PAIN AND THE SOCIAL SECURITY ADMINISTRATION

1. PAIN AND THE SOCIAL SECURITY ADMINISTRATION James P. Robinson, M.D., Ph.D.

2. MY BACKGROUND • Work with Washington State L&I • IMEs • Chapter on SSDI/SSI • Expert consultant for ALJ - once! • Inner workings hard to grasp - contrast with L&I

3. SSA DISABILITY PROGRAMS • Social Security Disability Income (SSDI) 1) Disabled 2) Adequate work Hx; no means testing • Supplemental Security Income (SSI) 1) Disabled 2) No work requirement; means testing

4. DISABILITY • “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” (20 CFR Ch III [4-1-97 Edition], #404.1505)

5. MEDICALLY DETERMINABLE • A medically determinable physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques....[It] must be established by medical evidence consisting of signs, symptoms, and laboratory techniques - not only by the individual’s statement of symptoms.” (Disability evaluation under Social Security, p. 3)

6. IMPAIRMENT • An anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical and laboratory diagnostic techniques.

7. FEATURES OF SSDI/SSI • Big 1) SSD - 4.2 million; SSI - 5.0 million 2) 2.6 million evaluations/yr. (for SSD and SSI) • Public 1) Green Book; many books; Federal Register 2) Compare to private insurance company or L&I

8. FEATURES OF SSDI/SSI • Public discussion of issues related to pain • Cheap - $389.50 for DDS evaluations • Mainly paper reviews • Role of MD diminished • Non-medical data - friends, employer

9. DISABILITY EVALUATION • Disability Determination Service 1) Adjudicator + M.D. 2) Paper Review

10. DISABILITY EVALUATION • Questions 1) Working? 2) Medically determinable, severe impairment? 3) Meet or equal a “listing”? 4) Vocational issues

11. DISABILITY EVALUATION • Results 1) Cost = $389.50 2) Reliability = 94%

12. APPEALS - SSD + SSI • Awarded by DDS - 905,000 • Awarded by ALJ - 306,000 • Percent Awarded by ALJ = 25%

13. PAIN AND SSA • Data don’t show role of pain • Rucker - Pain involved in 50% of awards1 • Osterweis - Pain patients denied at step 22 • Commission on the Evaluation of Pain (1986) - 50% of appeals based because of improper evaluation of pain • Osterweis - Awards for pain often by ALJ2 1 - Rucker KS, Metzler HM. Predicting subsequent employment status of SSA disability applicants with chronic pain. Clin J Pain 1995;11:22-35. 2 - Osterweis M, Kleinman A, Mechanic D, eds. Pain and disability. Washington, D.C.: National Academy Press, 1987.

14. Social Security Ruling 96-3p • “Symptoms such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect an individual’s ability to do basic work activities unless the individual first establishes by objective medical evidence that he or she has a medically determinable physical or mental impairment...(that)... could reasonably be expected to produce the alleged symptoms.”

15. INTERPRETATIONS • Levin-Cohen - Claimant need not produce medical evidence of an impairment • Cotton - Must have underlying impairment that could reasonably cause pain. But no need for medical evidence to support severity of pain • Bates - Objective evidence or impairment + medical evidence to support severity of pain (Wofe F, Potter J. Fibromyalgia and work disability. Rheum Dis Clin N America 1996; 22: 369-91.)

16. INTERPRETATIONS • “The courts have had great difficulty in establishing a uniform standard as they struggle with the question of how to evaluate pain in determining disability. ..While the courts of appeal uniformly require that there be objective medical evidence to support the claimant’s allegation of pain, the courts have had difficulty applying the requirement of objective evidence.” (p. 468) (Schneider EK, Simeone JJ. Pain and disability under Social Security: Time for a new standard. J Health Law 2001; 34(3): 459-85.)

17. INTERPRETATIONS • Differences among Circuit Courts - Fourth, Sixth, Seventh, Eighth, Ninth, Eleventh • No common standard • Related Issues 1) Evaluation of credibility 2) Fibromyalgia

18. Social Security Ruling 96-7p • “Whenever the individual’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual’s statements based on a consideration of the entire case record.”

19. MY INTERPRETATION • Pain is subjective - if you are going to assess it, you must elicit self-report information from the patient. • Can you believe the information you get? • SSA addresses the correct issue

20. FIBROMYALGIA AND SSA • Prevalence of FM = 2% (in Witchita, KS)1 • 16.2% of Ss in FM cohort receiving “SSDI”2 1) 44.4% said award was given for FM • U.S. population (25 and over) = 182.2 million • # of awards for FM = 262,000 1 - Wolfe F, Ross K, Anderson J, et al. The prevalence and characteristics of fibromyalgia in the general population. Arthritis Rheum 1995;38:19-28. 2 - Wolfe F, Anderson J, Harkness D, et al. Work and disability status of persons with fibromyalgia. J Rheumatol 1997;24:1171-1178.

21. CONCLUSIONS? • SSA struggling with issue of pain and disability • Struggle is in the open - everyone else hides from pain • Credibility is emphasized • SSA system is inexpensive, low tech - compare to AMA system