It
is a difficult situation when you have a client with a disability
which is totally based upon his/her complaints of pain. There may be
objective evidence of an impairment that is causing pain. But, what
if you have no objective basis for the pain? What if it is a mental
disorder making pain real to the claimant but without objective
evidence? What if you have neither, but the client states she is in
constant pain.
When
there is a lack of objective evidence of an impairment that could
produce the type of pain claimed by the claimant, there is a
desperate need for a physician to provide a diagnosis providing a
basis for the client's problems or it will be almost impossible to
obtain social security benefits for that person.
As
noted in a previous blogs, Social Security is looking for the
claimant to establish an inability to work, full time, within the
claimant's residual functional capacity; (the work abilities
remaining after subtracting limitation imposed by the claimant's
impairment(s)) at any job in the national economy. SSA regulations
basically provide that statements about pain and other symptoms may
not be used as the sole basis for establishing disability; there
must be medical signs and laboratory findings which show the
existence of a physical or mental diagnosable medical impairment
which could reasonably be expected to produce the pain or other
symptoms and which, when considered with all the other evidence
including statements about intensity and persistence which may
reasonably be accepted as consistent with the medical signs and
laboratory findings, would lead to a conclusion of disability. 20 CFR
§§ 404.1529(a), 416.929(a)1.
In
a prior blog, I spoke about the issues raised by a somatoform
disorder causing pain. Not to restate the whole blog, the mere fact
that the claimant has a disability in which the pain is a product of
the mind, without supporting objective evidence, does not deny him or
her benefits. This type of impairment does carry a heavy burden of
proof. Consider Weikert
v. Sullivan, 977
F.2d 1249 (8th
Cir. 1992)2
The client may make
claims of pain that seem outrageous and the medical record finds no
physical cause. The medical records in these cases are usually
numerous. It seems that a claimant in this situation, in pain, tries
and tries to find a solution (and in some cases a doctor who believes
him). The problem – a somatoform disorder can produce psychogenic
pain which is out of all proportion to any physical abnormalities.
As seen from the Weiker,
supra. case such abnormal
complaints can in and of themselves cause problems for the claimant
and the ALJ.
I
have had experience dealing with Fibromyalgia
and chronic fatigue syndrome. There is a new regulation concerning
what is necessary to provide fibromyalgia —
https://www.federalregister.gov/articles/2012/07/25/2012-17936/social-security-ruling-ssr-12-2p-titles-ii-and-xvi-evaluation-of-fibromyalgia,
http://www.ssa.gov/OP_Home/rulings/di/01/SSR2012-02-di-01.html
In
my personal opinion, to be successful, there is an absolute essential
need for good medical evidence; a client who does not make statements
to his treating physician that can show activity that are
inconsistent with limitations that the physician has placed upon the
client, and an ALJ receptive to the type of impairment.
Unless
the medical evidence (psychologist, psychiatrist, and/or medical
doctor) is strong and consistent among treating medical
professionals, and the claimant has not made statements which have
become embodied in the records that show inconsistent activities on
his or her part, it is difficult to obtain a favorable decision.
Also,
it doesn't hurt if the medical expert brought in to the hearing
agrees with the opinions of the treating physicians!!
Consider
–
Neely
v. Shalala,
997 F 2d 437 (8th
Cir. 1993). Beckley
v. Apfel,
152 F.3d 1056 (8th
Cir. 1998) Both cases ended up on appeal because each had an ALJ
relying upon inconsistencies in the record to disbelieve claimant’s
testimony with respect to pain.
Even
considering my experience, if you have the evidence that establishes
a medically determinable impairment which could reasonably produce
the type of pain of which a claimant complains, the case law is
consistent in holding that the Commissioner cannot ignore subjective
evidence as to the severity of that pain.
Frankl
v. Shalala,
47 F.3d 935 (8th
Cir. 1995)
I
meet with my clients and discuss their cases with them. I talk with
them. I read over their medical reports. I talk with spouses,
children, friends. I listen to them talk of how they have lost, or
may lose everything unless they can obtain benefits. How the pain
prevents any attempt to work. In many cases these are people who
have worked their whole life until the traumatic event that caused
their pain, and robbed them of that ability.
I
see attempts to return to work; even reports of several weeks in a
row of work activity. I find it hard to believe that these people
would not be working at some job if they had any ability to do so.
Yet in such cases, I have ALJ's (Administrative Law Judge's) ruling
that claimant(s) is/are not disabled--their testimony is not
credible, the medical records are not consistent, the medical expert
indicated that the claimant had the ability to do light work; that
the claimant is just not as disabled as claimed, etc.
1 “However,
statements about your pain or other symptoms will not alone
establish that you are disabled; there must be medical signs and
laboratory findings which show that you have a medical impairment(s)
which could reasonably be expected to produce the pain or other
symptoms alleged and which, when considered with all of the other
evidence (including statements about the intensity and persistence
of your pain or other symptoms which may reasonably be accepted as
consistent with the medical signs and laboratory findings), would
lead to a conclusion that you are disabled.”
2Mr.
Weiker lost, the judge found his testimony not credible, and medical
evidence lacking.
