Case survey

• Author: Sarah H. Bohr/Kimberly V. Cheiken
• Pages: 15-428

CASE SURVEY § 205.1

§ 205 EVALUATION OF COMPLAINTS OF PAIN AND OTHER SUBJECTIVE SYMPTOMS

[Editor’s Note: Please als o see Issue Topic § 1205 Significant Reported C ircuit Court Decisions Governing the

Analysis of Subjective Complaints of Pain]

Statutory and Regulatory Pain Standard § 205.1

a. Second Circuit

(1) An ALJ may not rely exclusively on a claimant’s complaints of pain. Bellamy v. Apfel, 110 F. Supp.2d 81, 94

(D. Conn. 2000), citing 42 U.S.C. § 423(d)(5)(A) (stating that “[a]n individual’s statement as to pain or other symptoms

shall not alone be conclusive evidence of disability”). The court should also consider other factors, including the

claimant’s medical history, diagnoses, daily activities, prescribed treatments, efforts to work and any functional

limitations or restrictions caused by the pain. Id., citing 20 C.F.R. § 404.1529. In Bellamy, the court noted that the ALJ

did not discredit the claimant’s complaints of pain entirely, finding instead “that the medical evidence did not corroborate

her allegations of disabling pain.” Id. Based on its careful examination of the entire record, including the medical

evidence, the functional assessments and the consultative examinations, as well as claimant’s work history and history of

medical treatment, the court found substantial evidence to support the ALJ’s credibility determination regarding the

claimant’s subjective complaints of pain. Id.

(2) The Social Security Act provides that an “individual’s statement as to pain or other symptoms shall not alone

be conclusive evidence of disability,” but that:

there must be medical signs and findings, established 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 or

other symptoms alleged and which, when considered with all evidence . . would lead to a conclusion that the

individual is under a disability.

Toro v. Chater, 937 F. Supp. 1083, 1086 (S.D.N.Y. 1996), citing 42 U.S.C. § 423(d)(5)(A). A claimant “must

bolster complaints of pain by demonstrating, through medical findings, that an underlying condition does exist and

that it could be reasonably expected to produce the symptomatology alleged.” Saviano v. Chater, 956 F. Supp. 1061,

1071 (E.D.N.Y. 1997), aff’d 152 F.3d 920 (Table), No. 97-6124 (2d Cir. May 8, 1998), citing 42 U.S.C. §

423(d)(5)(A); 20 C.F.R. § 404.1529(b); Social Security Ruling 88-13; [Editor’s Note: SSR 88-13 has been

superseded by SSR 96-7p]; Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983).

(3) SSR 96-7p provides that a claimant’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. Batista v. Chater, 972 F. Supp. 211, 221 (S.D.N.Y. 1997), citing SSR 96-

7p. Subjective complaints of pain and fatigue may serve as the basis for establishing disability, even when the pain is

unsupported by clinical or medical findings, so long as an underlying impairment can be “medically ascertained.” Knapp

v. Apfel, 11 F. Supp.2d 235, 237 (N.D.N.Y. 1998), citing Galla gher v. Schweiker, 697 F.2d 82, 85 (2d Cir. 1983);

Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

If symptoms suggest a greater impairment than can be shown by objective evidence a lone, consideration will be

given to such factors as: (1) the claimant’s daily activities; (2) the nature, location, onset, duration, frequency,

radiation, and intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4) type, dosage,

effectiveness, and adverse side effects of medication that the claimant has taken to alleviate the symptoms; (5)

treatment, other than medication, for relief of pain or other symptoms; and (6) any measures which the claim ant uses

or has used to relieve the pain or other symptoms. Toro v. Chater, 937 F. Supp. 1083, 1086 (S.D.N.Y. 1996), citing

20 C.F.R. §§ 404.1529(c) (3), 416.929(c)(3). See also Geracitano v. Callahan, 979 F. Supp. 952, 958 (W.D.N.Y.

1997) (quoting the factors set forth at 20 C.F.R. § 404.1529, and noting that exam ples of measures used to relieve

pain or other symptoms could be lying flat on back, standing for 15 to 20 minutes every hour, sleeping on a board,

etc.).

(4) The regulations require the ALJ to consider the claimant’s subjective complaints about such symptoms as pain,

fatigue, shortness of breath, weakness, or nervousness at each step of the sequential evaluation process. Fragale v.

