Disability and Pain

I can't sit without pain.  Walking causes me pain.  Using my arms causes me pain.  I can't work because of pain.


Numerous people come to me with social security disability cases, having been denied their initial request.  They are confused and in many cases upset--they have real disabling pain, but are not granted benefits.


In 1984 the Social Security Act was amended to require SSA to consider symptoms of pain in the evaluation of a claimed disability.  The Act provides at 43 USC section 423(d)(5)(A):  


          "An individual's statement as to pain. . . shall not alone be conclusive evidence of disability. . .there    
           must be medical signs and findings, establishing by medically acceptable clinical or laboratory 
           diagnostic techniques, which show the existence of a medical impairment that results from anatomical,               
           physiological or psychological abnormalities which could reasonably be expected to produce the pain
            ....which when considered with all the evidence. . ."


Based on the foregoing - before pain can be considered as disabling, there was be a underlying medical or psychological condition, which is of type that could produce the type of pain complained about.  The medical or psychological condition must be shown through the use of acceptable diagnostic procedures/techniques.  The objective medical evidence does not have to establish a direct cause and effect relationship between the impairment and the intensity, persistence or functional effects of the pain.


There is a recognition that the same impairment may cause a different level of pain in different individuals.  So if a objective basis for the pain is found, statements as to the level of pain and its limitations would be considered.


Unfortunately there are impairments for which there are no medical tests -- somataform disorder, fibromyositis, however people suffering these have been granted benefits.


If you believe you are disabled because of pain, you are in a very complicated area of the law.  It is to your benefit to get assistance from an attorney who practices in this area of the law.

Unfortunately, It is Pain and only Pain

 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 (8^th Cir. 1993). Beckley v. Apfel, 152 F.3d 1056 (8^th 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 (8^th 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.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blog is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

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.

A VA disability rating may not be of much help in getting social security--THE BEAT GOES ON!

I am a veteran and an attorney.  A large part of my practice involves representing clients who are attempting to gain benefits for disability from the Social Security Administration. Many of these clients are former servicemembers who served in Desert Storm, Iraqi Freedom and Afghanistan.

I see veterans with disability ratings from the VA of 70, 80 100%.  You would think that a soldier with a rating from the VA, which uses a rating system similar to that employed by social security, would have an easier time obtaining benefits – NOT SO.  Their task is as difficult as any other person requesting benefits.

Take for instance the case of a soldier from Desert Storm, who after going in to Kuwait, had to sleep, work and eat under the falling cloud of the ash from the burning oil wells.  Most likely the effects of this exposure were a large part of his 100% disability rating from the VA. Rodewald vs Astrue, 2008 CV05911

In hopes of getting a little more money to support himself and his family, he applied for social security disability benefits in Minnesota.  His case took over 5 years to reach a resolution.  It was heard by an administrative law judge, appealed in to Federal Court returned to the administrative law judge and back to Federal Court for, unfortunately, a loss.

The soldier’s VA rating was one of the main issues in the case.  Does the judge have to consider the VA rating in deciding of whether or not to award disability benefits?  If the judge is to consider the VA determination, how much weight does he have to give to that agencies determination?

You would think getting benefits for someone with such a VA rating would be a walk in the woods - two federal agencies, both tasked with determining whether a person is disabled, both using a similar disability critieria, both programs substantially similar in how each determines disability.

The Court on the issue --” Claimant asserts that the ALJ improperly differentiated between the two approaches assessing disability.  Claimant argues that both programs “focus on an initial determination of whether or not the claimant is disabled.  The major difference between the two programs is that there are percentages if disability under DIB (social security)….Claimant thus urges this Court to adopt the standard employed by the Ninth Circuit (amongst others), requiring the ALJ to “’ordinarily give great weight to the VA determination of disability.”’

"…The Eighth Circuit has ruled that “findings of disability by other federal agencies, even though they are not binding on the ALJ, are entitled to some weight and must be considered in the ALJ’s decision.”

I find the issue as a good example of how complex the law can be.  A veteran may have an easier time obtaining social security benefits in the ninth, seventh and other districts rather then in the eighth district.

Once again the issue of the weight to be given to a determination of the VA has arisen in a social security disability case.  The attorney in the case argued that the Administrative Law Judge failed to reference the VA disability finding or explain why the VA determination was not given any weight by the judge was reversible error.  The court noted that it was error for the judge to virtually ignore the VA determination, it was harmless error based on other evidence in the case.  In the case, the VA rating was I believe 60%. 

The case is on appeal, but consider can a 60% rating by the VA ever be consider of such little weight/importance, that if overlooked the overlooking of such evidence was harmless error, of no effect on the final judgment?

The Eighth Circuit has previously held (1998, Morrison v. Apfel) the ALJs are required to consider disability determinations from other government agencies, i.e. VA.  If the VA, even using a combination of service and non-service connected disabilities, makes a finding on employ ability (the veteran is entitled to unemployability), it is hard to argue that omitting consideration of such evidence is not a serious error.

Looking around the regulations that government social security disability determinations, I found SSR 06-3p.  It provide that:
 "However, we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies (20 CFR 404.1512(b)(5) and 416.912(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered."g

Again the question, can ignoring a disability rating by the VA ever not be an error?