On March 16, 2016, the Social Security Administration (SSA) published SSR 16-3p – Evaluation of Symptoms in Disability Claims. The new SSR supersedes SSR 96-7p – Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individuals’ Statements. https://www.federalregister.gov/articles/2016/03/16/2016-05916/social-security-ruling-16-3p-titles-ii-and-xvi-evaluation-of-symptoms-in-disability-claims.
In rescinding SSR 96-7p, SSA is proactively “eliminating” the use of the term credibility, and “clarifying” that “subjective symptom evaluation is not an examination of an individual’s character.” SSA instructs its adjudicators to consider all the evidence when evaluating the intensity and persistence of symptoms—once they have found a medical determinable impairment that could produce those symptoms.
The SSR generally tracks the regulatory language of 20 C.F.R. §§ 404.1529 & 416.929, including setting forth the two-step process for evaluating symptoms: whether the individual has a medically determinable impairment that could reasonably be expected to produce the alleged symptoms; and the extent to which, given the intensity and persistence of symptoms such as pain, the symptoms limit an individual’s ability to perform work-related activities for an adult, or function for a child.
The SSR lists the various sources that should be considered when evaluating symptoms, including the individual’s own statement, medical sources, and non-medical sources. It also spells out the factors in 20 C.F.R. §§ 404.1529(c)(3) & 416.929(c)(3), which include the seven factors previously delineated in SSR 96-7p, such as daily activities; location, duration, frequency, and intensity of pain or other symptoms; etc.
Adjudicators are to look for consistency of symptoms with objective medical evidence, including the consistency of the claimant’s own statements. The SSR acknowledges that inconsistencies in a claimant’s statements may not mean they are inaccurate. Because symptoms may vary, an individual’s statements describing them may vary. Whether an individual seeks and/or follows medical treatment should also be taken into consideration. The SSR notes that persistent attempts to obtain relief, such as changing or increasing doses of medication, trying different treatment, seeing specialists or changing treatment sources, may support a claimant’s allegations. At the same time, less frequent or intense treatment, or failure to follow treatment may be a basis for a finding of inconsistency. But adjudicators must consider the reasons why the claimant did not comply with or seek treatment. The SSR provides a list of possible reasons that could prove helpful to advocates, including the inability to afford treatment; the inability to recognize the need for treatment due to mental or language limitations; or accommodations made by the individual, such as avoiding physical activities or mental stressors, to minimize symptoms.
Per SSR 16-3p, it is not sufficient for an adjudicator to make a single, conclusory statement that “the individual’s statements about his or her symptoms have been considered,” or that “the statements about the individual’s symptoms are (or are not) supported or consistent.” Adjudicators must base their findings on evidence in the case record, and are prohibited from soliciting non-medical evidence outside of the record. They also must limit their evaluation to the individual’s statements and the evidence of record. They must not assess “an individual’s overall character or truthfulness in the manner typically used for an adversarial court litigation.”
Time will tell whether this new SSR will be used for or against claimants. SSA undoubtedly would like this SSR to generate better reasoned, more defensible decisions. But at first blush, there may be helpful nuggets for advocates to grab and run with—at least for now…
SSR 16-3 will be effective on March 28, 2016.