic pain. The team implanted electrodes into the areas of brain, which are important for our individual experience of pain. And then they tracked the abnormal , uh, abnormal neural brain activity and demonstrated that the information processing part of the brain , uh, in chronic pain patients is different from the brain activity in acute pain patients. Now, to me, this is an important correlation since many claims are dismissed by disability carriers or plans because of the lack of physical injury or insult , uh, and the lack of objective tools to prove and measure chronic pain. I hope that this study is just part of the development of objective tools to prove pain and the nature of pain, the severity of pain, and the functional impact of pain. I'm often asked what people should do if their chronic pain disability claim was denied. Now remember, you only have 180 days in which to appeal a denied or terminated claim, and you want to use this , uh, period of time to file what's called an appeal. You can't file a lawsuit, by the way, without filing an appeal. The appeal is the trial of your case. And I think chronic pain appeals take quote unquote more work, if you will, than an average appeal, simply because disability carriers don't understand the cause of the pain. How you as an individual experience the pain, how it impacts your ability to function. And so it might be , uh, obvious to you that you're having pain but not so obvious to the disability carrier who's used liar for higher doctors who will say that your pain doesn't, arri isn't caused by this condition or isn't so severe that you can't work or it should be alleviated or a humiliated by medication. So when I'm handling a pain claim, obviously I'm getting the carrier's file, but I wanna be taking apart what's the organic cause of the pain? What's the underlying disorder? How is it manifested? How are we proving it? What are my client's symptoms? How do those symptoms impact their ability to function? And that may necessitate our own IME may necessitate a functional capacity evaluation, a conference with doctors re uh , forms such as residual functional capacity forms, conferences with doctors to rebut the opinions, vocational opinions , uh, and statements of you and family members, maybe even some video. All of this is case dependent, as is a carrier's evaluation of chronic pain. So if your claim has been denied or terminated, that 180 day appeal period can go very quickly. So you should be giving very serious consideration to hiring an experienced ERISA disability attorney to help you in any type of chronic pain claim that has been denied or terminated. Got it. Let's take a break. Welcome back to Winning Isn't Easy. How Disability carriers like Reliance Standard Deny Charcot Marie Tooth Diseases by using social media searches and what can happen to your ERISA disability claim. Now Charcot Marie Tooth Disease CMT is a genetic neurological degenerative disease that damages peripheral nerves, particularly in your hands and feet. It's incredibly painful. It's characterized by a burning sensation in that pain can obviously interfere with concentration and cause fatigue. Disability carriers like Reliance Standard are always looking for a reason to deny a claim. One of the tools that they use is a social media search. So I'm gonna tell you the story of a Mayo Clinic nurse McKintry who suffered from CMT. She became unable to work as a nurse because of balance issues and pain. She applied for her own occupation, long-term disability benefits and Reliant Standard. The disability carrier for Mayo paid her own occupation benefits because she couldn't work as a nurse. However, the disability definition changed , uh, after two years from an inability to do own occupation duties to an inability to do any occupation. Now, what's important is for you to get out your disability insurance policy or plan and read what the definition is of own occupation and any occupation 'cause you don't have the burden to prove that you can't do one and then the other. Now, what Reliance Standard did in this case was they got out that definition of disability and they looked at it and they thought, Hmm , what tool am I gonna use in my denial toolbox in this claim to try to justify a claims denial? And in this particular case, they pulled out that social media denial tool. They hired an investigative company who performed a social media search, which revealed she was a dog reader who raised and sold puppies. She was also a dog trainer for a kennel company. Her Facebook page was full of pictures about the puppies that she bred, trained, and sold. And her business page displayed posts and pictures of her dog show activity. You have a sense of where this is going to the dogs, right? Well , RS then used another claims denial tool. They pulled out the second big tool and that was surveillance. And they surveilled her over the course of three days. That documented running a group training session for dogs shopping in a mall, doing 10 minutes of gardening in her yard. Now her doctor was aware of all these activities and actually documented them in the medical records, but felt she was still unable to work. Now, interestingly enough, the nature of her treatment didn't change over time despite her claims of increasing problems. So the Disability Carrier Reliance Standard pulled out their third denial tool from their toolbox, and that was an quote unquote independent medical evaluation. And guess what? The doctor concluded that she could do sedentary work. So on appeal, MRA said, guess what? I'm having cognitive problems. The interferes with my ability to focus, and after 30 minutes, I'm having problems and I'm having increasing pain and fatigue and balance issues. Now, if you were a court who ultimately got this appeal, what would you do? Well, I will tell you what this court did. They rejected her arguments noting that a Reliance standard had attempted to clarify her daily activities that the surveillance well, and the social media showed that she was doing lots of things which were inconsistent with her claim and that the IME had addressed her pain and fatigue. And they had considered all of this in her medical records in denying her benefits. Now, what disability carriers and plans are doing is saying, look, I'm looking at the activity of daily living forms they're completing. I'm looking at the AP PS forms the doctor is completing. I'm looking at the medical records and I'm comparing and contrasting that with what's on social media and what's been documented in surveillance. No social media posts can be a curated reality. We all try to post pictures of us looking beautiful, doing fun things, which create an illusion that we want people to accept as who we are and what we're doing. That obviously can backfire in a disability claim and it can really backfire if this is not an illusion, but a reality. Okay? And if it's a reality as confirmed by surveillance, the case gets even worse. Now they put the icing on the top, if you will, by getting an IME and certainly stacking all of that evidence in this case worked. And under the arbitrary capricious standard of review, the court upheld the denial of the claim. So what are the lessons learned? And I think these are applicable to any claim , be it a pain claim . Um , you know , you name it kind of claim . Here's my rules , don't be on social media. Don't operate a business and claim that you are disabled. Don't do activity that contradicts , uh, your your claim, that your symptoms make you unable to perform The activities of even a sedentary job. Don't get minimal treatment if you're claiming that your symptoms are increasing. You can see all of this adds up to a claims denial and a claims denial or termination that will be upheld by the court. Got it. Let's take a break.

