SSR 96-7p: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements

• Author: David Traver
• Pages: 265-322

10-1

Chapter Ten

SSR 96-7p

Evaluation of Symptoms in Disability

Claims: Assessing the Credibility of an

Individual’s Statements

§1000 Purpose of SSR 96-7p

§1000.1 The Convoluted History of SSR 96-7p

§1000.2 SSR 96-7p Compared to the Regulations

§1000.3 Practice Tip

§1001 What Is a Credibility Determination?

§1002 What Is Not a Credibility Determination?

§1002.1 Neither the Commissioner’s Attorneys nor the Court May Create or Infer a Credibility Determina-

tion for the Agency

§1002.2 Post Hoc Rationalizations Are Not Credibility Determinations

§1002.3 Case on Point: Post Hoc Documents

§1003 SSR 96-7p Applies to Adult and Children’s Cases

§1003.1 SSR 96-7p Important Rulings Regarding Children’s Cases

§1003.2 Practice Tip: “Mental Retardation” Is Now “Intellectual Disability”

§1004 Application of Credibility at Steps Two and Beyond in the Sequential Evaluation Process

§1004.1 Credibility in Functional Equivalence at Step Three

§1005 Symptoms and the Problem of Pain

§1005.1 Science Does Not Answer the Question of Pain — There Is No Pain-O-Meter

§1006 Claimants Do Not Have to Prove the Degree of Pain Alleged With Science, if...

§1006.1 The “Smoking Gun” Problem for Claimants

§1006.2 The “Bad Joke” Problem for ALJs

§1007 The Adjudicator Must Evaluate Credibility and Make a Credibility Finding

§1007.0.1 Practice Tip: Avoid Criticizing the ALJ in Credibility Determination Arguments

§1007.1 The Credibility Evaluation and Finding Come After Record Development

Social Security Disability Advocate’s Handbook 10-264

§1007.2 Developing the Record Regarding a Possible Mental Impairment

§1007.2.1 Practice Tip: Motivating the Commissioner to Order a Mental Consultative Examination

§1007.3 When Additional Information Is Needed to Assess Credibility, the Burden Is on the

Adjudicator to Obtain It

§1007.4 The Seven Enumerated Credibility Factors

§1007.5 Considering the Claimant’s Lifestyle in Context

§1007.6 Eliciting Critical Facts

§1007.6.1 Practice Tip: State Agency Forms

§1007.6.2 Cases on Point

§1007.7 Using the VE to Put the Claimant’s Activities in Perspective

§1007.8 Possible VE Cross-Examination Questions

§1007.9 Practice Tip

§1008 Eliciting Critical Facts — Weekly and Monthly Diaries

§1008.1 Hepatitis Diary

§1008.2 Fever Diary

§1008.3 Fatigue Diary

§1008.4 Asthma Diary

§1008.5 Nebulizer Treatment Diary

§1008.6 Syncope Diary

§1008.7 Low Back Symptoms

§1008.8 Headache Diary

§1008.9 Hypoglycemic Event Diary

§1008.10 Sleep Diary

§1009 The Adjudicator Must Consider the Entire Case Record

§1010 What Is an Insufficient Credibility Determination?

§1010.1 Practice Tip: Defending Against “Sit and Squirm” Jurisprudence

§1010.2 Practice Tip: Defending Against “Unemployment Compensation” Paradoxes

§1011 Degrees of Credibility

§1012 Credibility or Lack Thereof Is Not Determinative of the Issue of Non-Disability

§1013 Adjudication Methodology — Two Step Process for Evaluating Symptoms

§1014 Additional Guidelines

§1014.1 Consistency

§1014.2 Medical Evidence

§1014.3 Medical Treatment History — or Lack Thereof

§1014.4 Practice Tip: Too Many Doctors?

§1014.5 Reasons for and Effects of Treatment

§1015 Credibility and Alleged Failure to Follow Treatment

§1015.1 Practice Tip

§1015.2 Case on Point: 96-7p and Alleged Failure to Lose Weight

§1015.3 Case on Point: Credibility, Objective Evidence, Explanations for Reliance Upon Over-the-Counter

Medication

§1015.4 Blakeman and the Need to Develop the Record

§1016 Consideration of Findings by State Agency and Other Program Physicians and

Psychologists at the Administrative Law Judge and Appeals Council Levels of

Administrative Review

§1016.1 Applying the Notice Requirements of SSR 96-7p — the Assessment of Treating Source Statements

10-265 SSR 96-7p

§1017 Remedies for Failure to Apply Correct Legal Standards in Making Credibility

Determinations

§1017.1 The Varney and Non-Varney Remedies

§1017.2 EAJA Fees

§1018 The Evolution of the “Patently Wrong” Standard in the Seventh Circuit

§1018.1 Practice Tip

§1019 Boilerplate Credibility Determinations

§1019.1 Sample Brief: Boilerplate Credibility Determination

§1020 Conclusion