Proving the Existence of Pain in the Disability Process

Administrative Law Judges (ALJs) who conduct disability hearings at the third step of a claimant’s appeal process are required to assess a claimant’s alleged disabling symptoms under Social Security’s regulations and rulings. See 20 C.F.R. §§ 404.1529 and 416.929; Social Security Ruling (SSR) 16-3p, 2017 WL 5180304 (October 25, 2017). However, recently, we have seen federal courts reversing hearing decisions because the ALJs have not properly considered our claimants’ symptoms (including pain).

Our client, Cathy M., testified that pain and numbness in her feet from peripheral neuropathy most impacted her ability to work. She struggled to complete daily activities, including grocery shopping, yardwork, housework, and personal care. Treatment records echoed her complaints and testing was consistent with diabetic peripheral neuropathy. The ALJ did not discuss relevant factors he should have considered (daily activities; location, duration, frequency of pain or other symptoms; precipitating and aggravating factors; type, dosage, effectiveness, and sided effects of medication taken to alleviate pain or other symptoms; and other treatment received) when considering Ms. M.’s pain and numbness. The federal court agreed with our argument that the ALJ failed to specifically discuss her complaints and, because of the error, her case was remanded for another hearing.

Felicia K. was diagnosed with fibromyalgia (as well as other degenerative conditions involving her back, hip and knees) by her doctor and she met the American College of Rheumatology’s criteria for the diagnosis which was confirmed upon repeated examinations. Ms. K. was not able to perform household tasks, personal care and grocery shopping without assistance. The ALJ discounted Ms. K.’s complaints of disabling pain, in part, based on normal examination findings. However, the federal court judge agreed that the lack of objective findings was not unusual, but rather normal, in fibromyalgia cases. Ms. K.’s claim was returned for another hearing and a proper symptoms analysis.

Steve C. suffers from multiple conditions including rheumatoid arthritis and sleep apnea. Mr. C. testified that he had joint pain in his knees, fingers, hands, wrists and feet. The ALJ in his case considered Mr. C.’s back, knee and cardiac impairments but did not discuss any of his symptoms–namely, fatigue and pain–stemming from his rheumatoid arthritis and sleep apnea. Again, the federal court judge determined that the ALJ’s symptoms analysis was improper and the case was returned for another hearing to consider the impact of Mr. C.’s rheumatoid arthritis and sleep apnea on his ability to work.

This is just a sample of recent court decisions involving errors made by ALJs when dealing with our client’s pain and other symptoms. For the past several years, federal courts have found fault with ALJ decisions in nearly six of every ten cases reviewed, sending them back to ALJs at Social Security for new hearings and new decisions, according to the agency’s statistics.

A pending Supreme Court case threatens how government agencies enforce regulations. The case threatens not only Social Security’s administrative process but many other regulations issued by governmental agencies. Many federal agencies issue regulations which control the operation of everything from food products to interpretation of Social Security disability law. The United States Supreme Court is taking a good look at this process to determine its legitimacy. The doctrine has been in practice for decades and provides the backbone of how most disability decisions occur. The Supreme Court in 1984 in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 838, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) gave considerable authority to administrative agencies in decision-making when the underlying laws were not specific enough to resolve disputes and issues. This year, the Supreme Court is looking at whether fishing regulations exceed the authority of Secretary of Commerce and the National Marine Fisheries Service, i.e., the power to “implement a comprehensive fishery management program.” This decision may effect Social Security disability regulations as well as a host of other agency regulations, and throw rule making and enforcement into chaos. Stay tuned to this issue.

Beyond the heroic actions of doctors, nurses, hospital workers,grocery store employees, many charitable organizations are recognizing this is the time to step up their game. We applaud the efforts of these individuals and organizations. A coalition of Northeast Ohio philanthropic, corporate and civic partners have joined together to create the Greater Cleveland COVID-19 Rapid Response Fund to deploy resources to nonprofit organizations serving on the frontlines of the pandemic in the region. The COVID-19 Rapid Response Fund has given sizable grants to multiple agencies in crisis, including shelters, food pantries, domestic abuse shelters, mental health organizations, youth service non-profits, organizations for vulnerable older adults, and the homeless. Grants exceed $6 million to date, and come from a variety of businesses, individuals and county donations. Although hardships lie ahead, our community is stepping up, both individually and collectively. Recent recipients include the Lutheran Metropolitan Ministry ($285,000), Project Hope for the Homeless ($22,000), Hunger Network of Greater Cleveland ($75,000), May Dugan Center ($50,000), University Settlement ($50,000): Murtis Taylor Human Services System ($70,000), David’s Challenge Young Achievers Ohio ($50,000), YWCA Greater Cleveland ($26,000)(emergency financial support (food cards, temporary housing, bus tickets, etc.) (“A Place 4 Me” initiative for homeless youth), Global Cleveland ($35,000), HOLA Ohio ($50,000), Refugee Services Collaborative ($50,000), The Spanish American Committee ($50,000), Cleveland Hearing & Speech Center ($75,000), Domestic Violence & Child Advocacy Center ($100,000), and Fairhill Partners ($55,000). In Columbus, the Columbus Foundation’s response has been equally impressive. “ We are one community. During times of crisis it is critical we join forces to support each other. The Foundation is committed to being a point of access for those who want to assist others, while also doing what we can with these resources to be of help to this community. ”