Migraines and Social Security Disability, Part 2

On October 20, 2011, I reported in a blog article, “Migraines and Social Security Disability” that the Social Security Administration, in a question and answer type publication in 2009, required a very specific diagnosis from a physician in order that migraines be considered a “medically determinable impairment”. Once that diagnostic criterion has been met, the Social Security Administration does allow for the possibility that migraines may be found to be “medically equivalent” to Listing 11.03.

In the Program Operations Manual System (“POMS”) § DI 24505.015, provides examples of rationales for medical equivalence determinations and lists migraine headaches as an example of an unlisted impairment that may be medically equivalent. The example states that if:

1.) a claimant has chronic migraines for which she sees her treating doctor on a regular basis;
2.) has symptoms which include aura, alteration of awareness, and intense headache with throbbing and severe pain;
3.) the headaches last anywhere from 4 to 72 hours;
4.) the headaches occur at least 2 times or more weekly;
5.) as a consequence of her symptoms, she has difficulty in performing her activities of daily living;
6.) the claimant takes her medications as prescribed by her doctor
then the claimant’s migraines may be found to be equal to Listing 11.03, epilepsy, non-convulsive.

The POMS have no “legal force” in a court of law. Parker for Lamon v. Sullivan, 891 F.2d 185, 190 (7th Cir. 1989). The fact that POMS may have no legal force, does not mean that the POMS do not have to be considered by SSA. Wash. State Dept. of Social and Health Svcs. V. Keffeler, 537 U.S. 371, 385 (2003) and Cannon v. Apfel, 213 F.3d 970 (7th Cir. 2000). SSA must comply with its own regulations and procedures so that there may be uniformity in its decisions. There is judicial precedent to support a court overturning agency actions which doe not scrupulously follow the regulations and procedures promulgated by the agency itself. Moore v. Colvin, No. 1:12-cv-00739-MJD-JMS, 2013 WL 4584618, *5 (S.D. Ind. Aug. 28, 2013), citing Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir. 1999)

The possibility of migraines being found to be medically equivalent to a Listing is very important to migraine sufferers. In the Social Security Disability adjudication system, if a severe impairment has been determined to meet or equal a listed impairment, then the claimant will be awarded disability without a consideration of the claimant’s age education or previous work. That means that Social Security adjudicator will not entertain the question of whether the claimant can return to his or her past relevant work. The adjudicator will not make a determination of whether there exists other work in the national economy that the claimant may perform.

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