The most common complaint I hear from clients is how painful their conditions are and how their pain prevents them from doing their usual activities and disrupts their lives. If they get denied benefits, they wonder if the Judge actually listened to them or did not believe their complaints.
How could benefits have been denied based upon complaints of such crippling pain?
The Social Security Administration, “SSA”, rules require that all of an individual’s symptoms, including pain, be considered when determining whether to grant or deny benefits. Pain is just one of many symptoms that you may experience from your impairments. Other common symptoms besides pain tend to be fatigue, shortness of breath, weakness, numbness, swelling. SSA sets forth a two-step process in evaluating symptoms upon determining whether to find you disabled and entitled to social security disability benefits.
The first step in the process is to consider whether you have a medically determinable impairment that could reasonably be expected to produce your symptoms. In determining whether you have a medically determinable impairment, SSA looks to objective medical evidence such as x-rays, MRIs, laboratory findings, a diagnosis from medical sources, data that can be observed apart from an individual’s symptoms.
Once it is determined that you have a medically determinable impairment, SSA evaluates the intensity and persistence of your symptoms and determines the extent to which your symptoms limit your ability to perform work-related activities. SSA recognizes that some people may experience greater or lesser pain than others even if they have the same medical impairment. SSA looks not only at the objective medical evidence in evaluating the severity of your symptoms, but also relevant statements and other information from yourself, medical sources, and others. For example, if you have a spinal disorder such as degenerative disc disease with radiculopathy, one of your symptoms may be a pain in your low back that radiates into your right leg. Besides your own statements about your pain, you might provide statements not only from your doctors who observe your limitations; but friends and relatives who can also state their observations of your activities and the limiting effects of the pain.
SSA looks at objective medical evidence in determining what the intensity and persistence of your symptoms should reasonably be and the effects on your ability to perform work-related activity. For example, based upon the level of pain you have, there reasonably should be objective medical evidence showing a reduced range of motion, muscle spasm, sensory deficits to correlate with your level and degree of pain. If your complaints of pain are not in line with what the objective medical evidence demonstrates; then your complaints may not be consistent with other evidence in the record. However, even if your complaints of pain are not supported by objective evidence in the record, SSA will not disregard your statements about the intensity, persistence and limiting effects of your symptoms. Any inconsistencies in the record are but one factor that is considered. Other factors that are considered in evaluating the intensity, persistence and limiting effects of your symptoms are the ability to do daily activities; location, duration, frequency of symptoms; what precipitates and aggravates the symptoms; type and dosage and effectiveness of medications; treatment other than medication; other measures to relieve pain or symptoms; functional limitations and restrictions due to pain or other symptoms.
If the intensity, persistence and limiting effects of your symptoms such as pain are consistent and correlate with the objective medical evidence; then a Law Judge will likely find that your symptoms would reduce your ability to perform work-related activities. On the flip side, if the intensity, persistence and limiting effects of your symptoms are inconsistent with other medical evidence, a Law Judge will likely find that your symptoms are less likely to impede your capacity to perform work-related activities. The Law Judge should not only consider statements you make during your current claim but look to see if your statements are consistent with statements you made at each step of the administrative review process and in any prior or subsequent disability claims. The Law Judge also looks to see whether you attempted to seek medical treatment for your symptoms and follow treatment guidelines as prescribed. The Law Judge should take particular note as to the frequency and extent of your treatment efforts in comparison to the degree of your complaints. For example, if you have a back injury and you complain that you are experiencing daily severe pain that is preventing you from doing your daily activities, it would be expected that you would be seeking more treatment than somebody who is only occasionally feeling back pain not having much impact on their daily activities.
It is important that your complaints of pain are consistent with other factors, including your medical history, diagnosis, daily activities, prescribed treatments and efforts to work, and any functional limitations or restrictions caused by the pain. Your complaints of pain alone will not be enough for a conclusion of disability. Social Security regulations 20 CFR section 404.1529 and 416.929 require that throughout the evaluation process, the Law Judge must consider subjective complaints of pain. Thus, the Law Judge should be inquiring about your pain medications, any other type of treatment, functional restrictions, nature, location, onset, duration, frequency, radiation and intensity of the pain, your activities of daily living and side effects of any pain medications. If pain is not supported by objective medical evidence, the Law Judge still cannot entirely ignore your complaints of pain. However, they will not be given much weight. On the other hand, if your subjective complaints of pain are supported by objective medical evidence then they are given great weight.
Generally, a Law Judge can only reject your complaints of pain if there are inconsistencies in the record. Lack of evidence is not an inconsistency. So, if your complaints of pain are inconsistent with your medical reports, daily activities or other evidence then they may be disregarded as being inconsistent. For example, if you are engaging in activities and behaviors that are inconsistent with your alleged disability; then your complaints of pain may be disregarded. Thus, you need to be careful not to exaggerate your complaints and symptoms when you are at a hearing or at any other step of the process. You do not want your complaints of pain to be rejected by the Law Judge.
If you believe that you have impairments that are preventing you from working, applying for social security disability is likely the right choice for you. Your testimony at the hearing level will be a key component to a successful claim. Your testimony regarding pain be should be given great weight, and not be disregarded by the Law Judge. It is important to have the help of an experienced attorney to maximize results. At the LaBovick Law Group, we provide free consultations where we will review the facts of your case to determine if this is the right program for you. Call us today at (561) 623-3681 for your free evaluation.