Cyclical Vomiting Syndrome: A Case Review

A Case Review: Cyclical Vomiting Syndrome

– when CVS becomes disabling under Social Security Act

and a few key recommended pieces of evidence or argument

Yesterday was a long-fought day of Justice in my Social Security Disability world. A 2016 filing, for a very young adult with Cyclical Vomiting Syndrome (CVS), after years of denial, has resulted in a big, justified, and (for him) life-changing win. (This claim was denied after hearing in 2018, appealed and appealed again, to be ultimately be ordered remanded for another hearing, which took place, finally, yesterday. And, we understand that we have indeed, prevailed.)

The real crux of the matter revolved around the ability to attend work within the ‘customary tolerances’ of employers. I understand the Dictionary of Occupational Titles (DOT) does not include the requirement of acceptable attendance be met to be able to successfully perform an occupation. However, every Vocational Expert I have ever crossed at hearing, affirms that, indeed, there is a maximum level of absenteeism that employers will tolerate, beyond which, if violated, the employee will be terminated. They have slight variations on what that maximum is, but by and large they acknowledge that it does not exceed one day per month.

If a young person (20s) is otherwise physically able to work at least light exertional duties, from a physical and mental perspective, but medical and non-medical proof is persuasive that the person will be out sick from CVS symptoms for more than 1 day a month on a recurring basis, he is generally disabled under the Social Security Disability rules. However, the Administrative Law Judge at the original hearing would not acknowledge lost/absent days, at all, much less the medically expected excessive absenteeism that results if one is vomiting for multiple, unpredictable days per month. Sometimes, a judge will not acknowledge lost days despite agreeing the existence of a severe medical condition of CVS (or other condition with acute but intermittent exacerbations), if a treating medical provider has not expressly discussed that these days of symptoms would be work-absent days for his patient, in his treatment records. And of course, the catch-22 is that most treating medical provides do not include specific discussion of such lost days.

As many SSD/SSI practitioners know, treating providers by and large do not articulate many facts that are outside the sphere of relevance to their actual treatment. This reality often puts an insurmountable hurdle in front of claimants.[1] It deprives them the evidence needed to prove their case. SSA rules require, and thus we need, those medically documented facts regarding reduced functionality, including the ability to be at work, on-task, and producing, resulting from a diagnosed condition. They must be articulated by the treating medical provider so that they are considered to be in the medical evidence and therefore, by law, must be considered and explained by an ALJ in his decision of yay or nay.

One helpful strategy that, finally, I believe helped us prevail was a combination of pointing out, again, in our drafted Addendum Brief to the original brief:

1) that the medically-confirmed nature of the condition, itself, speaks to the fact that a sufferer of the condition will be hunched over a bucket or a bowl vomiting, (including citing to credible medical literature on the subject).

2) that the claimant, for years, had used a phone calendar app to notate each day he specifically had a vomiting day. Although the first judge largely ignored that (probably because the printout of that calendar it is not considered ‘medical evidence’), we subsequently accumulated the next 3 years of printouts and submitted them as well, for the second hearing. This aided the case in that the claimant’s testimony at hearing of the frequency is not the first and only evidence supporting the claimed frequency. This historical, earlier-born and earlier-provided, lay-person evidence, I believe, was very helpful. In fact, the second ALJ specifically inquired as to what level of symptomology the claimant portrayed in each day in the month that was checked. Calendars and real-time journaling of symptoms for any Condition, can both aid a claimant in later accurately recalling those symptoms, severity and frequency, and add strength and reliability to his later-confirming testimony when at the live hearing.

3) that they history of prescribed medications was consistent with what one would naturally expect to be used in a medical treatment protocol if the condition is as severe, frequent or durational as the claimant has asserted. This is also a useful piece of evidence to support the severity of the symptoms. To accomplish this, one can obtain a printout of the last 5 or such years of filled prescriptions (available from the filling pharmacy) so it is in one neat and easily viewable submission. Alternatively, as we did, one can include narrative in the pre-hearing brief that pinpoints to each visit note in the record and what prescriptions were noted by the authoring medical provider. This circumstantial evidence can be very helpful in showing that indeed the condition is as severe as described by the claimant.

The above 3 tips apply to many or even all cases. In this specific case, given the Cyclical Vomiting Syndrome, we also used more recent dental treatment records, showing that the claimant, after these 8+ years of excessive and routine vomiting, has significantly damaged teeth, needed much dental repair and care, far more than a typical individual who provides himself regular dental hygiene.

Bottom line, this rare but serious medical condition, CVS, even when in the unfavorable vocational profile of a very young adult, can indeed be legally disabling under Social Security definitions and rules. It may be a marathon case, an ‘in the red’ case, as ours was, and therefore understandably dissuade some practitioners from accepting the case. However, that wonderful feeling when right has prevailed for a young person born with the misfortune of this terrible condition, even after six years of fight, cannot be understated.

See the Bates case for a court's discussion.

[1] This unfortunate lack of medical recordation of a functional reality of excessive absenteeism or off-task time is also seen in other kinds of SSD/SSI cases, including but not limited to Migraine impairment cases, Agoraphobia-type Anxiety cases, and impairments to lower extremities (legs/feet) that necessitate a certain level of daily leg elevation (due to swelling or pain). When possible, obtaining specific narrative discussion from the treating provider as to her medical knowledge of or expectation that the symptoms of the condition would keep the patient absent X days a month, or require he interrupt his day every 3 hours for 1 hours of needed leg elevation (for swelling/edema and/or growing pain), on top of the provider notating in the records that the patient has indeed shared the specifics, can be of great evidentiary support.

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