Pain and Social Security Disability Claims

May 11, 2019

 

Almost everyone applying for disability is experiencing pain of some type. However, in some cases the issue of pain is much more important than others. These are cases where the primary reason the individual cannot work is severe and frequent pain. The pain is of such a frequency and duration that it would prevent them from being able to focus on a regular basis at any type of full-time occupation. This is opposed to cases where someone may have limited to no use of one of their hands or they have limited walking ability and the like.

 

We cannot measure pain in the ways that we can measure and test for many other medical issues. Maybe someday we will have a machine that you could wear for twenty-four hours. Since all medical tests have an acronym it would need one. It could be called a Pain Monitoring Constellation or a PMC.

It would measure when you were experiencing pain, exactly where in your body was the pain, increase and decrease in levels of pain and what you were doing at the time that the pain started. Possibly someone at MIT or Harvard is working on such a machine. For now it's no different than a Time Machine (despite what many of you think they don't exist). And that's a problem for the Social Security Determination Process or maybe a challenge if you're a glass half full type.

 

However, the Social Security Administration has examined, and continues to examine, this issue and continue to examine this issue. A request for public comment was issued last year requesting input from both the medical, legal, disabled and public at large communities for input on answering this question.

 

How Can You Determine the Frequency, Persistence, Intensity, and Duration of Someone's Pain and then Determine Whether or Not It is to such a Degree as to Prevent Them From Holding Competitive Full Time Employment?

 

To eliminate the legalese I am going to list many of the questions Social Security asks to try to arrive to an answer for that question for any given individual applying. The current law, most recently updated in March 2016, exists in 20 CFR 404.1529; 20 CFR 416.929 and SSR 16-3p.

 

READ THIS: Just a reminder that while there is a lot of good information on this blog and this blog post you are not an attorney. You should get an Attorney now. We only charge if we win your case. Do not wait until you get your first denial. If you are having a problem finding one contact me. I belong to several national organizations and can find someone ethical and qualified in your area.

 

Questions Asked and Factors Considered by Social Security 

when Evaluating Issues of Pain

 

Is the individual's frequency, persistence, intensity and duration of pain consistent with all the medical and other evidence? 

 

What statements has the individual made about the pain at the hearing, to their doctors and in any forms completed and submitted? 

 

What has the individual's doctors stated in the medical records or other documents regarding how pain affects the individual's day to day activities and ability to work?

 

What have individuals who are not doctors stated in documents regarding how pain affects the individual's day to day activities and ability to work?

 

What medical test results exist that could reasonably be expected to produce the pain and are consistent with the frequency, persistence, intensity and duration of the pain the individual reports?

 

How specifically does the frequency, persistence, intensity and duration of the pain limit the individual's capacity to work?

 

Basics

 

What precipitates the individual's pain?

 

What is the specific Location of the pain?

 

What is the frequency with which the Pain occurs?

 

What is the intensity of the Pain?

 

How persistent is the pain?

 

What aggravates the individual's pain?

 

What if any types of measures do you take either around the house at home to try to alleviate the pain?

 

How effective are these measures in alleviating the pain?


Medications

 

What over the counter medications does the individual currently take to try to alleviate the pain?

 

What are the dosages?

 

Are there any side effects?

 

What over the counter medications did the individual take in the past to try to alleviate the pain?

 

What were the dosages?

 

Were there any side effects?

 

What prescription medications does the individual currently take to try to alleviate the pain?

 

What are the dosages?

 

Are there any side effects?

 

What prescription medications did the individual take in the past to try to alleviate the pain?

 

What were the dosages?

 

Were there any side effects?

 

How effective was your past medication regiment in alleviating the pain?

 

How effective is your current medication regiment in alleviating the pain?

 

If dosages changed over time, why?

 

Treatments Other Than Medication

 

What other treatments other than medication has the individual received to alleviate their pain?

 

How effective were these treatments in alleviating your pain?

 

Are there any of type of treatments commonly provided under circumstances such as the individuals that were not provided? If yes why did the individual not get these treatments?

 

Did the individual see any local specialists?

 

Has the individual seen any regional specialists?

 

Did the individual change any doctors to get second opinions? If yes explain.

 

Has the individual attempted and tried all the treatment their doctors proscribed?

 

Daily Living

 

How does the pain effect the individual's pattern of daily living?

 

What is a typical day like for the individual?

 

Does the individual structure their daily activities in any way to minimize the pain in regards to avoiding physical activities or mental stressers that aggravate the symptoms?

 

Miscellaneous

 

What did the Social Security Employee who interviewed you when you first applied enter in the file about how the individual looked and acted?

 

What specific impact did the pain have on the last job the individual held?


Questions Helpful if Answered by a Doctor/Doctors in Questionnaire or in the Medical Records

 

What is the diagnoses primarily causing the pain?

 

What was the onset date for the diagnoses?

 

What things precipitate the pain?

 

What things aggravate the pain?

 

What is your opinion on the individual's treatment history?

 

How did the individual respond to past treatment?

 

What is your opinion on future treatment for the individual?

 

Has the pain remained static, improved or worse over the course of your treatment?

 

What is the individual's prognosis on the pain?

 

Is there anything else you want to state that would assist in determining the intensity, frequency, persistence and duration of the individual's pain?

 

Some Other Related Random Things

 

While this blog pertains to pain almost all these questions and law could also apply to individuals with chronic severe nervousness, shortness of breath, and weakness.

 

There are a few, somewhat narrow exceptions, for when Social Security will not penalize you for not following doctors. They include religious exemptions and serious cases of mental illness and severe side effects.

 

There are some forms of Mental Illness that actually reduce one's pain tolerance.

 

If you have Reflex Sympathetic Dystrophy Syndrome/Complex Regional Pain Syndrome (own SSR) they'll be a different spin on this issue. Likewise for Chronic Fatigue Syndrome (CFS) (also own SSR).

 

Much of the law in this area is written towards musculoskeletal issues to some degree. So that means anything to do with your bones, joints, spine and muscles. For example they use reduced joint motion, muscle spasm, sensory deficit or motor disruption as examples of proof from medical testing for part of the determination.

 

An individuals can get written statements about their pain and its effects on them from parents, relatives, good friends, guardians, therapists, social welfare agencies and public and private agencies. Whether these statements would help at all is another issue for another blog.

 

Don't think that Social Security is only asking these questions at the hearing. The majority of the questions are already answered before the hearing when the judge has already reviewed the entire file. The file to a large degree answers these questions for you. The problem is that you, like most people, don't actually know what is in your medical records. That is another blog topic.

 

On a related note Social Security is often also looking at any Workers Comp, Veterans Benefits and Private Disability Insurance Benefits records. You have no idea what is in those either. Another area where you want a good attorney really really taking a look in detail at all your records.

 

Social Security will not outright deny your claim if the medical testing does not support your persistance, duration, intensity and frequency of pain claims. It does make it much harder though.

 

Social Security says that they recognize that some individuals under almost the same exact medical circumstances could experience pain differently. I read this as some people have high tolerance and some people have low tolerance but we're not really going to get into that.  This is because if there even is such a thing as tolerance right now it can't be measured. Also people tend to equate pain tolerance with strength or weakness. 

 

 

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Damian Leone Esquire
Scranton Wilkes-Barre Northeastern Pennsylvania
Social Security Disability Attorney

(570) 677-3914

dleone@nepasocialsecurity.com