Will The Disability Judge Believe You?: Facts About Being “Credible”

Receipt of an unfavorable administrative law judge decision can be a devastating blow.  In Texas, and in most states, the wait just for an ALJ hearing is about 12 months.  The ALJ hearing is the most important stage of a disability case and it represents the best chances of victory in the claim. Claimants are typically and justifiably upset, sad, mad and angry when they lose at the hearing.  In reading their heart breaking “Unfavorable” decision, claimants are uniformly angry about the statements they find regarding their “credibility”.   Usually an ALJ denial decision includes language that the judge did not find the claimant “fully credible”.   Most claimants feel like the ALJ called them a liar. In 2016 Social Security issued a new ruling titled “Titles II and XVI: Evaluation of Symptoms in Disability Claims” which replaced another social security ruling, SSR 96-7p which was titled “Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements.” SSR 16-3p replaced language about the evaluation of the disability claimant’s “credibility” that was present in SSR 96-7p.   These ruling addressed the issue of assessing claimant credibility.  SSR 16-3p specifically eliminated the assessment of claimant “credibility” reading in part as follows:

“We are eliminating the use of the term “credibility” from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s character”

So let’s take a deep dive on this issue.  First some background. For many years social security has followed a specific 2-step analysis in determining whether the claimant’s symptoms are believable:

Step 1: Does the individual have a medically determinable impairment (MDI) that could reasonably be expected to produce the alleged symptoms? Step 2: Are the individual’s statements about the intensity, persistence, and limiting effects of the alleged symptoms consistent with the objective medical evidence?

Step 2 is where the “credibility” issue came into play.   Here is the typical language that is so offensive in a ALJ “Unfavorable” decision:

“After careful consideration of the evidence,the undersigned finds that the claimant’s medically determinable impairments couldreasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible.”

This language is an example of a very “bare bones” (and improper) evaluation of claimant symptoms under step-2.  The ALJ is required to support this conclusion that the claimant’s symptoms are not credible  based upon the following factors:

1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and restrictions due to pain or other symptoms.

Unfortunately, in my experience, ALJs have been very sloppy in supporting their “credbility” based denials with reference to this factors, using conclusory and cryptic language, such as statements that th claimant was not “fully credible” because the symptoms were not “consistent with or supported by the overall medical evidence of record”. So – what does SSR 16-3p change in the analysis of “credibility”?   The first item of note is that it does not change the 2-step evaluation of symptoms.  And it must be noted that merely removing the “offensive” terminology about “credibility” does not  mean more ALJs will find the claimant’s disability symptoms supported (i.e., the elimination of “credibility” from the lexicon is not likely to change denials to approvals).  However under SSR 16-3p ALJs will no longer be able to discount claimant testimony about symptoms based upon “character” issues such as a prior criminal record,  alcoholism, work record, etc.   Moreover, SSR 16-3p has some very ” helpful” language in winning a disability case:

• “inconsistencies in an individual’s statements made at varying times does not necessarily mean they are inaccurate.” (Denial-oriented ALJ hava made a practice of “cherry-picking” the medical evidence record to contradict claimant allegations)
• “increasing dosages and changing medicatons, trying a variety of treatments, referrals to specialists, or changing treatment sources  may be an indicaton . . . symptoms are a source of distress and  may show that they are intense and persistent.”
• SSA “will explain” how it considered the reasons the claimant  gave in its evaluaton of the individual’s symptoms.”
• Decision “must contain specific reasons for the weight given to  the individual’s symptoms, be consistent with and supported by  the evidence, and be clearly articulated”

Social Security Ruling 16-3p is a step in the right direction: it directs the Administrative Law Judge to consider the claimant’s symptoms in relation to the medical record and medical facts, and clarifys that the claimant’s character is not the issue in determining disability.