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Recently I represented a client debilitated by chronic groin and penile pain that started after he lifted an extremely heavy item at work. His record contains 3 years of pain management notes, reams of psychological notes reflecting his depression over his predicament (notes replete with contemporaneous observations by his therapist of his difficulties sitting and standing in sessions due to pain), and a commensurate quantity of primary care records documenting near-constant, intractable pain. He even regularly received cortisone injections — several at each procedure — in his perineum. Just take a moment to let that sink in.
The record, of course, was also filled with physical examinations and resulting diagnoses such as: segmental and somatic dysfunction of pelvic region, chronic perineum pain, chronic groin pain, pelvic pain, pelvic floor pain, and chronic scrotal pain.
On the basis of this mountain of evidence, what did the non-examining agency medical consultants determine? You guessed it! No MDI:
“Although ‘chronic subjective pain is in the record’, there is no underlying pathological diagnosis causing same. Therefore, there is no MDI either.” Further on in the determination they explained: “Alleged ‘chronic pain syndrome’ but no objective pain generator identified.”
Meanwhile, back in reality, these statements indicate 1 of 2 things: either they ignored the plentiful evidence contradicting their assertions, or they failed to understand and correctly apply the criteria for objective evidence under the Act. Since their other remarks in the determination tend to reflect a thorough review of the evidence, lack of understanding would seem to be the culprit.
And, in fact, their reasoning ignores and contradicts the clear language of 20 C.F.R. § 404.1529(c)(2):
“Objective medical evidence is evidence obtained from the application of medically acceptable clinical and laboratory diagnostic techniques, such as evidence of reduced joint motion, muscle spasm, sensory deficit or motor disruption [emphasis added].”
It’s worth noting that there’s absolutely no mention of imaging here.
So while it’s true I couldn’t rely on imaging to substantiate my client’s pitiable condition, it’s also true that I don’t need to: there are dozens of records stating “patient continues to have somatic dysfunction on examination” and other records noting groin and perineal pain with palpation and manipulation. Although pain is inherently subjective, when palpation and manipulation are performed by an acceptable medical source, they are undoubtedly “medically acceptable clinical … diagnostic techniques” more than sufficient to produce objective medical evidence under the Act.
So the next time an agency medical consultant asserts there’s no objective evidence due to a lack of imaging, hold their feet to the fire by citing 20 C.F.R. § 404.1529(c)(2).
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