Chater, 916 F. Supp. 249, 252 (W.D.N.Y. 1996). See also Urtz v. Callahan, 965 F. Supp. 324, 328 (N.D.N.Y. 1997),

aff’d 159 F.3d 1349 (Table), No. 97-6149 (2d Cir. June 11, 1998) (stating that the ALJ must consider subjective

symptoms of pain through the sequential evaluation process); Dwyer v. Apfel, 23 F. Supp.2d 223, 230 (N.D.N.Y. 1998)

(holding that the pertinent regulations, 20 C.F.R. §§ 404.1529(a), (d), 416.929(a),(d), require that throughout the

§ 205.1 SOCIAL SECURITY ISSUES ANNOTATED

evaluation process, the ALJ must consider subjective complaints of pain); Knapp v. Apfel, 11 F. Supp.2d 235, 237

(N.D.N.Y. 1998) (noting that the court could not determine whether the ALJ followe d the sequence established by the

Commissioner’s own pain evaluation as evidenced by his failure to cite to the relevant regulation or state whether he

considered the plaintiff’s pain complaints when assessing the plaintiff’s past relevant work history).

b. Third Circuit

“An ALJ must give great weight to a claimant’s subjective testimony of the inability to perform even light or

sedentary work when this testimony is supported by competent medical evidence.” Schaudeck v. Commissioner

of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999). While an ALJ can reject such claims if he does not find them

credible, as set forth in Social Security Ruling 96-5p, when assessing a claimant’s credibility:

‘[i]n instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or

reject that individual’s complaints solely on the basis of such personal observations. Rather, in all cases in

which pain or other symptoms are alleged, the determination or decision rationale must contain a thorough

discussion and analysis of the objective medical and the other evidence, including the individual’s complaints

of pain or other symptoms and the adjudicator’s personal observations. The rationale must include a

resolution of any inconsistencies in the evidence as a whole and set forth a logical explanation of the

individual’s ability to work.’

Id., quoting SSR 96-5p. Further, the ALJ “must indicate in his decision which evidence he has rejected and which he

is relying on as the basis for his finding.” Id. In Schaudeck, the court found two flaws in the ALJ’s analysis of the

evidence requiring reconsideration on remand. First, the ALJ failed to consider the support for the claimant’s

testimony provided by the numerous medical reports detailing her chemotherapy regimen for treatment of her

Hodgkin’s disease. Id. at 433. Second, the ALJ failed to explain why he relied on the post-August 31, 1994 doctors’

reports that the claimant was feeling fine, when “similar statements appeared in the doctors’ reports throughout her

treatment, including during the period that the ALJ foun d Schaudeck was suffering from a severe impairment.” Id. at

434. The court noted that the ALJ’s failure to offer an explanation for differentiating between these similar

statement was “particularly troubling” in light of the fact that the claimant testified that she always told th e doctors

that she was feeling fine because everyone at the clinic k new that being sick was just normal, and that “when you

say okay, it’s just okay for what you’re going through.” Id. at 434-35. Given this testimony, the court found that the

ALJ’s decision was “logically unsound,” as there was no reason for the ALJ to accept some of the claimant’s

statements as proof that she was not disabled while ignoring identical statements made during the time period that

the ALJ determined that she was disabled. Id. at 435.

c. Fourth Circuit

The Commissioner’s regulations establish a twostep process for evaluating whether a person is disabled by pain and

other symptoms. Huntington v. Apfel, 101 F. Supp.2d 384, 392 (D. Md. 2000), citing 20 C.F.R. §§ 404.1529 and

416.929; Craig v.Chater, 76 F.3d 585, 594 (4th Cir. 1996). The first step requires the ALJ to determine that

objective evidence shows the existence of a medical impairment which could reasonably be expected to produce the

actual pain in the amount and degree alleged by the claimant. The second step requires that the ALJ evaluate the

intensity and persistence of the claimant’s symptoms, in cluding pain, to determine the extent to which those

symptoms limit the claimant’s capacity to work. Id., citing Craig, 76 F.3d at 595; 20 C.F.R. §§ 404.1529(c)(1),

416.929(c)(1). The second step entails consideration of all the “available evidence, including the claimant’s medical

history, medical signs, statements by the claimant and his treating or examining physicians, objective medical

evidence of pain, and any other information proffered by the claimant, such as the claimant’s account of what

aggravates the pain, medications taken to alleviate the pain, and a summary of how the pain affects daily living.” Id.,

citing 20 C.F.R. §§ 404.1529(c)(1)-(3) and 416.929(c)(1)-(3). A claimant must substantiate his or her allegations of

pain, as subjective symptoms of pain, standing alone, cannot sustain a finding of disability. Id., citing 20 C.F.R. §

404.1529.

d. Sixth Circuit

20 C.F.R. § 404.1529 sets forth a two-prong test for evaluating pain. Sigler v. Sec’y of Health &Human Servs.,

892 F. Supp. 183, 187 (E.D. Mich. 1995). First, a medically determinable impairment which could produce pain

must be identified. Second, allegations about the intensity and persistence of such pain must be considered in

evaluating the extent of incapacity. In Sigler, the court found that the ALJ failed to m eet the requirements of 20

C.F.R. § 404.1529 because he substituted his own opinion over the medical expert’s and failed to address his

weighing of the medical testimony in a “discussion reasonably consistent with the medical testimony.” Id.

