Almost every Social Security disability case involves some complaint of pain. Whether your soreness and irritation is localized (in a knee, lower back, shoulders, abdomen, etc.) or whether your discomfort is more generalized throughout your body, you will have to explain to the judge how severe pain limits your capacity to work.
Since Social Security administrative law judges hear testimony about pain every day, from every claimant, it is not sufficient to come to court and talk about pain generally. Statements like “I hurt all day long and can’t do anything,” or “I am in severe pain whenever I try to do anything” won’t help you and will not help your cause.
How Social Security Judges Evaluate Your Pain Testimony
Instead, if you understand proven strategies for convincing an overworked and sometimes cynical SSD judge that your medical condition truly does create vocational limitations, you greatly improve your chances at winning a fully favorable decision.
How SSA Defines “Disability
First, you must keep in mind how Social Security defines the word “disability.” You can read more about this definition here but briefly, SSA defines disability in terms of your inability to perform the duties of a simple, entry level job. In other words, you have to prove to Social Security that your medical condition has left you without the capacity to reliably perform the duties of a simple, sit down type of job.
SSA Pain Evaluation Regulations
Second, you need to understand how Social Security law instructs judges about evaluating testimony about your discomfort and hurting. Social Security’s rules about considering pain testimony are set out in something called the Code of Federal Regulations. If you want to read the actual regulation you can find it here. In summary, SSA’s rules tell judges that they have to consider:
- how your condition impacts your activities of daily living
- how often you experience pain and how long does it last
- where on your body you hurt
- whether medication reduces or controls your discomfort
- side effects (such as drowsiness or mental confusion) of those meds
- non-medical ways you use to feel better (such as lying down, changing positions)
Examples of Effective Testimony
Third, you need to practice testifying about how your pain limits your capacity to work using each of these pain factors. Here are some examples of effective testimony by my clients from recent hearings I have tried:
Activities of Daily Living
I focus on activities of daily living that are equivalent to work activities. Examples:
- “I cannot lift a 10 lb. laundry basket and carry it upstairs to my washing machine because of severe spasm in my lower back.”
- “I cannot put sheets on my bed because of sharp twinges and soreness in my left wrist and right elbow.”
- “I used to love to cook, but now I have to sit in a chair by the stove and I need help lifting a fry pan. I hardly cook anymore.”
Frequency and Duration of Pain
I am most interested in situations where your pain lasts for an hour or longer two to three times per week. Examples:
- “When I start to get a migraine headache, I immediately take a Topomax. If I am lucky, I can avoid the pounding sensation but I still have to lie down in a dark room for at least 90 minutes, and it takes me another hour to get to the point where I can function.”
- “I can sit in an office chair for about 10 minutes. After about 10 minutes I start to fidget and I have to get up and walk around for at least 7 to 10 minutes. I can sit for a total of about an hour a half before I have to take the pressure off my back by getting into my recliner.”
Location of Pain
- “I have a sharp shooting pain starting in my lower back and radiating into my left leg. If I don’t get up and shake my leg and walk around, it goes numb and gets very painful. It feels like electricity is being shot into my leg. It gets really bad at least 3 times a day and can last 30 to 45 minutes.”
- “I experience severe soreness and tenderness in my right arm and shoulder when I lift my arm over chest level. I need help getting my hair brushed and I have to try to brush my teeth with my left arm.”
Medications and Side Effects
Most prescription medications will cause drowsiness but other significant side effects can include constipation and mental confusion, which also interfere with trying to perform a job.
- “I try to avoid taking the Hydrocodone but when I do, I can’t keep my eyes open. Tylenol and other over the counter meds don’t really work and I end up taking my prescription at least 4 days a week.”
- “I get severe constipation when I am on the fentanyl. I may go 2 or 3 days without a bowel movement and when I force myself to go, I am in the bathroom for 45 minutes or longer.”
- “Without medication, my lower back ache can reach a 9 or 10 even if I am lying down doing nothing. With the prescription meds, my level is no less than a 6. This is miserable.”
- “Cymbalta makes me nauseous and I can’t keep any food down. It dulls the body ache from my fibromyalgia but I still find it hard to function.”
Non-medical Ways to Reduce Discomfort
- “I find that the only place where my low back and knee strain are manageable is when I am in my recliner. I am in that recliner chair for about 20 hours a day.”
- “I go the pool at the YMCA and it helps take the pressure off my back, but as soon as I get out of the pool, I start hurting again.”
- “I lie on my stomach and my husband puts ice packs on my back.”
The message I am trying to send to the judge using your testimony and medical evidence is that you would not be a reliable employee. Often, judges will use the phrase “off task” when posing a question to the vocational witness at your hearing. My goal is to get the judge to include in his question to the vocational expert that you would be “off task for at least 20% to 30% of the day.” If the judge makes this part of your profile, we will win.
The 0-10 Pain Scale: On it’s Way Out?
I am also noticing that some judges are moving away from using the zero to 10 scale. I always prepare my clients for a “pain scale” question but I suggest that you include a time frame when answering. Examples:
- “My level is pretty much always at 5 but at least 3 times a week it gets to an 8 or 9 where I can’t sit or stand or even follow along with what is going on around me.”
Keep in mind this brief summary about how judges look at pain in terms of work capacity:
- No pain or very mild (0-2 on scale) – no limitations on performance of any job
- Mild to moderate (3 to 5 on scale) – may preclude highly skilled work but no real impact on unskilled or even semi-skilled work
- Moderate to moderately severe (6-7 on scale) – simple, entry level unskilled work is still possible
- Severe to unbearable (8 – 10 on pain scale) – no work possible when discomfort is at this level
Finally, understand that most judges will discount to some degree your statements about pain. If you say that your pain is at an 8, your judge will probably read that as a 6 unless you have strong medical support, and a prescription for pain medication that keeps going up. The judge will also observe you at your hearing. If you say you can only sit for 15 minutes, and you sit for an hour at your hearing your statements about pain will be discounted.
Practice, Practice and Practice Some More
Hearing delays in Georgia and throughout the country are increasing. You may be in the hearing scheduling queue for a year or longer, and that is after you have waited a year for the administrative decisions. You have 45 minutes to an hour with a busy, overworked judge.
Take the time to read as much as you can about what happens at hearings (look at the hearing case studies included in every medical condition analysis on this website), and practice with your lawyer. Practice at home with friends and family. Your goal should be to talk about your pain and other symptoms clearly and with detail. Eliminate “not very much,” “not very far,” and “severe” from your vocabulary. You must be specific and very clear.
If I can be of help to you in pursuing SSD benefits, please let me know.