Social Security Disabillity and Pain

Social Security Disability and Pain
By Pitt Dickey

Pain is a fact of life. This column will take a look at how the Social Security Administration evaluates pain in a Disability Case. Pain can become so intense as a result of illness or injury that the Social Security Administration will pay Disability Insurance Benefits to a person disabled by pain. One of the most difficult tasks for an Administrative Law Judge hearing a Social Security Disability case has to decide is how to evaluate pain of the person in front of him.

The Social Security Administration (SSA) has a set of rules that are used to determine if a claimant’s pain warrants an award of disability benefits. The first step in evaluating pain is to determine if the person’s underlying physical or mental impairment is shown by medically acceptable evidence such as clinical or diagnostic tests. In other words the SSA must find that the person has a medical condition that can be demonstrated objectively by clinical testing techniques. It is not enough to obtain disability for a claimant to say his back hurts if there are no x-rays, Cat Scans or MRI tests to show that there is a medically demonstrable reason for the back pain. It is reasonably easy for a herniated disk to show up on a MRI. It is not easy for soft tissue injury or illness to show up clinically. A fairly common health problem, fibromyalgia, which effects the muscles will not show up on an X ray. Judges will discount a person’s testimony regarding pain if there is no clinical evidence as to what might be causing the pain.

Once there is some clinical evidence that the person does have a condition that could cause pain, then the SSA has to determine the severity of the pain. The severity and intensity of pain can be proven subjectively by the testimony of the claimant as to how it affects him. Subjective evidence is the statements of the person describing the pain, its frequency, and location. There can also be objective evidence of pain such as muscle spasms, deterioration of nerves, wasting of muscles, or movement disruptions. For example, a nerve conduction study could be used to objectively demonstrate that a person’s nerves were not properly working.

After considerable litigation the pain standard used by SSA is that “because pain is not readily susceptible of objective proof, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not a determining factor.” In other words, the testimony of a claimant as to how bad it hurts has to be considered by the SSA even in the absence of objective evidence of pain so long as there is an underlying medical condition that could cause pain.

Two Part Test to Determine Pain

The controlling federal case in North Carolina is called Craig v. Chater which is a Fourth Circuit Court of Appeals case that was decided in 1996. The Craig test consists of two parts:

First; there must be objective evidence showing the existence of a medically determinable impairment which could reasonably be expected to produce the pain or other symptoms alleged by the claimant. Second; only after the claimant has met the threshold obligation of demonstrating a medically determinable impairment by objective evidence, then the intensity and persistence of the pain or other symptom and the extent to which it affects the claimant’s ability to work will be evaluated.

After the claimant has established that he has a medical condition that could cause pain, the Judge must then determine if he still retains the ability to perform full time work. The Judge will consider the claimant’s statements as to his pain, his description of his daily activities, statements made by the person’s treating and examining physicians, the medications that the person takes and the side effects of his medications. The Judge will make an evaluation of the credibility of the claimant’s testimony concerning his pain based upon the daily activities of the claimant and reports prepared by the SSA and doctors who have evaluated, treated or observed the claimant. The Judge will typically gives more weight to a claimant’s treating physician (that is the doctors who are actually providing medical care to the claimant). The SSA will on occasion order a Consultative Evaluation by a physician who is hired by the SSA to evaluate but not to treat the claimant. This doctor will then file a report with the SSA which the Judge will consider in making his decision.

The Judge is in effect making a call about how severe the claimant’s pain is based upon a set of rules established to evaluate pain. It is a difficult task to determine how badly another human being is hurting but that is exactly what the Judge is required to do based upon the guidelines set up for disability benefits.

Pitt Dickey has practiced law in Fayetteville since 1978. He has handled SSA Disability claims for over twenty years.