I often find myself talking with my clients in depth about the pain they are experiencing. Describing your pain accurately may be what wins your Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) claim.
Other than your medical records and possibly a medical expert, the only other information an Administrative Law Judge (ALJ) at your disability appeal can rely on is your testimony. That is a heavier responsibility than most people expect, and it is why I spend so much time on it before a hearing.
Pain is subjective, and that is the difficulty
Different claimants experience and tolerate pain at very different levels. Because pain is subjective, it can be hard to explain to the Social Security Administration (SSA) in a way that conveys how limiting your condition really is.
Many physical conditions cause pain, including back problems, fibromyalgia, diabetes, migraine headaches, COPD, and heart conditions. A claimant may experience pain not from a single condition but from a combination of them, and Social Security is required to consider all of your impairments together.
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What Social Security is required to consider
This is worth knowing before you testify. When your pain is more severe than the objective medical evidence alone would suggest, Social Security’s rules require the agency to consider a specific set of factors:
- Your daily activities
- The location, duration, frequency, and intensity of your pain
- What brings the pain on and what makes it worse
- The type, dosage, effectiveness, and side effects of your medication
- Treatment other than medication that you receive
- Any other measures you use for relief, such as lying down or changing position
- Any other factors concerning your functional limitations
The questions below are not arbitrary. They are how those factors get onto the record in your own words.
The questions I ask my clients
At a hearing I will often ask questions designed to help a client explain the pain they experience.
Where do you feel the pain?
Be specific about location. If you have pain in your back that radiates down your legs, say exactly that, and say which leg and how far down it travels.
What does the pain feel like?
Sharp, dull, burning, stabbing, aching, throbbing. Describe it in as much detail as you can. I will often ask clients to rate their pain on a zero to ten scale, with zero being no pain at all.
One caution about the numbers. Rate your pain honestly, including on your better days, and make sure the numbers you give are consistent with what appears in your medical records. If you have told your doctor your pain is a six on most days, saying it is a ten at your hearing raises a question you will then have to answer.
Consistency across your records, your function reports, and your testimony is what carries weight.
How often do you feel the pain?
Hourly, daily, weekly, or in episodes. If your pain fluctuates, describe the pattern rather than the average.
How long does the pain last?
Does it come and go, or last throughout the entire day? If you have flares that last several days, say how many days a month you lose to them.
Is there anything that makes it better or worse?
Do your medications help, and by how much? Does it help to lie down, and how long do you need to stay there? Do you need to change position frequently?
Do not leave out medication side effects. Drowsiness, difficulty concentrating, nausea, and dizziness are limitations in their own right, and they are among the factors Social Security is required to consider. Many people mention them to nobody because they treat them as the price of relief.
Does the pain affect your daily activities?
Is it too painful to sit, stand, or walk for even short periods? Can you do household chores such as laundry, cleaning, washing dishes, and cooking? Are there days you cannot leave the house?
When you answer, describe what an activity actually costs you. There is a large difference between “I do the laundry” and “I can do one load of laundry if I rest for an hour afterward, and I usually cannot manage it twice in a week.” Social Security’s standard is whether you can work on a regular and continuing basis, meaning eight hours a day, five days a week. What you can do once, on a good day, does not answer that question.
Judges are no longer assessing your credibility
This changed in 2016 and many people have not heard about it.
Social Security used to frame this analysis as an assessment of a claimant’s credibility. The agency deliberately eliminated that term. Adjudicators are now directed to limit their evaluation to your statements about your symptoms and the evidence in the record relevant to your impairments, and not to assess your overall character or truthfulness the way a court might in adversarial litigation.
In practice, a judge should not be discounting what you say about your pain because of your work history, a criminal record, or a past struggle with substance use. The question is whether your account is consistent with the medical and other evidence, not whether you come across as a trustworthy person.
If there are gaps in your treatment, explain them
Judges do notice when treatment has been inconsistent, and an unexplained gap can be read as evidence that your pain was manageable. Often that is not the reason at all.
Social Security is required to consider your explanation before drawing conclusions from a gap in treatment. If you could not afford care, lost your insurance, had no transportation, could not tolerate the side effects, or had already been told nothing more could be done, say so plainly. What harms a claim is the silence, not the gap.
Answer fully
It may make a real difference to answer questions completely. A simple yes or no is often not enough for a judge to understand how you experience pain.
Most disability hearings run under an hour, and walking out of the hearing room without having explained your pain properly is a difficult thing to undo. It is also worth saying that overstating is as risky as understating. An account that does not match the rest of your file invites scrutiny you do not need, while a measured, specific, consistent account is difficult to argue with.
If you would like to talk through what your hearing will involve, I offer a free consultation.
