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I had a remand hearing last week, and the principal issues were the level of the claimant's chronic pain and the objective medical support for her pain complaints and resultant functional limitations.

Since this was the second time around with the same judge, I wanted to ensure that I had all the bases covered. So I reviewed the rulings and regulations regarding subjective complaints. However, "subjective complaints" issues are at the heart of many disability claims, so reviewing the Rulings from time to time is a good practice.

James Publishing provides an excellent discussion of the Social Security disability law, regulations and rulings concerning subjective pain complaints. The key takeaways are:

  • There must be an underlying medically determinable impairment (or impairments) that could reasonably be expected to produce the individual's pain symptoms. See Social Security Ruling 96-3p.
  • Once the relationship between the objective medical findings and pain symptoms is established, the ALJ must evaluate the intensity, persistence, and functionally limiting effects of the symptoms to determine the extent to which the symptoms affect the individual's ability to do basic work activities. See Social Security Ruling 96-7p.
  • Here in the First Circuit, the Avery factors must be considered. See Avery v. Secretary of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986). The ALJ must consider: (1) 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. 

If you are concerned ahead of the hearing about the nexus between the available objective medical evidence and your client's pain complaints (usually the nexus is obvious, but sometimes it is not), you should ask a treating doctor for a short opinion on the topic. If there is a medical expert (ME) at the hearing, the ME will often help to at least establish the relationship between the diagnosis and the pain complaints.

Regarding the intensity and persistence of the claimant's pain and functional limitations, you need to have the claimant ready to testify in some detail. The Avery factors listed above provide a good roadmap for a client's testimony.

Regarding daily activities, it is wise to look at the activities noted in the Adult Disability Report (which was completed at the time of the disability application, often before a lawyer became involved in the claim), and have the client specify what can and can't be done, and whether or not an activity depends upon the claimant's pain level on a particular day.

If the client's physical activites are sporadic, depending upon how the client is feeling on a given day, make sure that testimony gets into the record. The testimony should be specific about limitations. Details about daily activies supply an authenticity to the testimony that helps with the judge's credibility assessment.



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