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ERISA Attorney Nancy L. Cavey: 24:54

Welcome back to Winning Isn't Easy. Let's talk about chronic inflammatory demyelinating polyneuropathy and your ERISA disability insurance claim. I've been talking a lot about pain and painful conditions and let's take a a a moment to talk about chronic inflammatory demyelinating polyneuropathy. It's known as CIDP. It's an inflammation of the nerve roots of the peripheral nerve that results in the destruction of the myelin sheath of nerve fibers. Now I like to think of myelin as the insulation on an electrical wire. And you know what happens when the electrical wire is bare? The destruction of the myelin can cause a slowing or blockage of the nerve signals, and that in turn can cause weakness, paralysis, and impairment of motor function and even impairment of sensory function. And generally, this disease will affect both sides of the body. The severity of the symptoms in the course of the disease varies from person to person. CIDP is thought to be an immune disorder. And the motion and sensory dysfunction can really cause a person an inability to do the material and substantial duties of their own occupation or any occupation that in turn can result in a disability insurance claim. Now what's important , uh, again, when you're looking at these kinds of cases is the chief symptom. The chief symptom of CIDP is a slow, progressive, symmetric weakness of both muscles around the hips and the shoulders and the hands and the feet . There's a pattern of weakness that can be caused by the nerve damage. Now, the a motor dysfunction and the abnormal , uh, sensation issues can prob , can cause problems with coordination, numbness and tingling, both of the upper and lower extremities. What's important in my view, since this is a progressive disease, is that when you begin to have symptoms, you are explaining to the doctor the symptoms. But as these symptoms progress, you need to be thinking, if you will, from the top of your head to your toes and go through each impacted area of your body explaining to the doctor what your symptoms are and how those symptoms impact your ability to do your own occupation or any occupation. Take each issue apart, explain the symptoms and explain the functionality. Now of course, the doctor's gonna be performing a neurological examination, which should be consistent with motor and sensory changes. There might even be atrophy or a reduction in , uh, muscle mass. And there should be reduced or absent deep tendon reflexes. Now that's important because CIDP can be difficult to diagnose and the disability carrier is going to expect that you have EMG and nerve conduction tests , lumbar puncture, MR . Imaging 'cause they wanna see confirmation of the diagnosis. Ultimately, they're gonna be measuring the severity of those diagnostic findings against the severity of your symptoms and complaints. They are also going to be looking at the nature of the medical treatment that you've gotten because they wanna see what impact that treatment has had on the progression of the disease or slowing or minimizing the symptoms, and then how it impacts your functionality. So they wanna see treatment like steroids such as prednisone. Uh , they want to see , uh, intravenous I , uh, immunoglobin , uh, IVIG. They wanna see plasma exchanges. They wanna see integrational therapies. So they wanna see all of this and measure, as I've said, the impact this treatment is having on your functionality. Now, many times they're going to argue that your symptoms are not so severe that you can't work. Um, so the severity of your symptoms need to be discussed in the course of your medical records, including the progression in your response to medication. That accuracy in your medical records and consistency is really , uh, uh, um, important. And of course, that should be consistent with your reported activity of daily living form. As I've suggested in earlier segments, please don't be posting on social media. Please don't be posting curated reality. Please don't be doing anything that's inconsistent with what you're telling your doctor or inconsistent with your claims of disability. Inconsistencies, lack of documentation are case killers. Got it. I hope you've enjoyed this series about pain and painful conditions because pain impacts every ERISA disability claim. So I look forward to having you , um, liking our page, leaving a review, sharing this with your friends and family, and of course subscribing to this podcast. Thanks, and I look forward to talking with you in our next episode of Winning Isn't Easy.