by John M. FitzGerald
Social Security regulations require claimants to prove they are disabled as a “result of anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms” (20 CFR 404.1508).
A symptom is your own description of your physical or mental impairment. SSA regulations make clear that “statements about your pain or other symptoms will not alone establish that you are disabled.” That makes it more difficult to prove disability in instances when subjective complaints such as pain, fatigue, shortness of breath, weakness, or nervousness prevent you from working, but you can’t afford to go the doctor or pay for medicines (20 CFR 404.1529).
SSA Assesses Your Credibility at Every Stage of the Process
Your file probably contains the opinions of medical and administrative personnel as to whether your allegations are credible. But nowhere does that assessment become more apparent than at the hearing stage, when a judge has a chance to read the file and meet you face to face.
Judges must consider whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the pain or other symptoms. Once that has been shown, the judge must evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit ability to do basic work activities.
SSA acknowledges that objective medical evidence alone cannot always prove or disprove your symptoms exist at the level of severity alleged. So the judge is required to “make every reasonable effort to obtain available information that could shed light on the credibility” of your statements (20 CFR 404.1529).
In general, SSA defines credibility as “the extent to which an individual’s statements about symptoms can be relied upon as probative evidence in determining whether the individual is disabled.”
In evaluating credibility, the judge must consider the entire case record and give specific reasons for the weight given to the individual’s statements. The assessment must be grounded in evidence and articulated in the decision. Allegations concerning the intensity and persistence of pain or other symptoms may not be disregarded solely because they are not substantiated by objective medical evidence. Consistency of your early statements with later statements, and with statements and observations of others all come into play. Medical treatment history is also considered.
But What If You Can’t Afford to Go to the Doctor or Pay for Prescriptions?
Rulings provide that an adjudicator “must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re-contact the individual or question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations provided by the individual may provide insight into the individual’s credibility. For example:
- – Your daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms. The individual may be living with the symptoms, seeing a medical source only as needed for periodic evaluation and renewal of medications.
- – Your symptoms may not be severe enough to prompt the individual to seek ongoing medical attention or may be relieved with over-the-counter medications.
- – You may not take prescription medication because the side effects are less tolerable than the symptoms.
- – You may be unable to afford treatment and may not have access to free or low-cost medical services.
- – You may have been advised by a medical source that there is no further, effective treatment that can be prescribed and undertaken that would benefit the individual.
- – Medical treatment may be contrary to the teaching and tenets of the individual’s religion.”
A recent Seventh Circuit case held that the judge must not draw any inferences about a claimant’s condition from failure to follow a treatment plan or infrequent treatment unless the judge has explored the claimant’s explanations as to the lack of medical care. The Court cites inability to afford treatment as one reason that can “provide insight into the individual’s credibility.” So a judge must question a claimant about lack of treatment or noncompliance, and failure to do so may be grounds for appeal.
The lesson for claimants, then, is to make sure that these facts get into their records. Tell your doctor if you cannot afford the medications prescribed to you, or if you do not have insurance and cannot seek treatment as often as you need to. In the end, the key to credibility is consistency, but where the facts are inconsistent, some reasonable explanation needs to be offered.