Analyzing and Proving Subjective Pain for Social Security Disability Purposes
| Publication year | 1988 |
| Pages | 475 |
1988, March, Pg. 475. Analyzing and Proving Subjective Pain for Social Security Disability Purposes
Asocial Security official recently estimated that from 80 to 90 percent of disability claimants allege that they experience severe pain and, as a result of the pain, are limited in performing ordinary daily functions.(fn1) Unfortunately, medical science has not yet found a way to measure objectively the degree of pain an individual suffers. A recent report issued by the congressionally mandated Commission on the Evaluation of Pain ("Pain Commission") stated that pain is inherently subjective, and its measurement is limited to observations of the victim's behavior and an analysis of his or her reports of the pain. The situation is complicated by the fact that behavior and verbal expressions of pain are strongly influenced by personality and environmental factors.(fn2) In essence, two different people with the same impairment may be functionally limited in entirely different ways and to different degrees.
A problem arises when a person experiencing severe pain alleges total or partial disability as a result of that pain under the Social Security Act ("Act").(fn3) The Act requires that disability result from a "medically determinable physical or mental impairment," which is defined as an abnormality "demonstrable by medically acceptable clinical and laboratory diagnostic techniques."(fn4) Even though the Pain Commission did not find that malingering was a significant problem, the Social Security Administration ("SSA") appears to have interpreted the Act as narrowly as possible, so as to require objective proof of pain.
For example, Social Security Ruling ("SSR") 82-58 requires that there be an "objective basis" to support the evaluation of the degree of functional limitation resulting from pain. The result is that individuals alleging disabling pain frequently were not found to be credible because of a lack of objective evidence supporting the claim. The federal courts have disagreed with this analysis, and reversals of SSA decisions based on the agency improperly requiring objective evidence of pain have been commonplace.(fn5) Despite an attempt by Congress to address the situation, confusion still exists regarding how to establish disabling pain under the Act.
For many years, neither the Act nor the regulations promulgated pursuant to that Act addressed the issue of pain. The Act required only that the disability be medically determinable. By 1967, several federal courts of appeal had adopted a rule which granted disability benefits despite the lack of strict objective proof. The courts stated that medical opinions as to the existence of pain alone satisfied the medically determinable requirement, and that laboratory test results were not an absolute necessity.(fn6)
In 1980, the SSA promulgated a regulation which addressed the issue of the evaluation of pain and other subjective symptoms. The regulation required that, before pain can be considered disabling under the Act, there must be medical evidence of a condition which could reasonably be expected to produce the pain alleged.(fn7) In response to public comments, the SSA stated that the regulation should not be construed to require objective measurement of the pain. Instead, proof was only required which showed that there is a medical condition producing the pain.(fn8)
Contradictory statements were made when the SSA adopted SSR 82-58 two years later. This document paraphrases the regulation, but goes on to state that, once a medical condition which could reasonably be expected to produce the pain is shown, the existence of the pain is still not controlling. The ruling requires "an objective basis to support the overall evaluation of impairment severity." One federal court stated that SSR 82-58 seemed to "speak out of both sides of its mouth," but that it emphasized reliance on objective evidence, more than on subjective complaints of pain.(fn9) The SSA's apparent desire to rely on objective evidence for proof of pain was reinforced by internal agency memoranda that emphasized "objective medical findings as the primary determinant of the presence and severity of pain. . . ."(fn10)
During this time, the SSA continued to deny individual pain cases based on...
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