CASE SURVEY § 205.2

e. Seventh Circuit

(1) According to 20 C.F.R. § 404.1529(b)(c) and SSR 96-7p, the ALJ must first evaluate whether a medically

determinable impairment exists which could reasonably be expected to produce pain, and then assess the credibility

of the claimant’s allegations about the intensity and persistence of his or her pain. Aidinovski v. Apfel, 27 F. Supp.2d

1097, 1103 (N.D. Ill. 1998). The factors which the ALJ must consider include: (1) objective medical evidence; (2)

prior work record; (3) daily activities; (4) location, duration, frequency and intensity of pain; (5) precipitating and

aggravating factors; (6) use of medication; (7) other treatments and measures used to relieve pain; (8) observation of

testimonial evidence by the claimant; and (9) the consiste ncy of the claimant’s statements. The court noted that SSR

96-7p states that “allegations concerning the intensity and persistence of pain or other symptoms may not be

disregarded solely because they are not substantiated by objective medical evidence.” Id.; see also Scott v. Shalala,

898 F. Supp. 1238, 1249-50 (N.D. Ill. 1995) (finding error in the ALJ’s consideration of the second prong of the

pain test).

(1) Subjective assertions of disabling symptoms alone cannot support a finding of disability. Caviness v. Apfel, 4 F.

Supp.2d 813, 819 (S.D. Ind. 1998).

(2) A Wisconsin district court held that the ALJ was required to make a credibility determination analyzing the

factors set forth in SSR 96-7p. Castrejon v. Apfel, 131 F. Supp.2d 1053, 1058 (E.D. Wis. 2001). “[M]erely mentioning

some of the factors, without a meaningful discussion is inadequate.” Id.

f. Eighth Circuit

In evaluating the credibility of a claimant’s subjective pain complaints, the ALJ must consider the claimant’s

work history; daily activities; duration, frequency, and intensity of pain; dosage, effectiveness and side effects of

medication; precipitating and aggravating factors; and functional restrictions. Kelley v. Callahan, 133 F.3d 583,

588 (8th Cir. 1998), citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When rejecting a claimant’s

pain complaints, the ALJ “must make an express credibility determination detailing reasons for discrediting the

testimony, must set forth the inconsistencies, and must d iscuss the Polaski factors.” Id., citing Cline v. Sullivan,

939 F.2d 560, 565 (8th Cir. 1991). In Kelley, the court found that the ALJ inadequately detailed the inconsistencies

relied upon in disbelieving the claimant’s testimony. Id.

Pain Standard by Circuits § 205.2

a. First Circuit

(1) In Avery v. Sec’y of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986), the court stated that the following

factors must be considered in determining whether a claimant’s alleged pain constitutes an additional limitation upon the

claimant’s ability to perform substantial gainful activity:

the nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) precipitating and

aggravating factors (e.g., movement, activity, environmental conditions); (3) type, dosage, effectiveness, and

adverse side effects of any pain medication; (4) treatment, other than medication, for pain relief; (5) functional

restrictions; and (6) the claimant’s daily activities.

Cordero v. Chater, 926 F. Supp. 267, 272-73 (D. Mass. 1996). See also Rohrberg v. Apfel, 26 F. Supp.2d 303, 308

(D. Mass. 1998) (stating that the ALJ must examine a claimant’s pain complaints in accordance with the “Avery

standard of review”); Corchado v. Shalala, 953 F. Supp. 12, 16 (D. Mass. 1996) (finding that the ALJ failed to

conduct the proper inquiry under Avery since he failed to ask the claimant “a single question about how his back

pain impacts his daily activities, what types of activities or movements precipitate or aggravate the pain, or even the

duration and intensity of the pain”).

(2) If the ALJ does not believe the claimant, he or she is required to make specific finding s regarding the evidence

that was considered in making this determination. Adie v. Commissioner, Social Sec. Admin., 941 F. Supp. 261, 267

(D.N.H. 1996).

(3) In assessing a claimant’s complaints of pain, Avery and 20 C.F.R. §§ 404.1529 and 416.929 require that the

ALJ consider “the objective medical evidence, medical history, doctor’s statements, functional limitations, aggravating

factors, methods of treatment, and claimant’s activities.” Redeker v. Chater, 914 F. Supp. 692, 695 (D. Mass. 1996).

While the fact that a claimant can sit through the hearing is not a proper basis to assess a claimant’s complaint’s of pain,

the claimant’s demeanor at the hearing “can certainly provide one element of the ALJ’s credibility determination.” Id.

(4) In Rohrberg v. Apfel, 26 F. Supp.2d 303, 309 (D. Mass. 1998), the court concluded that “the ALJ’s

determination of Rohrberg’s RFC was analytically flawed” and that he failed to question Rohrberg about “five of the

Avery factors and failed to determine adequately the extent of the sixth — her daily activities.” In Rohrberg, the court