Many of the cases I try before Social Security judges involve claims of severe pain by my clients. Pain can clearly impact your capacity to work and thus it is an important consideration by the judge, but at the same time, pain can be difficult to quantify.
Everyone experiences pain differently and there are no objective tests for it. Further, some of us develop a high pain threshold and learn to live with pain, while others can develop depression or phantom pain in areas of the body secondary to the original pain site. Finally there are several legitimate pain syndromes – namely fibromyalgia, somatiform disorder, and chronic regional pain syndrome (CRPS) that cause severe limitations out of proportion to any underlying physical cause.
Social Security gives us some guidance as to how disability adjudicators and judges are to evaluate pain. Social Security Ruling 96-3p offers decision makers guidance about how to evaluate pain and Social Security Ruling 96-7p offers decision makers instructions about how to evaluate the credibility of a claimant.
- Taken together these rulings suggest that when considering allegations of pain, a Social Security judge must look for some objective condition or injury that can reasonably be expected to cause pain. Further, a judge should recognize that “symptoms such as pain sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, the judge must carefully consider the individual’s statements about symptoms with the rest of the relevant evidence in the case record in reaching a conclusion about the credibility of the individual’s statements.”
- Ruling 96-7p continues: In determining the credibility of the individual’s statements, the adjudicator must consider the entire case record, including the objective medical evidence, the individual’s own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record. An individual’s statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.
What does all of this mean in a real life setting?
I think it is instructive that SSA spends so much time explaining how the judge is to consider carefully a claimant’s statements about his pain. When I meet with my clients to prepare for their hearings, I practice asking and answering pain questions about:
- location of pain – I think it is very important to practice describing exactly where you experience pain. The more specific, the better.
- duration of pain – you need to be able to describe how long your pain exists at a level severe enough to interfere with attention and concentration. If you experience pain at this high level more than once a day, or even if once a week, you need to be able to specify
- intensity of pain – for Social Security purposes, a person can work through a mild level of pain. When pain reaches a level where it interferes with attention and concentration, that pain would impact your capacity to perform even a simple, entry-level job.
- You need to think about an appropriate description. You can use the 1-10 scale that doctors often employ, but that seems to be a bit of a dated approach. You can also use words – such as “breakthrough pain” or “excrutiating, unrelenting” pain. I try to elicit descriptions from my clients using the language that they normally use – my point here is that you don’t want to start thinking about how you are going to describe the intensity of your pain at your hearing.
- Never describe your pain in the second or third person. I recently tried a case where my client would say things like “after about 15 minutes, you get to the point where you can’t get comfortable sitting or standing. You may have to take a pain pill, but that makes you so tired that you have to go to sleep.” Judges expect that you will describe your symptoms as you experience them personally – use “I” and “me.”
- Nature of your pain – is it throbbing or sharp? Do you experience pain only when your skin is touched or when you try to move. Remember that the judge is listening to you and also thinking about various easy, low-stress jobs. Would your experience of pain interfere with your performance of one of these “warm body” jobs?
- relief of pain – what brings your relief? Medications? If so, are there side effects. Lying down? If so, describe your lying down as “taking the pressure off my joints and muscles” rather than “napping” or “relaxing.” Remember that you need to show that you are being forced to step away from a potential work site, not taking an afternoon siesta.
- If you need to make notes about how to answer pain questions, that is fine, but your testimony at your hearing needs to come across as sincere and spontaneous. Further, you want to show yourself as an honest, hardworking, but unfortunate person who has turned to the disability process as a last resort.
- Finally, you should never exaggerate your pain. People rarely experience severe, mind-stopping, intense pain 24 hours a day. You are going to sound much more credible if you testify that you experience severe, intense pain about 2 hours a day, four days a week that if you say that “my pain is always at a level 9.”
- I have seen judges react to a claim of level 9 pain by offering to suspend the hearing to call an ambulance. Level 9 or 10 pain means childbirth or kidney stone pain. Paint an accurate picture and the judge is more likely to believe you.
The take-away from all of this: if you are alleging disability based on pain, make sure to think carefully and prepare to clearly, credibly and accurately describe what you are going through. Don’t wait until the day of the hearing to starting thinking about how you will testify and tap into your lawyer’s experience for help.
Because pain considerations are so important in Social Security cases, a number of disability lawyers have written about how to describe pain. Here are a few articles that you may find useful:
- https://www.detroitdisability.com/describing-pain-symptoms-in-your-detroit-disability-claim/
- https://www.socialsecuritydisabilitylawyer.us/blog/2012/02/social-security-disability-law-subjective-pain.html
- https://www.socialsecurityinsider.com/2009/12/how-to-describe-pain-in-a-social-security-disability-case/